No, no, no, not that
It’s Day 3 of the 2017 Salt Lake Institute of Genealogy — and the pace is picking up.
But The Legal Genealogist can’t allow her faithful readers to suffer the pangs of withdrawal, so… once again…
The term of the day (a reprise from 20141):
Now stop that.
Just stop that.
I know what you’re thinking, and you’re wrong.
Yeah, I know that naked means, well, naked in some parts of the law. As in not being out in public naked, a matter that’s illegal just about everywhere in the United States.2
No, here today we’re exposing … um… looking at … um … focusing on the word in its purely legal sense.
And, in the law, it means, “as a term of jurisprudence, this word is equivalent to bare, wanting in necessary conditions, incomplete.”3
So you’ll see the word used, for example, when a criminal court or police court record of some kind talks about a “naked confession” — “a confession of crime which is unsupported by any evidence of the commission of the offense.”4
You’d have a naked confession where a person comes in to the police station and confesses to having walked around downtown for two hours while naked… and there’s not a shred of other evidence that any crime was ever committed.
You’ll see the word used in some business records and in court records in the phrase “naked deposit” — a “bailment of goods to be kept for the depositor, without hire or reward on either side.”5
You’d have a naked deposit where you leave your car parked at my house during a trip, but you’re not paying me to take care of it. It comes up in the context of lawsuits when something bad happens to the thing that was left (the car gets sideswiped by my teenage nephew) and you sue me (and I defend on the grounds that I didn’t have any legal obligation to keep your car safe).
You’ll see the word used in a lot of court and particularly probate court records in the phrase “naked power” — a power “which is simply collateral and without interest in the donee, which arises when, to a mere stranger, authority is given of disposing of an interest, in which he had not before, nor has by the instrument creating the power, any estate whatsoever.” 6
When, for example, in John’s will, he directs his old buddy Rufus to deliver a horse to John’s nephew Zacharias, Rufus has the naked power to take possession of the horse from the estate, transport it to wherever Zacharias is, and hand over the reins.
And you’ll see the word used the same way in those same records in the phrase “naked trust” — a “passive trust; one which requires no action on the part of the trustee, beyond turning over money or property” to the intended beneficiary.7
But you’ll probably see it most often in civil court records and court opinions where the dispute is over a contract and whether the contract is valid, and the argument is that it’s a “naked contract” — “a contract devoid of consideration, and therefore invalid.”8
And there, you’ll often run into it in its Latin form, nudum pactum: “A contract made without a consideration,; it is called a nude or naked contract, because it is not clothed with the consideration required by law, in order to give an action.”9
And consideration is…
Well, why don’t we consider that as a term of the day some other time…?
- Judy G. Russell, “Term ofg the day: naked,” The Legal Genealogist, posted 13 Jan 2014 (http://www.legalgenealogist.com/blog : accessed 25 Jan 2017). ↩
- Okay, it’s true that there are some nude beaches and places like that. But for the most part, even when it’s not freezing out, running around in your birthday suit is frowned on. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 798, “naked.” ↩
- Ibid., “naked confession.” ↩
- Ibid., “naked deposit.” ↩
- Ibid., “naked power.” ↩
- Ibid., “naked trust.” ↩
- Ibid., “naked.” ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 25 Jan 2017), “nudum pactum.” ↩