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M05 > Chapter 1 - Law and Legal Systems > Flashcards

Chapter 1 - Law and Legal Systems Flashcards

1
Q

What case is generally regarded as a separate form of nuisance? and an example of strict liability- that is, liability that can arise even where there is no fault or negligence?

A

Rylands v Fletcher 1868

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2
Q

2 examples of consolidating acts

A

The Road Traffic Act 1988

The European Partliament and control directive

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3
Q

As parliament doesn’t have time to lay down all intricate rules and often law down general framework of rules- what is the term given to persons of power to make detailed rules and regulations for the purpose of implementing the act?

A

Delegated legislation

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4
Q

Under Marine Insurance what happens if there is an actual total loss

A

Abandonment is automatic

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5
Q

The general purpose of law of torts is to protect peoples rights by allowing them to sue - why?

A

If their interests are invaded, threatened or harmed

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6
Q

If an assignment does not comply with all the requirement for a statutory assignment how will it still take effect?

A

equitable assignment

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7
Q

What three forms does trespass to land take?

A

Unlawful entry onto the land of another

Unlawfully remaining on the land of another

Unlawfully placing or throwing any material object upon the land of another

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8
Q

Assignment of insurance contracts can occur in what 3 ways

A

Assignment of the subject matter

Assignment of the benefit of the contract

Assignment of the contract itself

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9
Q

What is the general rule when an authorised agent contracts on behalf of a disclosed principal?

A

They ‘drop out’ when the contract is made

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10
Q

Public Law vs Private (Civil) Law

A

Public = concerned with legal structure between state and individual members of community (Regulation of legal system itself)

Private (Civil) = damages and injuries related to negligence (Regulation of individuals)

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11
Q

Public Law vs Private (Civil) Law

A

Public = concerned with legal structure between state and individual members of community

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12
Q

Areas of public law

A

Constitutional law = structure of govt and different relationships within govt

Administrative = part of constitutional. relationship between private citizens and govt and the impact of their general activities on ordinary people

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13
Q

Consolidating act vs codifying act

A

Consolidating = Repealing all previous legislation on a subject and re-enacts it in one logically arranged statute

Codifying Act = Consolidates but also includes principals embodied in case law

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14
Q

Enabling Act

A

Acts which lay down general rules conferred with persons or bodies (such as Govt officials)

In other words - a legislative act conferring certain specified powers on a person or organization

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15
Q

What is a ‘literal rule’ and what are it’s subsidiary principals

A

A rule that takes precedent over others (given their natural meaning)

  • ‘Noscitur a sociis rule’ = word must be determined by its context
  • ‘Ejusdem general rule’ = the meaning of any general term depends upon any specific words which precede it.
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16
Q

Civil court route

A

Magistrates

County&raquo_space;> (Can go Div and follow below)&raquo_space;> Court of Appeal (Civil)
Divisional&raquo_space;> High court (Chancery Div, Family Div, QBD)&raquo_space;> Court of Appeal (Civil)

Supreme court

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17
Q

Criminal court route

A

Magistrates
Crown Court
Court of Appeal (Criminal)
Supreme Court

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18
Q

Where are minor cases usually dealt with (civil and criminal)

A 
Civil = County Court
Criminal = Magistrates
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19
Q

Ratio decidendi meaning and what is it based on

A

Means ‘reason for the decision’, based on:

  • The material facts of the case
  • The decision of the judge
  • The reasons for the decisions
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20
Q

Obiter Dicta

A

Judges expression/opinion in court, but not essential to decision and is not legally binding

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21
Q

Binding precedent

A

Courts bound by higher courts and sometimes same court,e.g:

  • Court of appeal (crim)
  • Court of appeal(civil)
  • but not each other
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22
Q

Disagreement

A

When a court does not follow previous case as it was wrongly decided

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23
Q

Distinguish

A

Does not follow previous case as it is seen as different

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24
Q

Local custom

A

Law of a particular area

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25
Q

Institutions of European Union

A
  • Council
  • Commission
  • European Parliament
  • Court of Justice
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26
Q

Sources of European Union

A
  • The Treaties
  • Regulations
  • Directives
  • Decisions
  • Recommendations
  • Opinions
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27
Q

3 tracks for cases - outlined by Woolf Report ‘Access to Justice’ 1996

A

Made by District Judge in County Court or District/Master Judge in High court

  • Small claims track = disputes up to £10,000 (bar personal injury/housing disrepair which is up to £1,000
  • Fast track = Straightforward disputes up to £25,000
  • Multi track = Cases more than £25,000 or lower if it is seen as a case that is complicated/last more than 1 day
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28
Q

Solicitors (Lawyers) work

A
  • Advice on buying a home
  • Matters of family law
  • Advice on commercial deals
  • Represent clients in court - mainly in lower courts but sometimes in higher courts via advocacy rights
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29
Q

Barristers (Lawyers) work

A
  • Act on instructions of solicitors (little contact with public)
  • 2 main roles
    • Specialist opinion on complex matters of law
    • When clients need representation in higher courts, they provide a specialist advocacy service
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30
Q

‘Corporations’ (Juristic/non human entities) split into 2

A

Corporations sole = A legal person representing an official position which will be occupied by a series of different people, example includes the Queen

Corporations aggregate = A legal person consisting of a number of people, formed by 3 ways and one being the Chartered Corporations by Royal Charter

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31
Q

The chancery division is the division of

A

The high court

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32
Q

The Marine insurance Act 1906 is an example of

A

Codyfying act

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33
Q

The effect of the European Communities Act 1972 on statutory interpretation is that English courts must

A

Adopt a pursuasive approach

apply domestic legislation in line with european community obligations

take into account judgements from the european court of justice

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34
Q

The Crown consists of

A

the armed forces

govt ministers

the privy council

the reigning monarch

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35
Q

The final court of appeal for a number of commonwealth countries is the

A

Judicial Committee of the Privy Council

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36
Q

What legal personality best describes a person who is subject to a bankruptcy order?

A

A natural legal person

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37
Q

A persuasive precedent (reference for courts to follow, but not binding) may be set by

A

o a decision made in the lower courts.
o a decision made by the Judicial Committee of the Privy Council.
o obiter dicta (opinion but not binding) of senior judges in a high-level decision.

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38
Q

What roles are typically carried out by solicitors in England and Wales?

A

o Drawing up contracts for the sale or purchase of property.
o Offering professional advice on matters of family law.
o Representing corporate clients in the lower courts

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39
Q

The UK Parliament consists of

A

o House of Commons
o House of Lords
o Monarchy

40
Q

The law commission is responsible for

A

consolidation and revision of statute law

41
Q

The principal of equity is best described as

A

an add-on that addresses concerns not covered under common law

42
Q

Enforcement action is arguably simpler tin civil court rather than criminal court as

A

the burden of proof is lower

43
Q

Which two branches of civil law have most relevance in the context of insurance?

A

Contracts and torts

44
Q

A 17 year old in full time education can

A

o Be fully responsible for his criminal actions

o Be a beneficiary of a trust

45
Q

Agency by estoppel

A

Agent that has never been appointed

46
Q

3 most important forms of delegated legislation

A

Statutory instruments

Orders by council

Bye-laws

47
Q

3 most important forms of delegated legislation

A

Statutory instruments

Orders by council

Bye laws

48
Q

Statutory law is also known as

A

Common law

49
Q

Maximum liability method

A

The loss is shared by insurers in proportion to the maximum amount of cover that is available under each policy is equivalent to the sum insured

50
Q

Non-indemnity (contingent insurance)

A

insurers agree to pay specified sum. Do not have to prove they have suffered loss

51
Q

Actionable per se

A

Where you do not have to prove you have suffered loss or damage

52
Q

Assignment of an insurance contract can occur in 3 ways

A

Assignment of the subject matter

assignment of the benefit of the contract

assignment of the contract itself

53
Q

Why does the law require insurable interest?

A

To reduce moral hazard and wagering

54
Q

Equitable assignment

A

if an assignment does not comply with all the requirement for a statutory assignment, this is how it will still take affect

55
Q

Agency by estoppel

A

Agent that has never been appointed. Also a term given to a person who may ‘hold out’ another person being their agent when the latter has no authority at all, when the third party is deceived.

56
Q

4 examples of codifying acts

A

Bills of exchange act 1882

the partnership act 1890

the sale of goods act 1979

the marine insurance act 1906

57
Q

Unlike corporations, what are unincorporated associations not treated like?

A

Not generally treated as seperate legal entities

58
Q

For a disclosed principal, the third party can enforce the contract against each other but the agent can neither nor be sued on it- what are the three exceptions to this rule?

A

Agent who signs a deed may be liable for it

Trade custom sometimes make the agent personably liable

Agents who sign their name on a negotiable instrument may be liable

59
Q

What case estabished a new test based on foreesability: damage would be too remote if it was a type which was not reasonably foreseebale

A

Overseas Tankship (UK) Ltd v Mort’s Dock and Enginerring co LTD (1961)

60
Q

What is the famous case that established the tort of negligence- duty of care?

A

Donoghue v Stevenson 1932

61
Q

What 3 ways can apparent authority arise

A

The principal has restricted the authority

The apparent agent has never been appointed at all

Unknown to the third party the authority of the agent has been terminated

62
Q

What does the principal of obiter dicta translate as

A

things said by the way

63
Q

What does it mean by a member who makes a contract on behalf of an unincorporated association has a personal liability under the contract

A

this means that a member who arranges insurance is personally liable to pay for the cover. the other members of the club will only be liable if they authorise of ratify the contract.

64
Q

What are the three categories for contracts made by minors

A
  • Contracts which are binding - bound for nexessaries such as food and clothing
    • Contracts which are binding unless repudiated - leases, partnerships etc
    • Contracts which are not binding - whihc are not necessaries and to borrow money
65
Q

For duty of disclosure when do pre-contractual information duties commence

A

at the commencement of negotiations and come to an end once the contract is concluded

66
Q

What is the effect of the Consumer Rights Act 2015

A

subject terms to a ‘fairness test’ with the burdon of proof on the consumer

67
Q

What is the effect of the Unfair contract terms act 1977

A

Applies to business contracts

Makes reference to ‘reasonableness test’- burden of proof of reasonableness on the party seeking to rely on the restrictive term

68
Q

What are the key characteristics of a legal partnership

A

all partners must agree to the appointment of a new partner

it is in business with a view of making profit

69
Q

5 ways a contract can be discharged

A

Performance

Breach

Frustration

Agreement

Operation of law

70
Q

What happens if under express actual authority are ambiguous

A

No liability will fall on the agent provided that they acted in good faith

71
Q

A pursuasive precedent is set by

A

A decision made by lower courts

A decision made by the Judicial Committee of the Privy Council

Obitor Dictor of senior judges

72
Q

When do insurance contracts come into existence

A

when the offer made by one party is unconditionally accepted by the other

73
Q

Is the supreme court bound by its own decisions

A

No

74
Q

What 3 ways can terms be implied

A

Express

Implied

By custom or usage

75
Q

A joint policy is ‘indivisible’, what does this mean

A

A breach by one insured may cause the whole whole policy to fail

76
Q

Statutory assignment is where what happens

A

The assignment of a debt or chose in action transfers the underlying legal right to the assignee

77
Q

What 2 ways can an equitable assignment take place

A

The assignor inform the assignee that they transfer the chose to them or

The assignor instructs the debtor to discharge the obligation of payment

78
Q

Can agency be automatically be terminated by bankruptcy

A

No

Can by Lapse of time, mutual agreement, performance, death of principal

79
Q

A charactertic of a limited company is

A

its activities are defined in the memorandum of association

80
Q

Under statutory assignment what are the 3 ways an assignment must be

A

Absolute

In writing (although no particular form is necessary)

Expressly made in writing to the debtor or trustee

81
Q

Is there insurance interest on future profits

A

No

82
Q

Is there insurance interest if the cost of replacing a key employee if there were to die

A

Yes

83
Q

What type of insurance would an insurer NOT be able to reject a legitimate claim on the basis it was outside the stipulated period

A

Employers liability insurance

84
Q

What rights, if any, does an equitable assignee have in relation to an insurance contract

A

They may benefit from a claim made with the assignor

85
Q

What legal personality best describes a person who is subject to a bankruptcy order

A

A natural legal person

86
Q

One of the requirements for a claimant to succeed in an action of trespass to the person is

A

Intention

87
Q

Special rules apply to employers liability insurance in respect of the

A

Avoidance of liability for breach of condition or warranty

88
Q

In what type of contracts, if any, is the use of basis of the contract clauses legally permitted

A

In neither consumer or non consumer insurance policies

89
Q

What remedy is available to an insurer where a. Commercial policyholder has breached a collateral condition concerning a minor matter

A

Claim for damages

90
Q

What statute permits the third party victim of a motor accident to make a direct claim against the motor insurer of the negligent driver who caused the accident

A

The Road Traffic Act 1988

91
Q

If a policyholder wishes to take out a life insurance policy insurer Theron own life expressly for the benefit of a third party, they can arrange this legally by

A

Establishing a trust for the third party

92
Q

Two property insurance policies cover the same loss but the policy terms and conditions differ. Following a claim, which method of calculating contribution is most likely to be used

A

The independent liability method

93
Q

Joe has been injured in a motor accident. Under section 152 of the road traffic act 1988, he has the right to make a direct claim against the insurer of the negligent driver, sally, if he

A

Had an unsatisfied court judgement against sally

94
Q

If an insurance claim is disputed and causation is an issue, what approach will a court take when looking to identify the proximate cause of the loss

A

It will rely on the common understanding of causation by a normal person

95
Q

Which type of insurance CANNOT have it’s annual limit of liability exhausted but a series of partial losses

A

Motor third party bodily injury cover

96
Q

What legal remedies, are available to an insurer who has suffered a loss as a result of an insured’s unreasonably late payment of a claim (2)

A

Contractual damages

Interest on any sims due under the policy

M05 (10 decks)

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