Chapter 1 - Law and Legal Systems Flashcards
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?
Rylands v Fletcher 1868
2 examples of consolidating acts
The Road Traffic Act 1988
The European Partliament and control directive
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?
Delegated legislation
Under Marine Insurance what happens if there is an actual total loss
Abandonment is automatic
The general purpose of law of torts is to protect peoples rights by allowing them to sue - why?
If their interests are invaded, threatened or harmed
If an assignment does not comply with all the requirement for a statutory assignment how will it still take effect?
equitable assignment
What three forms does trespass to land take?
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
Assignment of insurance contracts can occur in what 3 ways
Assignment of the subject matter
Assignment of the benefit of the contract
Assignment of the contract itself
What is the general rule when an authorised agent contracts on behalf of a disclosed principal?
They ‘drop out’ when the contract is made
Public Law vs Private (Civil) Law
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)
Public Law vs Private (Civil) Law
Public = concerned with legal structure between state and individual members of community
Areas of public law
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
Consolidating act vs codifying act
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
Enabling Act
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
What is a ‘literal rule’ and what are it’s subsidiary principals
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.
Civil court route
Magistrates
County»_space;> (Can go Div and follow below)»_space;> Court of Appeal (Civil)
Divisional»_space;> High court (Chancery Div, Family Div, QBD)»_space;> Court of Appeal (Civil)
Supreme court
Criminal court route
Magistrates
Crown Court
Court of Appeal (Criminal)
Supreme Court
Where are minor cases usually dealt with (civil and criminal)
Civil = County Court Criminal = Magistrates
Ratio decidendi meaning and what is it based on
Means ‘reason for the decision’, based on:
- The material facts of the case
- The decision of the judge
- The reasons for the decisions
Obiter Dicta
Judges expression/opinion in court, but not essential to decision and is not legally binding
Binding precedent
Courts bound by higher courts and sometimes same court,e.g:
- Court of appeal (crim)
- Court of appeal(civil)
- but not each other
Disagreement
When a court does not follow previous case as it was wrongly decided
Distinguish
Does not follow previous case as it is seen as different
Local custom
Law of a particular area
Institutions of European Union
- Council
- Commission
- European Parliament
- Court of Justice
Sources of European Union
- The Treaties
- Regulations
- Directives
- Decisions
- Recommendations
- Opinions
3 tracks for cases - outlined by Woolf Report ‘Access to Justice’ 1996
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
Solicitors (Lawyers) work
- 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
Barristers (Lawyers) work
- 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
‘Corporations’ (Juristic/non human entities) split into 2
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
The chancery division is the division of
The high court
The Marine insurance Act 1906 is an example of
Codyfying act
The effect of the European Communities Act 1972 on statutory interpretation is that English courts must
Adopt a pursuasive approach
apply domestic legislation in line with european community obligations
take into account judgements from the european court of justice
The Crown consists of
the armed forces
govt ministers
the privy council
the reigning monarch
The final court of appeal for a number of commonwealth countries is the
Judicial Committee of the Privy Council
What legal personality best describes a person who is subject to a bankruptcy order?
A natural legal person
A persuasive precedent (reference for courts to follow, but not binding) may be set by
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.
What roles are typically carried out by solicitors in England and Wales?
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
The UK Parliament consists of
o House of Commons
o House of Lords
o Monarchy
The law commission is responsible for
consolidation and revision of statute law
The principal of equity is best described as
an add-on that addresses concerns not covered under common law
Enforcement action is arguably simpler tin civil court rather than criminal court as
the burden of proof is lower
Which two branches of civil law have most relevance in the context of insurance?
Contracts and torts
A 17 year old in full time education can
o Be fully responsible for his criminal actions
o Be a beneficiary of a trust
Agency by estoppel
Agent that has never been appointed
3 most important forms of delegated legislation
Statutory instruments
Orders by council
Bye-laws
3 most important forms of delegated legislation
Statutory instruments
Orders by council
Bye laws
Statutory law is also known as
Common law
Maximum liability method
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
Non-indemnity (contingent insurance)
insurers agree to pay specified sum. Do not have to prove they have suffered loss
Actionable per se
Where you do not have to prove you have suffered loss or damage
Assignment of an insurance contract can occur in 3 ways
Assignment of the subject matter
assignment of the benefit of the contract
assignment of the contract itself
Why does the law require insurable interest?
To reduce moral hazard and wagering
Equitable assignment
if an assignment does not comply with all the requirement for a statutory assignment, this is how it will still take affect
Agency by estoppel
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.
4 examples of codifying acts
Bills of exchange act 1882
the partnership act 1890
the sale of goods act 1979
the marine insurance act 1906
Unlike corporations, what are unincorporated associations not treated like?
Not generally treated as seperate legal entities
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?
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
What case estabished a new test based on foreesability: damage would be too remote if it was a type which was not reasonably foreseebale
Overseas Tankship (UK) Ltd v Mort’s Dock and Enginerring co LTD (1961)
What is the famous case that established the tort of negligence- duty of care?
Donoghue v Stevenson 1932
What 3 ways can apparent authority arise
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
What does the principal of obiter dicta translate as
things said by the way
What does it mean by a member who makes a contract on behalf of an unincorporated association has a personal liability under the contract
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.
What are the three categories for contracts made by minors
- 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
For duty of disclosure when do pre-contractual information duties commence
at the commencement of negotiations and come to an end once the contract is concluded
What is the effect of the Consumer Rights Act 2015
subject terms to a ‘fairness test’ with the burdon of proof on the consumer
What is the effect of the Unfair contract terms act 1977
Applies to business contracts
Makes reference to ‘reasonableness test’- burden of proof of reasonableness on the party seeking to rely on the restrictive term
What are the key characteristics of a legal partnership
all partners must agree to the appointment of a new partner
it is in business with a view of making profit
5 ways a contract can be discharged
Performance
Breach
Frustration
Agreement
Operation of law
What happens if under express actual authority are ambiguous
No liability will fall on the agent provided that they acted in good faith
A pursuasive precedent is set by
A decision made by lower courts
A decision made by the Judicial Committee of the Privy Council
Obitor Dictor of senior judges
When do insurance contracts come into existence
when the offer made by one party is unconditionally accepted by the other
Is the supreme court bound by its own decisions
No
What 3 ways can terms be implied
Express
Implied
By custom or usage
A joint policy is ‘indivisible’, what does this mean
A breach by one insured may cause the whole whole policy to fail
Statutory assignment is where what happens
The assignment of a debt or chose in action transfers the underlying legal right to the assignee
What 2 ways can an equitable assignment take place
The assignor inform the assignee that they transfer the chose to them or
The assignor instructs the debtor to discharge the obligation of payment
Can agency be automatically be terminated by bankruptcy
No
Can by Lapse of time, mutual agreement, performance, death of principal
A charactertic of a limited company is
its activities are defined in the memorandum of association
Under statutory assignment what are the 3 ways an assignment must be
Absolute
In writing (although no particular form is necessary)
Expressly made in writing to the debtor or trustee
Is there insurance interest on future profits
No
Is there insurance interest if the cost of replacing a key employee if there were to die
Yes
What type of insurance would an insurer NOT be able to reject a legitimate claim on the basis it was outside the stipulated period
Employers liability insurance
What rights, if any, does an equitable assignee have in relation to an insurance contract
They may benefit from a claim made with the assignor
What legal personality best describes a person who is subject to a bankruptcy order
A natural legal person
One of the requirements for a claimant to succeed in an action of trespass to the person is
Intention
Special rules apply to employers liability insurance in respect of the
Avoidance of liability for breach of condition or warranty
In what type of contracts, if any, is the use of basis of the contract clauses legally permitted
In neither consumer or non consumer insurance policies
What remedy is available to an insurer where a. Commercial policyholder has breached a collateral condition concerning a minor matter
Claim for damages
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
The Road Traffic Act 1988
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
Establishing a trust for the third party
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
The independent liability method
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
Had an unsatisfied court judgement against sally
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
It will rely on the common understanding of causation by a normal person
Which type of insurance CANNOT have it’s annual limit of liability exhausted but a series of partial losses
Motor third party bodily injury cover
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)
Contractual damages
Interest on any sims due under the policy
