Chapter 4-8 Flashcards
Civil Law distinctions
Claimant, proof is balance of probs, decisions liable/not libel, compensation, remedies are damages
Criminal Law distinctions
Prosecution, proof is beyond reasonable doubt, guilty/not, punishment, and remedies are fines or prison
Common Law
law created by judges through their application of principles of judicial precedent. added certainty
Equity Law
fairness is the principle. where common and equity law conflict, equity will prevail. gloss to the common law
UK Statute legislation process
Green Paper, White Paper, First Reading, Second Reading, Committee Stage, Report Stage, Third Reading. Must be completed by both houses, then royal assent
public acts
government or private member bills
private acts
power relating to individuals, such as a company given power to acquire land through compulsory purchases (Olympics)
Enabling acts
those acts that confer legislative abilities to designated bodies
Consolidating legislation
designed to bring together existing acts without emending them
codifying legislation
Bringing together existing statute with common law rules such as Partnership Act 1890
Orders in Council
Delegated legislation - created by non party political body of parliamentarians known as the privy council
statutory instruments
delegated legislation - created by government ministers
Advantages of delegated legislation
time saving, expertise, flexibility (laws can be changed quickly)
Disadvantages of delegated legislation
Accountability, scrutiny, bulk (3000 SIs per year leading to increasing bureaucracy and compliance costs for UK business)
Control of delegated legislation
Parliment and Courts (may declare any piece of delegated legislation ultra vires and void
Ultra Vires
Beyond capacity
Canons of Statutory Intepretation
When reading acts. Does not alter common law, no retrospective effect, does not deny liberty, crown is not bound, international laws not broken, strict liability will not be imposed, eiusdem generis
Eiusdem Generis
when a general list of words follows a specific example, list will be interpreted in lught of the specific example
Literal rule of intepretation
words will be given their dictionary meaning
Golden rule of interpretation
when application of literal rule results in a manifest absurdity
Mischief Rule of Intepretation
enable the judge to intepret a statute in such a way as the give the statute the lawful effect for which it was intended
Intrinsic Aids for intepretation
The title, the preamble, schedules of the act
Extinsic aids for intepretation
Interpretation act,, hansard, dictionary, reports of commissions (such as law commission reports)
Primary EU Law
Treaties - directly applicable
Secondary EU Law
Regulations (directly applicable and binding); directives (not directly applicable, left to members to alfter national law within 2 years); Decisions (binding to recipiant states and individuals, relate to operation of EU law); recommendations (no formal legal effect, but persuasive)
Legislative Procedure of EU
ECJ (final authority on communitee law); Council of Ministers (responsible for adoption of legislation proposed by commission); Commission (propose draft legislation); European Parliment (advisory and debating body which council of ministers brings law into effect)
Stare Decisis
to stand by a decision
Heirarchy of courts UK
Supreme Court (binds all lower courts, but not itself); court of appeal (binds all lower courts, and itself); High Court (binds all lower courts, and usually itself); Crown, magistrate, county (cannot create precedent)
Judge reaching a decision
examine the facts to detemine material facts, consider the law, apply the law
Ratio Decidendi
reason for decision - binding element
Obiter Dicta
Statements made by the way - non binding but persuasive
When established presidents are not binding
Overruling; reversing; per incuriam (decision made without care); distinguishing (president is avoided by demonstating material facts are different)
Advantages of State Decisis
Certainty, reform & flexibility; bulk
Disadvantages of State Decisis
Danger of illogical decisions, rigidity, unconsitiutional, retrospective (law reactive rather than proactive
Country that use codified legal systems
France, Germany, Poland, Italy, Greece, Cyprus
USA System of Law
Operates at national and state level, with federal law prevailing. Constitution seen as supreme law of the land. Federal Legislation introduced by two chambers of congress. Law of president
Chinese System of Law
administered through system of 800,000+ mediation committees
Primary sources of Sharia Law
Qur’an, Sunnah (directions approved by Prophet), unanimity of the diciples of Muhammed
5 Pillars of Islam
Obligatory, meritorious, permissible, reprehensible, forbidden
Tort Defined
wrongful act act against an individual which gives rise to a civil claim
Claimant must prove for a tort to exist
duty of care owed; breach of that duty; breach of duty caused harm; losses were not too remote
Duty of care qualification
was harm caused reasonably foreseen? was there sufficient proximity? Would it be fair, just and reasonable to impose duty of care?
Standard of care owed by individual
Skilled persons (e.g. qualified accountant); likelihood of injury; seriousness of risk; cost and practicality
Causation Test
- Causation for fact - ‘but for’ test. 2. causation on law - claiment must prove the is no novus actus intervenius
Novus Actus Intervienus
break in chain of causation
Defences for a tort
avoid, avoid (known risk on behalf of claiment), reduce (claimant has contibuted to injury); limit (tort should be brought forward within 6 years)
Negligent misstatements
special relationship with defendent to establish duty of care. e.g. accountants, auditors, options given in professional capacity, client suffers economic loss
