Definitions Flashcards
Trust
A legal relationship created (in lifetime or on death) by a settlor through which assets are placed under the control of a trustee either for the benefit of a beneficiary or a specified purpose
Specific performance
A court compelling a person to carry out a promise which they have given to another
Injunction
A court order compelling a person to do something or prohibiting them from doing something
Promissory estoppel
an insured who has broken a warranty cannot enforce the contract unless they can prove that the insurers clearly indicated, by their words or conduct, that they do not intend to rely on the breach of warranty as a defence to further liability under the policy, e.g. renewing the policy
Private Members’ Bills
Bills which are introduced by individual Members of Parliament rather than by Government and unless they have Government support are unlikely to become law
Consolidating Act
One which repeals all previous legislation on a subject and re-enacts it in one logically arranged statute; no new law is created but existing statutory enactments are brought under one umbrella
Codifying Act
Sometimes Government may decide not only to consolidate current legislation on a particular topic, but to include also principles embodied in case law. Therefore in most cases all the law on a particular topic, including existing statute and case law is reduced to a single code.
Retroactive (retrospective) legislation
Legislation which affects acts done or rights acquired before it came into effect
Delegated legislation
Acts of Parliament often law down only a general framework of rules, leaving the detail to be filled in by civil servants in the appropriate ministry, so rules are conferred
Enabling Acts (Parent Acts)
Acts which confer power on persons or bodies (particularly Government Ministers)
Delegated (subordinate) legislation
Rules made under the authority of Enabling Acts, which have the same legal force as primary legislation
Statutory instruments
Most Enabling Acts which give Ministers and their civil servants power to enact delegated legislation, stipulate that the powers in question are to be exercised in the form of departmental regulations or orders, known collectively as statutory instruments
Orders in council
When power of special importance is delegated by statute, such as power concerning constitutional matters, it is usually conferred on the Privy Council. An Order in Council is drafted by a minister and comes into force when approved by a meeting of the Privy Council where at least 3 Privy Councillors are present. The powers in question are effectively exercised by the Cabinet.
Bye-laws
Statutory authority may be given to certain bodies, particularly local authorities, to make bye-laws which are of local application - require the approval of the appropriate Minister
Common law rule
Rules which the courts themselves have developed to assist with interpretation
Literal rule
According to the rule, words and phrases should be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied. If, applying this rule, a clear meaning emerges, then this must be applied. The courts will not try to establish whether this represents what Parliament intended when the legislation was passed.
‘Noscitur a sociis’ rule
Subsidiary literal rule - a general principle that a word must be determined by its context
‘Ejusdem generis’ rule
Subsidiary literal rule - under this rule the meaning of any general term depends upon any specific words which precede it
Golden rule
Where the meaning of words in a statute, if strictly applied, would lead to an absurd result, and there is an alternative interpretation which avoids the absurdity, the courts are entitled to choose that latter meaning and to assume that Parliament did not intend the absurdity
Mischief rule
Sometimes called the rule in Heydon’s case, from the decision in 1584 in which it was first set out. Under this rule, the judge will consider the meaning of the words in the Act in the light of the abuse or ‘mischief’ which the Act was intended to correct, and choose the interpretation which makes the Act effective in suppressing this mischief.
Tort
Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages
Unliquidated
The amount of damages is not fixed in advance but will be decided by the court, according to the seriousness of the injury that has been caused
Liquidated
The parties to a contract will have agreed, in advance, a fixed amount of compensation to be paid if there is a breach of contract
Assault
Any act which directly causes the claimant to fear an attack on their person
Battery
The hostile application by the defendant of physical force, even though it might be slight, to the claimant
Malice
Not just personal spite or ill-will but any improper motive
False imprisonment
Occurs when the defendant imposes total bodily restraint on the claimant, preventing them from going where they want to go. No physical contact is necessary.
Conversion
(Trespass to goods) If the defendant deliberately deals with the goods which is inconsistent with the rights of the person who owns or possesses them, they can be sued for conversion; in this case the defendant does more than merely meddle or interfere with the goods
Trespasser ‘ab initio’
If a person enters land lawfully but abuses their right to be there they are treated as a trespasser from the moment they entered the land
Land
Generally includes anything beneath its surface and all space above the land so tunnelling beneath or crossing the airspace of another may be a trespass. Non-consumer organisations often have statutory power to work beneath private land to extract coal or other minerals, and similarly, aircraft operators are generally permitted to overfly private land.
Reasonable foreseeability
A duty of care is owed to another person if it is reasonably foreseeable that they will be affected by one’s acts or omissions
‘Thin skull’ or ‘eggshell skull’ cases
Cases where the damage is not reasonably foreseeable because it results from some pre-existing physical weakness or defect in the claimant of which the defendant is not aware
Novus actus interveniens
New intervening case
Primary victims
Persons who suffer shock through fear for their own safety - the first category of claimant to be recognised by English law
Secondary victims
Persons who suffer shock through fear for the safety of others. As the 20th century progressed, the law came to recognise claims by persons who suffered shock through fear for the safety of persons other than themselves.
Public nuisance
The carrying on of an activity which is likely to cause inconvenience or annoyance to the public, or a section of the public, or interference with a right common to all
Private nuisance
An unlawful interference with a person’s use or enjoyment of their land (which includes houses and buildings attached to it)
Strict liability
Liability that can arise even where there is no fault or negligence, developed in Rylands vs. Fletcher and is generally regarded as a separate form of nuisance
Vicarious liability
When one person is held liable for wrongs committed by another - therefore not a tort or wrong in itself but a way in which liability may be imposed: a person may be directly liable for their own torts or vicariously liable for the torts committed by others
Defamation
A false statement about a person which causes injury to that person’s reputation. Takes two forms:
- Libel
- Slander
Libel
The defamatory statement is in a permanent form, e.g. an email, text, posting on social media or in a written publication
Slander
The statement is in a transient (non-permanent) form - will usually take the form of defamatory speech or possible defamatory gestures
Defamatory statement
A statement is defamatory if it is false and exposes the claimant to ‘hatred, ridicule or contempt or lowers them in the eyes of right-thinking members of society generally’
Volenti non fit injuria
No legal wrong is done to a person who consents, however the defence is based on the proposition that the claimant consented not to a deliberate act but to the risk of negligence by the defendant, therefore the defence is sometimes known as ‘assumption of risk’
Contributory negligence
The claimant is partly to blame for the injuries which they have suffered at the hands of another
Limitation period
The time allowed for an action to be brought - begins on the date on which the cause of action accrues
Cause of action
The situation which gives rise to the claimant’s right to sue the defendant, and in the law of torts the date in question is usually the date when the damage or injury was sustained by the claimant
Special damages
The claimant is required to give notice when they make their claim against the defendant and which they must prove strictly at trial; precise financial assessment
General damages
Do not require strict pleading and proof from the claimant because they relate to losses which the law automatically presumes to result from the tort; cannot be precisely quantified but only assessed on the basis of what a ‘reasonable man’ would deem appropriate to compensate for the loss. The purpose of general damages is to compensate the claimant for the injury/loss sustained.
Aggravated damages
In certain torts (e.g. assault, trespass) the court may award additional damages to reflect the fact that the motives and conduct of the defendant have aggravated the injury suffered, by injuring the claimant’s sense of dignity or pride
Exemplary (punitive) damages
Awards which exceed the loss which has actually been suffered and intended to punish the defendant for their conduct
Nominal damages
Where a person has committed a tort which is actionable per se (libel or trespass) but no real loss has been caused to the claimant, the court may award a nominal (e.g. token) sum to mark the fact the defendant was in the wrong
Contemptuous damages
The award of a tiny sum (traditionally the smallest coin of the realm) to mark the court’s low opinion of the claim of the claimant or record their disapproval of the claimant’s conduct
Injunction
A court order commanding the defendant either to do a particular thing or refrain from doing it
Mandatory injunction
A court order commanding the defendant to do a particular thing (such as knock down a wall which is blocking a right of way)
Prohibitory injunction
A court order commanding the defendant to refrain from doing a particular thing (such as publish a libellous book)
Actionable per se
Actionable in itself - the claimant does not have to provide that they have suffered loss or damage, only that the tort has been committed
Contract under seal
A formal contract which is in writing and is witnessed, and which originally had to be sealed and delivered; some contracts must be in this form to be valid
Simple (informal) contract
A contract which does not need to be in writing and witnessed, or which originally had to be sealed and delivered
Unilateral contract
Only one party to the contract is legally bound. The offeror makes the offer and cannot argue that they are not bound by the contract when their offer is accepted. Once their offer is accepted (no one has to accept the offer but they may choose to accept it), the offeror is bound by their promise.
