Definitions & Cases Flashcards
1
Q
/A fortiori/
A
An even stronger argument from the same premises (or principles).
2
Q
/A priori/
A
Reasoning from first principles or from an assumed premise.
3
Q
/Ab initio/
A
From the beginning.
4
Q
/Actus reus/
A
The acts or facts which must be present to constitute a crime (c.f. mens rea)
5
Q
Affidavit
A
Sworn written evidence
6
Q
Agency
A
Acting for and in the name of another (c.f. Principal (1)).
7
Q
Appellant
A
The party appealing against a decision.
8
Q
Appellate
A
Relating to appeals.
9
Q
Bailment
A
The temporary transfer of possession (but not ownership) of a chattel, e.g. on loan, on hire, for transport, repair or storage.
10
Q
Beneficiary
A
Specifically, a person entitled to all or part of the assets of a trust. More generally, the person for whose benefit something is done
11
Q
/Bona fide/
A
in good faith
12
Q
Cause of action
A
a ground upon which an action may be brought/maintained – an action being the lawful demand of one’s rights.
13
Q
/C.f./
A
short for the Latin: confer/conferatur. Compare with.
14
Q
CPR
A
Civil Procedure Rules.
15
Q
Chattel
A
An item of tangible personal property.
16
Q
/Chose in action/
A
An item of intangible personal property, e.g. a debt
17
Q
/Chose in possession/
A
A chattel
18
Q
Contributory Negligence
A
Where the claimant is partly responsible for harm he has sustained. Results in a broadly proportional reduction in the damages awarded.
19
Q
Company
A
separate legal entity that is usually owned by its shareholders and controlled by its directors
20
Q
Claimant
A
person who brings the claim (formerly referred to as the Plaintiff)
21
Q
Claim form
A
formal document needed to start a case (formerly referred to as a Writ in the High Court or a summons in the county court)
22
Q
Deed
A
A document in solemn form creating an obligation or transferring property.
23
Q
What’s the difference between a deed and a contract?
A
Deeds have to be written, whereas a contract can be verbal and written. contracts require ‘consideration’ (i.e. something is given in return), deeds do not.
24
Q
Is a trust a deed?
A
A Declaration of Trust in a property, or any interest in a property, must be evidenced in writing. However, it does not necessarily have to be by deed (a trust can be made verbally). In reality, Declarations of Trust are usually prepared as deeds to avoid any suggestion that there is not a valid contract between the parties.
25
Dissenting
usually referring to judgment of judge or opinion of Law Lord that diverges from the majority view. Can occasionally be resurrected as the ratio of the case (see below) by later courts.
26
Distinguish
Find a material difference between two cases, so as to apply different legal rules to them.
27
Distress
A seizure of goods to satisfy a debt e.g. non-payment of rent.
28
Equity
A system of rules developed by the courts of Chancery to supplement the rules of the Common Law and based on a stylised notion of conscientious behaviour.
29
Estoppel
A rule of law whereby a party who has behaved as though the facts are not as they actually are, will be prevented from alleging the true facts and asserting his rights based on them, if others have relied on his original behaviour.
30
Fiduciary
As a noun, a person who acts for another subject to strict rules of conduct and who can be called to account for failure to serve the other's interests to the full, e.g. a trustee or a solicitor. Also used as an adjective in the same general sense.
31
/Ex parte application/
one where only the applicant is heard (from 1999 this is referred to as a hearing “without notice”)
32
/Ex parte/
in a case title also indicates the applicant to the court in a judicial review or similar proceedings.
33
Guardian /ad litem/
The person who acts for a person under disability (a minor or mentally incompetent) to represent their interests in family proceedings.
34
/Ibid/
Before
35
/Infra/
Below
36
Interim hearings
preliminary hearings that arise before trial – can lead to grant of interim orders (used to be referred to as interlocutory hearings/orders).
37
Injunction
An order of the court requiring a party to do or refrain from doing something. May be permanent, or a temporary order to preserve the status quo pending trial (interim injunction).
38
/Inter vivos/
Between living parties. Can distinguish a gift from a disposition by will.
39
/Intra vires/
Within the powers of a body whose powers are limited by law
40
Legal persons
Entities which are regarded by the law as being capable of acting or being acted against (although they're not biologically a person)
41
Lien
Right to retain chattel as security for money due
42
Liquidated
A fixed, determinate sum of money to compensate the victim for loss
43
Liquidation
Process of winding up the affairs of an entity, generally because it is insolvent
44
Litigation friend
Person who acts for a party in civil proceedings who is under a disability
45
/Locus standi/
Right to be heard in a case
46
Malfeasance
Doing a wrongful act
47
Misfeasance
Improper performance of a lawful act
48
/Mens rea/
State of mind necessary for a given crime to be committed
49
/Mutatis mutandis/
With the necessary changes made
50
Natural persons
Human beings (not companies)
51
/Nemo dat [quod non habet]/
No one can pass on a better title to a chattel than that which he has
52
/Nisi/
Provisional. Applies to wide range of orders which can be set aside if further evidence comes to light
53
Nonfeasance
Failure to do something which should be done
54
/Novus actus interveniens/
An intervening act which breaks the chain of causation
55
/Obiter dictum/
Observations by a judge which do not form part of the /ratio decidendi/
56
On all fours with
Raising the same issues as another case
57
/Pari passu/
Ranking equally
58
Partnership
Two or more individuals joining together to trade or practise a profession
59
/Per/
From the judgement of
60
/Per contra/
On the contrary
61
/Per curiam/
By the court as a whole
62
/Per incuriam/
In error. Usually refers to a decision made by the court without reference to a relevant binding authority.
63
Pleading
Now known as a statement of case
64
/Prima facie/
On the face of it
65
Principal
(1) The person for whom an agent acts (2) A capital sum
66
Privity
Being in direct relations with another
67
/Pro bono/
Legal work done voluntarily and gratuititously
68
/Quantum meruit/
Award based on the value of goods or services provided, rather than on a contract price
69
/Ratio decidendi/
The central reasoning of a case
70
/Re/
Concerning or in respect of
71
/Real property/
Land and interests in land
72
/Res ipsa loquitur/
Shifts burden of proof so the defendant has to prove he is not to blame
73
/Restitutio in integro/
Restoring money or property to re-establish the initial position
74
/State decisis/
Doctrine of precedent
75
Statement of case
Legal basis/document upon which the claimant makes his case/the defendant resists
76
/Subpoena/
Summons
77
/Supra/
Above
78
Term of art
Word or phrase with a particular meaning in law
79
Tortfeasor
Someone who commits a tort
80
Trust
An arrangement whereby property is held by a trustee on behalf of a beneficiary
81
Trustee in bankruptcy
A person who administers the affairs of an insolvent individual
82
/Ultra vires/
Invalid or unlawful because it's outside the scope of the powers of the person/organisation acting
83
Void
Of no legal effect
84
Voidable
A transaction which is tainted with fraud, duress, or some other vitiating factor, but which is nonetheless provisionally valid until effectively set aside
85
/Volenti [non fit injuria]/
Someone who consents cannot later complain that his legal rights have been infringed
86
Waiver
Releasing, abandoning, or reducing a justified claim against another
87
Witness statement
Unsworn written evidence
88
Bankruptcy
liquidation by arrangement
89
Conveyance
any assurance of property or an interest by any instrument except a will
90
Bequest
gift of personal property, not land, via will
91
Devise
gift of real property via will
92
Pecuniary Legacy
gift of money in a will
93
Gift of residue
Transfer of estate left after all debts/liabilities have been discharged and all specific gifts have been made WITHOUT receiving anything/any obligation in return
94
Fixed Trust
Could have more than one beneficiary, but each will have fixed entitlement
95
Discretionary Trust
Shares of each beneficiary are not fixed. Distribution of assets is at discretion of trustees.
96
Life Tenant
Beneficiary entitled to receive equitable interest in property during their lifetime
97
Remainder
Beneficiary who receives trust assets after life tenant has died
98
Class gift
two or more beneficiaries share a gift. Size of share depends on how many members are in the class
99
Contingent Gift
Beneficiary only receives gift if they satisfy conditions
100
Ambulatory
Effective from date forward
101
Salomon v Salomon & Co (1897)
ISSUE IN SALOMON V SALOMON
The case concerned claims of certain unsecured creditors in the liquidation process of Salomon Ltd., a company in which Salomon was the majority shareholder, and accordingly, was sought to be made personally liable for the company’s debt. Hence, the issue was whether, regardless of the separate legal identity of a company, a shareholder/controller could be held liable for its debt, over and above the capital contribution, so as to expose such member to unlimited personal liability.
RULING IN SALOMON V SALOMON
The Court of Appeal, declaring the company to be a myth, reasoned that Salomon had incorporated the company contrary to the true intent of the then Companies Act, 1862, and that the latter had conducted the business as an agent of Salomon, who should, therefore, be responsible for the debt incurred in the course of such agency.
The House of Lords, however, upon appeal, reversed the above ruling, and unanimously held that, as the company was duly incorporated, it is an independent person with its rights and liabilities appropriate to itself, and that “the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are”. Thus, the legal fiction of “corporate veil” between the company and its owners/controllers4 was firmly created by the Salomon case.
102
What are the 3 principal business structures in the UK?
(1) Sole proprietorship
(2) Partnerships
(3) Registered companies
103
What are the three main categories of registered companies in the UK?
(1) Limited and unlimited
(2) Limited by shares and limited by guarantee
(3) Public (ltd) and private (plc)
104
What are the capital requirements for public and private companies?
Private: £1/share
Public: Allotted share capital of at least £50,000
105
What is corporate personality?
Company is distinct from the people running it. It can own property in its own name, enter into contracts, and commit tortious acts
106
What happens if an unlimited company doesn't fulfil its contractual obligations?
Owners are personally accountable for company's liabilities
107
What happens if a limited company doesn't fulfil its contractual obligations?
Owners are liable solely for the amount which was agreed beforehand. Their personal assets are shielded
108
What's the difference between limitation of liability by shares or guarantee?
Shares = member liability is limited to the amount they paid for their shares
Guarantee = members guarantee that if the company becomes insolvent they will contribute up to a fixed amount
109
Prest v Petrodel Resources Ltd (2013)
The judgement in Prest clarified that piercing the corporate veil would only be possible when company law had been used to evade liability, although this alone would not be enough, and that even where such impropriety had arisen, it would usually be possible to apply another area of law in order to grant a remedy
110
What are the three types of partnership recognised in England and Wales?
(1) General or ordinary partnerships (Partnership Act 1980)
(2) Limited partnerships (Limited Partnership Act 1907)
(3) Limited liability partnerships (Limited Liability Partnerships Act 2000)
111
Do general/ordinary partnerships have separate personality?
No - they have no formal disclosure/filing requirements, no perpetual succession, no separate taxation
112
Do limited liability partnerships have separate personality?
Yes - they have formal disclosure/filing requirements, perpetual succession, no separate taxation
113
Which statute governs how to set up a registered company?
Companies Act 2006
114
What is a company secretary?
In the context of British businesses, the company secretary helps the director to run the company. They are typically responsible for keeping records, filing paperwork with Companies House and communication with shareholders.
115
What are two ways companies can allow for piercing of the corporate veil?
Evasion and concealment
116
How many directors are required for a registered company?
Private companies must have one director. Public companies must have two directors. At least one must be a natural person.
117
Are directors fiduciaries?
Yes. They have statutory duties as fiduciaries but they are also company employees, so they have employment/service contracts.
118
What is the difference between a shareholder and a member
A shareholder owns shares in a company limited by shares. If there is no share capital, then it's a member.
119
What are the three basic routes to becoming a shareholder?
Allotment, transfer and transmission
120
What is an ordinary resolution?
A shareholder resolution that is passed by a simple majority of shareholders.
121
What are the two forums for public companies?
General meetings and class meetings.
122
What is the accepted notice for a meeting?
14 days
123
What are the two methods of voting at a general meeting?
(1) Show of hands (2) Poll vote (takes # shares into consideration)
124
Do states have legal personality under international law?
Yes, they can enter into contracts, sue and be sued, impose sanctions, and sign and ratify treaties
125
What are the criteria for statehood, and what is the authority?
Montevideo Convention on the Rights and Duties of States (1933)
Permanent population
Defined territory
Government
Capacity to enter into relations with other States
126
What are the two sources of international law?
International treaties/conventions and international custom
127
What is the definition of a treaty and what is the authority?
Vienna Convention on the Law of the Treaties (1969)
A treaty is an international agreement concluded between States in written form and governed by international law
128
What's the difference between monist and dualist theory?
Monism is that international and domestic law form one and the same legal order. Where the two conflict, international law prevails.
Dualism is that international law and domestic law operate in different areas and do not belong to the same realm. International law is not seen as superior to domestic law.
129
Why is the European Union considered 'sui generis'?
It's a unique international organisation in terms of its creation/complexity
130
Van Gend en Loos v Nedelandse Administratie de Belastingen?
EU has primacy over national laws of member states
Establishes direct effect principle - that a provision of EU law is a right that is capable of being enforced by an individual before national courts
131
When did the European Union formally replace the European Community, and what was the authority?
Treaty of Lisbon, 2009
132
How is the European Parliament set up?
Direct elections
Universal suffrage
Every 5 years
Number of MEPs reflects population and size of member states
Covers legislative and budgetary functions
133
How is the European Council set up?
Heads of State of the member states with voting powers
President of the European Council - elected by majority of European Council for 2.5 years, renewable once
President of the Commission
These people all set strategic direction for the Union
Resolves disputes between EU institutions and Member States
134
How is the Council of the European Union set up?
Ministerial-level representatives from the member states
Have ten different policy configuriations
Covers legislative and budgetary functions
Has a 6 month presidency that rotates through member states
135
How is the European Commission set up
One national from each Member State
Has to be committed to Europe/independent
Commission President is like a PM
Has legislative, administrative, executive, quasi-judicial powers
136
How is the Court of Justice of the European Union set up
One judge from each Member State, assisted by eleven Advocates General
6 year terms
137
What are the sources of EU law
Primary law - Treaties, charters
Secondary law - legislative acts (Regulations, Directives, Decisions)
138
What are the two parts of the Treaty of Lisbon
Treaty on European Union (replaces the TEU of the Maastricht Treaty)
Treaty on the Functioning of the European Union (replaces European Community Treaty)
139
What's an EU Regulation
Has general application
Directly applicable into the domestic legal orders of the Member States
140
What's an EU Directive
Result oriented
Must be transposed/implemented into national law by each Member State
141
What's an EU Decision
Direction that is addressed to either a Member State or private party
142
What are the two EU legislative procedures
Ordinary legislative procedure
Special legislative procedure
143
What are the categories of Retained EU Law
EU-derived domestic legislation
Direct EU legislation (regulations only)
Directly effective provisions of EU law
EU and domestic case law
General principles of EU law
144
What are the mechanisms for enforcement of EU law
Direct effect
Indirect effect
State liability
145
What are the requirements for direct effect
The provision of EU law must be (1) clear and precise (2) unconditional (3) not dependent on further action by a Member State or the EU
146
Which provisions get vertical or horizontal effect?
Treaty articles and provisions get vertical and horizontal
Provisions in directives are vertical only
147
What is indirect effect?
National courts can give full effect to binding EU law
148
What is state liability?
Member states can be held liable in damages in the national courts for breaches of EU law
149
What are the requirements for state liability and what is the authority?
Factortame III
Rule of law infringed must have intended to confer rights on individuals
Breach must be sufficiently serious
There must be a direct causal link between the breach and the damage
