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LP&E > Definitions & Cases > Flashcards

Definitions & Cases Flashcards

1
Q

/A fortiori/

A

An even stronger argument from the same premises (or principles).

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2
Q

/A priori/

A

Reasoning from first principles or from an assumed premise.

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3
Q

/Ab initio/

A

From the beginning.

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4
Q

/Actus reus/

A

The acts or facts which must be present to constitute a crime (c.f. mens rea)

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5
Q

Affidavit

A

Sworn written evidence

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6
Q

Agency

A

Acting for and in the name of another (c.f. Principal (1)).

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7
Q

Appellant

A

The party appealing against a decision.

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8
Q

Appellate

A

Relating to appeals.

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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.

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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

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11
Q

/Bona fide/

A

in good faith

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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.

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13
Q

/C.f./

A

short for the Latin: confer/conferatur. Compare with.

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14
Q

CPR

A

Civil Procedure Rules.

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15
Q

Chattel

A

An item of tangible personal property.

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16
Q

/Chose in action/

A

An item of intangible personal property, e.g. a debt

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17
Q

/Chose in possession/

A

A chattel

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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.

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19
Q

Company

A

separate legal entity that is usually owned by its shareholders and controlled by its directors

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20
Q

Claimant

A

person who brings the claim (formerly referred to as the Plaintiff)

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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)

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22
Q

Deed

A

A document in solemn form creating an obligation or transferring property.

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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.

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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.

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25
Q

Dissenting

A

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.

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26
Q

Distinguish

A

Find a material difference between two cases, so as to apply different legal rules to them.

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27
Q

Distress

A

A seizure of goods to satisfy a debt e.g. non-payment of rent.

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28
Q

Equity

A

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.

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29
Q

Estoppel

A

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.

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30
Q

Fiduciary

A

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.

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31
Q

/Ex parte application/

A

one where only the applicant is heard (from 1999 this is referred to as a hearing “without notice”)

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32
Q

/Ex parte/

A

in a case title also indicates the applicant to the court in a judicial review or similar proceedings.

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33
Q

Guardian /ad litem/

A

The person who acts for a person under disability (a minor or mentally incompetent) to represent their interests in family proceedings.

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34
Q

/Ibid/

A

Before

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35
Q

/Infra/

A

Below

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36
Q

Interim hearings

A

preliminary hearings that arise before trial – can lead to grant of interim orders (used to be referred to as interlocutory hearings/orders).

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37
Q

Injunction

A

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).

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38
Q

/Inter vivos/

A

Between living parties. Can distinguish a gift from a disposition by will.

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39
Q

/Intra vires/

A

Within the powers of a body whose powers are limited by law

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40
Q

Legal persons

A

Entities which are regarded by the law as being capable of acting or being acted against (although they’re not biologically a person)

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41
Q

Lien

A

Right to retain chattel as security for money due

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42
Q

Liquidated

A

A fixed, determinate sum of money to compensate the victim for loss

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43
Q

Liquidation

A

Process of winding up the affairs of an entity, generally because it is insolvent

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44
Q

Litigation friend

A

Person who acts for a party in civil proceedings who is under a disability

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45
Q

/Locus standi/

A

Right to be heard in a case

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46
Q

Malfeasance

A

Doing a wrongful act

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47
Q

Misfeasance

A

Improper performance of a lawful act

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48
Q

/Mens rea/

A

State of mind necessary for a given crime to be committed

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49
Q

/Mutatis mutandis/

A

With the necessary changes made

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50
Q

Natural persons

A

Human beings (not companies)

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51
Q

/Nemo dat [quod non habet]/

A

No one can pass on a better title to a chattel than that which he has

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52
Q

/Nisi/

A

Provisional. Applies to wide range of orders which can be set aside if further evidence comes to light

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53
Q

Nonfeasance

A

Failure to do something which should be done

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54
Q

/Novus actus interveniens/

A

An intervening act which breaks the chain of causation

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55
Q

/Obiter dictum/

A

Observations by a judge which do not form part of the /ratio decidendi/

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56
Q

On all fours with

A

Raising the same issues as another case

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57
Q

/Pari passu/

A

Ranking equally

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58
Q

Partnership

A

Two or more individuals joining together to trade or practise a profession

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59
Q

/Per/

A

From the judgement of

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60
Q

/Per contra/

A

On the contrary

61
Q

/Per curiam/

A

By the court as a whole

62
Q

/Per incuriam/

A

In error. Usually refers to a decision made by the court without reference to a relevant binding authority.

63
Q

Pleading

A

Now known as a statement of case

64
Q

/Prima facie/

A

On the face of it

65
Q

Principal

A

(1) The person for whom an agent acts (2) A capital sum

66
Q

Privity

A

Being in direct relations with another

67
Q

/Pro bono/

A

Legal work done voluntarily and gratuititously

68
Q

/Quantum meruit/

A

Award based on the value of goods or services provided, rather than on a contract price

69
Q

/Ratio decidendi/

A

The central reasoning of a case

70
Q

/Re/

A

Concerning or in respect of

71
Q

/Real property/

A

Land and interests in land

72
Q

/Res ipsa loquitur/

A

Shifts burden of proof so the defendant has to prove he is not to blame

73
Q

/Restitutio in integro/

A

Restoring money or property to re-establish the initial position

74
Q

/State decisis/

A

Doctrine of precedent

75
Q

Statement of case

A

Legal basis/document upon which the claimant makes his case/the defendant resists

76
Q

/Subpoena/

A

Summons

77
Q

/Supra/

A

Above

78
Q

Term of art

A

Word or phrase with a particular meaning in law

79
Q

Tortfeasor

A

Someone who commits a tort

80
Q

Trust

A

An arrangement whereby property is held by a trustee on behalf of a beneficiary

81
Q

Trustee in bankruptcy

A

A person who administers the affairs of an insolvent individual

82
Q

/Ultra vires/

A

Invalid or unlawful because it’s outside the scope of the powers of the person/organisation acting

83
Q

Void

A

Of no legal effect

84
Q

Voidable

A

A transaction which is tainted with fraud, duress, or some other vitiating factor, but which is nonetheless provisionally valid until effectively set aside

85
Q

/Volenti [non fit injuria]/

A

Someone who consents cannot later complain that his legal rights have been infringed

86
Q

Waiver

A

Releasing, abandoning, or reducing a justified claim against another

87
Q

Witness statement

A

Unsworn written evidence

88
Q

Bankruptcy

A

liquidation by arrangement

89
Q

Conveyance

A

any assurance of property or an interest by any instrument except a will

90
Q

Bequest

A

gift of personal property, not land, via will

91
Q

Devise

A

gift of real property via will

92
Q

Pecuniary Legacy

A

gift of money in a will

93
Q

Gift of residue

A

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
Q

Fixed Trust

A

Could have more than one beneficiary, but each will have fixed entitlement

95
Q

Discretionary Trust

A

Shares of each beneficiary are not fixed. Distribution of assets is at discretion of trustees.

96
Q

Life Tenant

A

Beneficiary entitled to receive equitable interest in property during their lifetime

97
Q

Remainder

A

Beneficiary who receives trust assets after life tenant has died

98
Q

Class gift

A

two or more beneficiaries share a gift. Size of share depends on how many members are in the class

99
Q

Contingent Gift

A

Beneficiary only receives gift if they satisfy conditions

100
Q

Ambulatory

A

Effective from date forward

101
Q

Salomon v Salomon & Co (1897)

A

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
Q

What are the 3 principal business structures in the UK?

A

(1) Sole proprietorship
(2) Partnerships
(3) Registered companies

103
Q

What are the three main categories of registered companies in the UK?

A

(1) Limited and unlimited
(2) Limited by shares and limited by guarantee
(3) Public (ltd) and private (plc)

104
Q

What are the capital requirements for public and private companies?

A

Private: £1/share
Public: Allotted share capital of at least £50,000

105
Q

What is corporate personality?

A

Company is distinct from the people running it. It can own property in its own name, enter into contracts, and commit tortious acts

106
Q

What happens if an unlimited company doesn’t fulfil its contractual obligations?

A

Owners are personally accountable for company’s liabilities

107
Q

What happens if a limited company doesn’t fulfil its contractual obligations?

A

Owners are liable solely for the amount which was agreed beforehand. Their personal assets are shielded

108
Q

What’s the difference between limitation of liability by shares or guarantee?

A

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
Q

Prest v Petrodel Resources Ltd (2013)

A

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
Q

What are the three types of partnership recognised in England and Wales?

A

(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
Q

Do general/ordinary partnerships have separate personality?

A

No - they have no formal disclosure/filing requirements, no perpetual succession, no separate taxation

112
Q

Do limited liability partnerships have separate personality?

A

Yes - they have formal disclosure/filing requirements, perpetual succession, no separate taxation

113
Q

Which statute governs how to set up a registered company?

A

Companies Act 2006

114
Q

What is a company secretary?

A

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
Q

What are two ways companies can allow for piercing of the corporate veil?

A

Evasion and concealment

116
Q

How many directors are required for a registered company?

A

Private companies must have one director. Public companies must have two directors. At least one must be a natural person.

117
Q

Are directors fiduciaries?

A

Yes. They have statutory duties as fiduciaries but they are also company employees, so they have employment/service contracts.

118
Q

What is the difference between a shareholder and a member

A

A shareholder owns shares in a company limited by shares. If there is no share capital, then it’s a member.

119
Q

What are the three basic routes to becoming a shareholder?

A

Allotment, transfer and transmission

120
Q

What is an ordinary resolution?

A

A shareholder resolution that is passed by a simple majority of shareholders.

121
Q

What are the two forums for public companies?

A

General meetings and class meetings.

122
Q

What is the accepted notice for a meeting?

A

14 days

123
Q

What are the two methods of voting at a general meeting?

A

(1) Show of hands (2) Poll vote (takes # shares into consideration)

124
Q

Do states have legal personality under international law?

A

Yes, they can enter into contracts, sue and be sued, impose sanctions, and sign and ratify treaties

125
Q

What are the criteria for statehood, and what is the authority?

A

Montevideo Convention on the Rights and Duties of States (1933)

Permanent population
Defined territory
Government
Capacity to enter into relations with other States

126
Q

What are the two sources of international law?

A

International treaties/conventions and international custom

127
Q

What is the definition of a treaty and what is the authority?

A

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
Q

What’s the difference between monist and dualist theory?

A

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
Q

Why is the European Union considered ‘sui generis’?

A

It’s a unique international organisation in terms of its creation/complexity

130
Q

Van Gend en Loos v Nedelandse Administratie de Belastingen?

A

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
Q

When did the European Union formally replace the European Community, and what was the authority?

A

Treaty of Lisbon, 2009

132
Q

How is the European Parliament set up?

A

Direct elections
Universal suffrage
Every 5 years
Number of MEPs reflects population and size of member states
Covers legislative and budgetary functions

133
Q

How is the European Council set up?

A

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
Q

How is the Council of the European Union set up?

A

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
Q

How is the European Commission set up

A

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
Q

How is the Court of Justice of the European Union set up

A

One judge from each Member State, assisted by eleven Advocates General
6 year terms

137
Q

What are the sources of EU law

A

Primary law - Treaties, charters
Secondary law - legislative acts (Regulations, Directives, Decisions)

138
Q

What are the two parts of the Treaty of Lisbon

A

Treaty on European Union (replaces the TEU of the Maastricht Treaty)
Treaty on the Functioning of the European Union (replaces European Community Treaty)

139
Q

What’s an EU Regulation

A

Has general application
Directly applicable into the domestic legal orders of the Member States

140
Q

What’s an EU Directive

A

Result oriented
Must be transposed/implemented into national law by each Member State

141
Q

What’s an EU Decision

A

Direction that is addressed to either a Member State or private party

142
Q

What are the two EU legislative procedures

A

Ordinary legislative procedure
Special legislative procedure

143
Q

What are the categories of Retained EU Law

A

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
Q

What are the mechanisms for enforcement of EU law

A

Direct effect
Indirect effect
State liability

145
Q

What are the requirements for direct effect

A

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
Q

Which provisions get vertical or horizontal effect?

A

Treaty articles and provisions get vertical and horizontal
Provisions in directives are vertical only

147
Q

What is indirect effect?

A

National courts can give full effect to binding EU law

148
Q

What is state liability?

A

Member states can be held liable in damages in the national courts for breaches of EU law

149
Q

What are the requirements for state liability and what is the authority?

A

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

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