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Paper 3 Contract Law > ELS-Law and Society-Balancing Conflicting Interests > Flashcards

ELS-Law and Society-Balancing Conflicting Interests Flashcards

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1
Q

4 key individuals for balancing conflicting interests.

A
  1. Karl Marx
  2. Rudolph von Jhering
  3. Roscoe Pound
  4. Wesley Hohfeld
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2
Q

What is Karl Marx the founder of?

A

Communism

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3
Q

What did Marx believe about the law?

A

It was a part of the “repressive state apparatus” which allowed Capitalists (bourgeoisie) to continue exploiting the working class (proletariat).

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4
Q

Who did Marx believe the law favoured over?

A

Believed law favoured the bourgeoisie over the proletariat

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5
Q

How did Marx conceive/conceptualise society?

A

Fundamentally confrontational

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6
Q

What did Marx believe about the law and balancing conflicting interests?

A

Believed that rather than balancing conflicting interests, the law serves the interests of a particular group.

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7
Q

Who is Rudolph von Jhering?

A

19th century jurist (expert in law)

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8
Q

What did von Jhering see the law as?

A

A means of moderating between the competing interests in a society, to avoid chaos and anarchy.

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9
Q

How did von Jhering believe the law could be effective at balancing conflicting interests?

A

The law is effective when it brings the individual’s interests in line with society’s interest

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10
Q

Compare how individual interests are different in a lawless society and a law-abiding society.

A

Lawless society = I want my mum’s money so I murder her

Law-abiding society = I want my mom’s money but I do not murder her as I will go to prison so it is no longer in my interest to do so.

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11
Q

Influenced by previous ideas, Roscoe pound argues that ‘claims or desires’ seeking legal recognition could be classified as:

A
  1. Individual interests
  2. Public interests
  3. Social interests
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12
Q

Examples of individual interests from Pound’s theory.

A

Personality
Privacy
Reputation
Owning property
Domestic relations

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13
Q

Examples of public interests by Pound’s theory.

A

Asserted by individuals, including:
Interests of the state e.g., public order and public security.

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14
Q

Examples of social interests under Pound’s theory.

A

Safety
Health
Security of property
Security of family
General morality
Conservation of resources
Free speech
Free trade
Economic and political progress

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15
Q

What did Pound believe was the only way competing interests could be balanced?

A

If the interests were in the same plane e.g., individual interests against individual interests, not individual interests against social interests.

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16
Q

What did Pound believe would happen if competing interests where not in the same plane?

A

Individuals interests would always end up as subordinate to public/social interests.

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17
Q

Which case shows the law has not adhered to Pound’s principle that competing interests need to be on the same level?

A

Miller v Jackson-cricket club

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18
Q

What did Lord Denning believe in Miller v Jackson?

A

The public interest trumped the private interest.

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19
Q

Who was Wesley Hohfeld?

A

20th century Yale professor.

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20
Q

What did Hohfeld distinguish between?

A

‘Rights’ and ‘liberties’

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21
Q

What did Hohfeld believe ‘rights’ imposed?

A

A corresponding duty on another person to honour your rights.

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22
Q

Example of a right.

A

Freedom of speech = cannot stop another from airing their political views.

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23
Q

What is a ‘liberty (or privilege) according to Hohfeld?

A

Where I am free to do as I choose but such freedom does not impose any duty on another.

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24
Q

Example of a liberty

A

I am free to catch the no.12 bus = if you get the last seat, you are under no obligation to give it up for me.

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25
Q

In theory, how does the legislative process try to balance conflicting interests?

A

Before introducing new legislation, gov’t will usually first publish a green paper setting out their thinking and inviting comments from interest groups and individuals.
Allows government to ensure it can balance the interest of different groups.

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26
Q

Arguably, how does the legislative process, regarding Green Papers, not balance conflicting interests?

A

Some interest groups, like powerful multinational, will be able to put more resources towards influencing the government than smaller groups.

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27
Q

Give an example of how legislation balances conflicting interests.

A

Passes laws which offer protection to weaker parties which otherwise might get taken advantage of by the more powerful e.g., CRA 2015

28
Q

Cases where public interest usually trumps private interest.

A

Miller v Jackson

Othman (Abu Qatada) v the UK

R (Begum) v Headteachers and Governors of Denbigh High School (2006)

29
Q

Facts of Othman (Abu Qatada).

A

May 2012-decision not to grant Abu Qatada bail prior to his deportation appeal was based in part on the huge amount of resources which would have to be put into finding him if he did try to flee, esp at a time when the Olympics where stretching police resources.

30
Q

Facts of R (Begum)

A

Begum claimed her right to practice religion under the ECHR (European Convention on Human Rights)was violated when her school refused to let her wear a jilbab.
The courts were against her and instead prioritised the school’s right to develop a workable uniform policy.

31
Q

Cases where the private interest trumps the public interest.

A

A and others v Secretary of State for the Home Department (2004)

R v Ponting (1985) - The Belgrano Case

32
Q

Facts of A and others.

A

Gov’t wished to detain foreign nationals without charging them under s.21 of the Anti-Terrorism, Crime and Security Act 2001.
Despite the government’s claim this was in the public interest, the HoL decided it went against human rights laws.

33
Q

Facts of R v Ponting.

A

Clive Ponting, a civil servant working for the British government leaked documents about the Falklands War.
Cleared by jury despite having breached the Official Secrets Act 1911 and the judge directing the jury to convict him.

34
Q

What does R v Ponting arguably show?

A

Juries who are not part of the state apparatus (structure) are more likely to favour to put private interest over the public interest than the state is.

35
Q

Real example where judges have had to balance national interest in issues which pit the national against local.

A

May 2012- proposal to build 4 100 metre turbines in a beauty spot on the edge of the Norfolk Broads was rejected by the High Court.
This was on the basis that national interests (to shift towards renewable energy) did not necessarily trump the local (to pretext a beauty spot).

36
Q

4 ways in which the law balances conflicting interests in procedural law under the criminal justice system.

A
  1. Right to legal advice
  2. Right to bail
  3. Hearsay evidence
  4. Sentencing
37
Q

How does the right to legal advice in criminal justice system balance conflicting interests?

A

Under s.58 of Police and Criminal Evidence Act 1984, someone held in custody by police has right to legal advice.
BUT, access to solicitor may be delayed for up to 36 hours if police believe contact with a solicitor will allow the suspect to interfere with evidence, alert other suspects or hinder recovery of stolen property.

38
Q

How does the right to bail in the criminal justice system balance conflicting interests?

A

Under Bail Act 1976, there is a presumption that the accused will be granted bail up to the date of their trial.
BUT this right can be dropped if court believe he will not turn up to trial, may be a danger to public or a number of other considerations.

39
Q

How does hearsay evidence in the criminal justice system balance conflicting interests?

A

Generally, someone’s hearsay evidence cannot be used in court as the defence is not in a position to check.
BUT, under Criminal and Justice Act 2003, hearsay can be used where it is in the interests of justice to do so.

40
Q

What is hearsay?

A

Information you’ve been told but do not know whether it is true-rumour.

41
Q

How does sentencing in the criminal justice system balance conflicting interests?

A

Judges and magistrates take account of aggravating and mitigating factors in order to strike a balance between the interests of the prosecution and defence.

42
Q

2 ways in which conflicted interests are balanced under procedural law in the civil justice system.

A
  1. Damages
  2. Standard of proof
43
Q

Difference between substantive and procedural law.

A

Substantive law is the law that creates the right being claimed or the crime being prosecuted.
Procedural law is the law that specifies how the case is to be filed and handled in court.

44
Q

How do damages under the civil justice system balance conflicting interests?

A

Are compensatory which serves to protect the rights of claimants and also to ensure the liable party does not pay more than the damage which they caused.

45
Q

How does the standard of proof under the civil justice system balance conflicting interests?

A

Lies on the ‘balance of probabilities’ to try and ensure the wronged party receives compensation and in recognition that liability results in a financial layout (form) not a loss of liberty.

46
Q

3 ways in which conflicted interests are balanced in substantive law under criminal law.

A
  1. Theft
  2. Self-defence
  3. Consent
47
Q

How does theft in criminal law balance conflicting interests?

A

Your right to property is protected by the Theft Act 1968 which makes it an offence to appropriate property “belonging to another”.

48
Q

Case for theft.

A

Turner (1971)

49
Q

Facts of Turner.

A

D took his car from outside the garage without paying.
Claimed it was his property, but the court said the garage had a proprietary (private) interest in it.

50
Q

How does self-defence in criminal law balance conflicting interest?

A

No liability where the D has acted in self-defence using force which is subjectively necessary and objectively reasonable.
Limits of defence seen in Martin, where a balance needed to be struck between an individual’s right to defend themselves in their home and the rights of burgulars.

51
Q

How does consent in criminal law balance conflicting interests?

A

In Brown, Lord Templeman justified his ruling on the basis that it was not public interest for a culture of violence to spread.
In Wilson, Lord Mustill justified his ruling on the ground people should have the right to act as they choose.

52
Q

4 ways in which conflicted interests are balance in substantive law in tort.

A
  1. Breach
  2. Contributory negligence
  3. Vicarious liability
  4. Nuisance
53
Q

How do the rule around breach in tort balance conflicting interests?
Give case examples.

A

Must balance interests of both parties and sometimes favour the C and sometimes the D

Bolton v Stone (1951) - favours the D

Haley v London Electricity Board (1964) - favours C

54
Q

Facts of Haley.

A

Blind man (C) falls down manhole despite the fact that workmen had taken the common precautions of the time.

55
Q

How does contributory negligence in tort balance conflicting interests?

A

Before Law Reform (Contributory Negligence) Act 1945, you received no compensation if you were partially responsible for the accident.
Arguably, contributory negligence better protects individual rights.

56
Q

How does vicarious liability in tort balance conflicting interests?

A

Right to make a claim against an employer for the tort of an employee means Cs are likely to gain financial compensation.
Arguably, it also serves the public interest by encouraging employers to train staff better.

57
Q

How does nuisance in tort balance conflicting interests?

A

Generally, people should have a right to use their own land as they see fit.
In claims for private nuisance, courts seek to balance this interest against the interests of the claimant.

58
Q

Who might have in interest when contracts are made?

A

2 parties involved

3rd party who the contract sets out e.g., Jackson

Society

59
Q

Example of why society might have in interest in a contract.

A

Sometimes directly affected (e.g., a contract to build a major infrastructure project) or more broadly (e.g., society benefits from a thriving economy)

60
Q

2 problems with balancing conflicting interests in contract law.

A
  1. Disparity in power of 2 parties could mean powerful party tries to use this to further their interests over the weaker party.
  2. Rule of privity can exclude a 3rd party from protecting their interests
61
Q

4 ways in which the law ensures interests are balanced in contract law.

A
  1. Established existence of implied terms in trader/consumer contracts through CRA 2015
  2. Regulating (controlling) exclusion clauses
  3. Through Contracts (Rights of Third Parties) Act 199
  4. Through judicial creativity with respect to remedies.
62
Q

How are Acts attempting to balance interests in Contract law arguably ineffective?

A

Public does not know its rights under this legislation

63
Q

How does the Contract (Rights of Third Parties) Act 1999 arguably unfair on 3rd parties?

A

Sets a high bar meaning 3rd parties are still left inadequately protected.

64
Q

Case which shows judges can try and balance conflicting interests in their judgements.

A

Jackson v Horizon Holidays

65
Q

From whom has some legislation failed to protect in contract law and how are local councils responding to this?

A

Unscrupulous (immoral) landlords.
Some councils are introducing their own measures (e.g., landlord licensing) e.g. in North Lincolnshire

Paper 3 Contract Law (30 decks)

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