Engineering Law Flashcards
What is the law
The law is a system of rules established by authority.
It can forbid behaviour, impose duties, and grant powers.
Social Conventions & Laws
Not all social conventions are legal rules.
Morality & Law
Morality and law can have differences.
Sources of Law
Legislative Law
Common/Case Law
Legislative Law
Consists of Constitutional Law and Statute Law
Legislative Law: Constitutional Law
structure, power and function of government and citizen’s rights
Legislative Law: Statute Law
laws passed by legislative body e.g. parliament
Common/Case Law
Legal precedents established through judicial decisions on past cases
Common/Case Law: Tort Law
wrongs committed by one party against another
Common/Case Law: Contract Law
formation, interpretation, enforcement of agreements between parties
Common/Case Law: Equity Law
remedies to injustices from strict application of common law
Categories of Law
International
Domestic
International Public Law
governs relationships between countries
International Private Law
Governs which country’s laws should apply to individuals with links to at least two countries
Domestic Public Law
Involving the state
Domestic Private Law
relationships of citizens and corporations, state establishes rules but is not concerned with punishment
The Three Institutions of Government & Their Functions
Government: Executive
Parliament: Legislative
Courts: Judicial
Seperation of Government Branches
Needs to be as much separation as possible for a fair democracy and ensure not branch has too much power. Rule of Law is upheld, ensuring laws are applied fairly and consistently.
Rule of Law
all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders
No one is above the law
Government’s Role
govern, implement, enforce laws. Defend state, maintain international relations
Parliament’s Role
making and passing laws
House of Commons
Elected, debate, propose, amend laws. Challenges government’s work
House of Lords
Appointed and hereditary peers with expertise. Review and revises legislation from house of commons.
Court’s Role
interpreting laws, ensure fair application
Tribunal
Independent from courts, handles specific cases (e.g. employment, immigration)
Tribunal Advantages
Accessible, includes 2 experts in relevant field, decisions can be appealed to higher tribunals or courts, cost effective and faster
Tribunal Disadvantages
: Reduced legal precedent, fewer legal protections, lacks same level of legal expertise as judges
ADR
Alternative Dispute Resolution
Not under judicial branch of government. Range of methods to resolve conflicts as an alternative to litigation
ADR Litigation Alternatives
Negotiation
Mediation (Neutral third party during discussions)
Conciliation (Mediation for more legal disputes)
Arbitration (Neutral arbitrator to make a binding decision)
ABSs
Alernative Business Structures
Professional service with a comprehensive range of legal services
Solicitors
Provides legal advice to clients. Ensure barristers are chosen properly and collect relevant evidence
Barristers
: Provide legal consultation and advice, directly address judges on behalf of clients
Judges
Preside over court cases, make legal rulings. Appointed from pool of barristers. Administrative function of summons, warrants, and issuing licences. Cannot be sued except for conduct outside courtroom.
Judgicial Independance
Judges shoukd not be influenced by politics, personal beliefs etc.
Judges Responsibilities: Interpretation of Statues
Apply any clear and comprehensive legislation whether they agree or not. Unclear statues allow judges to take into account intention of legislation
Judges Responsibilities: Application of Precedent
Cases with similar facts are treated the same. Lower courts are bound by decisions of higher courts. Can overturn precedent but is rare. Ensures certainty and consistency and saves time and money
Civil Justice System
One dividual brings case against another. State is not involved. Judge only trial. Outcome is usually compensation. Standard of proof is lower. Impact must be considered i.e. cost, stress, time. Most cases are settled
Criminal Justice System
Crown prosecution service brings action against individual. Outcome is sanction imposed by state
Summary Offence
Minor offences tried in Magistrates’ Court
Indicable Offence
Serious offences tried in Crown Court
Triable Either Way Offence
Middle ground, tried in either court. Depends on defendant’s preference and seriousness of offence.
Complex cases tried in Crown court
Magistrates are more lenient but there is a higher likelihood of conviction than Crown
Contracts: Interpretation of Intent
Used to determine what parties to a contract meant
Contracts: Subjective Approach
Seeks to understand what each party had I mind. Difficult to apply and prove. Emphasises Meeting of Minds, when a contract is formed each party has a common understanding
Contracts: Objective Approach
Concerned with how a reasonable person interprets actions, words, and conduct. Provides legal certainty
Contracts: Bilateral Contract
Exchange of two promises e.g. Sale of goods – promise to pay, promise to deliver
Contracts: Unilateral Contract
A single conditional promise i.e. one party does something if the other party does something
Contracts: Offer
An expression of willingness to enter a contract on specified terms
Contracts: Invitation to Treat
Invitation for others to make offers
Contracts: Acceptance
Final expression of assent to terms in an offer.
Contracts: Communication Rule
Acceptance must be communicated to the offeror. Acceptance Produced + Acceptance Communicated = Valid Acceptance -> Contract
Contracts: Mirror Image Rule
Valid acceptance must mirror terms and conditions of the offer
Contracts: Postal Rule
Offers made through mail are contracts when the offeree posts the acceptance letter. Only for non-instantaneous communication
Contracts: Consideration
Price given in exchange for goods/services. Cannot have already been provided or promised before contract. Given from Promisee to Promisor. Value of consideration need not be proportionate to goods/services
Contracts: Representations
Statements of fact that may cause a party to enter the contract. Misrepresentation may lead to remedies for the innocent party e.g. Car sale: The car has been serviced regularly
Contracts: Terms
Promises made that are intended to be legally binding e.g. Lease: Tenant agrees to pau £1,000 in rent per month for a period of 12 months
Contracts: Express Terms
Explicitly stated in contract, oral/written
Contracts: Implied Terms
Implied through statue, case law, and trade customs
Contracts: Conditions
Fundamental terms that must be strictly and precisely fulfilled. Breach of condition entitles innocent party to terminate the contract and seek damages
Contracts: Warranties
: Less essential terms secondary to the main purpose of the contract. Breach of warranty entitles innocent party to seek compensation
Contracts: Innominate Terms
Importance is determined by impact of the breach
Contracts: Exemption Clauses in contracts
Limits freedom of parties to agree to terms in contracts. Intervenes when there’s is an extreme asymmetry of exchange between parties. Protects parties with less bargaining power.
Contracts: Unfair Contract Terms Act (1977)
Restricts unreasonable exemption clauses in contracts where both parties act in course of business (B2B).
Applies to clauses that try to exclude liability for death or injury through negligence
Other exemptions are allowed if they meet the test of reasonableness
Contractual interpretation
Discover the meaning of a contract by interpreting as a reasonable person.
Background must be considered, all relevant info that was available to parties when contract was formed)
Excludes previous negotiations and discussions between the parties.
Meaning of words in context is considered, not dictionary definitions.
Common sense should prevail, people do not tend to make mistakes in formal contracts.
Termination of Contract
Performance: Both parties perform their obligations
Agreement: Both parties agree to terminate the contract. The agreement to discharge a contract is a contract
Frustration: The occurrence of a frustrating event e.g. a contract to use a theatre that then burns down
Breach: Conditions are breached and the innocent party can terminate the contract
Contracts: Anticipatory Breach
: One party indicates their intention to breach the contract allowing the innocent party to sue
Damagesfor Breach of Contract
Remedy for breach of contract
Monetary compensation based on expected losses ust not be punitive
(party is put in position should the contract be completed) or reliance losses (party is put in position before the contract was established). M (used as punishment).
Breachof Contract Remedy: Action for Agreed Contract Price
Innocent party can claim full contract price when contract has been fully performed but not paid
Breachof Contract Remedy:Quantum Meruit
Reasonable sum for paid work when there’s no expressed contract but work was done with expectation of payment.
Breachof Contract Remedy: Specific Performance
Court orders breaching party to fulfil obligation.
Breachof Contract Remedy:Injunction
Prohibits a party from taking certain actions or requires them to perform a specific action
Breachof Contract Remedy:Repudiation
When one party clearly indicates they won’t perform obligations, allowing the innocent party to treat the contract as terminated and seek damages
Unincorporated Business
Business and owner are not separate legal entities. Owner is liable for debts and legal obligations. Their assets are at risk
Sole Trader
Single individual liable for business. No formal requirements to form the business therefore increased autonomy. To cease trading, inform relevant authorities (due to tax obligations)
Partnership
Two or more persons form business
- Typical Partner
Right to take part in management
- Silent Partner:
Invests money but no role in management
- Salaried partner
Appears on letterhead but does not have rights and obligations of other partners
- Partner by Estoppel:
: Appear as partner even with no active participation. Behaving like a partner incurs liability
Partner Rights
- Right to Share Profits Equally
- Right to be Indemnified (Compensation for personal losses using partnership account)
- Right to have a Role on Management (Except silent partners)
- Entitlement to Inspect Accounts
- Right to Veto Entry of New Partners
applicable unless contract says otherwise
Partner Duties
- General fiduciary (legal & ethical) duties: must act in good faith and loyalty
- Duty of Disclosure: All info submitted to partner and legal representatives in matters affecting the business
- Duty to Account: Submit true financial accounts, including benefits obtained without consent from any transaction on behalf of the firm
- Non-compete Duty: partners competing with the business without consent from other partners must account to those partners for any profits or benefit produced during that business
Partner Liability
- Joint Liability for Debts, Contracts & Torts: Torts committed in course of business have all partners liable if the offending partner did it within their actual or apparent authority.
- Proportional Liability Sharing: Liability dependant on percentage of ownership
- Imposing Liability: Can only be done during or after partnership (for acts during the partnership), not before
Partnership Formation
Partnership Agreement that identifies purpose,
time span of existence,
names of partners,
business address,
percentage of ownership & distribution of profits,
authority of participating in management,
responsibilities of partners
Partnership Termination
through time span completed.
Specific task for which the partnership was created is completed.
Agreement between partners.
The business is unlawful.
On death, bankruptcy, or permanent incapacity of a partner
Incorporated Business
Business and owner are separate legal entities. Owner is protected from business debts.
LLP
Limited Liability Partnership
Partners are liable up to their value of investment
LLP Formation
through incorporation document and statement of compliance filed with Company House.
Certificate of incorporation is received allowing trade to begin.
Any Amendments must notify company house
LLP Termiation
through voluntary dissolution
insolvency (inability to pay debts)
Limited Company
Limited Company
Shareholders are liable for debts limited to the value of the shares they own but the company itself has unlimited liability, therefore it must satisfy its debts
Limited Company: Characteristics
Perpetual Succession: Remain in existence till wound up
Contractual Ability: May establish and enforce contracts
Ownership of Property: Ability to own property
Director Liability for Torts/Crimes: Directors are liable for limited companies crimes/torts
Limited Company: Formation
y filing documents with Companies House:
memorandum of association.
Articles of association.
Form IN01
Limited Company: Termination
Termination when wound up
Through Application (to get struck off the register),
Voluntary Liquidation (For solvent companies, file Declaration of Solvency to Companies House),
Liquidation by Court (For insolvent companies)
PLC
Public Limited Company
entitled to offer shares to public.
Must end in PLC or Public Limited Company.
Must hold an annual AGM.
Share capital of £50,000.
Two Directors,
Qualified Secretary.
Written resolutions require a meeting to be passed
Ltd
Private Limited Company
prohibited to offer shares to public.
Must end in Ltd or Limited.
One director minimum.
No other requirements like PLC
Law of Agency
Governs relationship between a principle and an agent
Agent
Acts on behalf of and under the authority of the principle
Actual Authority
: An express appointment by the principle with scope of authority specified in a contract
Implied Authority
An implied authority, inferred appointment by the principle.
Apparent/Ostensible Authority
An impression of representation conveyed by the principal to a third party that the agent has authority.
To establish, must demonstrate:
Person represented as an agent,
Principle must have made the representation,
the Third party must have acted as a result of the representation
Authority through Ratification
Retrospective acceptance of a contract by the principal (Principle can reject/accept the contract made by the agent).
When does Authority through Ratification Occur
Agent exceeds their authority
A person with no authority acted as if they had authority
What criteria is required for Authority through Ratification
Given within reasonable time from agreement and communicated to the third party.
Principal must exist at time of contracting.
Third party must be aware that the principal exists and then agent is acting on their behalf.
Principal must have the capacity to contract.
Agent Duties
o Fiduciary Duty: Act in best interests of principal. Avoid conflicts of interest. Abstain from profiting at the principal’s expense. Refrain from disclosing confidential information
o Obligation to Obey Lawful Instructions
o Obligation to Carry Out Duties Assigned
o Obligation to Carry Out Duties with Care, Skill, Diligence
o Obligation to Pay the Principal Sums Received on Their Behalf
Agent Rights
o Indemnity (Security from loss)
o Payment
o Maintain the Goods: Agent’s owed money from principal can maintain control over goods relating to the debt until the debt is cleared
Agent Liability
o Principal may be held jointly and severally liable for agent’s wrongful act if there is a sufficiently close connection between the agent’s authority and events that gave rise to liability (vicarious liability)
Agent Liability: Principal Reimbursement
Principal can seek reimbursement for damages from agent they were forced to pay but for when the principal authorised the conduct
Agent Liability: Third Party Claims
Third party can claim against agent, principal or both
Agent Liability: Contractual Liability
Agents in scope of their authority are not personally liable to third parties
If the principal does not exist, the agent is liable
If an agent acts in excess of the principal’s authority and disclosed they were acting for a principal. Both are jointly liable, third party may enforce the contract against either
If an agent acts in excess of the principal’s authority and they did not disclose they were acting for a principal, the contract exists against the agent. Principal may assume obligations if third party would have agreed to contract is principal was disclosed or if agent did not withhold information to identify the principal when asked
Agent Termination
Mutual Agreement,
Expiration of Period of Validity.
Accomplishment of purpose.
Revocation of agency agreement.
Substantial alteration in business circumstances or value of the subject
Operation by law (bankruptucy, loss of capacity, serious llness, death of agent or pricnipal)
Frustration (impossible or illegal to perform agent role)
- Employment Law
Governs the relationship between employers and employees
- Individual Labour Law:
- Individual Labour Law:
- Collective Labour Law:
Relationship between trade unions and their employer
Worker:
Minimal writes under employment law.
Minimum Wage.
Paid Holiday.
Rest Breaks.
Limits of Maximum Weekly Working Time.
Statutory Sick/Maternity/Paternity pay
- Employee
All rights under employment law.
Minimum Wage.
Paid Holiday.
Rest Breaks.
Limits of Maximum Weekly Working Time.
Statutory Sick/Maternity/Paternity pay.
Unfair Dismissal Rights.
Minimum Notice Periods.
Redundancy Payments.
Protection in Case of Transfer of Undertakings.
Employer National Insurance Contributions.
Right to request flexible working.
Time off for Emergencies.
*Why need to Establish Employment Status:
to distinguish between worker and employee
o Control Test
Examines degree of control employer has over individual’s work
o Right to Control Test
: Improved control test that assesses whether employer has the right to dictate the individual
o Integration Test
Assesses how integrated into the business the individual is. No definition for ‘integration; though
o Mixed Test:
Several factors. Who provides equipment? Individual agrees to be subject to employer’s control? Mutual obligations
Mutality of Obligations:
Individual agrees to provide their own work in exchange for a wage. Obligation to turn up and be provided with work. Cannot send a substitute. Zero hour contracts do not count
o Economic Reality Test
How dependant is the individual on their employer financially
o Worker Test:
Individual is a worker where the individual personally performs a service for another party who is not a client or customer (is an employer)
- Contractual Statement of Terms:
Provided to an employee when they start working including names, date of start, remuneration, hours, etc.
o Incorporation of Express Terms in Statement of Terms:
Terms can be incorporated from Collective Agreements and work rules in handbooks etc. Have to be apt for incorporation and intended to be incorporated
o Incorporation of Implied Terms in Statement of Terms:
Terms implied by common law are implied in all contracts of employment
Implied Employer Dutues
To Pay, Provide Work, Provide Safe Place to Work, Mutual Trust & Confidence
Implied Employee Duties
: Mutual Trust & Confidence,
Be Ready & Willing to Work,
Use Reasonable Skill & Care.
Obey lawful & Reasonable Orders.
Duty of Fidelity during Employment.
- Wrongful Dismissal
: Termination violates contractual terms or legal obligations.
o Summary Dismissal
Employer does not have to pay the employee during the notice period due to gross misconduct or a fundamental breach of contract
- Actual Unfair Dismissal:
Employee is terminated in manner that is a violation of contractual terms or employment laws
- Constructive Unfair Dismissal:
Employer seriously breaches employment contract and employee resigns as a result
- Automatically Unfair Dismissal
Employer terminates employee for reason that is inherently unjust and illegal e.g. pregnancy
- Potentially Fair Dismissal:
Terminations that may be reasonable and are relayed to conduct ,capability, redundancy, statutory illegality or breach of restrictions, other substantial reasons. Considered fair if:
o Procedurally Fair: If procedures were fair. Fair investigation, Warnings Given, Employee told their story
o Substantively Fair: Was the employer’s response reasonable
- Redundancy:
Employer no longer requires role to be performed. Business employee does is ceased or requirement for work has ceased. Statutory redundancy payment is paid to those who are made redundant and are employed for more than 2 years
o Compensatory Award
Compensation awarded in certain conditions. If situation doesn’t meet redundancy requirements, employee can claim unfair dismissal. Or if redundancy process was unfair e.g. selecting who is made redundant was selected through discriminatory criteria. Employee claims unfair dismissal
Equality Act 2010
Covers discrimination in work (not voluntary work), education, provision of goods & services, associations (clubs)
Direct Discrimination:
Protected characteristic leads to someone being treated less favourably. Employer can be mistaken about protected characteristic or it can be association with someone who has the protected characteristic
Indirect Discrimination
: A policy that’s formally neutral but puts a group at a disadvantage
harrassment
Unwanted conduct related to protected characteristic and it violates dignity or creates an hostile environment.
Victimisation
: Subjection to detriment because individual does a protected act or believes they have done a protected act
Protected Act
Complaints of discrimination. Evidence to help someone making a compliant. Anything in connection to act. Allegations against person subjecting you to detriment (unless the allegation is deliberately false)
Disability
: Physical or mental impairment that has substantial or long-term negative effect on their ability to do normal daily activities. Or it is Cancer or HIV.
Disability Protection
Protection from usual stuff and protected from discrimination arising from disability. There is a duty to make reasonable adjustments to avoid disadvantage. Cannot make disabled person pay for adjustments
Data Protection
Safeguard information from unauthorised access, disclose, alteration or destruction.
Personal Data
Any information relating to an identifiable natural person (excludes anonymised and company data)
Sensitive Personal Data
Related to race, ethnicity, political opinions, religious beliefs, trade union membership status, sexual orientation, etc.
Rights under Data Protection Act
Consent, Knowledge, Objection, Withdrawal/Correction
UNCTAD Core Principles
Openness. Collection Limitation. Purpose Specification. Use Limitation. Security. Data Quality. Access & Correction. Accountability
GDPR
Harmonises data protection throughout EU
UK GDPR
Complementary to Data Protection Act
Data Protection Act Principles
Lawfullness,
Fairness & Transparency.
Purpose Limitation.
Data minimisation.
Accuracy.
Storage Limitation.
Integrity & Confidentiality
Data Protection by Design
Organisations must incorporate privacy measures from the start, must implement technical and organisational measures.
Data Protection by Default
Data controllers must establish technical and organisational measures to ensure only the necessary data is processed.
Non-compliance with Data Protection Act
Fined
Property Right
Legal entitlement to a specific item giving authority to possess, use, and dispose of the item
Intellectual Property
Creations of the mind such as inventions, artistic works, designs, symbols
Copyright:
Protects works of authorship including books, films, music, art, computer programs. Item must be in a tangible medium
Copyright Duration
70 years after creators death or 60 years from end of year if created by artificial intelligence
Copyright Infringement consequences & defences
Consequences are injunction. Defences are for use in education, archives etc. or Fair dealing (satire, study, review, quotation)
Trademark
Protects any sign capable of graphical representation for distinguishing goods or services. Can be bought/sold
Purpose of Trademarks
Indicate origin, quality, advertise, investment
Unregistered Trademark
: Limits actions that can be taken for infringement and provides less protection
Registered Trademark duration
Lasts 10 years, can be renewed.
Trademark exclusions
: Excludes signs that are in bad faith, contrary to morality or indicated to be endorsed by royalty
Trademark infringement remedies
Damages, Injunction, account for profits, criminal offences
Design Rights:
Cover the look of a product
Unregistered Design Rights
Apply to 3D objects that are original and not commonplace in the industry. Must be of permanent form (stable and tangible).
Unregistered Design Right Duration
15 years. 10 years from marketing if available for sale or hire within 5 years of design.
Registered Design Rights:
Lasts 5 years, renewable up to 25 years. Covers appearance of the whole or part of a product resulting from features i.e. lines, contours, colours, shape, texture, materials
Design Right Infringement Remedies
: Damages, Injunction, Account for profits, criminal offences
Patents
Strongest form of protection for inventions that are new, inventive and capable of industrial application
Patent Exclusions:
Non-inventions: Discoveries, theories, mathematical methods, artistic works, programs for computers, presentation of information. Methods of medical treatment or diagnoses, biological matters, inventions contrary to morality
Patent Infringement Remedies
Damages, Injunction, Account for Profits. Order to Hand over Products. Defended through non-commercial use or for research use.
Tort
Civil wrong causes harm or loss to an individual or their property
Tortfeasor
Alleged wrongdoer who is said to have committed the tort
Defendant
Party on receiving end of the tort (may not have committed the tort themselves i.e. vicarious liability)
Intentional Tort
Deliberate act. Harm does not need to be intended. E.g. trespass, fraud, assault, etc.
Negligence
Wrongs from failure to provide the degree of care a reasonable person is expected to provide
Strict Liability
Entity is liable for a wrong without the injured party having to provide the entity did anything wrong. Harm occurring is enough to establish responsibility
Determining Duty of Care
Incrementalism (Case law). Assumption of responsibility. Caparo tes
Assumption of Responsibility
Defendant undertaken responsibility for a claimant and failed to deliver
Caparo Test
Novel duty of care.
Considers Foreseeability (reasonable person forsee damage),
Proximity of relationship (neighbour principle, someone directly affected by an action to the extent they should be considered when deciding to perform the action).
Fair imposition (Courts consider implications of establishing liability to prevent surge of negligence claims)
Breach of Duty of Care
defendant has fallen below standard of reasonable care. No consideration for lack of experience. Standard of care is relative to profession
Factual Causation of Tortious Damage
Causal link must be shown using ‘but for’ test.
Multiple causes of tortious damage
Claimant need only show the breach of duty of care either materially contributed to the damage or materially increased risk of damage
Loss of Chance to Recover or Avoid Injury
Defendents negligence lowered chance of desirable outcome. Only works if initial chance of avoiding injury was over 50%.
Legal Causation of Tortious Damage
Defendant was legally reasonable for damage suffered. Considers intervening acts and remoteness
Intervening Acts
Breaks chain of causation between defendants breach of duty and damage suffered. Unreasonable actions by claimant can break chain of causation. Defendant only liable up to intervening act
Remoteness
Defendant only liable for damages suffered which could be reasonably foreseen at time of negligent behaviour. Does not consider severity of injury, only type
Defences against Negligence
Illegality (claimaints act was unlawful), Consent (claimant has consented, express or implicit, to particular risk or damage). Contributory Negligence (defendant has contributed to damage), Necessity (defendant acted in a way to prevent imminent danger to a person or property.
Negligence Remedies
Damages (personal injury (lost earnings, medical expenses), death (funeral expenses), property (restoration, compensation,). Injunctions
Prohibitory Injunction
Defendet must cease action causing tort
Mandatory Injunction
Defendant must act to prevent tort being committed
Interim Injunction
Prevent further damage until case comes to court
Tort Time Limits
Bought within six years. Personal injury within 3 year of injury. Does not apply to minors until 18. Does not apply to claimaints suffering a mental disorder
Vicarious Liability
Employers are liable for torts committed by employees during the course of employment
Arguments for Vicarious Liability
Deep pockets. Deterrence. Consent. Enterprise Risk
Requirements for Vicarious Liability
Employment like Relationship between tortfeasor and defendant (composite test) and tort committed during course of employment
Liability of Independent Contractors:
Employers are only liable where tort was authorised (explicitly or implicitly) by employer and responsibility cannot be delegated (related to health and safety or imposed on employer by statute or involving hazardous act
Product Liability
Injury or damage caused by a defect in a product making it easier for consumers to claim compensation.
Requirements for Product Liability Claim
Defect. Suffered Damage. Causation. Defendant is producer, marketer (name on product implying they produced it), importer or supplier (only when all others cannot be identified)
Product Liability Defences:
Compliance with law. Non-supply of Product (supplied outside of business e.g hobby). Non-existence of defect at time of supply. Technical and scientific development
