English LEGAL SYSTEM 2 Flashcards
Types of law
Common Law and equity
Private law and public law
Criminal law and civil law
Common law
1) From local customs
2) System of precedent
3) Only remedy is damages
4) Can be rigid
Equity Characteristics
1) Flexible
2) Includes remedies like specific performance and injunctions
3) Concerned with fairness
4) Won’t be given if undue delay in bringing a case, if petitioner has acted unfairly or there’s no mutuality (both parties should be able to bring a case)
3 Track System
Small claims track - claims up to 10k, informal court
Fast claims track - 10-25k, lasts one day max
Multitrack- Over 25k, and or complex claims
Is the Magistrates Court an appeal court?
No
When is precedent not binding
1) Overruled by higher court
2) Overruled by statute
3) Was made without proper care (per incuriam)
4) Material facts differ
Advantages of judicial precedent
1) Doctrine of precedent makes system consistent
2) Decisions can be adjusted to reflect changes in society (flexible)
3) Ratio decidendi makes law clear
4) Decisions from actual events, so system is practical
Parliament consists of
HOL
HOC
Monarch
To become act of Parliament Bill goes through 6 stages
1) 1st reading - Name of Bill and proposer read out
2) 2nd reading- Debate and vote
3) Committee stage - Committee consider wording of bill, can last several months
4) Report stage - Bill as amended by Committee read back to full house
5) 3rd reading - Bill read for final time
6) At end of this process in both houses, bill gets royal assent
Delegated Legislation examples
1) Statutory instruments (alterations to acts of Parliament made without having to pass a new act): made by government ministers
2) Bye -laws: made by local authorities
3) Orders in council: made by privy Council (advise queen) in name of monarch on advice of prime minister
Delegated Legislation advantages
Saves Parliament time
Can benefit from expertise
Flexible
Delegated Legislation disadvantages
Its volume and lack of publicity means it’s hard to keep up with
Undemocratic
Elements of valid contract
1) Agreement
2) Consideration
3) Capacity (eg soundness of mind)
4) Legality
Invitations to treat examples
1) Adverts (if they make clear no further negotiation required)
2) Shop window displays
3)Goods on shop shelves
4) Company prospectus (sale of shares)
5) Price list or displays on website
6) Asking for tenders
Ways offer can be terminated
1) Rejection and counter offer
2) Revocation
3) Failure of precondition
4) Lapse of time
Revocation
Can be made any time before acceptance
Can be made even if offeror agrees to keep offer open
Must be communicated to offeree by offeror or reliable 3rd party
What is Sufficient consideration?
Consideration capable of being given a value
Inadequate consideration
Unequal consideration.Parties are free to contract under any terms they wish
Must consideration be sufficient?
Yes
Ways contract can end
By performance
By breach of contract
Actual breach occurs when
1) One party fails to put forward any sort of performance
2) Performance is so inadequate one party substantially deprived of benefit of contract
Anticipatory breach occurs when
1) Declares no intention to perform (express anticipatory breach)
2) Does something which makes performance impossible eg leaves country (implied anticipatory breach)
2 Types of losses that can be recovered
1) Losses which are a natural consequence of the breach (normal losses)
2) Losses not reasonably foreseeable (abnormal losses). Party in breach liable if knew such losses could arise
A sum is presumed to be a penalty clause if
1) The amount is out of proportion to the potential losses
2) The same amount is given for a number of potential losses
Purpose of damages
1) Put innocent party in position would’ve been
2) Compensate innocent party
Equitable remedies not granted if
1) Damages are an adequate remedy
2) Claimant has acted unfairly
3) Claimant has unduly delayed bringing an action to court
Specific Performance
1) Requires someone to perform contractual obligations
2) Not available for personal service contracts.
3)Enforces personal covenants (obligations) within the contract
Injunction
Orders someone not to do something. Enforces negative covenants.
Rescission
Restores parties to pre contract position
