Introduction to Legal Principles Flashcards
Common Law
Definition, development, scope and characteristics
- Definition: Common law is a body of law derived from judicial decisions rather than statutes. It originated in England and is now used in many countries, including the United States and Canada.
- Development: It evolves through the decisions of judges in individual cases, creating legal principles that are followed in future cases.
- Scope: It covers areas where no specific statutes exist and can fill gaps left by statutory law.
- Characteristics: Common law is adaptive and can change with new decisions and societal changes.
Case Law
Definition, content, function
- Definition: Case law refers to the law as established by the outcomes of previous court cases. It is the written record of decisions by judges.
- Content: It includes the interpretation of statutes, the application of common law principles, and the outcomes of individual cases.
- Function: Case law serves as a reference for how laws are applied and interpreted. It provides insight into judicial reasoning and establishes patterns for future rulings.
Precedent
Definition, binding vs pursuasive, hierachy
- Definition: Precedent refers to past judicial decisions that are used as a guide for deciding similar future cases.
- Binding vs. Persuasive: Precedents can be binding (mandatory) or persuasive. Binding precedent must be followed by lower courts within the same jurisdiction. Persuasive precedent, while not obligatory, can influence decisions.
- Hierarchy: The system of precedent ensures consistency and predictability in the law, relying heavily on the hierarchy of courts. Higher court decisions are binding on lower courts.
Statue law
Definition, content, application and flexibility
- Definition: Statute law is law enacted by a legislative body, such as a parliament or congress. These are written laws passed through a formal legislative process.
- Content: It includes acts, statutes, regulations, and codes. Statute law is specific, detailed, and can cover a wide range of topics.
- Application: Statute law takes precedence over common law. If there is a conflict between a statute and common law, the statute prevails.
- Flexibility: Statute law can be changed or repealed by the legislative body, making it a more direct way to alter the legal landscape than relying on case law evolution.
What’re the origins of each type of law?
Common, case, precedent and statute
- Common Law: Developed through judicial decisions over time.
- Case Law: Specific instances of judicial decisions.
- Precedent: Principles established by previous judicial decisions.
- Statute Law: Created by legislative bodies.
On what authority do the various types of law apply?
Common, case, precedent and statute
- Common Law: Judges’ interpretations and applications.
- Case Law: Accumulated judicial decisions.
- Precedent: Past judicial decisions influencing future cases.
- Statute Law: Formal legislative enactments.
How can each type of law change?
Common, case, precedent and statute
- Common Law: Evolving with new judgments.
- Case Law: Dependent on judicial interpretation and evolving through new cases.
- Precedent: Provides stability but can be overturned by higher courts.
- Statute Law: Can be amended or repealed by legislatures.
What scope does each type of law cover?
Common, case, precedent and statute
- Common Law: General principles and broad applicability.
- Case Law: Specific interpretations and applications in particular cases.
- Precedent: Guiding principles for similar cases.
- Statute Law: Specific rules and regulations governing a wide array
Define codified law within a civil law system
In some countries, particularly those with a civil law system, the legal framework operates differently from common law systems, with a strong emphasis on codified laws. Here’s what it means that in these countries, case law does not apply as all law is codified:
Codified Law
* Definition: Codified law refers to a comprehensive and systematic collection of statutes, regulations, and rules that are written and enacted by legislative bodies.
* Civil Law System: Countries with civil law systems rely primarily on codified statutes and legal codes. These countries include most of Europe (e.g., France, Germany), Latin America, and many parts of Asia and Africa.
What are the characteristics of a civil law system?
- Primacy of Statutes: Laws are primarily found in codes and statutes rather than judicial decisions.
- Comprehensive Codes: Legal codes cover broad areas such as civil law, criminal law, commercial law, and administrative law.
- Predictability: The detailed nature of codified laws aims to provide clear and predictable legal standards.
What is the role of judical decisions in civil law?
- Interpretation vs. Creation: In civil law systems, judicial decisions are generally seen as interpretations of the codified laws, rather than sources of law themselves. Judges apply and interpret the statutes but do not create new law through their decisions.
- Precedent: While judges may refer to past decisions for guidance, these decisions do not have the binding precedent status they do in common law systems. Instead, the focus remains on the statutes and legal codes.
- Judicial Discretion: Judges have less discretion in creating or modifying law through their rulings compared to judges in common law systems. Their role is more about applying existing laws to specific cases.
What are the outcomes of a civil law system?
- Legal Certainty: The reliance on codified statutes aims to enhance legal certainty and reduce variability in legal interpretations.
- Legislative Role: Legislatures play a central role in creating and updating laws. Any changes to the legal system must go through the legislative process.
- Judicial Role: Judges focus on the application and interpretation of the existing codes rather than developing legal principles through case law.
Compare civil and common law systems
- Common Law Systems: In common law countries (e.g., the United States, United Kingdom), judicial decisions (case law) are a primary source of law, and courts develop legal principles through rulings, which become precedents for future cases.
- Legal Evolution: Common law evolves through the doctrine of precedent, where past judicial decisions shape future rulings. This provides flexibility and adaptability but can also lead to less predictability.
- Statutory Interpretation: While statutes are also important in common law systems, judges have more interpretive power and can develop the law through their rulings.
Give some examples of civil law systems
- France: The Napoleonic Code, one of the most influential civil codes, serves as the foundation of French law. Judicial decisions interpret but do not create law.
- Germany: The German Civil Code (Bürgerliches Gesetzbuch) is comprehensive and detailed, with judicial decisions providing interpretations but not setting binding precedents.
- Japan: The Japanese legal system, influenced by German and French models, relies heavily on codified laws, with judicial decisions serving as interpretive guidance rather than sources of law.
What is the purpose of the civil court?
English Law
Civil courts handle disputes between individuals or organizations, often involving issues such as contracts, property, family law, and torts (e.g., negligence).
What is the structure of the civil court system?
English
- County Court: Deals with less complex and lower-value cases (usually under £100,000). Handles a wide range of civil matters including small claims, family disputes, and personal injury claims.
- High Court: Divided into three divisions: Queen’s Bench Division (QBD), Chancery Division, and Family Division. It handles more complex and higher-value cases.
- Queen’s Bench Division (QBD): Deals with a wide range of civil matters, including contract disputes, personal injury, and defamation.
- Chancery Division: Handles business, property, and probate matters.
- Family Division: Deals with matrimonial cases, child custody, and other family-related issues.
- Court of Appeal (Civil Division): Hears appeals from the High Court and County Court.
- Supreme Court: The highest court in the UK, hears appeals on points of law of the greatest public importance from the Court of Appeal (Civil Division) and sometimes directly from the High Court.
What’s the civil court appeals process?
Starting from county court
- From the County Court to the High Court.
- From the High Court to the Court of Appeal (Civil Division).
- From the Court of Appeal to the Supreme Court, usually requiring permission to appeal.
Summarise the choice of forum in civil matters
- Based on the value and complexity of the case. Lower-value and less complex cases start in the County Court, while higher-value and more complex cases start in the High Court.
- Specific divisions within the High Court are chosen based on the nature of the dispute (e.g., Chancery Division for business disputes).
What is the purpose of the criminal court
English law
Criminal courts handle cases involving offenses against the state, ranging from minor offenses to serious crimes.
What is the structure of English criminal courts?
- Magistrates’ Court: Deals with minor criminal offenses (summary offenses) and preliminary hearings for more serious offenses (either-way offenses and indictable offenses). Also handles youth cases and some civil matters like family law and licensing.
- Crown Court: Handles serious criminal cases (indictable offenses) and cases sent from the Magistrates’ Court for trial or sentencing. It also deals with appeals from the Magistrates’ Court.
- Court of Appeal (Criminal Division): Hears appeals from the Crown Court regarding convictions and sentences.
- Supreme Court: Hears appeals on points of law of general public importance from the Court of Appeal (Criminal Division).
Describe the criminal appeals process
English law, starting from Magistrates
- From the Magistrates’ Court to the Crown Court (for trial de novo or sentencing).
- From the Crown Court to the Court of Appeal (Criminal Division).
- From the Court of Appeal to the Supreme Court, usually requiring permission to appeal.
Summarise the choice of forum in criminal cases
- Magistrates’ Court: Handles all summary offenses and either-way offenses (where the defendant can choose trial in the Magistrates’ Court or Crown Court). Preliminary hearings for indictable offenses also occur here.
- Crown Court: Handles all indictable offenses and either-way offenses referred from the Magistrates’ Court for trial or sentencing. It also deals with appeals from the Magistrates’ Court.
Summarise the key differences between English civil and criminal courts
Juristiction, structure, appeals, forum
Summary of Key Differences
1. Jurisdiction:
* Civil Courts: Deal with disputes between individuals or organizations.
* Criminal Courts: Deal with offenses against the state.
2. Structure:
* Civil Courts: County Court, High Court, Court of Appeal (Civil Division), Supreme Court.
* Criminal Courts: Magistrates’ Court, Crown Court, Court of Appeal (Criminal Division), Supreme Court.
3. Appeal Process:
* Civil Courts: County Court to High Court to Court of Appeal to Supreme Court.
* Criminal Courts: Magistrates’ Court to Crown Court (for some cases) to Court of Appeal to Supreme Court.
4. Choice of Forum:
* Civil Cases: Based on value and complexity; lower-value in County Court, higher-value in High Court.
* Criminal Cases: Based on the severity of the offense; minor offenses in Magistrates’ Court, serious offenses in Crown Court.
What are the essential elements of a contract?
Offer, acceptance, consideration and legality
Define ‘offer’ in contract law. What are the essential elements? How may it be terminated?
- Definition: An offer is a clear, unequivocal proposal made by one party (the offeror) to another (the offeree) indicating a willingness to enter into a contract on certain terms.
- Characteristics: The offer must be definite, communicated to the offeree, and capable of being accepted. It must also include specific terms and not be vague.
- Termination of Offer: An offer can be revoked any time before acceptance, lapse after a reasonable period, be rejected by the offeree, or be terminated by a counteroffer.
Define ‘acceptance’ in contract law. What are the essential elements? What methods can be used to give acceptance?
- Definition: Acceptance is an unequivocal agreement to the terms of the offer, communicated by the offeree to the offeror.
- Characteristics: Acceptance must mirror the terms of the offer exactly (the “mirror image rule”) and must be communicated to the offeror, although there are exceptions (e.g., unilateral contracts where performance constitutes acceptance).
- Methods: Acceptance can be communicated verbally, in writing, or through conduct. In some cases, silence can constitute acceptance if it is clear that both parties intended it to be.
Define ‘consideration’ in contract law. What are the essential elements? What types of consideration can there be?
- Definition: Consideration is something of value exchanged between the parties. It can be a promise to do something, a promise to refrain from doing something, or the actual performance of an act.
- Characteristics: Consideration must be sufficient but need not be adequate (meaning it must have some value, but the courts do not assess whether it is equivalent in value to what is received). It must also be legal and possible.
- Types: Consideration can be executed (an act done in return for a promise) or executory (a promise to do something in the future).
Define legality in the law of contract.
- Definition: The contract’s purpose and the consideration provided must be legal and not contrary to public policy.
- Characteristics: Contracts involving illegal activities, fraud, or actions against public policy are void and unenforceable.
When/how is a contract formed?
Offer & acceptance, consideration, relations, capacity and legality
A contract comes into existence when there is a meeting of the minds (consensus ad idem) between the parties, signifying mutual agreement and intent to create legal relations. The steps for a contract to be formed include:
1. Offer and Acceptance: A valid offer is made and unequivocally accepted. The offeror proposes certain terms, and the offeree agrees to those terms without modifications.
2. Consideration: Each party provides consideration, meaning there is a mutual exchange of value. This solidifies the agreement and provides a basis for enforcement.
3. Intention to Create Legal Relations: The parties must intend for their agreement to be legally binding. In commercial agreements, there is a presumption of such intent. In social or domestic agreements, the presumption is usually the opposite unless evidence suggests otherwise.
4. Capacity: The parties entering the contract must have the legal capacity to do so, meaning they are of sound mind, not minors, and not under duress or undue influence.
5. Legality: The contract’s purpose must be legal and not violate any laws or public policy.
At what moment does a contract come into existance? Consider face-to-face negotiation and written/online contracts
A contract comes into existence at the moment when the offer is accepted, consideration is exchanged, and there is mutual intent to create a binding agreement, assuming all other legal requirements (capacity, legality) are met. This can occur instantly in the case of face-to-face negotiations or over time in the case of written correspondence.
* Face-to-Face: When parties are negotiating in person, the contract is typically formed at the moment of acceptance.
* Written Contracts: For contracts negotiated through letters or email, the “postal rule” may apply, meaning acceptance is effective when it is sent, not when it is received, assuming this is the method of communication anticipated by the parties.
* Online Contracts: In digital contexts, a contract is formed when the offeree clicks “I agree” or performs an action indicating acceptance of the terms.
What is a breach of contract? Describe the three categories of breach.
A contract is broken or breached when one party fails to fulfill their obligations under the terms of the agreement. Breaches can be categorized as follows:
1. Material Breach: A significant violation that goes to the heart of the contract, undermining its entire purpose. This type of breach allows the non-breaching party to terminate the contract and seek damages.
2. Minor Breach (Partial or Insubstantial Breach): A minor or partial failure that does not fundamentally undermine the contract. The non-breaching party can seek damages but must continue to perform their obligations.
3. Anticipatory Breach (Repudiation): Occurs when one party indicates in advance that they will not perform their contractual obligations. The non-breaching party can treat the contract as breached and seek remedies immediately.
What is a void contract?
Void Contracts: These are contracts that are invalid from the outset and have no legal effect.
* Illegality: If the subject matter of the contract is illegal (e.g., contracts for illegal activities).
* Lack of Capacity: If one party lacks the legal capacity to contract (e.g., minors, mentally incapacitated individuals).
What is a voidable contract?
Voidable Contracts: These are valid contracts that can be voided at the option of one of the parties.
* Misrepresentation: If one party was induced to enter the contract based on false statements.
* Duress: If one party was forced into the contract under threat or coercion.
* Undue Influence: If one party was unduly influenced by another in a position of power over them.
* Mistake: If both parties were mistaken about a fundamental aspect of the contract.
What is a force majeure?
A force majeure clause is a provision in a contract that frees both parties from liability or obligation when an extraordinary event or circumstance beyond their control prevents one or both parties from fulfilling their contractual obligations. Such events can include natural disasters (e.g., earthquakes, floods), war, pandemics, strikes, and other unforeseen events.
What is the impact of force majeures on contract preformance?
- Excusing Non-Performance: If a force majeure event occurs, the party affected may be excused from performing their contractual obligations without being considered in breach.
- Suspension of Obligations: The obligations may be temporarily suspended for the duration of the force majeure event.
- Termination of Contract: If the force majeure event continues for an extended period, some contracts allow for termination of the contract.
What are the conditions for a force majeure?
For a force majeure clause to be invoked, certain conditions must typically be met:
1. Inclusion in the Contract: The contract must explicitly include a force majeure clause.
2. Definition of Events: The clause must define what constitutes a force majeure event.
3. Causation: The party invoking the clause must show that the force majeure event directly caused their inability to perform.
4. Notification: The affected party must usually notify the other party within a specified timeframe.
What is tort?
Tort law is a branch of civil law that deals with civil wrongs, offering remedies to individuals who have suffered harm due to the wrongful acts of others.
In the context of shipping, tort law addresses various non-contractual situations where harm or damage occurs due to the wrongful acts or omissions of individuals or entities
What are the key elements of tort?
- Duty of Care: In tort law, a duty of care is the legal obligation to avoid causing harm. It arises in situations where a person or entity is expected to act with the care and caution that a reasonable person would exercise in similar circumstances.
- Breach of Duty: A breach of duty occurs when the person or entity fails to meet the standard of care required by law. This can involve acts of commission (doing something harmful) or omission (failing to do something necessary).
- Causation: The breach of duty must be shown to have caused the harm. This involves establishing both factual causation (“but for” the breach, the harm would not have occurred) and legal causation (the harm must be a foreseeable consequence of the breach).
- Damage: The claimant must have suffered actual harm or loss as a result of the breach. This can include physical injury, property damage, financial loss, or emotional distress.