Key Content Flashcards
What is Common Law?
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. The precedents to be applied in the decision of each new case are determined by the presiding judge.
What is an adversarial system?
Common Law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.
What is Civil Law (legal system/legal tradition)?
Civil Law is codified. Updated legal codes, that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offence. Generally civil law (area of law) is a reference to private law and is used to distinguish private law from criminal law.
What is Substantive law?
“Creates, defines and regulates people’s rights, duties, powers and liabilities.” In other words it tells us what the law is. Are both public law and private law. Establishes which acts are subject to criminal or civil prosecution.
What is Procedural law?
The framework or the methodology of accessing law. It is concerned with the how; it enables the person to access substantive law. It describes and prescribes amongst other things the steps that a person needs to take to enforce a right, bring an action or seek a remedy. Establishes how to determine whether a particular action constitutes a criminal act. (Also known as adjectival law)
What is Penal Law?
Penal law establishes the appropriate penalty.
What is the Law of Obligations?
The law of obligations is concerned with personal rights and personal responsibilities - that is, rights that we have against other persons (as compared to rights over property), and responsibilities that we owe to other persons.
What three related areas of private law is the Law of Obligations generally understood to refer to?
Contract, torts and restitution (unjust enrichment)
(Concerning contracts) What is a order of specific performance?
It may insist that the contract be fulfilled. Otherwise damages (compensation) may be awarded.
What is the Law of Torts?
Torts are civil wrongs - that is to say breaches of civil obligations. The law of torts is part of private law inasmuch as it concerns obligations and activities between individuals.
When does the tort of Negligence arise?
Negligence arises when one person, who owes a duty of care to another, breaches that duty and it results in a loss to that other party.
What are the three principal elements of unjust enrichment?
-Proof of the defendant’s enrichment by receipt of the benefit;
- A corresponding deprivation by the plaintiff; and
- The absence of any legal reason for the enrichment.
What are injunctions?
Injunctions may be prohibitive (that is, ordering the defendant not to act in a certain way) or mandatory (that is, requiring the defendant to act in a certain way).
What are the two major legal traditions?
Common law or Civil law. Judicial decisions as the basis of common law and legislative decisions as the basis of Civil Law.
What is a Writ?
A formal written order from a judicial or administrative authority that directs a form of legal action. Originally Writs were royal orders from the court of the English king. Need a writ to make a claim. Action before a court needed to take a certain form. If form not available you could not make a claim.
What is Equity (Law)?
In English common law tradition, a body of legal principles that emerged to supplement the common law when the strict rules of its application would limit or prevent a just outcome.
What is Civil Law (area of law)?
Civil law concerns the relationship (dispute) between two individuals, there are differences between civil law and criminal law.
What is Public Law?
Public law covers the relationship between the state and the individuals.
What is Private Law?
Private Law covers the private relationship between individuals. Rental agreement, employment relationship etc.
When does Trespass to land arise? (Land-based torts)
Trespass to land arises when a person goes onto another person’s land without lawful excuse.
When does the tort of Nuisance arise? (Land-based torts)
Nuisance occurs when a person with an interest in land is subjected to some behaviour by another person which interferes with their enjoyment of their land.
When does the tort of Defamation arise? (Reputational torts)
A person’s reputation is protected by law, so the publication of anything that damages that person’s reputation and has a negative impact on how others see or react to that person is defamatory. There are a number of defences to an action for defamation, for example asserting the truth of the statement. Defamation is largely covered by the Defamation Act 1992.
