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Principles Of Business > Law > Flashcards

Law Flashcards

1
Q

The functions of law (what law is for)

A
  • To ensure order and protection
  • To punish offenders
  • Setting/Regulating standards of behaviour
  • Enforcing those standards
  • Adjudication of disputes
  • Establishing systems and procedures
  • Providing forms and structures
  • Developing and evolving as society changes, e.g. new technology such as driverless cars
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2
Q

Characteristics of English Law

A
  • Evolution not revolution (unlike European systems-evolved over long period of time, not like say France where ripped up laws and started again x5)
  • Common law (unlike Roman law in Europe)-1000s of cases have set presidence by judge
  • The Doctrine of Judicial Precedent (creating case law)(precedent-been decided before)
  • Adversarial rather than inquisitorial(ad-two people allowed to debate. Inqs- judge quizzes you)
  • The Monarch (i.e. Crown) as Head of State
  • Independent and Professional Judiciary
  • “Everything which is not forbidden is allowed”
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3
Q

Classification of English Law (2)

A
  • Civil Law (Private Law)

- Criminal Law (relationship with state in terms of behaviour)

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4
Q

Criminal Law (differences to civil law)

A
  • Operates Vertically
  • For behaviour which affects society generally
  • Punishment for an offence, e.g. imprisonment, fines, etc.
  • Crown i.e. state, prosecutes the Defendant
  • Proof beyond reasonable doubt
  • Verdict – Guilty or not guilty
  • Most cases initiated by Crown Prosecution Service (CPS)
  • Magistrates or Crown Court for trial
  • Case Citation example: R v White [1910] 2 KB 124 (R abb. Regina, The Queen)
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5
Q

Civil Law (difference to criminal law)

A
  • Operates Horizontally
  • For behaviour which affects individuals
  • Compensation/damages or other remedy for those that suffer a wrong
  • Claimant sues the Defendant
  • Proof on the balance of probabilities
  • Judgment – Liable/Not Liable
  • Cases initiated by party affected, i.e. the Claimant
  • County Court/High Court for a hearing
  • Case citation example: Brannan v Airtours PLC [1999] EWCA Civ 588
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6
Q

Classification of English Law (public and private)

A 
Public:
Criminal
Constitutional
Adminstrative
Human Rights

Private

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7
Q

Private (or Civil) Law represents the vast majority of law. It is divided into specialist areas such as:

A
  • Contract Law
  • Tort Law
  • Property Law inc. Land Law, Intellectual Property, Trusts, -Succession, etc
  • Family Law
  • Employment Law
  • Company Law
  • EU Law (will still be important regardless of Brexit)
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8
Q

Civil Law (Private Law) (def)

A

all the law that regulates individuals with each other.

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9
Q

Criminal Law (def)

A

all the law that regulates behaviour and allows the state to enforce that behaviour.
Aim is to punish and deter.

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10
Q

Sources of law:

where the law comes from

A
  • Case Law
  • Statutes (highest form of law)
  • Equity
  • Treaties
  • Customs
  • Human Rights Act 1998
  • EU Law
  • SIs
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11
Q

Case Law (or Common Law)

A

Develops gradually and pragmatically as disputes are decided in the courts (i.e. by judges through their decisions)

Legal principles (established through judgments) develop with inferior courts having to follow the decisions decided in superior courts – This is based on the Doctrine of Judicial Precedent.

Effectively, lower courts must follow the previous decisions of higher courts providing the case facts are similar. Over the years judicial decisions have created a whole archive of law. Lawyers make reference to cases to determine the likely outcome of a dispute.

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12
Q

Each judgment will have:

A
  • A decision, e.g. liable/not liable
  • The ratio decidendi, i.e. the reason for the decision (important as gives the reasons why)

and sometimes An obiter dicta, i.e. statements made by the way (something a bit extra to the judge)

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13
Q

Acts of Parliament (aka. statutes or legislation):

A

Public Acts – general population
Private Acts – individuals
Hybrid – mix of the two

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14
Q

Delegated legislation

law making powers given to others such as Crown Ministers

A

Statutory Instruments (SIs)
By-laws (e.g. local authorities)
Orders in Council (government lead)

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15
Q

Tribunals: Rationale (what are they and why pick them over court)

A
  • Lower legal costs compared to the court system
  • Less complex procedures
  • The rules of evidence are less onerous
  • Specialists in the relevant area, e.g. Employment Tribunals, Mental Health Review Tribunals, etc.
  • Use of Alternative Dispute Resolution (ADR): Arbitration, Mediation and Conciliation
  • Lawyers are not always required
  • Adjudicated by an independent chair; not a judge
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16
Q

Areas of law impacting business:

A
  • Employment Law
  • Property Law
  • IP Law
  • Tort Law
  • Contract Law
  • Company Law
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17
Q

What makes an agreement legally enforceable?

A
  • An agreement (an offer and acceptance)
  • Consideration (something of value)
  • Intention to Create Legal Relations (ICLR)
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18
Q

Why is Contract Law necessary?

A

You need stability to trade

Predictability of bargains -> stable economic development

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19
Q

Damages (Remedies for Breach of Contract)

A
  • To put the Claimant back in the position s/he would have been in, had the Contract been performed
  • Standard remedy
  • Note issues involving Remoteness of Damage

Say if you paid a builder a 1k to do work, put he only does half you would sue for 500

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20
Q

Specific performance (Remedies for Breach of Contract)

A
  • A court order to the Defendant to fulfil his/her obligations under the Contract
  • Equitable remedy
  • Less common as involves enforcement by the courts
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21
Q

Injunctions (Remedies for Breach of Contract)

A
  • A court order to prohibit the Defendant from committing, continuing or repeating an action
  • Equitable remedy
  • Rare in contract law -unless goods unique

Stops someone doing something. If someone disobeys this, it becomes criminal law.

22
Q

Contract Law: Elements

A

Part One – Formation of a Contract: Offer, Acceptance, Consideration and Intention to Create Legal Relations
Part Two – Contractual Terms such as Conditions, Warranties and Exclusion Clauses
Part Three – Vitiating Factors that make a contract flawed/invalid
Part Four – Discharging (terminating) a Contract
Part Five – Contractual Remedies (usually damages)

23
Q

With a contract you can:

A
  • Anticipate future problems
  • Allocate risk
  • Limit or exclude liability
24
Q

Contracts are voluntary but there are limits, for example

A 
Unequal bargaining power
Implied Terms (compared to Express Terms)
Onerous or unusual terms
Special relationships
Public policy
25
Q

A contract must have (4 points)

A
  • Offer
  • Acceptance
  • Consideration
  • Intention to create legal relations
26
Q

Two further important points on contract law:

A

Privity- (only those party to a contract can bring an action)
Capacity-(certain persons lack capacity to make contracts, e.g. children)

27
Q

Tortious liability (def)

A

Tortious liability arises from the breach of a duty primarily fixed by law: this duty is towards people generally and its breach is redressible by an action for unliquidated damages.

28
Q

Tort Law (differences to contract law)

A
  • Duty owed to persons generally
  • Duty imposed by law
  • Damages are backward-looking
  • Primarily to protect non-economic interests (NB exceptions)
29
Q

Tort Law (differences to criminal law)

A
  • Duty owed to persons generally
  • Duty imposed by law (usually caselaw)
  • To provide a remedy
  • Action initiated by the individual wronged against the tortfeasor
30
Q

Contract Law (differences to Tort Law)

A
  • Duty owed to other party/-ies to contract
  • Duty accepted voluntarily
  • Damages are forward-looking
  • Primarily to protect economic interests
31
Q

Criminal Law (differences to tort law)

A
  • Obligations/Restrictions impose by the State
  • Duty imposed law (usually statute law)
  • To punish and deter
  • Action initiated by the Crown (State)
32
Q

In some cases, such as defective goods, you can have concurrent liability

A

in Tort and Contract

33
Q

The varieties of Torts

A
  • Negligence (fault liability)
  • Trespass to the person
  • Nuisance
  • Economic Torts
  • Defamation (strict liability)
  • Trespass to Land
34
Q

Interests protected in Tort Law

A

Financial Loss
Reputation
Property
Person

35
Q

Utilitarianism

A

the doctrine that actions are right if they are useful or for the benefit of a majority.

36
Q

Deontology vs Consequentialism

A

consequentialism focuses on judging the moral worth of the results of the actions and deontological ethics focuses on judging the actions themselves.

37
Q

Make an argument for:

The law playing a minimum role in the business environment
The law heavily regulating businesses both in terms of structure and operation

A

Fundamentally, the argument is based on the idea that tightly regulated societies stymie business growth and entrepreneurship; whereas, more relaxed, regulatory societies can lead to a lack of certainty in business transactions, increased criminality and undermine the rule of law.

38
Q

What is a Parliamentary Bill?

A

A bill is draft legislation commenced in either the HC or the HL.

39
Q

What are the sources of English Law?

A

Legislation (statute), Case (or Common Law), EU Law, HR Law, Custom and Equity.

40
Q

Is there a hierarchical structure of the sources of English Law?

A

Yes. Legislation is at the top (based on the Doctrine of Parliamentary Sovereignty) with Custom at the bottom (only really relevant in areas such as land and contract law).

41
Q

What currently is the largest statute (by volume) in force?

A

Companies Act 2006 (Eight years in the making, the Act runs to 1,300 sections and 701 pages.)

42
Q

Domestic Jurisdictions

A

Home Law

43
Q

International Jurisdictions

A

Abroad Law

44
Q

Inquisitorial procedural systems

A

Judge cross examines/quizzes the lawyers

45
Q

Adversarial procedural systems

A

combative with lawyers arguing for their client

46
Q

What is meant by Parliamentary Sovereignty

A

Parliament (or technically, the Queen in Parliament) is supreme and can make law on any area it wishes. There are no restrictions in terms of subject matter, geography or time (it can even be retrospective – though this is rare).

47
Q

What is meant be the term repeal in the context of legislation?

A

Repeal just means Parliament nullifying legislation; often used in law reform and to deal with new developments (such as the recent EU GDPR). To repeal a statute, new legislation is required, e.g. Sale of Goods Act 1979 partially repealed by the Consumer Rights Act 2015, the Companies Act 2006 consolidated numerous previous statutes.

48
Q

What is meant by the term settlement? How important is this procedure in the business world?

A

When the parties agree without a court hearing. This is extremely common as it saves time, publicity and costs. Approx. 80% cases are settled, sometimes at ‘the door of the court.’

49
Q

Law of Tort

A

is concerned with breaches of civil law that cause personal injuries, damage and interference to property and other sorts of personal loss.

50
Q

Negligence is the

A

commonest tort claim and is relevant to the whole gamut of accidental injury.

51
Q

To be successful in a claim of negligence, the claimant must prove that:

A
  • the defendant owed the claimant a duty of care; and
  • the defendant failed to perform that duty; and
  • as a result, the claimant suffered damage.

Principles Of Business (8 decks)

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