Legal Glossary II

Question 1

The reasonable person

omnibus…. average

Answer 1

The reasonable person has been variously described as ‘the man on the Clapham omnibus’, or ‘the man on the street’. The reasonable person, therefore, is the average person. That is, someone who is neither very intelligent nor very stupid; neither overly cautious nor unduly optimistic,

Question 2

assert oneself as, claim

Answer 2

hold oneself out

Where the defendant holds himself out as possessing a particular skill.

Question 3

Special concessions;

suitable for; appropriate for

Answer 3

No allowance will be made for the inexperience of a junior doctor.

A junior doctor is expected to show the level of competence befitting a doctor holding the same post

Question 4

release (someone) from a duty or requirement

Answer 4

However, great expense will not excuse a defendant where the risk of injury is great.

Question 5

regard something as being caused by

Answer 5

As a general rule, if a defendant’s failure to exercise reasonable care is attributable to his lack of resources, the courts will not allow the defendant to use this as an excuse.

Question 6

having little or no money

Answer 6

Impecuniosity is not a defence.

impecunious

Question 7

very unlikely to happen

Answer 7

However, a rare event is not necessarily a ‘fantastic possibility’.

Question 8

res ipsa loquitur

Answer 8

the principle that the mere occurrence of some types of accident is sufficient to imply negligence

Sometimes, however, the circumstances in which the damage occurred will be such that a court may be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what the defendant did or did not do. In such a case the Latin maxim (or phrase) res ipsa loquitur will assist the claimant

Question 9

draw off or convey (liquid)

Answer 9

Analysing this in terms of offer and acceptance, the pump on the garage forecourt is the offer and syphoning diesel from it constitutes the acceptance.

Question 10

issue (a ticket)

Answer 10

punch out

You become obliged to pay a car parking fee when you drive level with the machine at the car park entrance, causing the machine to punch out the ticket.

Question 11

an advertisement, especially one exaggerating the value of the goods advertised

Answer 11

Puff

In Carlill v Carbolic Smoke Ball, the reason the court dismissed the plea that the advertisement was a mere puff was the fact that the defendant claimed to have deposited £1,000 with Alliance Bank as evidence of its sincerity.

Question 12

the moment when an auction is concluded

Answer 12

on the fall of hammer

According to s 57(2) of the Sale of Goods Act 1979, a sale by auction is complete on the fall of the auctioneer’s hammer, in which case that is the acceptance.

Question 13

done without good reason; uncalled for

given or done free of charge

Answer 13

promises are not binding if they are gratuitous promises (in the sense that the offeree has not given, or promised anything in return for the promise to keep the offer open).

This is because damages are designed to compensate for an established loss and not to provide a gratuitous benefit.

Question 14

being an open offer for 6 months

Answer 14

the claimant paid £1 for the option to buy V’s house for £10,000. The option was exercisable within six months. V purported to revoke the offer.

Question 15

be induced, be disposed towards;

inclined to think in a particular way

Answer 15

In this case, beyond all question, the plaintiff knew that Dodds was no longer minded to sell the property to him

Question 16

Synonym

The offer is no longer in effect

Answer 16

In this case, beyond all question, the plaintiff knew that Dodds was no longer minded to sell the property to him

Question 17

produces that will decay over time

Answer 17

an offer to sell perishable goods would terminate after a short time.

Question 18

to relieve the sense of regret because of having done something morally wrong

Answer 18

The claimant knew of the reward, but in fact provided the information because she was dying and wanted to ease her conscience. The court held that this did not preclude a valid acceptance of the offer.

Question 19

to override; to supersede

Answer 19

The form said that the claimant’s terms were to prevail over any terms on the defendant’s standard form.

a prevail clause

An agreement between a petrol company and filling station to supply petrol at the market price prevailing at the date of delivery

Question 20

a clause that enables the vendor to alter the price to keep pace with inflation

Answer 20

The claimant’s terms included a price variation clause which allowed the claimant to increase the price of the machinery to keep pace with inflation.

Question 21

Synonym

The court recogizes a contract based on the D’s terms

Answer 21

The Court found a contract on the defendant’s terms.

Question 22

The last recognised terms of contract will prevail

Answer 22

it is for this reason that some believe ‘the last shot wins’ the battle and explains why businesses persist in putting forward their own standard terms.

Question 23

Tort of conversion

Answer 23

selling sth that does not belng to the vendor

If so, the uncle would be entitled to sue the auctioneer in the tort of conversion (on the basis that he had sold something that rightfully belonged to the uncle).

Question 24

reject or disallow by exercising one’s superior authority

Answer 24

Although the decision in Felthouse v Bindley has been criticised, the case is still good law as it has not been overruled.

Question 25

to take back the acceptance

Answer 25

can the sender then change his or her mind and retract the acceptance before it comes to the attention of the offeror?

Question 26

Meaning of acceptance

unqualified…..terms…..

Answer 26

Acceptance is an unqualified expression of assent to the terms of an offer.

Question 27

cannot be enforced in court

Answer 27

As the evidence of the parties themselves is likely to be unreliable, as each party will have his or her own interests to serve, the courts have evolved another way of deciding the issue.

Question 28

Syndicate

Answer 28

The mutual understanding must be that if one of the tickets wins, the others should be legally entitled to their respective share of the winnings. So that if the person who actually bought the winning ticket keeps all the money, the others should be able to sue him or her for it; in other words, an informal sort of syndicate.

Question 29

The presumption that court admits to be true unless proven otherwise

Answer 29

With regard to intention to create legal relations, English contract law operates on the basis of rebuttable presumptions, which differ according to whether the agreement is to be regarded as ‘domestic’ or ‘commercial’.

Question 30

being swamped with

Answer 30

The policy reason in the judgment of Atkin LJ is the need to prevent the court being inundated with claims. He said: ‘All I can say is that the small courts of this country would have to be multiplied one hundredfold if these arrangements were held to result in legal obligations.

Question 31

avoiding intimacy or close contact; without conflict of interest

Answer 31

If the couple had been separated the likelihood is that they would have been bargaining at arm’s length

Question 32

not behaving in a way that leaves one vulnerable to danger or failure

Answer 32

The couple clearly had not wanted to leave anything to chance. It was a formal agreement which they obviously intended to be legally binding

Question 33

done from a sense of moral obligation rather than because of any legal requirement:

Answer 33

ex gratia

said the words simply indicated that the employer did not admit any pre-existing liability on its part to make the payment:

Question 34

synonym

members of a company

Answer 34

A company has to have this separate body of people, the shareholders, also called members, those two terms are interchangeable

Question 35

the treat the shareholder and the company as a single entity

Answer 35

The common theme running through all the cases in which the court has been willing to pierce the veil

Question 36

other than, not including, outside the scope of

Answer 36

Dehors

the company was being used by its controller in an attempt to immunise himself from liability for some wrongdoing which existed entirely dehors the company.

Question 37

to put back what was previously lost or declared invalid

Answer 37

The Supreme Court unanimously allowed the wife’s appeal and declared that the p
roperties vested in PR Ltd and VP Ltd were held on trust for the husband and restored the order of the judge insofar as it required the companies to transfer them to the wife.

Question 38

decree nisi

Answer 38

an order by a court of law stating the date on which a marriage will end unless a good reason not to grant a divorce is produced

Question 39

destroy or impair the legal validity of

Answer 39

The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever

Question 40

decree absolute

Answer 40

a court of law’s final order officially ending a marriage, enabling either party to remarry.

Question 41

instrument that details the particular of a fixed rate long-term loan

Answer 41

S held some 20,000 shares and in part payment for the sale, debentures of the company were also issued to him

Question 42

go without

restrain from

Answer 42

Jack promises Tom that he will forgo £300 balance of the debt which he is owed. Although Tom pays Jack £500, Tom was under a contractual obligation to pay £800.

Question 43

synoynm

does not let you become free of the obligation to pay the remainder of a debt

Answer 43

Partially performing an obligation you owe to the other party to the contract is not usually consideration for a promise to release you from the balance due

Question 44

the action of refraining from exercising a legal right, especially enforcing the payment of a debt

Answer 44

Forbearance

A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other.

Question 45

disbenefit or disadvantage

Answer 45

In other words, what is provided by way of consideration should either be a benefit to the person receiving it, or a detriment to the person giving it. Often both will be present.

Question 46

introducing a statement or idea which reverses one that has just been made or referred to

Answer 46

Conversely, Daryl is suffering a detriment by paying Adam £9,000 for the car and Adam is gaining that benefit.

Question 47

demand and specify as a part of an agreement

Answer 47

A contracting party can stipulate for what consideration he chooses. A peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn.

Question 48

to guess

Answer 48

Speculate

The court dismissed this argument. The nephew had a legal right to do all the things he abstained from doing. He had abandoned that right in consideration of the promise of $5,000 and the court was not prepared to speculate on the effort which had been required to give up the various activities.

Question 49

to become definite and clear

Answer 49

The court held that it must always have been assumed that Casey’s work would be paid for in some way; the defendants’ promise simply crystallised that reasonable expectation.

Question 50

A floating charge

Answer 50

a liability to a creditor which relates to the company’s assets as a whole and may become fixed in particular circumstances (such as liquidation).

Question 51

A fixed charge

Answer 51

a liability to a creditor which relates to specific assets of a company.

Question 52

a recovery of the money already paid

Answer 52

Restitution

If the promise had not been made, the defendant would have been entitled in restitution to a reasonable sum for what he had done

If there is a total failure of consideration, the payer can bring a claim in restitution to recover the money paid.

Question 53

having something as an aim

Answer 53

with a view/no view

if Ray and I were very close friends, Ray no doubt helped me to decorate a room in my house as a favour, with no view to reward.

Question 54

feelings such familial love or care towards one’s children

Answer 54

natural affection

if Ray and I were very close friends, Ray no doubt helped me to decorate a room in my house as a favour, with no view to reward.

Question 55

Synonym

The same for…

Answer 55

The same could be said of acts carried out for close family members which are done out of natural affection.

Question 56

express something in language or a specified style

Answer 56

To a large extent, the rule against using a legal duty as consideration seems couched in public policy.

Question 57

on first impression

lacking in something desirable or essential

Answer 57

On the face of it, none, in which case my promise would be unenforceable for want of consideration

Question 58

bring a vessel back to where it set off

Answer 58

At Cronstadt two of the 11-man crew deserted, and the captain promised to split the wages of the deserters equally among the rest of the crew if they would work the ship home.

Question 59

depending on the actual circumstances

Answer 59

a question of fact and degree

Question 60

economic duress

Answer 60

There is … another legal concept of relatively recent development which is relevant, namely that of economic duress. Clearly, if a subcontractor has agreed to undertake work at a fixed price, and before he has completed the work declines to continue with it unless the contractor agrees to pay an increased price, the subcontractor may be held guilty of securing the contractor’s promise by taking unfair advantage of the difficulties he will cause if he does not complete the work. In such a case an agreement to pay an increased price may well be voidable because it was entered into under duress

Question 61

to remove a need or difficulty

Answer 61

as a result of giving his promise B obtains in practice a benefit, or obviates a disbenefit

Question 62

to perserve the integrity of a legal principle

Answer 62

Leave something unscathed

If it be objected that the propositions above contravene the principle in Stilk v Myrick, I answer that in my view they do not; they refine, and limit the application of that principle, but they leave the principle unscathed …

Question 63

make or show something compatible

Answer 63

Despite their Lordships’ view that the decision in Williams v Roffey Bros leaves the principle in Stilk v Myrick intact, it is difficult to reconcile the two cases.

Question 64

make someone to accept an undesirable or unwelcome thing

Answer 64

he was reconciled to leaving

Question 65

the be no longer liable for a debt or an obligation

Answer 65

the debtor had paid early and had thereby provided consideration to discharge the whole debt.

If the innocent party terminates, the contract is at an end and future obligations will be discharged

Question 66

Promissory estoppel

Answer 66

The equitable doctrine may be described as follows: Where a party to a contract has, by words or conduct, made a promise to the other to forgo a legal right, then once the other party has acted on the promise he will have a good defence to any claim brought by the promisor which is inconsistent with the promise. The defence will be allowed in so far as it is equitable

Question 67

expedient

Answer 67

a means of attaining an end, especially one that is convenient but possibly improper or immoral

The claim succeeded. Denning J said that the promise to reduce the rent was intended to apply only as a temporary expedient while the block of flats was not fully let.

Question 68

render (a right or obligation) void

Answer 68

extinguish

Unlike hereditary peers, these titles extinguish on the death of the holder and do not pass down the family.

Therefore in Denning J’s view the landlord’s right to the full rent whilst war-time conditions lasted had been extinguished

Question 69

the position of being without, or of waiting for, an owner or claimant

Answer 69

leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance

Question 70

prohibitory

Answer 70

prohibitive

An injunction may be prohibitory (which forbids a person doing a particular act) or mandatory

Question 71

state or make known; imply or hint

Answer 71

Intimate

In such cases no intimation or notice of any kind may be necessary.

The most common situation where the buyer is deemed to have accepted the goods is where he retains the goods beyond a reasonable time without intimating rejection.

Question 72

resile

Answer 72

abandon a position or a course of action

the promisor can resile from his promise on giving reasonable notice, which need not be formal notice … The promise only becomes final and irrevocable if the promisee cannot resume his position.

Question 73

synonym of apparent authority

Answer 73

ostensible

Although K Ltd no longer had actual authority, it probably had what is known as apparent or ostensible authority, and Traders will not have to pay again.

Question 74

drop out

Answer 74

cease to become a part of activity

Lewis would not be able to sue Sara for the money. Provided the agent had authority of some sort (ie either actual or apparent/ostensible) then the rights and obligations under the contract belong to and bind the principal and the third party, and the agent drops out

Question 75

the action of deceiving someone or by concealing or misrepresenting the truth

Answer 75

the third party may sue the agent in deceit, where the agent knew he had no authority, or for breach of implied warranty of authority

Question 76

purported agency

Answer 76

We have now considered the effects of a disclosed agency (ie where the agent is purporting to act as an agent). Where the agent has some form of authority, he is in a position to bind the principal to a contract with a third party. Where the agent does not have authority

Question 77

Occurring by chance in connection with something else

Happening as a minor accompaniement to something else

Answer 77

It was a case of agreeing to take a lesser sum when a larger sum was already due to the plaintiffs. It was not a case of agreeing to take a cheque for a smaller amount instead of receiving cash for a larger amount. The payment by cheque was an incidental arrangement.”

Question 78

synonym

that it does not matter

Answer 78

Equally, therefore, for simple assault it is of no consequence whether or not the unlawful touching results in injury or harm

Question 79

come to known; be revealed

Answer 79

it transpires that Syd was a very large man, skilled in the art of self-defence, who is not afraid of Bill, would your answer be different?

Question 80

containing or presenting the essential facts of something in a comprehensive but concise way

Answer 80

compendious

when we use the word ‘assault’, it is being used in its compendious sense of simple assault and/or physical assault

Question 81

ABH

Actual bodily harm

Answer 81

Actual bodily harm, according to R v Miller [1954] 2 QB 282, means any hurt or injury calculated to interfere with the health or comfort of the victim.

Question 82

Wounding

Answer 82

A wound requires both layers of the skin to be broken (Moriarty v Brookes (1834) 6 C & P 684). Cuts of any size or severity or lacerations are the most common examples but, in theory, a scratch that draws blood will suffice.

Question 83

make impossible

Answer 83

preclude

Generally the law did not specify a particular age or degree of mental disability or handicap which precludes someone giving a valid consent.

Question 84

the action of commissioning a crime or an offence

Answer 84

The appellants belonged to a group of sado-masochistic homosexuals who, over a long period of time, willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain.

Question 85

委任证

Answer 85

M was not, in fact, a policeman and, when he was unable to produce a warrant card,