Mixed topical mocks

Question 1

What do precatory words lead to?

Answer 1

Precatory words (moral, wishful etc) would lead to a gift and not creation of a trust (as it is not sufficient intention)

Question 2

What is presumption of advancement?

Answer 2

Where one person transfers property to another without gaining anything in return, a resulting trust arises.

However, where a person transfers property to a child or spouse, the property is presumed to be a gift by way of advancement. (it reverses the presumption of resulting trust)

Question 3

What must a Claimant prove to establish a breach of trust?

Answer 3

Must prove a breach

Loss flowing from breach (otherwise no liability)

Question 4

What is a vested interest?

Answer 4

Vested’ means that the interest either already is or will eventually come into the hands of the beneficiary. If this occurs after the beneficiary dies, it will go to the personal representatives of the beneficiary.

Question 5

Where is a triable either-way-offence tried?

Answer 5

It can be tried in a Magistrate’s Court or Crown Court

Question 6

What is a matter of first impression?

Answer 6

In a case of first impression, the exact issue before the court has not been addressed by that court, or within that court’s jurisdiction, thus there is no binding authority on that matter.

Question 7

In which court is an acquittal from the Crown Court appealed?

Answer 7

The Court of Appeal (on a point of law)

It skips the High Court in this case

Question 8

What kind of criminal punishment can disqualify a person from jury duty?

Answer 8

A sentence for imprisonment for 5 years or more
A prison sentence or a community service order in the last 10 years
Probation in the previous 5 years
Currently on bail in criminal proceedings
Mental incapacity

Question 9

Is the High Court of Justiciary in Scotland bound by its own decisions?

Answer 9

It is but it may depart from its own case law in the interest of justice

Question 10

In what kind of trust can a settler not be a beneficiary and a trustee?

Answer 10

Testamentary trust. As property in such trusts need to be passed on to a trustee

Question 11

What happens when a trust fails?

Answer 11

It turns into a resulting trust where the legal interest stays with the trustees but the equitable interest reverts back to the trustees

Question 12

What happens when an outright gift fails all interests?

Answer 12

It reverts back to the owner (legal and equitable rights)

But failed gifts made under a lifetime trust remain on resulting trust for the settlor.

Question 13

Which kind of property cannot be vested orally?

Answer 13

Land needs to be in writing (any other type of prop, irrespective of value can be vested by an oral contract)

Question 14

Will a trustee be liable for acts and default of an agent?

Answer 14

Yes as long as they could have detected the acts or defaults by exercising reasonable care and skill

Question 15

When can income from a trust be used?

Answer 15

For the benefit of a minor, it is statutory requirement to give the money. For beneficiaries of full age, it is discretionary

Question 16

How much of the capital can a trustee advance?

Answer 16

Only 50% (pending certain conditions like variation, consent and creation after 2014)

Question 17

Can a PR appoint a new trustee?

Answer 17

Yes, PR has a statutory power to do so if they are PR of the last surviving trustee

Question 18

Is there a time limit for fraud by a trustee?

Answer 18

No time limit (subject to the doctrine of laches)

Question 19

What parallel position does the Vice-President of the Eu Commission hold?

Answer 19

High Representative of the Union for Foreign and Security Policy

Question 20

What is the EDB’s main function?

Answer 20

It manages the Euro, the EU’s single currency and safeguards price stability, in the EU

Question 21

What is the CJEU?

Answer 21

Collective term for EU’s judicial arm. It has 3 parts. Court of Justice, General Court (appeals in 2 months go to CJ) and Civil Services Tribunal

Question 22

What is the European Council?

Answer 22

It is the executive part of the EU

Question 23

What are the sources of EU law?

Answer 23

Primary (Treaties establish the EU), Secondary (Regulations, Directives and Decisions) and conventions and agreements

Question 24

What is the rule of reason?

Answer 24

Non-exhaustive list of measures derogating from the free movement of goods where the reason for the measure is the satisfaction of national mandatory requirements

A MEQR (measure having equivalent effect) cannot be justified under it

Question 25

How is a company’s dominant position assessed in relation to the relevant market?

Answer 25

It is assessed w.r.t relevant market product and the relevant geographic market

Question 26

How is the relevant product market determined?

Answer 26

By interchangeability (product substitution)

Question 27

Which arm of the EU tracks down and punishes competition law violations?

Answer 27

European Commission

Question 28

Are EU commission decisions binding on national courts?

Answer 28

`No (but can be treated as evidence in national courts)

Commission decisions are also only binding on those to whom it is addressed

However, national courts are obligated not to reach decisions on the same subject b/w the same parties

Question 29

What are the fines and penalties imposable by the EU Commission for breaches of Art 101/2?

Answer 29

up to 10% of previous year’s worldwide turnover+daily penalties of up to 5% of daily turnover for continuing breaches

up to 1% of previous year’s turnover (for supplying incorrect or misleading information)

up to 5% of previous year’s turnover (for failure to comply with a request for information)

Question 30

What is the effect of article 101/2 in national courts?

Answer 30

Direct effect (can be relied upon by individuals in national courts)

Question 31

What does Article 101 prohibit?

Answer 31

Article 101(1) prohibits:
• all agreements between undertakings, decisions by associations of undertakings, and concerted practices;

• which may affect trade between Member States; and
• which have as their object or effect the prevention, restriction, or distortion of competition within the internal market.

All three elements must be satisfied for a breach to be established.

Question 32

What are the limits on relevant market shares of undertakings to affect trade b/w Member States?

Answer 32

An agreement is not capable of affecting trade between Member States if the parties’ aggregate market share on any relevant EU market affected by the agreement does not exceed 5% and

(for horizontal agreements) their aggregate turnover does not exceed €40 million or

(for vertical agreements) the aggregate EU turnover of the supplier does not exceed €40 million.

Question 33

What effect does the de minimis rule have on Art 101?

Answer 33

Agreements affecting trade between Member States do not appreciably affect competition if the parties’ aggregate share of the relevant market does not exceed 10% (agreements between competitors, normally horizontal agreements)
or
if the market share of each of the parties does not exceed 15% (agreements between non-competitors, normally vertical agreements).

De minimis does not apply to agreements containing
hardcore restrictions, such as price-fixing and market-sharing.

Question 34

What are the exemptions to anti-competitive effects under Art 101?

Answer 34

Which result in:
• Improving production or distribution of goods or promoting technical or economic progress
• Allowing consumers a fair share of the resulting benefit

and which does not:
• No restrictions that are not indispensable
• No elimination of competition

For the exemption to apply, all four conditions must be satisfied.

Question 35

What are individual exemptions?

Answer 35

Exemptions that are granted by the Commission in horizontal agreements (agreements b/w process or manufacturers etc-at the same level of production)

Question 36

What are block exemptions?

Answer 36

The exemption applies to vertical agreements.The exemption is subject to market-share thresholds.

It applies only where both the supplier’s market share does not exceed 30% on the relevant market on which it sells the contract goods or services, and the
buyer’s market share does not exceed 30% on the relevant market on which it purchases the contract goods or services.

(hardcore restrictions are not permitted)

Question 37

What is the difference b/w Art 101 and 102 in EU comp law?

Answer 37

101 is concerned with anti-competitive agreements (bilateral conduct)
102 is concerned with abuse of dominant behaviour (unilateral conduct)

Question 38

What elements need to be satisfied under Art 102?

Answer 38

1. dominant position; (in the relevant market)
2. abused that position;
3. abuse must be capable of affecting trade between
   Member States

Question 39

What are relevant markets?

Answer 39

three aspects to the relevant market:
product (relevant product market-RPM, even includes substitute products)
geographic (relevant geographic market)
temporal (or seasonal) (rarely dealt with in practice)

Question 40

Can parties use the preliminary procedure?

Answer 40

No. Only national courts can make references to CJEU

Question 41

Which bodies does a prelim ruling bind?

Answer 41

It binds all national courts (and admin authorities) of Member States + the parties

Question 42

What is the jurisdiction of CJEU under Artice 267 (prelim rulings)?

Answer 42

The Court of Justice has jurisdiction to rule on the
interpretation or validity of EU law (save in certain areas expressly excluded by the Treaties, such as the Common Foreign and Security Policy).

It has NO jurisdiction to rule on the application of EU law, on the interpretation of national law, or on the compatibility of national law with EU law.

Question 43

Which courts of Member States are obligated to make prelim references to CJEU?

Answer 43

The highest courts or courts of last resort/final appeal

But there are exceptions:

1. a national court has discretion in deciding whether a question of EU law is relevant or not
2. CJEU has already ruled on the point or the doctrine of acte clair (clear act-no scope left for reasonable doubt) applies

Question 44

Do national courts have the juris to rule on validity of EU law?

Answer 44

No. They must refer to CJEU if it is necessary for them to make a ruling in a case.

Meanwhile they can grant interim measure