ENGLISH FOR LAW - B1 LEGAL ENGLISH, Sintesi del corso di Inglese Giuridico

Scarica ENGLISH FOR LAW - B1 LEGAL ENGLISH e più Sintesi del corso in PDF di Inglese Giuridico solo su Docsity! LAW: is the regolation of social conduct by the state; is a system of rules that a society or government develops in order to deal with crime, business, agreements and social relationships COMMON LAW: is the part of law which comes from judicial precedent (decision made in court by judges) and custom; does not came from statute (such as most of Europe, including Italy); in Common Law system, previous judgments are very important in new cases when there is no a statute covering that area of law; the decision are regulary published in law reports. STATUTORY LAW A statute is a written law passed by a legislative body The UK Parliament is the supreme law-making body and is the most important source of laws known as Act or Statutes (legislation) Judicial sources are subordinate to legislation so Acts of Parliament have priority if there is conflict between primary legislation and judicial sources. UK PARLIAMENT Consist of: House of Commons and House of Lord. The Parliament is responsable for making laws, deciding taxes and scrutinising the Government. HOUSE OF COMMONS is composed by 650 elected members of Parliament. They sits for 5 years and has supremacy on legislative metters. HOUSE OF LORDS is composed by 790 sitting lord or peers. The mjority of Lords are appointed by the Monarch on the advice on the Prime Minister and serve for life. There are 92 hereditary peers. The title is not transferible. HOW A BILL BECOMES AN ACT: A bill is a proposal for either a new law or to change an existing law Bills are presented for debate before Parliament Bills are introduced in either the House of Commons or the House of Lords for examination, discussion and emendment Both Houses must agree any changes When Both Houses have agreed on the content of a bill it is then presented to the Monarch for approval Once Royal Assent is given a bill becomes an act of Parliament and is law Before a Bill is introduced the Government may publish two things: GREEN PAPER who set out proposals for discussion when they are still at formative stage/WHITE PAPER issue by the Government as statements of policy and often set out proposals for legislative changes TYPES OF BILLS PUBLIC BILLS: the most common type of bill; for issue which effect the general public – Proposed by a Government Minister. PRIVATE BILLS: for issue which effect individual organisation/groups – Proposed by organisation such as a local authorities or public bodies HYBRID BILLS: are private bills which effect both individual organisations and the general public, es. the building for a high-speed train link effect both the rail companies and the people living next to the rail track. STAGE OF A BILL: 1. FIRST READING the title of the bill is introduced 2. SECOND READING this is the first general debate on the main principles and pourpose of the bill 3. COMMITTEE STAGE the bill is debated in detail by a small group of members in a standing committee and every clause may be amended, agreed or removed. 4. REPORT STAGE where the amendment are either accepted or reversed 5. THIRD READING the final debate takes place and the bill is voted on. IF THE BILL PASSED IT, THEN GOES TO THE OTHER HOUSE AND FOLLOWS A SIMILAR PROCESS ONCE BOTH HOUSE AGREE IT, IS PRESENTED TO MONARCH FOR APPROVAL (ROYAL ASSENT)M AND THEN THE BILL BECOMES AN ACT OF PARLIAMENT AND IS LAW RULES OF STATUTORY INTERPRETATION: if the wording of the act is ambiguous, it needs to be interpreted using 3 different approaches 1. LITERAL RULE words are given their literal meaning 2. GOLDEN RULE modifies the literal rule in order to avoid an absurd outome 3. MISCHIEF RULE uses Common Law to interpret Statutes and so allows the Statutes to develop by rectifying any problems. JUDICIAL PRECEDENT: judges not only interpre statutes but they also apply judicial precedent. This means that judges follow the result of previously decided cases where the facts are of sufficient similarity to the current case. Decisions of the court will be used in future decision-making THIS PRINCIPLE IS CALLED STARE DECISIS – in UK law, precedents are authoritative, binding and must be followed. There is an important HIERARCHY OF COURT: INFERIOR COURT must apply the legal principles decided by superior court. If the facts of the previous case are sufficiently similar to the current case or the principles of law used in the previous case can be apply to the courrent case, this is called RATIO DECIDENDI. Ratio Decidendi means the reason for the decision in a case. During the judgment, the judge outlines the material facts and legal rules he finds have been proved by evidence. The judgment is then binding on future cases in lower court, through the principle of stare decisis. OBITER DICTUM means remark in passing. The refers to comments made by the judge, during the judgment which are not strictly connected to the decision in the case, they may be about hypothetical situations or laws on other issues. The remark are not binding on later cases but can be used as a persuasive precedent. ADVANTAGES OF COMMON LAW DISADVANTAGES OF COMMON LAW There is an expectation that similar cases will have similar outcomes The Ratio Decidendi is not always clear and it can sometimes be difficult to separate the Ratio Deciendi from the Obiter Dicta It is based on real facts, from real cases, rather than theory Some binding precedents force judges to continue to stand by previous decision even if the those decision were not good ones. Reduces the chances of judges making bad judgements If there are multiple judges sitting on the case, then there can be varying Ratio Decidendi It can take a lot of time to look for precedent, through large numbers of previous cases. In supporting the Ratio Decidendi each judge delivers an opinion: CURRING OPINION and DISSENTING OPINION (with the decision of the majority of judges). Judges can avoid a difficult binding precedent by: DISTINGUISHING material precedent case are different to the courrent case REVERSING a higher court reverses the decision of the lower court on the same case OVERRULING a higher court overrules the decision of a lower court in a different case CIVIL LAW: civil law is the deals with the rights and property of private people and/or organisation, which may not be protected by criminal law The civil low settles disputes between private individuals and/or organisations who are know as the parties in the case The party who brings the case is called CLAIMANT and the party who defens the case is called DEFENDANT The CLAIMANT has the burned of the proof that, more probably than not (50%), the DEFENDANT committed a wrong The defendant is found liable or not liable If the claimant prove the case, the defendant is found liable If the claimant is successful, the usual REMEDY is DAMAGES (often sum of money – damages are a right and not decided by the court) Often involves remedy being awared (es. financial compensation) No one is sent to prison but they may have to py a lot of money if they are found liable Civil law treat personal injury case; breach of contract or promise; property law; family disputes, NEGLIGENCE, employment, PROBATE and land low. they stand in court and plead the case on behalf of their clients in front of a judge. They also have specialist knowledge of the law and so are often called on to give legal advice. Barristers do not come into contact with the public as much as solicitors. They are given details of a case by a solicitor and then have a certain amount of time to review the evidence and to prepare what they are going to say in court (a pleading). Most barristers are self-employed and work in Chambers with other barristers so they can share costs of accommodation and administrators. They can also be employed in-house as advisors by banks, corporations, and solicitors firms. JUDGES and MAGISTRATE Judges JUDGE is a generic term for anyone who presides over the court proceedings either alone or as a part of a panel of judges Judge is a public official with authority to hear cases in a court of law and pronounce a judgment opinion them. Judge have much greater powers (than magistrates). They generally hear larger and more complex cases. Can preside over a large area, sometimes entire country; Can issue a final judgment in a case. Judge are elected or appointed by the Governor. They sit in superior court such as the High Court, Court of Appeal and Supreme Court. Magistrates Magistrates have fewer and more limited powers than Judges. They listen to minor issues such as petty crime and traffic offenses. Magistrate have a smaller area of jurisdiction such as a city or country. A magistrate cannot pronounce a definitive sentence. Magistrate are appointed by the judge. They are appointed to sit in Inferior Magistrates’ Courts dealing with most criminal cases. The term MAGISTRATES includes Lay Magistrates (not legally qualified and unpaid except for expenses) and District Judges (Justices of the Peace) – members of the judiciary and are legally qualified. INDIPENDENCE OF JUDGES: means that they must deliver judgment with complete impartiality without interference from political forces or the parties appearing before them. They are protected by judicial immunity. THE JURY Juries are normally used in Criminal proceeding in Crown Court trials. Occasionally are used in Civil trials (es. Defamation) as well where they will a deliver a verdict and decide on the remedy. Juries consider the evidence and decide what the true facts of the case are and then deliver a verdict. Members of the Jury are summoned from the public and people must do jury service when asked unless they have a good excuse. Jurors can be dismissed if they are prejudiced, connected to people in the case, believed to be unfair. This is called a CHALLENGE FOR CAUSE. PROPERTY LAW property law is the la that in common law legal system governs the various forms of ownership in real property and in personal property. The law of property regulates the forms of ownership in REAL PROPERTY and PERSONAL PROPERTY REAL PROPERTY is land which is the property of a person and all structures integrated with or affixed to the land, including crops, buildings, dams, ponds, mine ecc.. PERSONAL PROPERTY, also called Chattels, is all property that is not real property. Personal property is movable and it is divided into TANGIBLE and INTANGIBLE. Tangible personal property refers to any type of property that can generally be moved, touched or felt. Intangible personal property refers to property that cannot be moved, touched or felt, but something of value, such as patents, copyrights, franchises ecc.. OWNERSHIP and POSSESSION are the two main concepts of Property law. OWNERSHIP means have the exclusive right to use, possess and dispose of property, or having the rightful title from law or agreement. An owner can transfer some right and retain others. If I have a car which is mine, then I am the owner – i bought it, my name is on the documents, I can legally sell it if I want. POSSESSION means the actual control of something. Only tangible things can be controlled in this way. If I land my friend my car, then they are now the possessor and they have physical possession and control of the car. POSSESSION BY CONSENT is the consensual transfer of ownership. Example trough a will (or testament), gift, sale, ecc.. POSSESSION WITHOUT CONSENT is the passing of property to another without the consent of the owner. Ex. Through bankruptcy, a court judgement… BAILMENT is the process of separating ownership from possession. Bailment describes a legal relationship where physical possession of personal property, or a chattel, is transferred from one person to another person who subsequently has possession of the property but not total ownership. CONTRACT LAW A contract is a legally binding agreement between two parties. It also known as an agreement enforceable at law. The pourpose of the law is to provide remedy for breaches of binding agreement. There are 7 requirements of a contract: 1. OFFER AND ACCEPTANCE 2. INTENTION TO CREATE LEGAL RELATIONS: both parties must intend to enter into a legally binding contract 3. LEGAL CAPACITY: capacity is a legal term meaning mental ability to understand and be accountable for making contract. 4. CONSENT: contract must be understood by both parties. The consenti s given freely and without duress 5. VALUABLE CONSIDERATION: this means goods, services, money or a promise to pay or provide them in the future 6. LEGALITY POURPOSE: the pourpose of the contract must be legal 7. FORM REQUIRED BY THE LAW: express contract, implied contract and quasi-contract CONSIDERATION for a contract be legally enforceable it must have consideration. Consideration must have some economic value and may be for the provision of goods/services/money THE END OF AN OFFER sometimes a contract cannot be made because the offer comes to and before it can be accepted. A contract can be end by revoke, counter-offer, lapse and reject. ENDING OF A CONTRACT a contract ends either when it is SET ASIDE or DISCHARGED SETTING ASIDE (CANCELLING) A CONTRACT: there are 3 main factory (VITIATING FACTOR) for setting aside a contract: 1. DURESS AND UNDUE INFLUENCE 2. MISTAKE 3. MISRAPRESENTATION 1. DURESS: is a threat of harm in order to make a person do something against their will or better judgment. UNDUE INFLUENCE: involves one person taking advantage of a position of power over another person. The lae presumes that in certain classes of special relationship, such as between parent and child, or solicitor and client, or doctor and patient, or teacher and student… there will a special risk of one party unduly influencing the conduct of the other party and their motives for contracting. 2. MISTAKE: is an incorrect understanding by one or more parties to contract and may be used as the reason to invalidate the agreement. Common law has indentified 3 different types of mistake: a. UNILATERL MISTAKE is where only one party to a contract is mistaken as to the terms or subject-metter; b. MUTUAL MISTAKE is when both parties of a contract are mistaken but to different elements in the contract c. COMMON MISTAKE is where both parties are mistaken to the same elements leading to the contract. Another mistake is a MISTAKE REGARDING THE IDENTITY OF THE PERSON BEING CONTRACTED WITH. 3. MISRAPRESENTATION: means a false statement of fact made by one party to another party. That party may be induced into the contract as a result. Ex. False statemets or promises made by a seller of goods regarding the quality or nature of the product. DISCHARGING (TERMINATED) A CONTRACT: there are 4 main reason for descharging a contract: 1. PERFORMANCE both parties complete their contractual obbligations 2. AGREEMENT both parties agree to change the contract and a new contract is written 3. BREACH OF CONTRACT one party refuses to carry out their obligations 4. FRUSTRATION the contract decomes impossible to complete, buti s not the fault of either party, ex. Illness, weather conditions… REMEDIES FOR A BREACH OF CONTRACT 1. LIQUIDATED DAMAGES: the contract already specifies the amount of damages to be paied by a party in the case of a breach 2. UNLIQUIDATED DAMAGES: the court assesses the loss and fixes the amount to be paid OTHER REMEDIES INCLUDE: 3. QUANTUM MERUIT: happens when some work has been done under the contract, but not all the work and the claimant asks for payment for the work done 4. INJUNCTION: this is a court order to stop someone breasching the terms of a contract 5. SPECIFIC PERFORMANCE: this is a court order to asking a party to perform his obligations under the contract The main difference between INJUNCTION and SPECIFIC PERFORMANCE is that an injunction orders a prty NOT to do something and specific performance orders a party TO DO something. THE LAW OF TORT WHAT IS A TORT? The tort is a civil wrong by the tortfeasor that unfairly result in loss or harm to another. This makes the tortfeasor liable to the other. Torti s distinguishable from 2 other kinds of law – criminal law and contract law, and is dealt with by the civil courts. The tort of law is wide-ranging body of rights, obligations and remedies applied by the courts in civil proceedings. It provides remedy for those who have suffered loss or harm following the wrongful or negligent acts of others. Parties to an action in tort: anyone can sue in torti f they suffered harm or loss as a result of someone else’s civil wrong and claimants can sue a wide range of tortfeasor. Examples of different types of individuals and other parties who can potentially face an action against them under the law of tort are: individuals, the Crown, Companies, Employers, Employees, indipendent contractors, occupiers of premises, individuals who have caused damage to another’s reputation, individuals in the medical profession… WHAT ARE THE ELEMENTS OF THE LAW OF TORT? NEGLIGENCE: is by far the most common tort for which claimants take legal action. There are 4 elements to the tort of negligence. Each of these, must be present for a claim to be successful: 1. The negligent party owed a duty of care to the victim 2. There was a breach of a duty of care 3. Causation 4. Damage, harm or injury occurred DUTY OF CARE: the defendant in a negligence action must have owed a legal duty of care to the claimant. There is 3 stage test o establish whether there was a duty of care: - Is there a relationship of proximity between the parties? - Was the injury to the claimant foreseeable? - Is it fair, just and reasonable to impose a duty? BREACH OF DUTY: for the tort of negligence to have occurred, the defendant must have breached the duty of care legally imposed on them. The ‘reasonable man’ test, is usually applied to ascertain whether the behaviour of the defendant fell below the threshold of a ‘reasonable man’. This will vary depending on the nature of the defendant. For instance, in a medical negligence case following a surgical procedure, the ‘behaviour’ – The skills – of a specialist surgeon will be expected to be of a much higher standard than the skills of a junior doctor assisting. CAUSATION: once a breach of the legal duty of care has been established, it must be shown that the loss, damage or personal injury was caused as a result, whether directly or indirectly. The questioni is: but for the actions or omission of the defendant, would the loss or harm have resulted? DAMAGE, HARM OR INJURY: there must be some form of loss, damage or injury. This includes physical or mental personal injuries; financial loss; or damage to property. It can also extend to emotional distress or embarrassment. ECONOMIC TORTS: are defined as torts that have inflicted pure financial loss on someone. A primary example of an economic tort is ‘passing off in the course of business, whereby an individual or business attempts to pass off their goods as the goods of another – relying on the substantial goodwill associated with the original product or goods. A claim can be made for damages to compensate for the economic loss suffered. OTHER CLAIMS OF TORT: nuisance, occupiers liability, defamation, trespass and breach of confidence