Business Law background Info

Question 1

Domestic Statutes

Answer 1

Acts of Parliament and legislation delegation to other bodies.

Question 2

The ‘common law’

Answer 2

law made over centuries by judges during the process of deciding individual cases. (henry II) The law of contract and the law of torts developed in this way. Separate development known as equity, which sought to moderate some of the harsher effects of common law.

Question 3

Law from the EU

Answer 3

This flows from the UK’s membership of the EU
i.e. Directive 2011/83/EU
(Human Rights Law)

Question 4

Criminal Law

Answer 4

makes certain types of behaviour criminal offences, giving state power to prosecute + punish that commit those offences.

Question 5

Civil Law

Answer 5

• Also known as PRIVATE LAW.
• This relates to the relationship between private parties.
• Civil courts: designed to compensate people who have been caused loss/ injury by wrongful acts of people.
• Also concerns relatiaonships: separation & divorce, + winding down of companies.

Question 6

Tort

Answer 6

In common law jurisdictions, is a civil wrong that causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act.

Question 7

Non-contentious

Answer 7

not causing or likely to cause an argument

Question 8

Ultra vires

Answer 8

beyond one’s legal power or authority:

i.e. “jurisdictional errors render the decision ultra vires”

Question 9

Ejusdem generis rule

Answer 9

the general words that which follow specific words must be given the same type of meaning as the specific words

Question 10

When the literal rule is applied

Answer 10

words in statutes take literal meaning, even if this leads to a decision which is unjust or undesirable.

Question 11

expression unius est exclusion alterius

Answer 11

 (to express one thing is to exclude another), if the statute lists specific words and these are not followed by any general words, the statute only applies to the specific words.

Question 12

intrinsic aids

Answer 12

Help construct the statute

and are part of the statute itself

Question 13

extrinsic aids

Answer 13

Help construct the statute

and are NOT part of the statute itself.

Question 14

codifying Act

Answer 14

reduces the existing law to one comprehensive statute.

Question 15

A consolidating Act

Answer 15

re-enacts as one Act several pieces of legislation which concern the same subject.

Question 16

An amending Act

Answer 16

alters some of the sections of an existing Act.

Question 17

Delegated legislation

Answer 17

-is passed other than a statute. Once passed it has the same effect as a statute

Question 18

Statutory instruments

Answer 18

are introduced by government ministers upon whom power has been conferred by an enabling Act.

-Orders in Council are introduced by the Privy Council. Bye-laws are passed by local authorities.

Question 19

The golden rule

Answer 19

allows the court to avoid giving the words in a statute a meaning which is manifestly absurd. It also allows a court to prefer the less absurd or undesirable interpretation when the word of statute is ambiguous.
o The mischief rule allows a court to be guided by consideration of the problem which the statute sought to rectify.

Question 20

o The doctrine of judicial precedent

Answer 20

holds that the decisions of higher-ranking courts are binding upon lower-ranking courts.

Question 21

o The courts are arranged in a hierarchical structure.

Answer 21

The decisions of the Supreme Court (formerly known as the House of Lords) bind all inferior courts. Decisions of the Court of Appeal bind all inferior courts and, almost always, future sitting of the Court of Appeal. Decisions of the Divisional Court of the High Court bind other High Court judges sitting alone and all inferior courts. They also generally bind future sittings of the Divisional Court. Decisions of High Court judges sitting alone bind inferior courts but do not bind other High Court judges.

Question 22

ratio decidendi

Answer 22

• The binding element in a case
• , which might be defined as any statement of law which the judge applied facts of the case and upon which decision in the case is based.

Question 23

o Statutes of law made by a judge which are not part of the ratio decidendi

Answer 23

are known as obiter dicta. These are persuasive authority only.

Question 24

• The Human Rights Act 1998

Answer 24

o The UK signed the European Convention of Human Rights 1951.

o The Human Rights Act 1998 incorporates the Convention into UK law, but preserves Parliamentary sovereignty.

o As far as it is possible to do so, UK legislation must be read and given in a way that is compatible with the Convention rights.

Question 25

o The major rights set out in the Convention are: (human rights act 1998)

Answer 25

 The right to have one’s life preserved by law  The right not to be subject to torture or inhumane or degrading punishment.  The right not to be held in slavery or servitude or required to perform forced or compulsory labour.  The right to liberty and security of a person  The right to a fair trial  The right not to be respectively guilty of a criminal offence  The right to respect for private and family life  The right to freedom of thought, conscience and religion  The right to freedom of assembly and freedom of association with others  The right to marry a member of the opposite sex.

Question 26

HMR- Protocols have been added:

Answer 26

 that every natural or legal person is entitled to peaceful enjoyment of his possessions, that no one should be denied  that no one should be denied education  that States must agree to conduct free elections at regular intervals by secret ballot so as to allow the people to choose freely the legislation  death penalty is outlawed.

Question 27

Disadvantages of the system of precedent.

Answer 27

 It is impossible for anyone to be aware of all the precedents.  Bad decisions can live one for a v long time  Bad decision made by house of lords before 1966 could only be changed by parliament  Too many precedent can create uncertainty.  Higher courts can’t chose to hear a case  So supreme court might want to overrule something but until someone makes an appeal all the way to the supreme court they cant do anything.  Precedent making courts act retrospectively rather than prospectively.  They alter law not only in future but also past.  Creation of law can be regarded as political.

Question 28

•Advantages of system of precedent

Answer 28

 Device of distinguishing a case means that it is not entirely rigid.  High quality decisions are applied in all courts as supreme court judges have the time and knowledge to make good decisions  V hard to become supreme court justices.  They do not decide a case there and then, they hear al the facts then talk between themselves informally to see if they’ve reached a consensus. If there is no consensus the minority will write down their own dissenting judgement.  English commercial law is adopted by businesses of different nationalities when they contract with each other as it is the most suitable system of law for resolving commercial disputes. The system of precedent allows the law to be constantly updated so it keeps up with business trends.  it is consistent and certain.  Allowing majority of cases to be settled without having to go to court.