- used in common law
- a contest between two opposing parties before a judge who moderates
- used in civil-law systems
- judges play a limited role in shaping civil law
- judge's role is to establish the facts and to apply the provisions of the applicable code. Judges are more investigators.
- Acts of Parliament
- contains primary legislation in the UK.
- has received Royal Assent.
In a common law system, whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases.
To adopt a measure, to codify
- Represent clients in court, they have exclusive right of audience in superior courts.
- Offer specialist legal advice.
- Usually self-employed.
- Provide legal advice, draft legal documents, instruct a barrister if necessary.
- They can represent their clients in inferior courts.
- Work in law firms/ as in-house lawyers / government.
- Public officers whose role is to authentique legal instruments executed before them.
- By law, some instruments require the involvement of a notary to record an agreement reached between the parties (= "authentic instruments")
- Independent holders of public office, but also highly qualified lawyers. They also have legal duty to strict impartiality.
- Public legal officials, they cannot refuse to respond to a request to act, unless the law/ code of conduct doesn't allow it.
- Self-employed practicitioners, they are impartial and independent.
- Do not need a law degree.
- Out of court: example: recovery of debts.
- Court: serving of court orders, writs of summons or enactment of court decisions.
employed by a corporation.
⇔ implied terms.
= Contract whose terms are clearly spelled out and that define the contractual relationship.
- To have legal capacity means to be alble to enter into contracts and that those contracts are binding on them.
- Minors and people who are mentally incompetent lack this legal capacity.
Civil and commercial liability can result if one of the parties breaches its contractual terms or causes damages to the other party.
Breach of contract
Failure of one's contruactual obligation = non-performance (this is used in the Principles of European Contract Law).
A party may terminate the contract if the other partys non performance is fundamental. However the aggrieved party loses its rights to terminate if it fails to give reasonable notice.
if one of the essential requirements for a valid contract is missing, the contract can be declared void.
These essential requirements are:
- Legal capacity
Various remedies to put the parties in the position they would have occupied if the contract had not been breached.
- The right to enforce performance (most important legal remedy).
- Compensatory damages
- Liquidated damages
Legal remedy that compels one party to perform his or her duties specified by the contract or to remedy a defective performance.
- If specific performance is impossibe, the judge will award compensatory damages, monetary compensation that is claimed by a person or awarded by a court in a civil action.
- covers the loss the non-breaching party incurred.
Duty of skill
- Duty to exercises their skills to the level of their competence and anticipate the consequences of their actions.
Duty of diligence
Care that a responsible person had to avoid damages and be prepared.
Duty to avoid conflict
Duty to avoid conflicts of interest = Person becomes unreliable because there's a clash between personal interest and professional.
A tort is a civil wrong that causes harm, injury to a paerson or damage to a person's property.
- Rare, meant to punish if someone / company goes above and beyond negligence. It serves to punish the wrongdoer, as well deter others from enganging in similiar conduct.
Court order requiring a party to stop doing something to prevent further infringement.
The party who initates a lawsuit or action before a court to seek legal remedy. In England/Wales the term "claimant" is used.
A person, or company against whom a claim or chare is brought in court plaintiff
Behaviour that poses unreasonable risks ot harm to persons and property. Elements that need to be establised:
- existence of a duty of care between defendant and plaintiff
- Breach of that duty by that defendant
- Injury or loss sufferend by the plaintiff as a direct result.
Duty of care
- Harm was reasonably forseeable.
- Relationship of proximity between defendant and plaintiff.
- Just and resonable imposing of liability on the defendant.
- The parties can include an express provision setting out how much the parties can claim.
- Must be a reasonable estimate of the actual damage, can be declared void if disproportionate.
Duty to mitigate
- The non-breaching party is obliged to mitigate or minimize the amount of damages to te reasonable extent.
Any act of persuasion that over-comes the free will and judgment of another.
A person enters an agreement as a result of threats --> a contract will be invalid if the consent was induced by lies or deception.