Contract
A contract is a legally-binding agreement which recognises and governs the rights and duties of the parties to the agreement. A contract is enforceable because it meets the requirements and approval of the law. An agreement involves the exchange of goods, money, or promises of any of those. In the event of breach of contract, the law awards the injured party access to legal remedies such as damages and cancellation. In the Anglo-American common law, formation of a contract requires an offer, consideration, a mutual intent to be bound; each party must have capacity to enter the contract. Although most oral contracts are binding, some types of contracts may require formalities such as being in writing or by deed. In the civil law tradition, contract law is a branch of the law of obligations. At common law, the elements of a contract are offer, intention to create legal relations and legality of both form and content. Not all agreements are contractual, as the parties must be deemed to have an intention to be bound.
A so-called gentlemen's agreement is one, not intended to be enforceable, "binding in honour only". In order for a contract to be formed, the parties must reach mutual assent; this is reached through offer and an acceptance which does not vary the offer's terms, known as the "mirror image rule". An offer is a definite statement of the offeror's willingness to be bound should certain conditions be met. If a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore a rejection of the original offer; the Uniform Commercial Code disposes of the mirror image rule in §2-207, although the UCC only governs transactions in goods in the USA. As a court cannot read minds, the intent of the parties is interpreted objectively from the perspective of a reasonable person, as determined in the early English case of Smith v Hughes, it is important to note that where an offer specifies a particular mode of acceptance, only an acceptance communicated via that method will be valid.
Contracts may be unilateral. A bilateral contract is an agreement in which each of the parties to the contract makes a promise or set of promises to each other. For example, in a contract for the sale of a home, the buyer promises to pay the seller $200,000 in exchange for the seller's promise to deliver title to the property; these common contracts take place in the daily flow of commerce transactions, in cases with sophisticated or expensive precedent requirements, which are requirements that must be met for the contract to be fulfilled. Less common are unilateral contracts in which one party makes a promise, but the other side does not promise anything. In these cases, those accepting the offer are not required to communicate their acceptance to the offeror. In a reward contract, for example, a person who has lost a dog could promise a reward if the dog is found, through publication or orally; the payment could be additionally conditioned on the dog being returned alive. Those who learn of the reward are not required to search for the dog, but if someone finds the dog and delivers it, the promisor is required to pay.
In the similar case of advertisements of deals or bargains, a general rule is that these are not contractual offers but an "invitation to treat", but the applicability of this rule is disputed and contains various exceptions. The High Court of Australia stated that the term unilateral contract is "unscientific and misleading". In certain circumstances, an implied contract may be created. A contract is implied in fact if the circumstances imply that parties have reached an agreement though they have not done so expressly. For example, John Smith, a former lawyer may implicitly enter a contract by visiting a doctor and being examined. A contract, implied in law is called a quasi-contract, because it is not in fact a contract. Quantum meruit claims are an example. Where something is advertised in a newspaper or on a poster, the advertisement will not constitute an offer but will instead be an invitation to treat, an indication that one or both parties are prepared to negotiate a deal. An exception arises if the advertisement makes a unilateral promise, such as the offer of a reward, as in the famous case of Carlill v Carbolic Smoke Ball Co, decided in nineteenth-century England.
The company, a pharmaceutical manufacturer, advertised a smoke ball that would, if sniffed "three times daily for two weeks", prevent users from catching the'flu. If the smoke ball failed to prevent'flu, the company promised that they would pay the user £100, adding that they had "deposited £1,000 in the Alliance Bank to show our sincerity in the matter"; when Mrs Carlill sued for the money, the company argued the advert should not be taken as a serious binding offer. Although an invitation to treat cannot be accepted, it should not be ignored, for it may affect the offer. For instance, where an offer is made in response to an invitation to treat, the offer may incorporate the terms of the invitation to treat. If, as in the Boots case, the offer is made by an action without any
Will and testament
A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, see inheritance and intestacy. Though it has at times been thought that a "will" was limited to real property while "testament" applies only to dispositions of personal property, the historical records show that the terms have been used interchangeably. Thus, the word "will" validly applies to both real property. A will may create a testamentary trust, effective only after the death of the testator. Throughout most of the world, disposal of an estate has been a matter of social custom. According to Plutarch, the written will was invented by Solon, it was a device intended for men who died without an heir. The English phrase "will and testament" is derived from a period in English law when Old English and Law French were used side by side for maximum clarity.
Other such legal doublets include "breaking and entering" and "peace and quiet". The conception of the freedom of disposition by will, familiar as it is in modern England and the United States, both considered common law systems, is by no means universal. In fact, complete freedom is the exception rather than the rule. Civil law systems put some restrictions on the possibilities of disposal. Advocates for gays and lesbians have pointed to the inheritance rights of spouses as desirable for same-sex couples as well, through same-sex marriage or civil unions. Opponents of such advocacy rebut this claim by pointing to the ability of same-sex couples to disperse their assets by will. However, it was observed that "ven if a same-sex partner executes a will, there is risk that the survivor will face prejudice in court when disgruntled heirs challenge the will", with courts being more willing to strike down wills leaving property to a same-sex partner on such grounds as incapacity or undue influence.
Types of wills include: nuncupative - oral or dictated. Holographic will - written in the hand of the testator. Self-proved - in solemn form with affidavits of subscribing witnesses to avoid probate. Notarial - will in public prepared by a civil-law notary. Mystic - sealed until death. Serviceman's will - will of person in active-duty military service and lacking certain formalities under English law. Reciprocal/mirror/mutual/husband and wife wills - wills made by two or more parties that make similar or identical provisions in favor of each other. Unsolemn will - will in which the executor is unnamed. Will in solemn form - signed by testator and witnesses; some jurisdictions recognize a holographic will, made out in the testator's own hand, or in some modern formulations, with material provisions in the testator's hand. The distinctive feature of a holographic will is less that it is handwritten by the testator, that it need not be witnessed. In Louisiana this type of testament is called an Mystic will.
It must be written and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. Any additions or corrections must be hand written to have effect. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service. A minority of jurisdictions recognize the validity of nuncupative wills for military personnel or merchant sailors. However, there are constraints on the disposition of property if such an oral will is used. Administrator - person appointed or who petitions to administer an estate in an intestate succession; the antiquated English term of administratrix was used to refer to a female administrator but is no longer in standard legal usage. Beneficiary - anyone receiving a gift or benefiting from a trust Bequest - testamentary gift of personal property, traditionally other than money. Codicil - amendment to a will. Decedent - the deceased Demonstrative Legacy - a gift of a specific sum of money with a direction, to be paid out of a particular fund.
Descent - succession to real property. Devise - testamentary gift of real property. Devisee - beneficiary of real property under a will. Distribution - succession to personal property. Executor/executrix or personal representative - person named to administer the estate subject to the supervision of the probate court, in accordance with the testator's wishes in the will. In most cases, the testator will nominate an executor/PR in the will unless that person is unable or unwilling to serve. In some cases a literary executor may be appointed to manage a literary estate. Exordium clause is the first paragraph or sentence in a will and testament, in which the testator identifies himself or herself, states a legal domicile, revokes any prior wills. Inheritor - a beneficiary in a succession, testate or intestate. Intestate - person who has not created a will, or who does not have a valid will at the time of death. Legacy - testamentary gift of personal property, traditionally of m
Common law
In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of "common law" is. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. If, the court finds that the current dispute is fundamentally distinct from all previous cases, legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue; the court states an opinion that gives reasons for the decision, those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, regulations which are promulgated by the executive branch.
Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems. The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066; the British Empire spread the English legal system to its historical colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great precedential weight to common law, to the style of reasoning inherited from the English legal system. Today, one-third of the world's population lives in common law jurisdictions or in systems mixed with civil law, including Antigua and Barbuda, Bahamas, Barbados, Botswana, Cameroon, Cyprus, Fiji, Grenada, Hong Kong, Ireland, Jamaica, Liberia, Malta, Marshall Islands, Namibia, New Zealand, Pakistan, Papua New Guinea, Sierra Leone, South Africa, Sri Lanka and Tobago, the United Kingdom, the United States, Zimbabwe.
Some of these countries have variants on common law systems. The term common law has many connotations; the first three set out here are the most-common usages within the legal community. Other connotations from past centuries are sometimes seen and are sometimes heard in everyday speech; the first definition of "common law" given in Black's Law Dictionary, 10th edition, 2014, is "The body of law derived from judicial decisions, rather than from statutes or constitutions. This usage is given as the first definition in modern legal dictionaries, is characterized as the “most common” usage among legal professionals, is the usage seen in decisions of courts. In this connotation, "common law" distinguishes the authority. For example, the law in most Anglo-American jurisdictions includes "statutory law" enacted by a legislature, "regulatory law" or “delegated legislation” promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, common law or "case law", i.e. decisions issued by courts.
This first connotation can be further differentiated into pure common law arising from the traditional and inherent authority of courts to define what the law is in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, today, most contract law and the law of torts. Interstitial common law court decisions that analyze and determine the fine boundaries and distinctions in law promulgated by other bodies; this body of common law, sometimes called "interstitial common law", includes judicial interpretation of the Constitution, of legislative statutes, of agency regulations, the application of law to specific facts. Publication of decisions, indexing, is essential to the development of common law, thus governments and private publishers publish law reports. While all decisions in common law jurisdictions are precedent, some become "leading cases" or "landmark decisions" that are cited often. Black's Law Dictionary 10th Ed. definition 2, differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions.
Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, statutes mean what courts interpret them to mean. By contrast, in civil law jurisdictions, courts lack authority to act. Civil law judges tend to give less weight to judicial precedent, which means that a
Criminal law
Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health and moral welfare of people inclusive of one's self. Most criminal law is established by statute, to say that the laws are enacted by a legislature. Criminal law includes the rehabilitation of people who violate such laws. Criminal law varies according to jurisdiction, differs from civil law, where emphasis is more on dispute resolution and victim compensation, rather than on punishment or rehabilitation. Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender; the first civilizations did not distinguish between civil law and criminal law. The first written codes of law were designed by the Sumerians. Around 2100–2050 BC Ur-Nammu, the Neo-Sumerian king of Ur, enacted the oldest written legal code whose text has been discovered: the Code of Ur-Nammu although an earlier code of Urukagina of Lagash is known to have existed.
Another important early code was the Code of Hammurabi. Only fragments of the early criminal laws of Ancient Greece have survived, e.g. those of Solon and Draco. In Roman law, Gaius's Commentaries on the Twelve Tables conflated the civil and criminal aspects, treating theft as a tort. Assault and violent robbery were analogized to trespass as to property. Breach of such laws created an obligation of law or vinculum juris discharged by payment of monetary compensation or damages; the criminal law of imperial Rome is collected in Books 47–48 of the Digest. After the revival of Roman law in the 12th century, sixth-century Roman classifications and jurisprudence provided the foundations of the distinction between criminal and civil law in European law from until the present time; the first signs of the modern distinction between crimes and civil matters emerged during the Norman Invasion of England. The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scholasticism, when the theological notion of God's penalty, inflicted for a guilty mind, became transfused into canon law first and to secular criminal law.
The development of the state dispensing justice in a court emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law formalized the mechanisms for enforcement, which allowed for its development as a discernible entity. Criminal law is distinctive for the uniquely serious, potential consequences or sanctions for failure to abide by its rules; every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, convicts may be required to conform to particularized guidelines as part of a parole or probation regimen.
Fines may be imposed, seizing money or property from a person convicted of a crime. Five objectives are accepted for enforcement of the criminal law by punishments: retribution, incapacitation and restoration. Jurisdictions differ on the value to be placed on each. Retribution – Criminals ought to Be Punished in some way; this is the most seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be executed himself. A related theory includes the idea of "righting the balance." Deterrence – Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.
Incapacitation – Designed to keep criminals away from society so that the public is protected from their misconduct. This is achieved through prison sentences today; the death penalty or banishment have served the same purpose. Rehabilitation – Aims at transforming an offender into a valuable member of society, its primary goal is to prevent further offense by convincing the offender that their conduct was wrong. Restoration – This is a victim-oriented theory of punishment; the goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restoration is combined with other main goals of criminal justice and is related to concepts in the civil law, i.e. returning the victim to his or her original position before the injury. Many laws are enforced by threat of criminal punishment, the range of the punishment varies with the jurisdiction; the scope of criminal law is too vast to catalog intelligently.
The following are some of the more typical aspects of criminal law. The criminal law prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Scholars label this the requir
Misrepresentation
A concept of English law, a misrepresentation is an untrue or misleading statement of fact made during negotiations by one party to another, the statement inducing that other party into the contract. The misled party may rescind the contract, sometimes may be awarded damages as well; the law of misrepresentation is an amalgam of tort. The common law was amended by the Misrepresentation Act 1967; the general principle of misrepresentation has been adopted by the USA and various Commonwealth countries. A "representation" is a pre-contractual statement made during negotiations. If a representation has been incorporated into the contract as a term the normal remedies for breach of contract apply. Factors that determine whether or not a representation has become a term include: The relative expertise of the parties; the reliance that one party has shown on the statement. The reassurances given by the speaker; the customary norms of the trade in question. The representation forms the basis of a collateral contract.
Otherwise, an action may lie in misrepresentation, in the torts of negligence and deceit also. Although a suit for breach of contract is straightforward, there are advantages in bringing a parallel suit in misrepresentation, because whereas repudiation is available only for breach of condition only, rescission is prima facie available for all misreps, subject to the provisions of s.2 of the Misrepresentation Act 1967, subject to the inherent limitations of an equitable remedy. There is no general duty of disclosure in English contract law, one is not obliged to say anything. Ordinary contracts do not require "good faith" as such, mere compliance with the law is sufficient; however in particular relationships silence may form the basis of an actionable misrepresentation: Agents have a fiduciary relationship with their principal. They must not make secret profits. Employers and employees have a bona fide duty to each other. A contract uberrimae fidei is a contract of'utmost good faith', include contracts of insurance, business partnerships, family agreements.
When applying for insurance, the proposer must disclose all material facts for the insurer properly to assess the risk. The duty of disclosure in insurance has been amended by the Insurance Act 2015. To amount to a misrepresentation, the statement must be untrue or misleading. A statement, "technically true" but which gives a misleading impression is deemed an "untrue statement". If a misstatement is made and the representor finds that it is false, it becomes fraudulent unless the representer updates the other party. If the statement is true at the time, but becomes untrue due to a change in circumstances, the representor must update the original statement. Actionable misrepresentations must be misstatements of fact or law: misstatements of opinion or intention are not deemed statements of fact. For example, false statements made by a seller regarding the quality or nature of the property that the seller has may constitute misrepresentation. Statements of opinionStatements of opinion are insufficient to amount to a misrepresentation as it would be unreasonable to treat personal opinions as "facts", as in Bisset v Wilkinson Exceptions can arise where opinions may be treated as "facts": where an opinion is expressed yet this opinion is not held by the representor, where it is implied that the representor has facts on which to base the opinion, where one party should have known facts on which such an opinion would be based.
Statements of intentionStatements of intention do not constitute misrepresentations should they fail to come to fruition, since the time the statements were made they can not be deemed either true or false. However, an action can be brought if the intention never existed, as in Edgington v Fitzmaurice. Statements of lawFor many years, statements of law were deemed incapable of amounting to misrepresentations because the law is "equally accessible by both parties" and is "...as much the business of the plaintiff as of to know what the law.". This view has changed, it is now accepted that statements of law may be treated as akin to statements of fact; as stated by Lord Denning "...the distinction between law and fact is illusory". Statement to the misledAn action in misrepresentation can only be brought by the misled party, or "represent"; this means that only those who were an intended recipient of the representation may sue, as in Peek v GurneyIt is not necessary for the representation to have been be received directly.
However, it IS essential. The misled party must show that he relied on the misstatement and was induced into the contract by it. In Attwood v Small The seller, made false claims about the capabilities of his mines and steelworks; the buyer, said he would verify the claims before he bought, he employed agents who declared that Small's claims were true. The House of Lords held that Attwood could not rescind the contract, as he did not rely on Small but instead relied on his agents. Edgington v Fitzmaurice confirmed further that a misrepresentation need not be the sole cause of entering a contract, for a remedy to be available, so long as it
