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
Fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law, a criminal law, or it may cause no loss of money, property or legal right but still be an element of another civil or criminal wrong; the purpose of fraud may be monetary gain or other benefits, such as obtaining a passport or travel document, driver's license. Examples include mortgage fraud, where the perpetrator may attempt to qualify for a mortgage by way of false statements. A hoax is a distinct concept that involves deliberate deception without the intention of gain or of materially damaging or depriving a victim. In common law jurisdictions, as a civil wrong, fraud is a tort. While the precise definitions and requirements of proof vary among jurisdictions, the requisite elements of fraud as a tort are the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, in fact does rely, to the harm of the victim.
Proving fraud in a court of law is said to be difficult. That difficulty is found, for instance, in that each and every one of the elements of fraud must be proven, that the elements include proving the states of mind of the perpetrator and the victim, that some jurisdictions require the victim to prove fraud by clear and convincing evidence; the remedies for fraud may include rescission of a fraudulently obtained agreement or transaction, the recovery of a monetary award to compensate for the harm caused, punitive damages to punish or deter the misconduct, others. In cases of a fraudulently induced contract, fraud may serve as a defense in a civil action for breach of contract or specific performance of contract. Fraud may serve as a basis for a court to invoke its equitable jurisdiction. In common law jurisdictions, as a criminal offence, fraud takes many different forms, some general and some specific to particular categories of victims or misconduct; the elements of fraud as a crime vary.
The requisite elements of the most general form of criminal fraud, theft by false pretense, are the intentional deception of a victim by false representation or pretense with the intent of persuading the victim to part with property and with the victim parting with property in reliance on the representation or pretense and with the perpetrator intending to keep the property from the victim. Section 380 of the Criminal Code provides the general definition for fraud in Canada: 380; every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars. In addition to the penalties outlined above, the court can issue a prohibition order under s. 380.2.
It can make a restitution order under s. 380.3. The Canadian courts have held that the offence consists of two distinct elements: A prohibited act of deceit, falsehood or other fraudulent means. In the absence of deceit or falsehood, the courts will look objectively for a "dishonest act"; the Supreme Court of Canada has held that deprivation is satisfied on proof of detriment, prejudice or risk of prejudice. Deprivation of confidential information, in the nature of a trade secret or copyrighted material that has commercial value, has been held to fall within the scope of the offence; the proof requirements for criminal fraud charges in the United States are the same as the requirements for other crimes: guilt must be proved beyond a reasonable doubt. Throughout the United States fraud charges can be misdemeanors or felonies depending on the amount of loss involved. High value frauds can include additional penalties. For example, in California losses of $500,000 or more will result in an extra two, three, or five years in prison in addition to the regular penalty for the fraud.
The U. S. government's 2006 fraud review concluded that fraud is a under-reported crime, while various agencies and organizations were attempting to tackle the issue, greater co-operation was needed to achieve a real impact in the public sector. The scale of the problem pointed to the need for a small but high-powered body to bring together the numerous counter-fraud initiatives that existed. Although elements may vary by jurisdiction and the specific allegations made by a plaintiff who files a lawsuit that alleged fraud, typical elements of a fraud case in the United States are that: Somebody misrepresents a material fact in order to obtain action or forbearance by another person.
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
Dishonest assistance
Dishonest assistance, or knowing assistance, is a type of third party liability under English trust law. It is seen as one of two liabilities established in Barnes v Addy, the other one being knowing receipt. To be liable for dishonest assistance, there must be a breach of trust or fiduciary duty by someone other than the defendant, the defendant must have helped that person in the breach, the defendant must have a dishonest state of mind; the liability itself is well established, but the mental element of dishonesty is subject to considerable controversy which sprang from the House of Lords case Twinsectra Ltd v Yardley. It is a common belief that dishonest or knowing assistance originates from Lord Selbourne's judgment in Barnes v Addy: trangers are not to be made constructive trustees because they act as the agents of trustees in transactions, … unless those agents received and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees.
As can be seen, the judgment laid down two heads of liability: one based on receipt of trust property and the other on assisting with knowledge in a dishonest and fraudulent design. Lord Selbourne's statement has been criticized on the requirement that the defaulting fiduciary / trustee has to be dishonest or fraudulent. A commentator noted that Fyler v Fyler and AG v The Corporation of Leicester, two decisions on knowing assistance in the 1840s which predated Barnes v Addy, did not mention the moral quality of the breach induced or assisted at all. Another debate was regarding the type of knowledge. Peter Gibson J in Baden v Société Générale identified 5 categories of knowledge, subject to much debate and led the courts into "tortuous convolutions"; the prevalent view is. Therefore, the liability of the assistant is premised on that of the defaulting fiduciary / trustee and he/she will be jointly and severally liable with the fiduciary / trustee whom he/she assisted. However, Charles Mitchell recognized possible difficulties with this categorization: firstly, secondary liability means that the dishonest assistant will be liable for the disgorgement gains of the defaulting fiduciary / trustee, while the fiduciary / trustee will not be liable for secret profits of the dishonest assistant.
There are views that liability for dishonest assistance should be primary. However, such views have yet to receive judicial endorsement. Dishonest assistants have been described by courts as constructive trustees. However, such classification is not without difficulty: dishonest assistance is imposed if there is no identifiable property subject to the trust; some commentators have sought to explain this on the basis that there is a type of constructive trust which can arise if there is no identifiable trust property. However, the prevalent view is that dishonest assistance is a personal liability that does not result in an imposition of constructive trust; this view has the support of Lord Millett who remarked in Dubai Aluminium Co v Salaam: The trustee or fiduciary of the claimant must be liable for a breach of trust or fiduciary duty. It is sufficient if the trust in question is constructive trust, it was thought that the dishonest assistant would not be liable unless the defaulting trustee was dishonest or fraudulent, but Royal Brunei Airlines v Tan confirmed that there is no such requirement in English law.
However, the requirement of dishonest or fraudulent design on the part of the defaulting fiduciary / trustee is still part of the law in Australia. Whether a breach of trust should be required at all has been queried by a commentator, since no breach is required for the analogous tort of interference with contractual relations and if the fiduciary reasonably relies on the probity and competence of the dishonest assistant, the claimant would be left with no remedy; this element is a question of fact as to whether the defendant has been accessory to the misfeasance or breach of trust in question. In England, liability would be imposed on persons who assisted in a breach of trust or fiduciary duty "with knowledge". Hence its previous name of "knowing assistance", it should be noted that knowledge is still the cornerstone of the liability in Canada. The modern English terminology emerged in Royal Brunei Airlines v Tan in which the Privy Council rejected knowledge as an element of the liability and replaced it with a requirement for dishonesty.
After opting for the imposition of fault-based liability, Lord Nicholls said, His Lordship went on to articulate a test for dishonesty, perceived to be an objective test with some subjective characteristics: Hence, the conduct of the defendant is to be assessed according to an objective standard of dishonesty in light of the actual knowledge of the defendant. When undertaking such exercise, the court will have regard to personal attributes of the defendant, such as his experience and intelligence, the reason why he acted as he did, his Lordship gave a few examples of dishonesty, such as deception, knowingly taking the property of others, participation in a transaction in light of knowledge that it involves a misapplication of trust assets, willful blindness etc. The issue was reconsidered in Twinsectra Ltd v Y
Advance healthcare directive
An advance healthcare directive known as living will, personal directive, advance directive, medical directive or advance decision, is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. In the U. S. it has a legal status in itself, whereas in some countries it is persuasive without being a legal document. A living will is one form of advance directive, leaving instructions for treatment. Another form is a specific type of power of attorney or health care proxy, in which the person authorizes someone to make decisions on their behalf when they are incapacitated. People are encouraged to complete both documents to provide comprehensive guidance regarding their care, although they may be combined into a single form. An example of combination documents includes the Five Wishes in the United States; the term living will is the recognised vernacular in many countries the U.
K. Advance directives were created in response to the increasing sophistication and prevalence of medical technology. Numerous studies have documented critical deficits in the medical care of the dying; the living will is the oldest form of advance directive. It was first proposed by an Illinois attorney, Luis Kutner, in a law journal in 1969. Kutner drew from existing estate law, by which an individual can control property affairs after death and devised a way for an individual to express their health care desires when no longer able to express current healthcare wishes; because this form of "will" was to be used while an individual was still alive it was dubbed the "living will". In the U. S; the Patient Self-Determination Act went into effect in December 1991, required healthcare providers to give patients information about their rights to make advance directives under state law. A living will provides specific directives about the course of treatment healthcare providers and caregivers are to follow.
In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices; the living will is used only if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be specific or general. An example of a statement sometimes found in a living will is: "If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued." More specific living wills may include information regarding an individual's desire for such services such as analgesia, hydration and the use of ventilators or cardiopulmonary resuscitation. However, studies have shown that adults are more to complete these documents if they are written in everyday language and less focused on technical treatments.
However, by the late 1980s, public advocacy groups became aware that many people remained unaware of advance directives and fewer completed them. In part, this was seen as a failure of health care providers and medical organizations to promote and support the use of these documents; the public’s response was to press for further legislative support. The most recent result was the Patient Self-Determination Act of 1990, which attempted to address this awareness problem by requiring health care institutions to better promote and support the use of advance directives. Living wills proved to be popular, by 2007, 41% of Americans had completed a living will. In response to public needs, state legislatures soon passed laws in support of living wills in every state in the union. However, as living wills began to be better recognized, key deficits were soon discovered. Most living wills tended to be limited in scope and failed to address presenting problems and needs. Further, many individuals wrote out their wishes in ways that might conflict with quality medical practice.
It was determined that a living will alone might be insufficient to address many important health care decisions. This led to the development of what some have called "second generation" advance directives – the "health care proxy appointment" or "medical power of attorney." Living wills reflect a moment in time, may therefore need regular updating to ensure that the correct course of action can be chosen. As before, the next generation advance directive was drawn from existing law – from business law. Power of attorney statutes have existed in the United States since the days of "common law"; these early powers of attorney allowed an individual to name someone to act in their stead. Drawing upon these laws, "durable powers of attorney for health care" and "healthcare proxy appointment" documents were created and codified in law, allowing an individual to appoint someone to make healthcare decisions in their behalf if they should be rendered incapable of making their wishes known; the appointed healthcare proxy has, in essence, the same rights to request or refuse treatment that the individual would have if still capable of making and communicating health care decisions.
The primary benefit of second-generation
