Carter v Boehm
Carter v Boehm 3 Burr 1905 is a landmark English contract law case, in which Lord Mansfield established the duty of utmost good faith or uberrimae fidei in insurance contracts. Carter was the Governor of Fort Marlborough, built by the British East India Company. Carter took out an insurance policy with Boehm against the fort being taken by a foreign enemy. A witness, Captain Tryon, testified that Carter was aware that the fort was built to resist attacks from natives but would be unable to repel European enemies, he knew the French were to attack; the French attacked, but Boehm refused to honour the indemnifier Carter, who promptly sued. Lord Mansfield held that Mr Carter, as the proposer owed a duty of utmost good faith to the insurer, he was required to disclose all facts material to the risk: Lord Mansfield went on to hold that the duty was reciprocal and that if an insurer withheld material facts, the example cited being that an insured vessel had arrived safely, the policyholder could declare the policy void and recover the premium.
Lord Mansfield proceeded to qualify the duty of disclosure: Lord Mansfield found in favour of the policyholder on the grounds that the insurer knew or ought to have known that the risk existed as the political situation was public knowledge: In Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd Lord Hobhouse said, HIH Casualty and General Insurance Ltd v Chase Manhattan Bank Rix LJ stated, "I am conscious that in Carter v. Boehm itself Lord Mansfield does seem to have considered that there was a difference between the concealment which the duty of good faith prohibited and mere silence; as a result, non-disclosure in the insurance context in the early years was referred to as a ‘concealment’, the doctrine has sometimes been viewed and explained as constructive fraud. However, Lord Mansfield was seeking to propound a doctrine of good faith which would extend through the law of contract, in that respect his view did not bear fruit. Where, however, in the insurance context it put down firm roots, it came to be seen as a doctrine which went much further than the antithesis of fraud, and, as it came to be developed, “non-disclosure will in a substantial proportion of cases be the result of an innocent mistake."
English contract law Good faith List of cases involving Lord Mansfield
Caveat emptor is Latin for "Let the buyer beware". Caveat emptor is the contract law principle that controls the sale of real property after the date of closing, but may apply to sales of other goods; the phrase caveat emptor and its use as a disclaimer of warranties arise from the fact that buyers have less information than the seller about the good or service they are purchasing. This quality of the situation is known as'information asymmetry'. Defects in the good or service may be hidden from the buyer, only known to the seller. A common way that information asymmetry between seller and buyer has been addressed is through a binding warranty, such as a guarantee of satisfaction, but without such a safeguard in place the ancient rule applies, the buyer should beware. Under the principle of caveat emptor, the buyer could not recover damages from the seller for defects on the property that rendered the property unfit for ordinary purposes; the only exception was if the seller concealed latent defects or otherwise made material misrepresentations amounting to fraud.
Before statutory law, the buyer had no express warranty ensuring the quality of goods. In the UK, common law requires that goods must be "fit for the particular purpose" and of "merchantable quality", per Section 15 of the Sale of Goods Act but this implied warranty can be difficult to enforce and may not apply to all products. Hence, buyers are still advised to be cautious; the modern trend in the U. S. is that the implied warranty of fitness for a particular purpose applies in the real-estate context to only the sale of new residential housing by a builder-seller and that the caveat emptor rule applies to all other real-estate sale situations. Other jurisdictions have provisions similar to this. Under Article 2 of the Uniform Commercial Code, adopted by all U. S. states, the sale of new goods is governed by the "perfect-tender" rule unless the parties to the sale expressly agree in advance to terms equivalent to caveat emptor or other limitations such as the below-discussed limitations on remedies.
The perfect-tender rule states that if a buyer who inspects new goods with reasonable promptness discovers them to be "nonconforming" and does not use the goods or take other actions constituting acceptance of them, the buyer may promptly return or refuse to accept them and demand that the defect be remedied. When goods fitting the same description and expectations are available for sale, either the vendor or the buyer may insist on an "even exchange" for other, "conforming" instances of the product; when conforming goods are not available in stock but are available for the dealer to purchase, the buyer may require that the seller obtain the goods elsewhere at a higher price, with the seller having to incur a loss equivalent to the price difference. If the vendor still does not or cannot provide the goods and the dispute proceeds to litigation as in all cases of vendor breaches of contract, the buyer may recover only the damages that s/he would have suffered had s/he taken all feasible steps to minimize his/her damages suffered.
As a default rule, the perfect-tender rule may be "contracted around" in ways that specify or limit a buyer's remedies. In many cases, the vendor will provide store credit. In the cases of software and other copyrighted material, many vendors will offer only a direct exchange for another copy of the same title, with the effect that the initial transfer or license of intellectual-property rights is preserved. Most stores impose time limits on exchanges or refunds; some larger chain stores, such as F. Y. E. Staples, Target, or Walmart, however, do exchanges or refunds at any time, with or without proof of purchase, although they require a form of picture identification and place per-transaction and/or per-person quantity or dollar limitations on such returns. In the UK, consumer law has moved away from the caveat emptor model, with laws passed that have enhanced consumer rights and allow greater leeway to return goods that do not meet legal standards of acceptance. Consumer purchases are regulated by the Consumer Rights Act 2015, whilst business-to-business purchases are regulated by the Sale of Goods Act 1979.
In the UK, consumers have the right to a full refund for faulty goods. However, many retailers allow customers to return goods within a specified period for a full refund or an exchange if there is no fault with the product. Exceptions may apply for goods sold as damaged or to clear. Goods bought through "distance selling," for example online or by phone have a statutory "cooling off" period of fourteen calendar days during which the purchase contract can be cancelled and treated as if not done. Although no longer applied in consumer law, the principle of caveat emptor is held to apply to transactions between businesses unless it can be shown that the seller had a clear information advantage over the buyer that could not have been removed by carrying out reasonable due diligence. Caveat venditor is Latin for "let the seller beware." In the landmark case of MacPh
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. A fiduciary prudently takes care of money or other assets for another person. One party, for example, a corporate trust company or the trust department of a bank, acts in a fiduciary capacity to another party, for example, has entrusted funds to the fiduciary for safekeeping or investment. Asset managers, including managers of pension plans and other tax-exempt assets, are considered fiduciaries under applicable statutes and laws. In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good faith and trust in another whose aid, advice, or protection is sought in some matter. In such a relation good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts. A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.
Fiduciary duties in a financial sense exist to ensure that those who manage other people’s money act in their beneficiaries' interests, rather than serving their own interests. The Fiduciary Duty in the 21st Century programme finds that, "far from being a barrier, there are positive duties to integrate environmental and governance factors in investment processes." The programme concludes that “integrating ESG issues into investment research and processes will enable investors to make better investment decisions and improve investment performance consistent with their fiduciary duties.” See section'fiduciary duty and pension governance'. A fiduciary duty is the highest standard of care in law. A fiduciary is expected to be loyal to the person to whom he owes the duty such that there must be no conflict of duty between fiduciary and principal, the fiduciary must not profit from his position as a fiduciary; the nature of fiduciary obligations differs among jurisdictions. In Australia, only proscriptive or negative fiduciary obligations are recognised, whereas in Canada fiduciaries can come under both proscriptive and prescriptive fiduciary obligations.
In English common law, the fiduciary relation is an important concept within a part of the legal system known as equity. In the United Kingdom, the Judicature Acts merged the courts of equity with the courts of common law, as a result the concept of fiduciary duty became applicable in common law courts; when a fiduciary duty is imposed, equity requires a different, stricter standard of behavior than the comparable tortious duty of care in common law. The fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, not to be in a situation where his fiduciary duty conflicts with another fiduciary duty, a duty not to profit from his fiduciary position without knowledge and consent. A fiduciary ideally would not have a conflict of interest, it has been said that fiduciaries must conduct themselves "at a level higher than that trodden by the crowd" and that "he distinguishing or overriding duty of a fiduciary is the obligation of undivided loyalty". Different jurisdictions regard fiduciary duties in different lights.
Canadian law, for example, has developed a more expansive view of fiduciary obligation than American law, while Australian law and British law have developed more conservative approaches than either the United States or Canada. In Australia, it has been found that there is no comprehensive list of criteria by which to establish a fiduciary relationship. Courts have so far refused to define the concept of a fiduciary, instead preferring to develop the law on a case-by-case basis and by way of analogy. Fiduciary relationships are of different types and carry different obligations so that a test appropriate to determine whether a fiduciary relationship exists for one purpose might be inappropriate for another:In 2014 the Law Commission reviewed the fiduciary duties of investment intermediaries, looking at the duties on pension trustees, they commented. Fiduciary duties cannot be understood in isolation. Instead they are better viewed as ‘legal polyfilla’, molding themselves flexibly around other legal structures, sometimes filling the gaps.
The question of, a fiduciary is a "notoriously intractable" question and this was the first of many questions. In SEC v. Chenery Corporation, Frankfurter J said, The law expressed here follows the general body of elementary fiduciary law found in most common law jurisdictions; this is true in the area of Labor and Employment law. In Canada a fiduciary has obligations to the employer after the employment relationship is terminated, whereas in the United States the employment and fiduciary relationships terminate together; the corporate law of Delaware is the most influential in the United States, as more than 50% of publicly traded companies in the United States, including 64% of the Fortune 500, have chosen to incorporate in that State. Under Delaware law, officers and other control persons of corporations and other entities owe three primary fiduciary duties, the duty of care, the duty of loyalty and the duty of good faith; the duty of care requires control persons to act on an informed basis after due consideration of all information.
The duty includes a requirement that such persons reasonably inform
English law is the common law legal system of England and Wales, comprising criminal law and civil law, each branch having its own courts and procedures. England's most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations and by-laws. In the absence of any statutory law, the common law with its principle of stare decisis forms the residual source of law, based on judicial decisions and usage. Common law is made by sitting judges who apply both statutory law and established principles which are derived from the reasoning from earlier decisions. Equity is the other historic source of judge-made law. Common law can be repealed by Parliament. Not being a civil law system, English law has no comprehensive codification. However, most of its criminal law has been codified from its common law origins, in the interests both of certainty and of ease of prosecution. For the time being, murder remains a common law crime rather than a statutory offence. Although Scotland and Northern Ireland form part of the United Kingdom and share Westminster as a primary legislature, they have separate legal systems outside of English Law.
International treaties such as the European Union's Treaty of Rome or the Hague-Visby Rules have effect in English law only when adopted and ratified by Act of Parliament. Adopted treaties may be subsequently denounced by executive action.. Unless the denouncement or withdraw would affect rights enacted by parliament. In this case executive action cannot be used due to the doctrine of Parliamentary sovereignty; this principle was established in the case of Miller v Secretary of State for Exiting the European Union in 2017. Criminal law is the law of punishment whereby the Crown prosecutes the accused. Civil law is concerned with tort, families, companies and so on. Civil law courts operate to provide a party who has an enforceable claim with a remedy such as damages or a declaration. In this context, civil law is the system of codified law, prevalent in Europe. Civil law is founded on the ideas of Roman Law. By contrast, English law is the archetypal common law jurisdiction, built upon case law.
In this context, common law means the judge-made law of the King's Bench. Equity is concerned with trusts and equitable remedies. Equity operates in accordance with the principles known as the "maxims of equity"; the reforming Judicature Acts of the 1880s amalgamated the courts into one Supreme Court of Judicature, directed to administer both law and equity. The neo-gothic Royal Courts of Justice in The Strand, were built shortly afterwards to celebrate these reforms. Public Law is the law governing relationships between the state. Private law encompasses relationships between other private entities. A remedy is "the means given by law for the recovery of a right, or of compensation for its infringement". Most remedies are available only from the court. Most civil actions claiming damages in the High Court were commenced by obtaining a writ issued in the Queen's name. After 1979, writs have required the parties to appear, writs are no longer issued in the name of the Crown. Now, after the Woolf Reforms of 1999 all civil actions other than those connected with insolvency, are commenced by the completion of a Claim Form as opposed to a Writ, Originating Application, or Summons.
In England, there is a hierarchy of sources, as follows: Legislation The case law rules of common law and equity, derived from precedent decisions Parliamentary conventions General Customs Books of authority Primary legislation in the UK may take the following forms: Acts of Parliament Acts of the Scottish Parliament Acts and Measures of the National Assembly for Wales Statutory Rules of the Northern Ireland AssemblyOrders in Council are a sui generis category of legislation. Secondary legislation in England includes: Statutory Instruments and Ministerial Orders Bye-laws of metropolitan boroughs, county councils, town councilsStatutes are cited in this fashion: "Short Title Year", e.g. Theft Act 1968; this became the usual way to refer to Acts from 1840 onwards. For example, the Pleading in English Act 1362 was referred to as 36 Edw. III c. 15, meaning "36th year of the reign of Edward III, chapter 15".. Common law is a term with historical origins in the legal system of England, it denotes, in the first place, the judge-made law that developed from the early Middle Ages as described in a work published at the end of the 19th century, The History of English Law before the Time of Edward I, in which Pollock and Maitland expanded the work of Coke and Blackstone.
The law developed in England's Court of Common Pleas and other common law courts, which became the law of the colonies settled under the crown of England or of the United Kingdom, in North America and elsewhere.
William Murray, 1st Earl of Mansfield
William Murray, 1st Earl of Mansfield, PC, SL was a British barrister and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, before moving to London at the age of 13 to take up a place at Westminster School, he was accepted into Christ Church, Oxford, in May 1723, graduated four years later. Returning to London from Oxford, he was called to the Bar by Lincoln's Inn on 23 November 1730, gained a reputation as an excellent barrister, he became involved in politics in 1742, beginning with his election as a Member of Parliament for Boroughbridge, appointment as Solicitor General. In the absence of a strong Attorney General, he became the main spokesman for the government in the House of Commons, was noted for his "great powers of eloquence" and described as "beyond comparison the best speaker" in the House of Commons. With the promotion of Sir Dudley Ryder to Lord Chief Justice in 1754, he became Attorney General, when Ryder unexpectedly died several months he took his place as Chief Justice.
The most powerful British jurist of the century, his decisions reflected the Age of Enlightenment and moved England on the path to abolishing slavery and the slave trade. He advanced commercial law in ways that helped establish the nation as the world leader in industry and trade, he modernised the English courts system. For his work in Carter v Boehm and Pillans v Van Mierop, he has been called the founder of English commercial law, he is best known for his judgment in Somersett's Case, where he held that slavery had no basis in common law and had never been established by positive law in England, therefore was not binding law. Murray was born on 2 March 1705, at Scone Palace in Perthshire, the fourth son of the 5th Viscount of Stormont and his wife, Margaret, née Scott, one of eleven children. Both his parents were strong supporters of the Jacobite cause, his older brother James followed "The Old Pretender" into exile; the Jacobite sympathies of Murray's family were glossed over by contemporaries, who claimed that he had been educated at Lichfield Grammar School with many other members of the English judiciary.
This was incorrect, as Murray was educated at Perth Grammar School, where he was taught Latin, English grammar, essay writing skills. He said that this gave him a great advantage at university, as those students educated in England had been taught Greek and Latin, but not how to write properly in English. While at Perth Grammar School, it became apparent that Murray was intelligent, in 1718, his father and older brother James decided to send him to Westminster School, as James knew the Dean, Francis Atterbury; the distance from Perth to London was around 400 miles, the journey took Murray 54 days. Murray flourished at Westminster and was made a King's Scholar on 21 May 1719. After an examination in May 1723, Murray was accepted into Christ Church, having scored higher in the examination than any other King's Scholar that year, he was admitted as a commoner on 15 June 1723, matriculated on 18 June. His older brother James was a barrister in Scotland, his family decided that a career as a barrister was best for Murray.
The Scottish Bar at the time was overcrowded, which made it difficult for a young barrister to build a reputation, yet qualifying for the English Bar was expensive. Thanks to the patronage of Thomas Foley, 1st Baron Foley, who gave Murray £200 a year to live on, Murray could afford to study at the bar, became a member of Lincoln's Inn on 23 April 1724. After George I died on 11 June 1727, Murray entered and won a competition to write a Latin poem titled "The Death of the King", his actions were seen as a show of support for the House of Hanover and the political status quo, something odd considering the strong Jacobite sympathies of his family. He did this because, having no private income, he wished to secure patronage to help him advance politically. Another entrant was William Pitt, a constant rival to Murray until Pitt's death in 1778. There is little information about Murray's time at Oxford, he became fluent in Latin, translating Cicero's works into English and back into Latin. He gained his Bachelor of Arts degree in 1727, travelled to London to train as a barrister.
Murray married Elizabeth Finch. They did not have children and took on care of their niece, Lady Elizabeth Murray, after her mother died; when Mansfield's nephew Captain Sir John Lindsay returned to Britain in 1765 following the Seven Years' War and his assignment in the West Indies, he brought his natural daughter Elizabeth. Of half African descent, she was born into slavery in 1761, the daughter of Maria Bell, an enslaved woman. Lindsay asked Murray to take on her care and education, Elizabeth was baptized Dido Elizabeth Belle in 1766 in London. Murray's first contact when he moved to London was William Hamilton, a Scottish-born barrister, said to be the first Scot to practise at the English Bar, one of the few people, qualified to act as a barrister in both England and Scotland. Hamilton had been one of Murray's sponsors when he joined Lincoln's Inn in 1724, when Murray came to London, Hamilton
International Standard Serial Number
An International Standard Serial Number is an eight-digit serial number used to uniquely identify a serial publication, such as a magazine. The ISSN is helpful in distinguishing between serials with the same title. ISSN are used in ordering, interlibrary loans, other practices in connection with serial literature; the ISSN system was first drafted as an International Organization for Standardization international standard in 1971 and published as ISO 3297 in 1975. ISO subcommittee TC 46/SC 9 is responsible for maintaining the standard; when a serial with the same content is published in more than one media type, a different ISSN is assigned to each media type. For example, many serials are published both in electronic media; the ISSN system refers to these types as electronic ISSN, respectively. Conversely, as defined in ISO 3297:2007, every serial in the ISSN system is assigned a linking ISSN the same as the ISSN assigned to the serial in its first published medium, which links together all ISSNs assigned to the serial in every medium.
The format of the ISSN is an eight digit code, divided by a hyphen into two four-digit numbers. As an integer number, it can be represented by the first seven digits; the last code digit, which may be 0-9 or an X, is a check digit. Formally, the general form of the ISSN code can be expressed as follows: NNNN-NNNC where N is in the set, a digit character, C is in; the ISSN of the journal Hearing Research, for example, is 0378-5955, where the final 5 is the check digit, C=5. To calculate the check digit, the following algorithm may be used: Calculate the sum of the first seven digits of the ISSN multiplied by its position in the number, counting from the right—that is, 8, 7, 6, 5, 4, 3, 2, respectively: 0 ⋅ 8 + 3 ⋅ 7 + 7 ⋅ 6 + 8 ⋅ 5 + 5 ⋅ 4 + 9 ⋅ 3 + 5 ⋅ 2 = 0 + 21 + 42 + 40 + 20 + 27 + 10 = 160 The modulus 11 of this sum is calculated. For calculations, an upper case X in the check digit position indicates a check digit of 10. To confirm the check digit, calculate the sum of all eight digits of the ISSN multiplied by its position in the number, counting from the right.
The modulus 11 of the sum must be 0. There is an online ISSN checker. ISSN codes are assigned by a network of ISSN National Centres located at national libraries and coordinated by the ISSN International Centre based in Paris; the International Centre is an intergovernmental organization created in 1974 through an agreement between UNESCO and the French government. The International Centre maintains a database of all ISSNs assigned worldwide, the ISDS Register otherwise known as the ISSN Register. At the end of 2016, the ISSN Register contained records for 1,943,572 items. ISSN and ISBN codes are similar in concept. An ISBN might be assigned for particular issues of a serial, in addition to the ISSN code for the serial as a whole. An ISSN, unlike the ISBN code, is an anonymous identifier associated with a serial title, containing no information as to the publisher or its location. For this reason a new ISSN is assigned to a serial each time it undergoes a major title change. Since the ISSN applies to an entire serial a new identifier, the Serial Item and Contribution Identifier, was built on top of it to allow references to specific volumes, articles, or other identifiable components.
Separate ISSNs are needed for serials in different media. Thus, the print and electronic media versions of a serial need separate ISSNs. A CD-ROM version and a web version of a serial require different ISSNs since two different media are involved. However, the same ISSN can be used for different file formats of the same online serial; this "media-oriented identification" of serials made sense in the 1970s. In the 1990s and onward, with personal computers, better screens, the Web, it makes sense to consider only content, independent of media; this "content-oriented identification" of serials was a repressed demand during a decade, but no ISSN update or initiative occurred. A natural extension for ISSN, the unique-identification of the articles in the serials, was the main demand application. An alternative serials' contents model arrived with the indecs Content Model and its application, the digital object identifier, as ISSN-independent initiative, consolidated in the 2000s. Only in 2007, ISSN-L was defined in the
Risk is the possibility of losing something of value. Values can be gained or lost when taking risk resulting from a given action or inaction, foreseen or unforeseen. Risk can be defined as the intentional interaction with uncertainty. Uncertainty is a potential and uncontrollable outcome. Risk perception is the subjective judgment people make about the severity and probability of a risk, may vary person to person. Any human endeavour carries some risk; the Oxford English Dictionary cites the earliest use of the word in English as of 1621, the spelling as risk from 1655. It defines risk as: the possibility of injury, or other adverse or unwelcome circumstance. Risk is an influence affecting strategy caused by an incentive or condition that inhibits transformation to quality excellence. Risk is an uncertain event or condition that, if it occurs, has an effect on at least one objective.. The probability of something happening multiplied by benefit if it does; the probability or threat of quantifiable damage, liability, loss, or any other negative occurrence, caused by external or internal vulnerabilities, that may be avoided through preemptive action.
Finance: The possibility that an actual return on an investment will be lower than the expected return. Insurance: A situation where the probability of a variable is known but when a mode of occurrence or the actual value of the occurrence is not. A risk is not a peril, or a hazard. Securities trading: The probability of a loss or drop in value. Trading risk is divided into two general categories: Systematic risk affects all securities in the same class and is linked to the overall capital-market system and therefore cannot be eliminated by diversification. Called market risk. Non-systematic risk is any risk. Called non-market risk, extra-market risk or diversifiable risk. Workplace: Product of the consequence and probability of a hazardous event or phenomenon. For example, the risk of developing cancer is estimated as the incremental probability of developing cancer over a lifetime as a result of exposure to potential carcinogens; the International Organization for Standardization publication ISO 31000 / ISO Guide 73:2002 definition of risk is the'effect of uncertainty on objectives'.
In this definition, uncertainties include events and uncertainties caused by ambiguity or a lack of information. It includes both negative and positive impacts on objectives. Many definitions of risk exist in common usage, however this definition was developed by an international committee representing over 30 countries and is based on the input of several thousand subject matter experts. Different approaches to risk management are taken in different fields, e.g. "Risk is the unwanted subset of a set of uncertain outcomes". Risk can be seen as relating to the probability of uncertain future events. For example, according to Factor Analysis of Information Risk, risk is: the probable frequency and probable magnitude of future loss. In computer science this definition is used by The Open Group. OHSAS defines risk as the combination of the probability of a hazard resulting in an adverse event, the severity of the event. In information security risk is defined as "the potential that a given threat will exploit vulnerabilities of an asset or group of assets and thereby cause harm to the organization".
Financial risk is defined as the unpredictable variability or volatility of returns, this would include both potential better-than-expected and worse-than-expected returns. References to negative risk below should be read as applying to positive impacts or opportunity unless the context precludes this interpretation; the related terms "threat" and "hazard" are used to mean something that could cause harm. Risk is ubiquitous in all areas of life and risk management is something that we all must do, whether we are managing a major organisation or crossing the road; when describing risk however, it is convenient to consider that risk practitioners operate in some specific practice areas. Economic risks can be manifested in higher expenditures than expected; the causes can be many, for instance, the hike in the price for raw materials, the lapsing of deadlines for construction of a new operating facility, disruptions in a production process, emergence of a serious competitor on the market, the loss of key personnel, the change of a political regime, or natural disasters.
Risks in personal health may be reduced by primary prevention actions that decrease early causes of illness or by secondary prevention actions after a person has measured clinical signs or symptoms recognised as risk factors. Tertiary prevention reduces the negative impact of an established disease by restoring f