The eggshell rule is a well-established legal doctrine in common law, used in some tort law systems, with a similar doctrine applicable to criminal law. The rule states that, in a tort case, the unexpected frailty of the injured person is not a valid defense to the seriousness of any injury caused to them; this rule holds that a tortfeasor is liable for all consequences resulting from their tortious activities leading to an injury to another person if the victim suffers an unusually high level of damage. The eggshell skull rule takes into account the physical and economic attributes of the plaintiff which might make them more susceptible to injury, it may take into account the family and cultural environment. The term implies that if a person had a skull as delicate as that of the shell of an egg, a tortfeasor, unaware of the condition injured that person's head, causing the skull unexpectedly to break, the defendant would be held liable for all damages resulting from the wrongful contact if the tortfeasor did not intend to cause such a severe injury.
In criminal law, the general maxim is that the defendant must "take their victims as they find them", as echoed in the judgment of Lord Justice Lawton in R v. Blaue, in which the defendant was held responsible for killing his victim, despite his contention that her refusal of a blood transfusion constituted novus actus interveniens; the doctrine is applied in all areas of torts – intentional torts and strict liability cases – as well as in criminal law. There is no requirement of physical contact with the victim – if a trespasser's wrongful presence on the victim's property so terrifies the victim that he has a fatal heart attack, the trespasser will be liable for the damages stemming from his original tort; the foundation for this rule is based on policy grounds. The courts do not want the defendant or accused to rely on the victim's own vulnerability to avoid liability; the thin skull rule is not to be confused with the related crumbling skull rule in which the plaintiff suffers from a detrimental position pre-existent to the occurrence of the present tort.
In the "crumbling skull" rule, the prior condition is only to be considered with respect to distinguishing it from any new injury arising from the present tort – as a means of apportioning damages in such a way that the defendant would not be liable for placing the plaintiff in a better position than they were in prior to the present tort. In an example, a person who has Osteogenesis Imperfecta is more to be injured in a motor vehicle accident. If the person with OI is hit from behind in a motor vehicle collision and suffers medical damages, it would not be a prudent defense to state that the Osteogenesis Imperfecta was the cause of the fracture. In the English case of Smith v Leech Brain & Co, an employee in a factory was splashed with molten metal; the metal burned him on his lip. He died three years from cancer triggered by the injury; the judge held that as long as the initial injury was foreseeable, the defendant was liable for all the harm. In 1891, the Wisconsin Supreme Court came to a similar result in Putney.
In that case, a boy threw a small kick at another from across the aisle in the classroom. It turned out that the victim had an unknown microbial condition, irritated, resulted in him losing the use of his leg. No one could have predicted the level of injury; the court found that the kicking was unlawful because it violated the "order and decorum of the classroom", the perpetrator was therefore liable for the injury. In Benn v. Thomas, the appellate court determined that the eggshell rule should have been applied to a case in which a man had a heart attack and died after being bruised in the chest during a rear-end car accident. In the Australian case of Nader v Urban Transit Authority of NSW, the plaintiff was a 10 year old boy who struck his head on a bus stop pole while alighting from a moving bus, he developed a rare psychological condition known as Ganser Syndrome. The defendant argued. McHugh JA said, "The defendant must take the plaintiff with all his weaknesses and reactions as well as his capacities and attributes, physical and economic.
If the result of an accident is that a ten year old boy reacts to his parents’ concern over his injuries and develops an hysterical condition, no reason of justice, morality or entrenched principle appears to me to prevent his recovery of compensation." In the Australian case of Kavanagh v Akhtar, the court held the tortfeasor should take into account the plaintiff's family and cultural setting. Equality before the law puts a heavy onus on the person who would argue that the "unusual" reaction of an injured plaintiff should be disregarded because a minority religious or cultural situation may not have been foreseeable. Intervening cause is an exception to the eggshell skull rule. If an injury is not immediate, but a separate situation agitates the injury, the tortfeasor is not liable under common law in Australia. In Haber v Walker it was held that a plaintiff will not be liable for a novus actus interveniens if the chain of causation was broken by a voluntary, human act or, an independent event, which in conjunction with the wrongful act, was so unlikely as to
In jurisdictions following the English common law system, equity is the body of law, developed in the English Court of Chancery and, now administered concurrently with the common law. For much of its history, the English common law was principally developed and administered in the central royal courts: the Court of King's Bench, the Court of Common Pleas, the Exchequer. Equity was the name given to the law, administered in the Court of Chancery; the Judicature Reforms in the 1870s effected a procedural fusion of the two bodies of law, ending their institutional separation. The reforms did not effect any substantive fusion, however. Judicial or academic reasoning which assumes the contrary has been described as a "fusion fallacy". Jurisdictions which have inherited the common law system differ in their current treatment of equity. Over the course of the twentieth century some common law systems began to place less emphasis on the historical or institutional origin of substantive legal rules. In England, New Zealand, Canada, equity remains a distinct body of law.
Modern equity includes, among other things: The law relating to express and constructive trusts. The latter part of the twentieth century saw increased debate over the utility of treating equity as a separate body of law; these debates were labelled the "fusion wars". A particular flashpoint in this debate centred on the concept of unjust enrichment and whether areas of law traditionally regarded as equitable could be rationalised as part of a single body of law known as the law of unjust enrichment. After the Norman Conquest of England in the 11th century, royal justice came to be administered in three central courts: the Court of King's Bench, the Court of Common Pleas, the Exchequer; the common law developed in these royal courts. To commence litigation in these royal courts, it was necessary to fit one's claim within a form of action; the plaintiff would purchase a writ in the Chancery, the head of, the Lord Chancellor. If the law provided no remedy, litigants could sometimes appeal directly to the King.
The King would delegate resolution of these petitions to the King's Council. These petitions were delegated to the Lord Chancellor himself. In the early history of the United States, common law was viewed as a birthright. Both the individual states and the federal government supported common law after the American Revolution. U. S. courts draw on decisions of English courts, individual state courts, federal courts in formulating common law. By the 14th century it appears that Chancery was operating as a court, affording remedies for which the strict procedures of the common law worked injustice or provided no remedy to a deserving plaintiff. Chancellors had theological and clerical training and were well versed in Roman law and canon law. By the 15th century the judicial power of Chancery was recognised. Equity, as a body of rules, varied from Chancellor until the end of the 16th century. After the end of the 17th century, only lawyers were appointed to the office of Chancellor. Over time, Equity developed a system of precedent much like its common-law cousin.
One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a role that the rigid framework of land law could not accommodate. This role gave rise to the basic distinction between equitable interests, it was early provided that, in seeking to remove one who wrongfully entered another's land with force and arms, a person could allege disseisin and demand a writ of entry. That writ gave him the written right to re-enter his own land and established this right under the protection of the Crown if need be, whence its value. In 1253, to prevent judges from inventing new writs, Parliament provided that the power to issue writs would thereafter be transferred to judges only one writ at a time, in a "writ for right" package known as a form of action. However, because it was limited to enumerated writs for enumerated rights and wrongs, the writ system sometimes produced unjust results, thus though the King's Bench might have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff might still not have a case if there was not a single form of action combining them.
Therefore, lacking a legal remedy, the plaintiff's only option would be petitioning the King. People began petitioning the King for relief against unfair judgments, as the number of petitioners grew, so the King delegated the task of hearing petitions to the Lord Chancellor; as the early Chancellors lacked formal legal training and showed little regard for precedent, their decisions were widely diverse. In 1529, a lawyer, Sir Thomas More, was appointed as Chancellor. After this time, all future Chancellors were lawyers. Beginning around 1557, records of proceedings in the Courts of Chancery were kept and several equitable doctrines developed. Criticisms continued, the most famous being 17th-century jurist John Selden's aphorism:Equity is a roguish thing: for law we have a measure, know what to trust to. One Chancellor has a long foot, another a short foot, a third an indifferent foot:'tis the same thing in a Chancellor's conscience. A criticis
Competition law is a law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through private enforcement. Competition law is known as "antitrust law" in the United States for historical reasons, as "anti-monopoly law" in China and Russia. In previous years it has been known as trade practices law in Australia. In the European Union, it is referred to as both antitrust and competition law; the history of competition law reaches back to the Roman Empire. The business practices of market traders and governments have always been subject to scrutiny, sometimes severe sanctions. Since the 20th century, competition law has become global; the two largest and most influential systems of competition regulation are United States antitrust law and European Union competition law. National and regional competition authorities across the world have formed international support and enforcement networks. Modern competition law has evolved on a country level to promote and maintain fair competition in markets principally within the territorial boundaries of nation-states.
National competition law does not cover activity beyond territorial borders unless it has significant effects at nation-state level. Countries may allow for extraterritorial jurisdiction in competition cases based on so-called effects doctrine; the protection of international competition is governed by international competition agreements. In 1945, during the negotiations preceding the adoption of the General Agreement on Tariffs and Trade in 1947, limited international competition obligations were proposed within the Charter for an International Trade Organisation; these obligations were not included in GATT, but in 1994, with the conclusion of the Uruguay Round of GATT Multilateral Negotiations, the World Trade Organization was created. The Agreement Establishing the WTO included a range of limited provisions on various cross-border competition issues on a sector specific basis. Competition law, or antitrust law, has three main elements: prohibiting agreements or practices that restrict free trading and competition between business.
This includes in particular the repression of free trade caused by cartels. Banning abusive behavior by a firm dominating a market, or anti-competitive practices that tend to lead to such a dominant position. Practices controlled in this way may include predatory pricing, price gouging, refusal to deal, many others. Supervising the mergers and acquisitions of large corporations, including some joint ventures. Transactions that are considered to threaten the competitive process can be prohibited altogether, or approved subject to "remedies" such as an obligation to divest part of the merged business or to offer licenses or access to facilities to enable other businesses to continue competing. Substance and practice of competition law varies from jurisdiction to jurisdiction. Protecting the interests of consumers and ensuring that entrepreneurs have an opportunity to compete in the market economy are treated as important objectives. Competition law is connected with law on deregulation of access to markets, state aids and subsidies, the privatization of state owned assets and the establishment of independent sector regulators, among other market-oriented supply-side policies.
In recent decades, competition law has been viewed as a way to provide better public services. Robert Bork argued that competition laws can produce adverse effects when they reduce competition by protecting inefficient competitors and when costs of legal intervention are greater than benefits for the consumers. An early example was enacted during the Roman Republic around 50 BC. To protect the grain trade, heavy fines were imposed on anyone directly and insidiously stopping supply ships. Under Diocletian in 301 A. D. an edict imposed the death penalty for anyone violating a tariff system, for example by buying up, concealing, or contriving the scarcity of everyday goods. More legislation came under the constitution of Zeno of 483 A. D. which can be traced into Florentine municipal laws of 1322 and 1325. This provided for confiscation of property and banishment for any trade combination or joint action of monopolies private or granted by the Emperor. Zeno rescinded all granted exclusive rights. Justinian I subsequently introduced legislation to pay officials to manage state monopolies.
Legislation in England to control monopolies and restrictive practices was in force well before the Norman Conquest. The Domesday Book recorded that "foresteel" was one of three forfeitures that King Edward the Confessor could carry out through England, but concern for fair prices led to attempts to directly regulate the market. Under Henry III an act was passed in 1266 to fix bread and ale prices in correspondence with grain prices laid down by the assizes. Penalties for breach included amercements and tumbrel. A 14th century statute labelled forestallers as "oppressors of the poor and the community at large and enemies of the whole country". Under King Edward III the Statute of Labourers of 1349 fixed wages of artificers and workmen and decreed that foodstuffs should be sold at reasonable prices. On top of existing penalties, the statute stated that overcharging merchants must pay the injured party double the sum he received, an idea, replicated in punitive treble damages under US antitrust law.
Under Edward III, the following statutory provision outlawed trade combination.... We have ordained and established, that no merchant or other shall make Confederacy, Coin, Imagin
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
North Western Reporter
The North Western Reporter and North Western Reporter, Second Series are United States regional case law reporters. It is part of the National Reporter System created by John B. West for West Publishing Company, now part of Thomson West; the North Western Reporter contains published appellate court case decisions for: Iowa Michigan Minnesota Nebraska North Dakota South Dakota WisconsinWhen cited, North Western Reporter and North Western Reporter, Second Series are abbreviated "N. W." and "N. W.2d", respectively
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
International law is the set of rules regarded and accepted in relations between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is applicable to countries rather than to individual citizens. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts. National laws or constitutions may provide for the implementation or integration of international legal obligations. International law is consent-based governance, as there is no means of enforcement in a world dominated by sovereign states; this means that a state may choose to not abide by international law, to break its treaty. However, violations of customary international law and peremptory norms can lead to military action or other forms of coercion, such as diplomatic pressure or economic sanctions.
The current order of international law, the equality of sovereignty between nations, was formed through the conclusion of the "Peace of Westphalia" in 1648. Prior to 1648, on the basis of the purpose of war or the legitimacy of war, it sought to distinguish whether the war was a "just war" or not; this theory of power interruptions can be found in the writings of the Roman Cicero and the writings of St. Augustine. According to the theory of armistice, the nation that caused unwarranted war could not enjoy the right to obtain or conquer trophies that were legitimate at the time The 17th, 18th and 19th centuries saw the growth of the concept of the sovereign "nation-state", which consisted of a nation controlled by a centralised system of government; the concept of nationalism became important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the mid-19th century, relations between nation-states were dictated by treaty, agreements to behave in a certain way towards another state, unenforceable except by force, not binding except as matters of honor and faithfulness.
But treaties alone became toothless and wars became destructive, most markedly towards civilians, who decried their horrors, leading to calls for regulation of the acts of states in times of war. The modern study of international law starts in the early 19th century, but its origins go back at least to the 16th century, Alberico Gentili, Francisco de Vitoria and Hugo Grotius, the "fathers of international law." Several legal systems developed in Europe, including the codified systems of continental European states and English common law, based on decisions by judges and not by written codes. Other areas developed differing legal systems, with the Chinese legal tradition dating back more than four thousand years, although at the end of the 19th century, there was still no written code for civil proceedings. One of the first instruments of modern international law was the Lieber Code, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war, adhered to by all civilised nations, the precursor of international law.
This led to the first prosecution for war crimes—in the case of United States prisoners of war held in cruel and depraved conditions at Andersonville, Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to be punished by death in the aftermath of the entire Civil War. In the years that followed, other states subscribed to limitations of their conduct, numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, but not limited to, the Permanent Court of Arbitration in 1899; because international law is a new area of law its development and propriety in applicable areas are subject to dispute. Under article 38 of the Statute of the International Court of Justice, international law has three principal sources: international treaties and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law", International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties.
Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission, under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms as to include all states with no permissible derogations.
Colombia v Perú I