More OU Revision
Sep. 22nd, 2004 10:25 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
major_clangerAnother dose of LJ under the guise of revision. Onto some of the really meaty stuff now...
Unit 16 Introduction to Criminal Law
Actus Reus (guilty act) and Mens Rea (intent)
Burden and standard of proof
Criminal Damage and Arson:
- Intention, or
- Recklessness – taken as subjective recklessness (aware of risk)
Intent
- Direct intent
- Indirect intent
Attempt
- Trying to, but not preparing to, commit crime
Theft, Burglary and Robbery
- Theft
- Burglary – trespassing with intent to steal or trespassing and stealing
- Robbery – theft with force or threat of immediate force
- Aggravated burglary – burglary carrying weapon (wide definition)
Taking conveyance without authority
Definitions of dishonesty in theft: appropriation not dishonest if:
- belief of right in law to take possession
- belief would have other’s consent
- belief owner could not reasonably be identified
R v Ghosh criteria – if above not met, defendant only dishonest if:
- conduct viewed as dishonest by reasonable people, and
- defendant realised this
Offences against the Person:
- S20 OAPA 1868 – Malicious wounding or infliction of GBH
o Intent/recklessness to cause ABH suffices
- S18 OAPA 1868 – Malicious wounding or infliction of GBH with intent to cause harm or to resist arrest
-- Intent to cause GBH required for offence of causing GBH with intent
-- Intent/recklessness to cause ABH suffices if resisting arrest
- Defence of drunkenness
-- Not available to excuse recklessness
-- Arguable for specific intent, but Crown can prove intent still formed.
Murder
- Common Law offence, unlawful killing with malice aforethought
-- Includes intent (but not recklessness) to cause GBH
- Attempted Murder – requires intent to kill.
Developing Criminal Law
- Definition of Rape, change in law on Marital Rape
- Court of Appeal and House of Lords decisions in R v R
Right to Die
- Suicide no longer a crime, so ditto for attempted suicide
- Aiding or abetting suicide thus now a specific offence
- ‘Aids, abets, counsels or procures’
- ECHR / Diane Pretty case
- Suicide pacts – manslaughter, not murder
- Medical treatment – R v Cox
Whew! The course just picks a few small areas of criminal law for illustrative purposes, but even so it's a vast amount of material to cover and revise. Includes areas such as common law rules on intent, recklessness and attempted crime and also material on analysing particular statutes. Given the amount of other stuff to learn, I don't think I'm going to try to memorise chunks of the Offences Against The Person Act.
Unit 17 Introduction to the Law of Obligations: The Law of Contract
What is a contract? The three essential elements: agreement, the intention to create legal relations, and 'consideration' (exchange of goods or obligations).
Agreement:
- Offer and Acceptance. Offer vs 'invitation to treat'; counter-offers; requests for information.
- When is an advert an offer? Carbolic Smoke Ball case.
- Communication of acceptance and the postal rule. Does not apply to fax or email!
- Offer can be revoked before acceptance unless consideration supplied to keep it open.
Intent to create legal relations:
- Presumed that there is such in commercial agreements
- Presumed not in domestic agreements
Consideration:
- Required unless contract is a deed
- Usually (but not always) involves benefit and detriment to both parties.
- Can only enforce a contract if have conferred benefit or suffered detriment.
- Executory consideration - a promise in return for a promise
- Executed consideration - a promise in return for an act
- Past consideration is not valid - cannot form contract on basis of something already done, or add to existing contract after it is formed (must have new contract).
- Consideration must be sufficient (have some value) but need not be adequate.
Privity of Contract:
- Traditional basis - only parties to contract have rights and obligations under it.
- Problems arising with entering into a contract on behalf of another.
- Contracts (Rights of Third Parties) Act 1999 - allows for contract to be constructed so as to benefit a specific third party, so long as it also allows third party to enforce it.
Liability for Breach of Contract:
- Failure of either party to meet terms of contract = breach
- Breach may involve either express or implied terms of contract
-- Express terms - what the contract says
-- Implied terms - where legislation automatically adds terms (e.g. sale of goods)
- Sale of Goods Act 1979
-- s13 - goods must match description
-- s14(2) - goods must be of satisfactory quality
-- s14(3) - goods must be fit for purpose
-- s14 only applies where seller is in business
-- s14(3) covers use made known to seller by buyer
-- These are conditions, breach gives buyer right to terminate contract, return goods, receive refund and get damages for additional loss.
-- But - rights lost if buyer accepts goods - i.e. makes them unfit for return or excessively delays return.
- Supply of Goods (Implied Terms) Act 1973
-- Covers HP contracts
-- s9 and s10 reflect s13 and s14 SOGA 1979
- Supply of Goods and Services Act 1982
-- Covers hire, exchange and contracts for work (e.g. materials and labour)
-- s3 and s4 reflect s13 and s14 SOGA 1979
-- s13 - supplier will carry out services with reasonable care and skill
-- s14 - if timescale for work not stated, implied that it will be reasonable
-- s15 - if consideration is not stated, implied that it will be reasonable
Damages for Breach of Contract
- Basic principles:
-- Must prove causation - breach caused damages
-- Must prove damage not too remote
-- Victim must take reasonable steps to mitigate loss
- Causation usually fairly straightforward.
- Remoteness governed by Hadley v Baxendale - victim can claim damages for:
-- Loss flowing naturally from breach of contract
-- Loss reasonably contemplated by parties in event of breach of contract
- Mitigation
-- Victim must reasonably minimise extent of damages
-- Cannot claim for more than restoration of prior situation
Guarantees
- Sale and Supply of Goods to Consumers Regulations 2002
- Must be clear and legally binding
- Only cover what they say - do not usually cover additional loss
- Can only add to statutory protection (e.g. implied terms from SOGA 1979)
s75 Consumer Credit Act 1975
- Covers purchases by credit card between £100 and £30k
- Buyer can sue credit-card company as well as or instead of supplier for breach of contract of sale or supply of goods or services
- Useful where supplier has gone bankrupt!
And another unit chock-full of stuff to actually know. Mind you, actually knowing the important bits of the Sale of Goods Act and related legislation is no bad thing (I actually quoted SGSA 1982 at a subcontractor who was trying to rip us off at work the other day, with visibly salutary effect.) A case study on breach of contract is a very common law exam question, often including elements of our next topic...
Unit 18 Introduction to the Law of Obligations: The Law of Tort and Exemption from Liability
Duty of Care
- Donoghue v Stevenson (every lawyer's favourite case!)
-- Duty of Care owed to 'neighbour'
- Where does a duty of care exist?
-- Foreseeable harm to claimant
-- Proximity of relationship between claimant and defendant
-- Must be fair, just and reasonable to impose duty of care on defendant
Breach of Duty
- 'Reasonable Person' test (what should defendant have foreseen)
- Special knowledge or expertise taken into account
- Factors affecting foreseeability:
-- Likelihood of harm occurring
-- Gravity of injury foreseen
-- Cost of overcoming risk
Proving Breach of Duty
- Burden is on claimant (but balance of probabilities)
- But - res ipsa loquiter rule
-- If defendant has exclusive control of circumstances from which claim arises and it depends on events that would not have happened if defendant had used proper care, claimant can ask court to infer a breach of duty even in absence of specific proof
Damage
- Element of tort of Negligence (duty of care + breach of duty + consequent damage)
- Damage must be compensatable - injury or damage, not upset or pure economic loss
- Causation in Fact required - loss would not have occurred 'but for' defendants breach of duty (Barnett v Kensington and Chelsea Hospital - hospital not negligent for failings in treatment of poisoning victim who would have died regardless).
- Causation in Law
-- Damage can not be too remote (The Wagon Mound - no liability for freak consequences of breach of duty)
-- But - defendant liable for damages similar in type to those which were reasonably foreseen
-- Also 'Eggshell Skull Rule' - defendant takes claimant as he finds him (if specially vulnerable, defendant liable for resulting exceptional loss)
Product Liability
- Victim of failed product often cannot claim for breach of contract, so claims arise in negligence instead
- 'Narrow Rule' of Donoghue v Stevenson
-- Manufacturer owes duty of care to consumer
-- Manufacturer includes installers, suppliers etc
-- Consumer includes 'neighbours'
-- No liability if 'intermediate examination' of product
- Consumer Protection Act 1987
-- Creates statutory tort of strict liability - no need to prove negligence or fault
-- s2(1) - damage caused by defect in product -> all potential defendants liable
-- damage = death, personal injury or damage to property over £275
-- caused by - common-law principles of causation apply
-- defect - if safety is not what is reasonably expecte
-- product - wide interpretation
-- potential defendants - producer, re-brander, importer, 'forgetful supplier' (cannot identify own supplier)
- Defences
-- Defect not detectable under 'state of the art'
-- Defect not present when product supplied
-- Defendant did not supply product, or supplied other than in course of business
-- Defect attributable to compliance with legal requirements
-- (for components) defect arose in product as a whole
- Manufacturer cannot exclude liability under CPA 1987
Occupiers' Liability
- Occupiers' Liability Act 1957 - liability to lawful visitors
-- Applies to 'premises' - movable and immovable structures
-- Relates to state of premises (includes actions and omissions)
-- 'Occupier' is party with control over premises
-- Visitor must be invited or be present by right, ceases to be visitor if outside invited area, or stays beyond purpose or time limit of visit
-- Common duty of care (i.e. make visitor safe, not make premises safe)
-- Adequate warnings of hazards exempt occupier from liability
- Occupiers' Liability Act 1984 - liability to trespassers
-- Duty of care arises if reasonable grounds to believe hazard exists, someone in vicinity is at risk and hazard is reasonable to prevent.
-- Less onerous duty of care - to make safe areas a trespasser might gain access to
-- Clear warning can discharge duty of care
Vicarious Liability
- Employer liable for torts committed by employee in course of employment
-- Test of 'employee' - is work done an integral part of business?
-- 'Pragmatic test' - employee provides own work and skill in exchange for consideration under control of another
- Employee must be on business of employer, not 'a frolic of his own'
Multiple Defendants
- Claimant may sue any or all joint wrongdoers ('tortfeasors')
- Claimant may recover damages collectively or from one tortfeasor
- Tortfeasor sued singly can recover share of damages from other tortfeasors
Exemption from Liability
- Exemption clauses covered by common law and statutory provisions
- Common law tests:
-- Is clause incorporated?
-- Must be in form that can be construed as contractual document (this includes tickets)
-- If signed, deemed to be incorporated (L'Estrange v Gracoub)
-- If not signed, reasonable steps must have been taken to draw attention to it
-- Too late if after contract signed (Olley v Marlborough Court Ltd)
-- Is clause clearly worded?
-- Contra Preferentum - ambiguity resolved in favour of other party
-- Courts usually hostile to contractual clauses exempting liability for negligence
-- Exemption clauses can cover third parties
-- Exemption from tort - can be done but more constrained
- Unfair Contract Terms Act 1977
-- Title is a bit of a misnomer, also applies to exclusions from tort (negligence resulting in injury or death)
-- s1 - Negligence defined to include term in contract (incl implied term), common-law negligence and negligence under OLA 1957
-- s2 - Liability for death or injury due to negligence cannot be excluded. Liability for damage due to negligence can only be excluded on reasonable terms.
-- s3 - Cannot exclude liability for breach of contract.
-- s6 - Cannot exclude liability under terms implied by s13/s14 SOGA 1979 against someone 'dealing as consumer'.
-- Interpretation of 'dealing as consumer' can be complex - ref to TMA.
That's quite enough for now. Coming later: European Community Law!
MC
Unit 16 Introduction to Criminal Law
Actus Reus (guilty act) and Mens Rea (intent)
Burden and standard of proof
Criminal Damage and Arson:
- Intention, or
- Recklessness – taken as subjective recklessness (aware of risk)
Intent
- Direct intent
- Indirect intent
Attempt
- Trying to, but not preparing to, commit crime
Theft, Burglary and Robbery
- Theft
- Burglary – trespassing with intent to steal or trespassing and stealing
- Robbery – theft with force or threat of immediate force
- Aggravated burglary – burglary carrying weapon (wide definition)
Taking conveyance without authority
Definitions of dishonesty in theft: appropriation not dishonest if:
- belief of right in law to take possession
- belief would have other’s consent
- belief owner could not reasonably be identified
R v Ghosh criteria – if above not met, defendant only dishonest if:
- conduct viewed as dishonest by reasonable people, and
- defendant realised this
Offences against the Person:
- S20 OAPA 1868 – Malicious wounding or infliction of GBH
o Intent/recklessness to cause ABH suffices
- S18 OAPA 1868 – Malicious wounding or infliction of GBH with intent to cause harm or to resist arrest
-- Intent to cause GBH required for offence of causing GBH with intent
-- Intent/recklessness to cause ABH suffices if resisting arrest
- Defence of drunkenness
-- Not available to excuse recklessness
-- Arguable for specific intent, but Crown can prove intent still formed.
Murder
- Common Law offence, unlawful killing with malice aforethought
-- Includes intent (but not recklessness) to cause GBH
- Attempted Murder – requires intent to kill.
Developing Criminal Law
- Definition of Rape, change in law on Marital Rape
- Court of Appeal and House of Lords decisions in R v R
Right to Die
- Suicide no longer a crime, so ditto for attempted suicide
- Aiding or abetting suicide thus now a specific offence
- ‘Aids, abets, counsels or procures’
- ECHR / Diane Pretty case
- Suicide pacts – manslaughter, not murder
- Medical treatment – R v Cox
Whew! The course just picks a few small areas of criminal law for illustrative purposes, but even so it's a vast amount of material to cover and revise. Includes areas such as common law rules on intent, recklessness and attempted crime and also material on analysing particular statutes. Given the amount of other stuff to learn, I don't think I'm going to try to memorise chunks of the Offences Against The Person Act.
Unit 17 Introduction to the Law of Obligations: The Law of Contract
What is a contract? The three essential elements: agreement, the intention to create legal relations, and 'consideration' (exchange of goods or obligations).
Agreement:
- Offer and Acceptance. Offer vs 'invitation to treat'; counter-offers; requests for information.
- When is an advert an offer? Carbolic Smoke Ball case.
- Communication of acceptance and the postal rule. Does not apply to fax or email!
- Offer can be revoked before acceptance unless consideration supplied to keep it open.
Intent to create legal relations:
- Presumed that there is such in commercial agreements
- Presumed not in domestic agreements
Consideration:
- Required unless contract is a deed
- Usually (but not always) involves benefit and detriment to both parties.
- Can only enforce a contract if have conferred benefit or suffered detriment.
- Executory consideration - a promise in return for a promise
- Executed consideration - a promise in return for an act
- Past consideration is not valid - cannot form contract on basis of something already done, or add to existing contract after it is formed (must have new contract).
- Consideration must be sufficient (have some value) but need not be adequate.
Privity of Contract:
- Traditional basis - only parties to contract have rights and obligations under it.
- Problems arising with entering into a contract on behalf of another.
- Contracts (Rights of Third Parties) Act 1999 - allows for contract to be constructed so as to benefit a specific third party, so long as it also allows third party to enforce it.
Liability for Breach of Contract:
- Failure of either party to meet terms of contract = breach
- Breach may involve either express or implied terms of contract
-- Express terms - what the contract says
-- Implied terms - where legislation automatically adds terms (e.g. sale of goods)
- Sale of Goods Act 1979
-- s13 - goods must match description
-- s14(2) - goods must be of satisfactory quality
-- s14(3) - goods must be fit for purpose
-- s14 only applies where seller is in business
-- s14(3) covers use made known to seller by buyer
-- These are conditions, breach gives buyer right to terminate contract, return goods, receive refund and get damages for additional loss.
-- But - rights lost if buyer accepts goods - i.e. makes them unfit for return or excessively delays return.
- Supply of Goods (Implied Terms) Act 1973
-- Covers HP contracts
-- s9 and s10 reflect s13 and s14 SOGA 1979
- Supply of Goods and Services Act 1982
-- Covers hire, exchange and contracts for work (e.g. materials and labour)
-- s3 and s4 reflect s13 and s14 SOGA 1979
-- s13 - supplier will carry out services with reasonable care and skill
-- s14 - if timescale for work not stated, implied that it will be reasonable
-- s15 - if consideration is not stated, implied that it will be reasonable
Damages for Breach of Contract
- Basic principles:
-- Must prove causation - breach caused damages
-- Must prove damage not too remote
-- Victim must take reasonable steps to mitigate loss
- Causation usually fairly straightforward.
- Remoteness governed by Hadley v Baxendale - victim can claim damages for:
-- Loss flowing naturally from breach of contract
-- Loss reasonably contemplated by parties in event of breach of contract
- Mitigation
-- Victim must reasonably minimise extent of damages
-- Cannot claim for more than restoration of prior situation
Guarantees
- Sale and Supply of Goods to Consumers Regulations 2002
- Must be clear and legally binding
- Only cover what they say - do not usually cover additional loss
- Can only add to statutory protection (e.g. implied terms from SOGA 1979)
s75 Consumer Credit Act 1975
- Covers purchases by credit card between £100 and £30k
- Buyer can sue credit-card company as well as or instead of supplier for breach of contract of sale or supply of goods or services
- Useful where supplier has gone bankrupt!
And another unit chock-full of stuff to actually know. Mind you, actually knowing the important bits of the Sale of Goods Act and related legislation is no bad thing (I actually quoted SGSA 1982 at a subcontractor who was trying to rip us off at work the other day, with visibly salutary effect.) A case study on breach of contract is a very common law exam question, often including elements of our next topic...
Unit 18 Introduction to the Law of Obligations: The Law of Tort and Exemption from Liability
Duty of Care
- Donoghue v Stevenson (every lawyer's favourite case!)
-- Duty of Care owed to 'neighbour'
- Where does a duty of care exist?
-- Foreseeable harm to claimant
-- Proximity of relationship between claimant and defendant
-- Must be fair, just and reasonable to impose duty of care on defendant
Breach of Duty
- 'Reasonable Person' test (what should defendant have foreseen)
- Special knowledge or expertise taken into account
- Factors affecting foreseeability:
-- Likelihood of harm occurring
-- Gravity of injury foreseen
-- Cost of overcoming risk
Proving Breach of Duty
- Burden is on claimant (but balance of probabilities)
- But - res ipsa loquiter rule
-- If defendant has exclusive control of circumstances from which claim arises and it depends on events that would not have happened if defendant had used proper care, claimant can ask court to infer a breach of duty even in absence of specific proof
Damage
- Element of tort of Negligence (duty of care + breach of duty + consequent damage)
- Damage must be compensatable - injury or damage, not upset or pure economic loss
- Causation in Fact required - loss would not have occurred 'but for' defendants breach of duty (Barnett v Kensington and Chelsea Hospital - hospital not negligent for failings in treatment of poisoning victim who would have died regardless).
- Causation in Law
-- Damage can not be too remote (The Wagon Mound - no liability for freak consequences of breach of duty)
-- But - defendant liable for damages similar in type to those which were reasonably foreseen
-- Also 'Eggshell Skull Rule' - defendant takes claimant as he finds him (if specially vulnerable, defendant liable for resulting exceptional loss)
Product Liability
- Victim of failed product often cannot claim for breach of contract, so claims arise in negligence instead
- 'Narrow Rule' of Donoghue v Stevenson
-- Manufacturer owes duty of care to consumer
-- Manufacturer includes installers, suppliers etc
-- Consumer includes 'neighbours'
-- No liability if 'intermediate examination' of product
- Consumer Protection Act 1987
-- Creates statutory tort of strict liability - no need to prove negligence or fault
-- s2(1) - damage caused by defect in product -> all potential defendants liable
-- damage = death, personal injury or damage to property over £275
-- caused by - common-law principles of causation apply
-- defect - if safety is not what is reasonably expecte
-- product - wide interpretation
-- potential defendants - producer, re-brander, importer, 'forgetful supplier' (cannot identify own supplier)
- Defences
-- Defect not detectable under 'state of the art'
-- Defect not present when product supplied
-- Defendant did not supply product, or supplied other than in course of business
-- Defect attributable to compliance with legal requirements
-- (for components) defect arose in product as a whole
- Manufacturer cannot exclude liability under CPA 1987
Occupiers' Liability
- Occupiers' Liability Act 1957 - liability to lawful visitors
-- Applies to 'premises' - movable and immovable structures
-- Relates to state of premises (includes actions and omissions)
-- 'Occupier' is party with control over premises
-- Visitor must be invited or be present by right, ceases to be visitor if outside invited area, or stays beyond purpose or time limit of visit
-- Common duty of care (i.e. make visitor safe, not make premises safe)
-- Adequate warnings of hazards exempt occupier from liability
- Occupiers' Liability Act 1984 - liability to trespassers
-- Duty of care arises if reasonable grounds to believe hazard exists, someone in vicinity is at risk and hazard is reasonable to prevent.
-- Less onerous duty of care - to make safe areas a trespasser might gain access to
-- Clear warning can discharge duty of care
Vicarious Liability
- Employer liable for torts committed by employee in course of employment
-- Test of 'employee' - is work done an integral part of business?
-- 'Pragmatic test' - employee provides own work and skill in exchange for consideration under control of another
- Employee must be on business of employer, not 'a frolic of his own'
Multiple Defendants
- Claimant may sue any or all joint wrongdoers ('tortfeasors')
- Claimant may recover damages collectively or from one tortfeasor
- Tortfeasor sued singly can recover share of damages from other tortfeasors
Exemption from Liability
- Exemption clauses covered by common law and statutory provisions
- Common law tests:
-- Is clause incorporated?
-- Must be in form that can be construed as contractual document (this includes tickets)
-- If signed, deemed to be incorporated (L'Estrange v Gracoub)
-- If not signed, reasonable steps must have been taken to draw attention to it
-- Too late if after contract signed (Olley v Marlborough Court Ltd)
-- Is clause clearly worded?
-- Contra Preferentum - ambiguity resolved in favour of other party
-- Courts usually hostile to contractual clauses exempting liability for negligence
-- Exemption clauses can cover third parties
-- Exemption from tort - can be done but more constrained
- Unfair Contract Terms Act 1977
-- Title is a bit of a misnomer, also applies to exclusions from tort (negligence resulting in injury or death)
-- s1 - Negligence defined to include term in contract (incl implied term), common-law negligence and negligence under OLA 1957
-- s2 - Liability for death or injury due to negligence cannot be excluded. Liability for damage due to negligence can only be excluded on reasonable terms.
-- s3 - Cannot exclude liability for breach of contract.
-- s6 - Cannot exclude liability under terms implied by s13/s14 SOGA 1979 against someone 'dealing as consumer'.
-- Interpretation of 'dealing as consumer' can be complex - ref to TMA.
That's quite enough for now. Coming later: European Community Law!
MC
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2004-09-22 02:47 pm (UTC)no subject
Date: 2004-09-24 11:53 am (UTC)But I still think a certain firm of estate agents were a load of expensive wankers. Maybe it was the phonecall on the Friday afternoon, from the Dartmouth ferry...