Q-Z
Q
QBD See QUEEN'S BENCH DIVISION.
QC See QUEEN'S COUNSEL.
qualified acceptance An *acceptance of a bill of exchange that
varies the effect
of the bill as drawn; for example, either by making payment by the
acceptor
dependent on fulfilling a condition or by accepting to pay part
only of the amount
for which the bill is drawn (a partial acceptance). A qualified
acceptance is
distinguished from a general acceptance, which assents without
qualification to
the order of the drawer. The holder of a bill may refuse to take a
qualified
acceptance; if he does not obtain an unqualified acceptance he may
treat the bill as
dishonoured by nonacceptance. If a qualified acceptance is taken
(subject to an
exception as to partial acceptances) and the drawer or an endorser
has not
authorized the holder to take a qualified acceptance or does not
subsequently assent
to it, such drawer or endorser is discharged from his liability on
the bill.
qualified privilege The defence that a statement cannot be made the
subject of
an action for *defamation because it was made on a privileged
occasion and was not
made maliciously, for an improper motive. Qualified privilege
covers statements
made fairly in situations in which there is a legal or moral
obligation to give the
information and the person to whom it is given has a corresponding
duty or
interest to receive it and when someone is acting in defence of his
own property or
reputation. Qualified privilege also covers fair and accurate
reports of public
meetings and various other public proceedings. The privilege
attaching to
professional communications between solicitor and client is
probably qualified,
rather than absolute. Compare ABSOLUTE PRIVILEGE.
qualified right A right set out in the European Convention on Human
Rights
that will only be violated if the interference with it is not
proportionate (see
PROPORTIONALITY). An interference with a qualified right that is
not proportionate to
the *legitimate aim being pursued will not be lawful. Compare
ABSOLUTE RIGHT.
qualified title Ownership of a legal estate in registered land
subject to some
exception or qualification specified in the register. If, for
example, X applies to
register his title to land and there is some possibility that part
of it may already
have been sold to another person, X's title may be registered
subject to the rights of
anyone having a better title to that part. The state's guarantee of
good title does not
protect the proprietor in respect of the specified qualification.
Compare ABSOLUTE
TITLE.
qualifying child For the purposes of the Child Support Act 1991
(see CHILD SUPPORT
MAINTENANCE), a child who is under the age of 16, or under the age
of 19 and
receiving full-time education, and who has not been married. This
definition applies
only to "natural" children (i.e. children of both parties) or
adopted children; it does
not include stepchildren. See also CHILD OF THE FAMILY.
qualifying distribution Formerly, a distribution of profits pya
company on
which *advance corporation tax had to be paid (see also IMPUTATION
SYSTEM).
Redeemable securities issued as a bonus were not treated as
qualifying distribution.
quango n. quasi-autonomous non-governmental organization: a body
appointed
wholly or partly by the government (but not constituting a
department of
government) to perform some public function, normally
administrative or advisory
and frequently involving the distribution of public moneys.
Examples are the
Competition Commission and the Student Loans Company.
quantum n. (of damages) The amount of money awarded by way of
damages.
quantum meruit See QUASI-CONTRACT.
quantum valebat [Latin: as much as it was worth] An action to claim
the value of
goods that were sold without any price having been fixed, when
there was an
implied promise to pay as much as they were worth.
quarantine n. A period of isolation of people or animals that have
been in contact
with a communicable disease. The period was originally 40 days
(hence the name,
which is derived from the Italian quarantina), but is now
approximately the
incubation period of the suspected disease. Quarantine is imposed,
for example, by
public health regulations relating to ships and aircraft or by
orders made under the
Animal Health Act 1981.
quarter days 25 March (Lady Day), 24 June (Midsummer Day),29
September
(Michaelmas Day),and 25 December (ChristmasDay).Rents are sometimes
made
payable on these days.
quarter sessions Originally, a *court of record with quarterly
meetings of the
*justices of the peace for a county. City and borough quarter
sessions were presided
over by the recorder sitting alone. In modern times quarter
sessions became a court
for the trial of offences triable on indictment, other than those
that had to be tried
at *assizes. Quarter sessions were abolished by the Courts Act 1971
and their
jurisdiction is now exercised by the *Crown Court.
quash vb. To invalidate a conviction made in an inferior court or
to set aside a
decision subject to judicial review. See also QUASHING ORDER.
quashing order A discretionary remedy, obtained by an application
for *judicial
review, in which the High Court orders decisions of inferior
courts, tribunals, and
administrative authorities to be brought before it and quashes them
if they are
*ultra vires or show an *error on the face of the record. The
claimant must apply
for it within three months. As it is discretionary, a quashing
order may be refused if
alternative remedies exist. Originally called certiorari, it was
renamed in 1999under
Part 54.1(2)(d) of the Civil Procedure Rules.
quasi-contract n. A field of law covering cases in which one person
has been
unduly enriched at the expense of another and is under an
obligation quasi ex
contractu (as if from a contract) to make restitution to him. In
many cases of quasicontract,
the defendant has received the benefit from the claimant himself.
The
claimant may have paid money to him under a mistake of fact, or
under a void
contract, or may have supplied services under the mistaken belief
that he was
contractually bound to do so. In that case, he is entitled to be
paid a reasonable sum
and is said to sue on a quantum meruit (as much as he deserved).
Alternatively, the
claimant may have been required to pay to a third party money for
which the
defendant was primarily liable. The defendant's receipt of the
benefit need not
necessarily, however, have been from the claimant. It is enough
that it was at the
latter's expense, and he may therefore be liable in quasi-contract
for money paid to
him by a third party on account of the claimant.
quasi-easement n. A right in the nature of an *easement enjoyed
over a plot of
land for the benefit of another plot owned by the same person: it
would be an
easement if the two plots of land were owned and occupied by
different persons. If
the second plot (the quasi-dominant tenement) is sold, the
purchaser will acquire a
full easement under the Law of Property Act 1925 provided the two
parcels were
occupied by different persons immediately before the sale. For
example A, the
owner of Blackacre and Whiteacre, lets Whiteacre to B,who uses a
track across
Blackacre. If A then sells the freehold estate in Whiteacre to B,B
acquires an
easement of way over the track. If the plots are not separately
occupied an easement
may still arise in favour of the purchaser of the quasi-dominant
tenement if the
easement claimed is permanent in nature, identifiable from
inspection of the land,
and used by the grantor (vendor) at the time of the conveyance for
the benefit of
the quasi-dominant tenement.
quasi-entail n. An equitable interest in land that is in the nature
of an *entailed
interest but subsists only during the life of a specified person.
For example, if a life
tenant A settles his life interest on Band the heirs of his body
with remainder to C,
B acquires a quasi-entail. The interests of B, his issue, and C all
cease on A's death.
quasi-judicial ad}. Describing a function that resembles the
judicial function in
that it involves deciding a dispute and ascertaining the facts and
any relevant law,
but differs in that it depends ultimately on the exercise of an
executive discretion
rather than the application of law.
queen n. 1. The sovereign if female (see CROWN). 2. The wife of the
sovereign
(queen consort). 3. The widow of a sovereign (queen dowager).
Queen n. By the Royal Titles Act 1953, "Elizabeth II by the Grace
of God of the
United Kingdom of Great Britain and Northern Ireland and of Her
other Realms and
Territories Queen, Head of the Commonwealth, Defender of the
Faith". The Act
empowers Her Majesty to adopt by proclamation such other style and
titles as she
may think fit. See also CROWN.
Queen's Bench Division (QBD) The division of the *High Court of
Justice whose
principal business is the trial of civil actions based upon
contract or tort. It also has
important appellate functions in relation to appeals from
*magistrates' courts and
certain tribunals and exercises supervisory jurisdiction over all
inferior courts. The
*Admiralty Court and *Commercial Court are part of the QBD.
Queen's Bench Masters See MASTERS OF THE SUPREME COURT.
Queen's Counsel (QC) A senior *barrister of at least ten years'
practice who has
received a patent as "one of Her Majesty's counsel learned in the
law". QCs are
appointed on the recommendation of the Lord Chancellor and a list
of new
appointees is published annually on Maundy Thursday. In court they
sit within the
bar and wear silk gowns (hence they are also known informally as
silks). If the
monarch is a king these barristers are known as King's
Counsel(Ke).
Queen's evidence Evidence given on behalf of the prosecution by an
accused
person who has confessed his own guilt and who then acts as a
witness against his
accomplices. Such evidence is generally considered less reliable
than other evidence
because the witness is likely to minimize his own role and
exaggerate that of his
accomplices. If it is not corroborated, the judge must warn the
jury of the danger of
convicting on the basis of this evidence alone. See also
CORROBORATION.
Queen's Proctor A solicitor who, under the direction of the
Attorney General,
g~ves legal advice. to the courts on difficult or disputed legal
problems involving
divorce and who mterv~nes, generally to prevent a divorce from
being made
absolute, in cases in which not all the material facts were before
the court earlier.
The office of Queen's Proctor is held by the *Treasury
Solicitor.
Queen's Regulations See SERVICE LAW.
Queen's Speech (Speechfrom the Throne) A speech prepared by
the
government ~nd read by t.he Queen to Parliament (assembled in the
House of Lords)
at ~he beginning of a parliamentary session. lt outlines the
government's principal
legislative and policy proposals for the session.
?ue esta~e [Norman French: whose. estate] A claim to have acquired
by
'prescnptlOn an easement or profit a prendreby virtue of the
continuous use of the
right both by the claimant and by those whose estate he has, i.e.
those who owned
the dominant tenement before him.
questioning of suspects See INTERROGATION; RIGHT OF SILENCE.
quia emptores .rL~tin: whereas purchasers (the first words of the
preamble)] A
stat:-rte of 12~0 (still m force today) that forbids the creation
of any new tenures (i.e.
sublnfeudattcn) other than by the Crown. Owners of land wishing to
transfer the
property ~ay 0r:l~ do so by selling it, not by creating a new
lord-tenant
relationship. ThIS IS the basis of the modern system of conveying
estates. The
leasehold (or landlord a~d tenant). relationship fell outside the
feudal system of
tenures (only one of which effectively now remains, namely the
freehold tenure of
socage) and so can still be freely created as outside the scope of
the statute. See
FEUDAL SYSTEM.
quia ti~et [Lati~:.because he fears] A type of *injunction that is
sought in order
to restram an anticipated wrong',The .court will only grant such a
remedy if the
~P?llc<lfolt can show that there IS imrmnent danger of a
substantial kind or that the
injury, If It occurs, will be irreparable.
quicquid plantatur solo, solo cedit See FIXTURE.
~uiet enjoyment One of the obligations of a landlord, which is
implied in every
lease unless specifically excluded. lt entitles the tenant to
possess and enjoy the
land he leases without interference from the landlord or anyone
claiming rights
through the landlord.
quiet possession Freedom from disturbance in the enjoyment of
property. In
contracts for the sale of goods, unless the seller makes it clear
that he is contracting
:0 transfer only the title tha.t he or a t~ird person has, there is
an implied
warranty that t~e buyer WIll enJOY quiet possession of the goods.
This warranty is
broken not only If the seller and those claiming through him
interfere with the
b;ryer's quiet possession but also if the interference is by a
third party claiming by
virtue of a better tltl.e to the goods. The corresponding covenant
upon the sale of
land extends only to mterferences by the seller and those claiming
through him.
quit rent See RENTCHARGE.
quittance n. A document that acknowledges payment of a debt.
quorum n. 1. The minimum number of people who must be present at a
meeting
in OJ~derfor busmess. to. be transacted. The required number is
usually laid down in
the articles of association, constitution, or rules of the company
or other body
concerned. See also GENERAL MEETING. 2. Formerly, an indication in
a Commission of
the Peace of the particular justices (called justices of the
quorum) required, at least
one of whom had to be present in order for business to be
done.
quota ti. A limited quantity or number of goods or other items that
are permitted
by a state or body to be imported, exported, or manufactured. For
example, in the
fishing industry the EU sets national quotas for fishing catches
(see COMMON FISHERIES
POLIcY). In the practice of "quota hopping", British vessels are
bought ~y nationals of
other EU states (especially Spain and the Netherlands) in order to
~ualify as UKbased
and therefore acquire the catch quotas allocated to the UKm respect
of those
vessels. Attempts by the UK to prevent this practice have been held
as unlawful by
the European Court of Justice (see FISHERY LIMITS).
quotation n. A listing of a share price on the *Stock Exchang:. A
price may be
obtained by accessing the Stock Exchange Automated Quotations
System (~EAQ).
A quotation can be cancelled or suspended if the con:pany does not
comply with the
Rules of the Stock Exchange or if it becomes impossible to rely on
market forces to
arrive at a price for the securities (e.g. because of inaccurate
accounts or
manipulation of the market).
R
R. Abbreviation for Rex or Regina [Latin: King or Queen] Criminal
prosecutions on
indictment are brought in the name of the Crown, since a crime is
viewed as a
wrong against the public at large, or the state, represented by the
monarch. Hence
the formula R.v Defendant (the Crown versus the defendant).
Race Relations Board A body constituted to enforce the Race
Relations Acts 1965
and 1968.These Acts have been replaced by the Race Relations Act
1976and the Race
Relations Board by the *Commission for Racial Equality.
racial discrimination Discrimination on the grounds of colour,
race, nationality,
or ethnic origins. It is dealt with by the Race Relations Acts of
1965,1968,and 1976.
The 1965 Act created an offence of incitement to *racial hatred and
made racial
discrimination illegal in public places. The 1968 Act prohibits
discrimination in
respect of goods, services, facilities, employment, accommodation,
and
advertisements. The 1976 Act prohibits indirect racial
discrimination, as well as
discrimination in clubs with more than 25 members. It also
prohibits the types of
discrimination dealt with by the 1975Sex Discrimination Act (see
SEX DISCRIMINATION).
The Race Relations (Amendment) Act 2000 extends coverage of the
1976 Act by
prohibiting racial discrimination in the functions of the police
and other public
authorities not previously covered by that Act. It also places a
general duty on
public authorities to eliminate discrimination and promote racial
equality. The
*Commission for Racial Equality has the power to conduct formal
investigations
into complaints. Individual complaints in the field of employment
are dealt with by
*employment tribunals; other complaints are dealt with in specified
county courts.
racial harassment See RACIST ABUSE; THREATENING BEHAVIOUR.
racial hatred Hatred against a group of people because of their
colour, race,
nationality, or ethnic or national origins. Hatred against a
religion is thus not
directly covered (see BLASPHEMY). The Public Order Act 1986
contains six offences of
stirring up racial hatred, which all require proof of words,
behaviour, or material
that are threatening, abusive, or insulting; there must be an
*intention of stirring
up racial hatred or the likelihood that this will happen. All
offences are punishable
with up to two years' imprisonment and/or a fine and require the
Attorney
General's consent before proceedings can be instituted.
The offences are as follows. (1) Using *threatening behaviour or
words or
displaying threatening written material. This offence may be
committed in a public
or private place, but it is a defence for the accused person to
prove (see BURDEN OF
PROOF) that he was inside a dwelling and had no reason to believe
that his behaviour
or display would be seen or heard by someone outside that or
another dwelling.
Even if the intention to stir up racial hatred is not proved, the
accused can still be
guilty of the offence if he is proved to have either intended his
behaviour or
material to be threatening or been aware that it might be so. The
offence does not
extend to behaviour or written material that is used solely for
inclusion in a radio
or television programme. A constable may *arrest without warrant
anyone he
reasonably suspects is committing this offence.
(2) Publishing or distributing to the public threatening written
material. It is a
defence for the accused to prove that he was unaware of the
material's contents and
did not suspect that it was threatening.
(3) Presenting or directing the public performance of a play that
involves the use of
threatening words or behaviour. The actual performers do not commit
or *aid and
abet the offence, and recordings or broadcasts of plays can only
involve the offence
if outsiders attend. It is a defence for the accused to prove that
he was unaware and
had no reason to suspect that (a)the performance would involve use
of the
threatening words, or (b) the offending words were threatening, or
(c) racial hatred
would be likely to be stirred up during the performance.
(4) Distributing, showing, or playing a recording of visual images
or sound to the
public. It is a defence for the accused to prove that he was
unaware of the
recording's content and did not, and had no reason to, suspect that
it was
threatening.
(5) Providing, producing, or directing a radio or television
programme involving
threatening images or sounds. The offence is limited to broadcasts
by satellite,
community radio services, cable, pirate stations, and the like; it
does not extend to
BBC or lEA programmes. It is a defence if the accused can prove
either of the
following: (a) that he was unaware and had no reason to suspect
that the offending
material was threatening; or (b) that he was unaware and had no
reason to suspect
that (i) the programme would involve the offending material and
that it was not
reasonably practicable for him to remove the material or (ii) the
programme would
be broadcast or that racial hatred would be likely to be stirred up
by it. Defence b(ii)
is unavailable to those providing the broadcasting service. A
broadcaster who uses
the offending words can also commit the offence; defences (a)and
b(ii) are available
to him.
(6) Possessing threatening written material or a sound or visual
recording with a
view to its being distributed or broadcast, or (written material
only) published, or (a
recording only) shown or played. The offence does not extend to the
BBC or lEA, and
defence (a)above is available. The police are given entry and
search powers in
connection with the last offence.
Courts can order forfeiture of offending material after
convictions.
The Protection from Harassment Act 1997provides additional remedies
for those
harassed on racial grounds (see RACIST ABUSE); offenders may
receive jail sentences of
up to five years.
racist abuse Harassment of someone as a consequence of the
harasser's biased
views of that person's racial origins. The Protection from
Harassment Act 1997
provides that offenders who make others fear for their safety can
be jailed for up
to five years and/or be subjected to an unlimited fine; even when
the harassment
does not give rise to fear for safety, the offender faces up to six
months in jail
and/or a fine of up to £5000.
rack rent The yearly amount of rent that a tenant could reasonably
expect to pay
on the open market; a rent representing the gross annual value of
the holding.
Compare GROUND RENT.
rape n. Sexual intercourse (vaginal or anal) with a woman or
another man without
their *consent, as a result of physical force or threats, or
because the person was
unconscious or asleep, or because consent as to the nature of the
act was obtained
through fraud. It is also rape if the person is mentally incapable
of understanding
what is being consenting to. The defendant must be proved to have
known that the
person did not consent or have been reckless as to consent.
Indifference by the
defendant to the question of consent would constitute recklessness.
If, however,
there is reasonable doubt as to whether he honestly believed that
the person was
consenting he will be entitled to be acquitted, even if his belief
was unreasonable.
The maximum penalty for rape or attempted rape is life
imprisonment, but this is
rarely imposed; however, the Crime (Sentences) Act 1997provides for
a mandatory
sentence of life imprisonment for those convicted for a second time
of rape or
attempted rape (see REPEAT OFFENDER).
A husband can be convicted for raping his wife, and a boy under the
age of 14 is
guilty of rape if he has intercourse without consent (formerly,
boys of this age were
deemed incapable of rape even if intercourse had taken place). An
unsuccessful rape
can be treated as an *indecent assault or as an assault occasioning
bodily harm or
causing grievous bodily harm, depending on the circumstances
(formerly, a rape by a
boy was treated in this way). A woman can be charged with rape as
an accessory.
rape offence Anyone of the offences of rape, attempted rape,
aiding, abetting,
counselling, or procuring rape or attempted rape, incitement or
conspiracy to rape,
and burglary with intent to rape. In cases where the defendant to a
rape offence
pleads not guilty, the Sexual Offences (Amendment) Act 1976limits
the right to ask
questions about the alleged victim's sexual experiences. It also
prohibits (subject to
special leave of the court) the reporting of details about the case
that might enable
members of the public to identify the woman. If such details are
published, the
publishers may be fined.
rapporteur n. An official of the European Parliament or of some
other EU body
whose job is to help discussions progress in connection with a
particular matter and
to prepare a report on it.
rates pl. n. Local taxes charged on property by local authorities
to pay for the
services they provide. The *community charge replaced domestic
rates (i.e. those
payable by private householders) in April 1990in England and Wales
(in 1989in
Scotland), but was itself replaced by the *council tax in April
1993.Owners of
business and other nondomestic property remain liable to pay
nondomestic rates
based on a Uniform Business Rate (UBR), fixed by central
government, and a local
valuation of the property.
ratification n. 1. Confirmation of an act. If, for example, X
contracts with Y as
agent for Z, but has in fact no authority to do SO, Z may
nevertheless adopt the
contract by subsequent ratification. An unenforceable contract made
with a minor
can become enforceable if the minor ratifies the contract when he
comes of age.
2. (in international law) The approval of a *treaty, usually by the
head of state (or by
the head of state and legislature). This takes place when documents
of ratification
are either exchanged or deposited with a named depositary. Normally
a treaty states
expressly whether it will bind a party as soon as it is signed by
that party's
representative or whether it requires ratification. The Vienna
Convention on
Treaties (1969) provides that when a treaty does not specify
whether or not
ratification is required, reference will be made to the party's
intention. Performance
of a treaty may amount to implicit ratification. 3. (in company
law) A resolution of
a general meeting sanctioning some irregularity in the running of a
company. Some
irregularities cannot be sanctioned, such as acts that are *ultra
vires or a *fraud on
the minority.
ratio decidendi [Latin: the reason for deciding] The principle or
principles of law
on which the court reaches its decision. The ratio of the case has
to be deduced from
its facts, the reasons the court gave for reaching its decision,
and the decision itself.
It is said to be the statement of law applied to the material
facts. Only the ratio of a
case is binding on inferior courts, by reason of the doctrine of
*precedent.
rave n. An assembly, unlicensed by the local authority, of 100 or
more people,
partly or entirely in the open air, at which amplified music is
played during the
night and is likely to cause serious distress to local inhabitants.
Under the Criminal
Justice and Public Order Act 1994a police officer of at least the
rank of
superintendent may issue directions to participants to leave if it
is reasonably
believed that two or more people are preparing for a rave or ten or
more people are
waiting for one to start or are already participating in an event
that will attract 100
or more participants. A *summary offence is committed by anyone
(excluding the
occupier, a member of his family, and an employee or agent) who
fails to leave as
soon as reasonably practicable or who re-enters within seven days;
it is punishable
by up to three months' imprisonment and/or a fine on level 4. A
uniformed police
officer may arrest without warrant anyone refusing the leave. He
may also stop and
turn back within five miles of a rave anyone whom he believes to be
travelling to
the rave. Failure to comply is a summary offence punishable by a
fine on level 3.
There are supplementary powers of entry for the purpose of clearing
the land
and seizing and removing vehicles and sound equipment. Any sound
equipment
under the control of a person convicted under these provisions may
be made the
subject of a *forfeiture order.
real adj. 1. Relating to land. See also REAL ESTATE; REAL PROPERTY.
2. Relating to a
thing, rather than to a person. See also REAL EVIDENCE.
real estate Under the Administration of Estates Act 1925,all
interests in land held
by the deceased at death excluding interests in money charged on
land.
real evidence Evidence in the form of material objects
(e.g.weapons). When an
object is admitted in evidence, it is usually marked as an
*exhibit. Documents are
not usually classified as real evidence, but may be treated as such
if the physical
characteristics of the document (rather than its content) are of
significance. Some
authorities include evidence of identification and the demeanour of
witnesses
within the classification of real evidence.
real property (realty) Land and incorporeal *hereditaments. See
PROPERTY.
real security 1. A mortgage. 2. A *rentcharge secured on freehold
land.
realty n. See REAL PROPERTY.
real union A. treaty arrangement in which two or more states unite
in order to
make them one *internationallegal personality. A real union does
not create a
single state; each state can revive its own international
personality should the real
union be dissolved. An example of a real union was that between
Sweden and
Norway between 1814and 1905.
reasonable doubt See PROOF BEYOND REASONABLE DOUBT.
reasonable financial provision The financial provision that the
*dependants of
a deceased person can reasonably expect to receive from his estate.
If the deceased's
will does not make such provision, or he dies intestate and the
intestacy laws do not
make such provision, the dependants may apply to the court for
provision. A Spouse
is entitled to reasonable financial provision even if he or she
already has enough
resources for maintenance; in all other cases, reasonable financial
provision
comprises what is required for maintenance.
reasonable force At common law a person may use reasonable force in
*selfdefence
and, in extreme circumstances, may be justified in killing an
attacker.
Reasonable force may be used in defending one's property, and if
someone intrudes
on one's property at night, one might be justified in treating this
as a threat not
merely to property, but to personal safety. An OCcupierof premises
(even if he is not
the owner) and possibly even a licensee (such as a lodger) may use
reasonable force
against a trespasser. The Criminal Law Act 1967 permits the use of
reasonable force
in order to prevent crime, to lawfully arrest a criminal or
suspected criminal (or to
help in arresting him), or to capture someone who has escaped irotn
lawful
detention. The Act extends to both police and private citizens. It
is not altogether
certain whether the statutory right includes the right to
kill.
It is a statutory offence to set spring guns or mantraps, except in
a private house
between sunset and sunrise. One may use a dog in self-defence if
this use is
reasonable (see GUARD DOG).
If a person mistakenly thinks that he is entitle.j to use
reasonable force when he
is not, he will nonetheless be treated as if he was entitled to use
such force, provided
that the mistake he made was a reasonable one. It seems, however,
that this does not
apply if he made a mistake of law, rather than fact.
See also FORCIBLE ENTRY.
reasonable man An ordinary citizen, sometimes referred to as the
"man on the
Clapham omnibus". The standard of care in actions for *negligence
is based on what
a reasonable person might be expected to do considering the
circumstances and the
foreseeable consequences. The standard is not entirely uniform: a
lower standard is
expected of a child, but a higher standard is exp~cted of someone,
such as a doctor,
who purports to possess a special skill.
rebuttable presumption See PRESUMPTION.
rebutter ri. Formerly, a pleading served by a defendant in reply to
the claimant's
*surrejoinder. Such a pleading was very rare in modern practice and
no longer
exists under the *Civil Procedure Rules.
recall of witness The further examination of a witness after his
evidence has
been completed. The judge may permit the recall of a witness even
after the close of
a party's case to allow *evidence in rebuttal.
recaption n. The retaking of goods that have been wrongfully taken
or are being
wrongfully withheld. It is a form of *self-help.
receiver n. 1. A person appointed by the court to preserve and
protect property
that is at risk, to enable another person to obtain. the benefit of
rights over the
property or to obtain payment of a debt if the common-law remedy is
inadequate.
See alsoEQUITABLE EXECUTION. 2. A person appointe.j under the terms
of a *debenture
or by the court to realize assets charged and apply the proceeds
for the benefit of
those entitled. Notice of appointment must be given to the
Companies Registry and
must appear upon business documents. The receiver may have power to
manage the
company. See alsoADMINISTRATIVE RECEIVER; OFFICIAl. RECEIVER.
receiving n. Acquiring exclusive control of stolen property or
joint possession of it
with the thief or another receiver. Thus if someone merely examines
stolen goods in
the presence of the thief, he is not guilty of receiving. Before
1968 this was an
offence in itself, but it is now one form of the wider offence of
*handling stolen
goods.
receiving order Formerly, a court order made during the course of
*bankruptcy
proceedings that placed the debtor's property under the control
of the *official
receiver or of a *trustee in bankruptcy. See BANKRUPTCY
ORDER.
reciprocity n. The principle that one will treat someone in a
particular way if one
is so treated by them. This is relevant under EU law in relation to
agreements that
the EUhas with non-Ell countries, particularly in relation to
*public procurement
and free trade.
recitals pl. n. See DEED.
recklessness n. A form of *mens rea that amounts to less than
*intention but
more than *negligence. Many common-law offences can be committed
either
intentionally or recklessly, and it is now common for statutes to
create offences of
recklessness. Recklessness has normally been held to have a
subjective meaning of
being aware of the risk of a particular consequence arising from
one's actions but
deciding nonetheless to continue with one's actions and take the
risk. However, the
House of Lords has ruled that, in the context of *criminal damage,
recklessness also
has an objective meaning of giving no thought or being indifferent
to an obvious
risk. This definition makes the concept of recklessness far
stricter and brings it very
close to the traditional definition of negligence. In most cases
the subjective
definition applies to common-law offences and the objective
definition to statutory
offences. There are, however, dicta in the Court of Appeal applying
the objective
definition of recklessness to some common-law offences (e.g.
rape).
recognition n. (in international law) 1. The process by which one
state declares
that another political entity fulfils the conditions of statehood
(see STATE) and that it
is willing to deal with it as a member of the international
community. Recognition
usually takes place when a new state comes into being. Some
authorities believe that
recognition is constitutive, i.e. it is one of the conditions that
create a state in
international law (see CONSTITUTIVE THEORY). Most, however, regard
it as being merely
declaratory, i.e. an acceptance of a fact that already exists (see
DECLARATORY
THEORY). 2. Acceptance of a government as the legal representative
of the state. This
may be de facto or de jure. The distinction is a fluid one, often
involving a political
element, since international law allows states discretion as to
whether or not to
accord recognition and of which kind. The according of recognition
of either kind is
usually an acknowledgment that the government recognized has
effective control,
but the decision to give merely de facto recognition may reflect a
wish not to show
approval of the nature of the government concerned (and at the same
time to be
able to continue to give de jure recognition to the ousted
government). The
significance of the distinction (which is of little legal
consequence) therefore
depends on the intention of the recognizing government. Recognition
may be
express or implied (for example, by entering into diplomatic
relations with a new
government). See alsoESTRADA DOCTRINE; TOBAR DOCTRINE.
For purposes of English municipal law, the question of whether or
not a state is
recognized is sometimes relevant. Thus: (1) only a recognized state
is entitled to
*sovereign immunity from jurisdiction; (2) an unrecognized state
cannot sue in
English courts; and (3)when a foreign law is to be applied under
the principles of
*private international law, this can only be the law of a
recognized state or
subsidiary body set up by it. A Foreign and Commonwealth Office
certificate stating'
that an entity is or is not recognized by the British government is
usually taken as
conclusive evidence in the courts. Since 1980 Britain has abandoned
the practice of
recognizing governments - only states are now the subject of
express recognition.
recognition issue A trade dispute as to whether a particular trade
union should
be recognized by an employer as having the right to negotiate terms
and conditions
of employment on behalf of its members among the employer's
workforce.
recognition procedure (in employment law) A statutory procedure
introduced
by the Employment Relations Act 1999(operational from 6 June 2000)
by which a
trade union can secure the legal right to enter into *collective
bargaining with an
employer. As well as the benefit the trade union and its members
secure from the
fact of bargaining, a recognized trade union becomes entitled to
all employment
rights bestowed by employment legislation on recognized trade
unions. The new
procedure enables unions to seek statutory recognition for
collective bargaining if
they fail to secure a voluntary agreement with the employer
concerned.
The statutory procedure is given in Schedule A1of the Trade Union
and Labour
Relations (Consolidation) Act 1992.Statutory recognition can be
requested by one or
more independent trade unions, in the first instance from the
employer. Such an
approach (often with the assistance of *ACAS) may result in a
voluntary agreement
being made between the parties. Following a failure to arrive at a
voluntary
agreement a trade union may then refer the request to the *Central
Arbitration
Committee (CAC). If satisfied that the trade union has at least
10%membership
among the group of workers it is seeking to represent, the CAC will
then proceed to
establish the viability of the union's request.
The CACmust satisfy itself that the proposed bargaining union is an
appropriate
unit and take into account such factors as the need for effective
management, the
relative views of the parties to the dispute, the existing national
and local
arrangements for bargaining, and the need to avoid fragmentation of
existing
bargaining units. Crucially the CACmust determine that the
necessary support
exists at the workplace for collective bargaining. In determining
this issue a ballot
may be held. However, if the CACis satisfied that a majority of the
workers in the
unit are currently members of the applicant union, it may decide
that a ballot is not
needed. If a ballot is held (and it must be held if less than 50%of
the workers are
union members), the result must show that a majority of those
voting support the
union and that those voting in favour constitute at least 40% of
the workers in the
bargaining unit. The CACthen issues a declaration that the union is
entitled to
recognition on the basis either that a majority of the workers are
union members or
that a majority support collective bargaining. When this
declaration has been made,
the parties are given 30 days to negotiate a method of conducting
collective
bargaining. Failure to arrive at an agreement will result in a
further reference to
the CAe. If after a further period of arbitration no voluntary
agreement can be
reached by the parties, the CACis empowered to specify a method for
collective
bargaining. This method then takes effect as a legally binding
agreement between
the parties.
The new statutory procedure also contains provisions for the
derecognition of a
trade union. Where recognition has been secured via the statutory
route, distinct
procedures are laid down for the removal of such recognition.
Normally
derecognition is not possible within the first three years of any
award of
recognition arising from a voluntary agreement. However, special
procedures exist
for cases in which the relevant employees fall below 21 in number,
the employees
request derecognition, the employer requests derecognition, and the
union ceases to
be independent.
recognizance n. An undertaking by an offender (or by sureties on
his behalf) to
forfeit a sum of money under certain conditions. Recognizances may
be entered into
to answer to judgment, i.e. to appear before the court for
pronouncement of
judgment on a specified date. This procedure may be appropriate
if the accused
wishes to appeal against conviction. Alternatively, recognizances
may be used m
addition to or in place of any other sentence or judgment, the
offender bemg
obligated to keep the peace and be of good behaviour. Magistrat~s
have wide po.wers
of binding over upon recognizances under the Statute of Westminster
1361 (which
enacted into statute the laws of justices of the peace) and the
Magistrates' Courts
Act 1980; they may punish failure to comply with the order with
imprisonment. See
KEEPING THE PEACE.
reconciliation n. The coming together of estranged spouses. It is
the general
policy of the law to encourage reconciliation, and there are
special organizations to
help with this. Solicitors in divorce cases must certify whether or
not they have
discussed the possibility of reconciliation with their clients, and
proceedmgs may be
adjourned if the court feels there is a chance of reconciliation.
When divorce cases
are heard under the *special procedure the court will have no
opportumty to Judge
whether there is a chance of reconciliation. If spouses have lived
together for more
than six months after separation in cases of divorce applications
based on adultery,
unreasonable behaviour, desertion, or separation, there is a
presumption of law that
they have become reconciled and a divorce is refused.
reconstruction of a company The transfer of the property of a
registered .
company in a *voluntary winding-up to another company in exchan~e
f?r shares in
that company to be distributed among members of the company I~
hqUldatI?n. The
liquidator effects the reconstruction with the authority of a
*speClal resolution
(members' voluntary winding-up) or the consent of the court or
*liquidation
committee (creditors' voluntary winding-up). A member who does not
agree to the
arrangement can require the liquidator to buy his shares. See also
SCHEME OF
ARRANGEMENT.
reconversion n. The imaginary process by which a fictional
*conversion is
considered not to have taken place: the property is reconverted in
law to the state
that, in fact, it has always held.
record n. The documents constituting an authentic account of the
proceedings
before a court, including the <claim form or other originating
process, the
statements of case, and the *judgment or order, but usually not the
evidence
tendered. The record of an inferior court is the only part of the
proceedings that
can be considered by the High Court when deciding whether to grant
a *quashing
order.
recorder n. 1. A barrister or solicitor appointed as a part-time
judge. Recorders
agree to make themselves available regularly (unlike deputy judges,
wh? ~re
appointed ad hoc) and for at least four weeks a year. Recorders
usually Sit in the
Crown Court but may sit in the county courts or the High Court. 2.
Formerly, a
member of the Bar appointed to preside at City or borough *quarter
sessions.
recovery n. Regaining possession of land from an unlawful occupier
by
proceedings in the High Court or a county court. See RECOVERY OF
PREMISES.
recovery of costs See BILL OF COSTS.
recovery of premises The right to regain possession of property
from which
one has been unlawfully dispossessed (see FORCIBLE ENTRY) or the
right of a court
officer to enforce a judgment for this. It is a summary offence,
punishable by up to
six months' imprisonment and/or a *fine at level 5 on the standard
scale, to resist or
intentionally obstruct a court officer in the process of enforcing
such a judgment,
whether or not one knows that he is a court officer. There is,
however, a specific
defence if one can show that one believed that he was not a court
officer. This
offence covers most action taken by squatters to resist eviction,
such as physical
assaults, boarding up doors, or merely refusing to leave.
recreational charity A charity that provides facilities for
leisure-time occupation
in the interests of social welfare. After doubts expressed in the
courts, Parliament
confirmed in the Recreational Charities Act 1958 that these trusts
were valid, as long
as the facilities were provided with the aim of improving the
conditions of life for
those for whom they were primarily intended and were available to
the public or a
section of it.
rectification n. The correction of a document if it does not
correctly express the
common intention of the parties to it. Conveyances, leases,
contracts, and certain
registers of companies may be rectified on application to the
court; the court
exercises the jurisdiction to rectify with very great caution and
only on the most
cogent evidence. Parties to a document may, by agreement, rectify
it without the
court's consent, provided that the rights of third parties are not
affected.
rectification of will Under the Administration of Justice Act 1982,
a court has
power to rectify a will that fails to carry out the intentions of
the testator.
However, this only arises when the court is satisfied that the
failure was caused by
clerical error or through a misunderstanding of the testator's
instructions. An
application for rectification should as a general rule be made
within six months
from the date on which *representation was first taken out.
reddendum n. The clause in a *lease that specifies the amount of
the rent and
when it should be paid.
redeemable share See SHARE.
redeem up. foreclose down A maxim applied in the context of
*priority of
mortgages. When there are successive mortgages of the same
property, a mortgagee
who is second or below in the order of priority may buyout (redeem)
an earlier
mortgagee. Any mortgagee may be redeemed by a mortgagee with a
lower priority.
If the matter is complicated and a court action is necessary, any
person who might
suffer in such an action must be made a party to it, i.e. the
mortgagor and any
mortgagees of lower priority to the mortgage being redeemed. Any
person seeking
to redeem by action must not only redeem any mortgages standing
between him
and the prior mortgage; he must also foreclose all subsequent
mortgagees and the
mortgagor. The principle does not apply to redemptions out of
court.
redemption n. The return or repossession of property offered as
security upon
payment of a mortgage debt or a charge. The property may
alternatively be
conveyed by the mortgagee to a third party nominated by the
mortgagor. See EQUITY
OF REDEMPTION.
redress n. See REMEDY.
reduction of capital The reduction by a limited company of its
share *capital.
Under the Companies Act 1985 there are two principal methods by
which this may
be achieved. When the company has capital in excess of its needs it
can extinguish
or reduce the liability of its members on any uncalled capital or
it can repay to
them the nominal value of their shares. When the company has
suffered losses it
can cancel paid-up shares because they are unrepresented by
available assets. The
reduction, which requires a *special resolution, must be authorized
by the articles of
association and confirmed by the court. If a variation of
*c1assrights is involved, the
consent of the relevant class of shareholder is usually necessary.
See also ALTERATION
OF SHARE CAPITAL; AUTHORIZED CAPITAL.
redundancy n. 1. (in employment law) The position of an employee
who fills a job
that no longer needs to be done. Under the Employment Rights Act
1996,dismissal
for redundancy occurs when the reason is wholly or mainly that the
employer has
ceased or intends to cease carrying on the business in which the
employee was
employed, that he is transferring the business in which the
employee wor~s to
another location, or that he needs fewer employees to carry out the
work m the
place in which the employee is employed. An employee dismiss~d in
such
circumstances is entitled to a statutory *redundancy payment If he
has been
continuously employed in the business (see CONTINUOUS EMPLOYM:NT)
f?r two year~
prior to the *effective date of termination of his employment..
IgnOrI~g any period
during which the employee was under the age of 18, and provided he
IS not over the
age of 65. He may also be disqualified from receiving paym~nt If
the employer h~s
offered him suitable alternative employment, starting within four
weeks after his
old employment ends, and the employee unreasonably refuses it.
He.n:ay h?wever
tryout alternative employment for up to four wee~(s without
forfeltIng. his .
redundancy payment, if he decides not to accept this employment and
his refusal IS
reasonable.
An employee who is laid off (i.e. not provided with work) or kept
on short-time
working, otherwise than as a result of industrial action, for four
or more weeks
continuously, or for six or more weeks (not more than three
consecutively) in any
13-week period, may claim a redundancy payment in certain
circumstances. ~e m~st
give his employer at least the minimum required period of
<notice termina~mg hIS
employment, stating his intention to claim a redundancy payment.
This notice must
be given within four weeks after the end of the relevant period of
lay-off or shorttime
working. However, the employer is not liable to give him a
redundancy
payment if he honours a written undertaking, given
witI1.inse".en.days after
receiving the employee's notice, to restore full-time working
within four weeks
after the employee's notice, for at least 13 weeks without
interruption. .
An employee who is dismissed for redundancy must be given
reasonable ~Ime off
during the notice period to seek other employment. If he ISoffered
a new JO? .
starting before his notice expires, the employee may bring forwar~
the terrrunation
of his old employment. However, the employer can challenge his
right to a
redundancy payment if he justifiably requires the employee ~o work
for the f~1l
notice period. An employee forfeits his redundancy payment If,
during the notice
period, his employer justifiably dismisses him for misconduct other
than strike
action.
Disputes concerning redundancy and redundancy payments are
determined b~
application to an *employment tribunal. The tribunal can also mak~
a *protectlVe
award to employees on the application of an *independent trade umon
when the .
employer has failed to give sufficient notice of his intention to
declare redundancies
(see DISCLOSURE OF INFORMATION). See also COLLECTIVE REDUNDANCY.
.
2. (in statements of case) The inclusion of unnecessary or
Irrelevant material, The
court may order redundant material in a statement of case to be
struck out.
redundancy payment The sum that an employee dismissed because of
.
*redundancy is entitled to receive from his employer under the
Employment RIghts
Act 1996.The sum is the total of: (1) one and a half weeks' pay for
each year of the
employee's *continuous employment in which he was aged 41 or more;
(2)one
week's pay for each year's service between the ages of 22 and
41;and (3) half a
week's pay for each year between the ages of 18 and 22. Continuous
employment
exceeding 20 years is ignored, and a maximum amount of weekly pay
to be used in
the calculation is prescribed by regulations made by the Secretary
of State for Work
and Pensions and reviewed annually. Employees under 18 or over 65
have no
statutory right to a redundancy payment. The sum payable to
employees between 64
and 65 years of age is reduced by one-twelfth for every complete
month by which
their age exceeds 64. Redundancy costs are met entirely by the
employer, rebates
from the Department for Work and Pensions having been abolished. An
employer
may be obliged under a collective agreement or individual
employees' contracts of
employment to pay sums in excess of the statutory
requirement.
re-engagement order An order made by an *employment tribunal
directing an
employer who has been found to have unfairly dismissed an employee
(see UNFAIR
DISMISSAL) to provide him with comparable or other suitable
employment in a post
different from that from which he was dismissed (compare
REINSTATEMENT ORDER). A
re-engagement order might be made, for example, when the employee's
former job
no longer exists following a reorganization, but he could be
similarly employed in a
different post. The order is accompanied by the tribunal's
directions specifying the
nature and remuneration for the new employment, benefits that must
be restored
to the employee, and the date by which he is to be re-engaged. An
employer cannot
be forced to comply with the order; if he fails to do so the
tribunal will award
*compensation on the usual principles together with an additional
sum.
re-entry n. Repossession by a landlord of land held under a lease
when he effects
*forfeiture. There are restrictions on re-entry without a court
order. The normal
method of enforcing a right of re-entry is therefore by issuing
court proceedings
for possession. See alsoEVICTION.
re-examination n. The questioning of a witness by the party who
originally called
him to testify, following the *cross-examination of the witness by
the opposite
party. *Leading questions may not be asked in re-examination.
Re-examination must
be confined to matters arising out of the cross-examination; new
matter may only
be introduced with the permission of the judge.
referee n. 1. A person to whom a dispute is referred for an
opinion. See also
OFFICIAL REFEREE; REFERENCE. 2. A person who provides a character
reference for
another.
reference n. 1. The referral by a court of a case (or an issue
arising in a case) to
another court or an arbitrator (referee) for a decision or opinion.
In the High Court
any action or any question or issue of fact arising from it may be
referred to an
*official referee for trial. In the county courts, a case may be
referred to the district
judge for an opinion and report. Under the Treaty of Rome, a court
may refer to the
*European Court of Justice a question of Community law for a
preliminary ruling
and must do so if it is a court from which there is no appeal
within the national
system. 2. (in succession) See INCORPORATION BY REFERENCE.
referential settlement A settlement incorporating by reference
terms of an
earlier settlement, either with or without variations. If the two
settlements are
inconsistent, a referential settlement may give rise to difficult
questions relating to
the precise meaning of the documents, when taken together.
reform n. See PUNISHMENT.
refreshing memory A procedure in which a witness may, while
testifying,
remind himself of events that he has forgotten by referring to a
document that was
made at the same time as the occurrence of the events in question
and was accepted
as accurate by the witness while the facts were fresh in his
memory. At common
law the document itself did not become evidence in the case, but it
is now
admissible in both civil and criminal cases.
refuse disposal See POLLUTION.
regent n. A person exercising all the royal functions while the
sovereign is under
18 or totally incapacitated. Under the Regency Acts 1937and
1953,the regent is the
person next in line to the throne who is of age and is a
commonwealth citizen
domiciled in the UK.Compare COUNSELLORS OF STATE.
Regional Health Authorities See NATIONAL HEALTH SERVICE.
registered company A company incorporated by registration under
the
Companies Act 1985(see REGISTRATION OF A COMPANY). There are
several types of
registered company (see LIMITED COMPANY; PRIVATE COMPANY; PUBLIC
COMPANY; UNLIMITED
COMPANY). Compare STATUTORY COMPANY.
registered design A design registered at the Designs Registry,
which is part of
the Patent Office (see PATENT). Registration gives monopoly rights
over the outward
appearance of an article, including its shape, configuration,
pattern, or ornament,
but not over the underlying idea. Works of sculpture, wall plaques,
medals, and
printed matter primarily of a literary or artistic character cannot
be registered. See:
DESIGN RIGHT.
registered land Land to which the title in question is registered
(see LAND
REGISTRATION). Land subject to compulsory registration on dealing
may be both
registered and unregistered; for example, the freehold owner's
title may not be
registered if he acquired the land before compulsory registration
was introduced in
the area, but if he grants a lease for more than 21 years the
tenant's leasehold title
must be registered. Strictly, it is the legal estate or title that
is registered, not the
land itself. Since over 90% of all land in England and Wales is now
registered, this is
now the 'normal' way for ownership of land to be recorded,
replacing title deeds.
registered office The official address of a registered company. It
must be
notified to the Companies Registry before *registration of the
company and it must'
appear on company letter-heads and order forms. Documents may be
served to a
company's registered office and various registers and records may
be inspected
there.
register of members A record of the names, addresses, and
shareholdings of
members of a registered company, which is kept at the registered
office or
wherever it is compiled. The register must be kept open for public
inspection
(members free) for at least two hours daily; it may not be closed
for longer than 30
days in any year.
registrar n. 1. An official responsible for compiling and keeping a
register, e.g. the
Registrar of Companies. The office of Registrar of the Chancery
Division of the High
Court has now been abolished. 2. In the *Court of Appeal, the
officer (Registrar of
Civil Appeals) responsible for superintending the prehearing stages
of appeals in the
Civil Division of the court. 3. (district registrar) See DISTRICT
JUDGE.
registration as citizen or subject A method by which certain
persons can,
either by right or at the Secretary of State's discretion, acquire
*British citizenship,
*British Dependent Territories citizenship, or *British Overseas
citizenship or
become *British Nationals (Overseas).Some people can also become
*British subjects
by registration. An *oath of allegiance must be taken by most adult
applicants.
Compare NATURALIZATION.
registration of a company The most usual method of forming an
incorporated
company (see INCORPORATION). Under the Companies Act 1985 the
following
documents must be delivered with the appropriate fee to the
*Companies Registry:
the *memorandum of association signed by at least two company
members,
*articles of association (if any), statements relating to the
directors, secretary, and
the *registered office, and a statutory declaration that the
Companies Act has been
complied with. The Registrar will then enter the company's name in
the *companies
register and issue a *certificate of incorporation.
registration of birth The recording of a birth by a Registrar of
Births and
Deaths under the Births and Deaths Registration Act 1953.
Information for this
purpose must be supplied to him within 42 days of the birth by a
parent of the
child, the occupier of the premises in which the birth takes place,
a person present
at the birth, or a person having charge of the child. The informant
must supply
details of the date and place of birth, the name and sex of the
child, and its
parentage, which are entered on the birth certificate; an unmarried
father's name
may be included on the birth certificate in certain circumstances.
A birth certificate
may be obtained from the Registrar, the Superintendent Registrar,
or the General
Register Office; a short form of the certificate, relating to the
child's name, sex, and
date of birth but not parentage, may also be obtained (see
ILLEGITIMACY). Children may
consult the birth register to discover who their registered parents
are and adopted
children over the age of 18 have a right to see their original
birth certificate. See also
HUMAN FERTILIZATION AND EMBRYOLOGY AUTHORITY.
registration of commons See COMMON LAND.
registration of death The recording of a death by the Registrar of
Births and
Deaths under the Births and Deaths Registration Act 1953. This must
take place
within five days of the death or, if written notice of the death is
given to the
Registrar within that period, within 14 days. It may be effected by
any relative of
the deceased present at the death or during the last illness, by
any other relative, by
any person present at the death, or by the occupier or any inmate
of the premises
on which the death occurred. The informant must supply details of
the date and
place of death, the name, sex, address, and occupation of the
deceased, and the cause
of death. A death certificate may be obtained from the Registrar,
the
Superintendent Registrar, or the General Register Office.
registration of encumbrances Registration of *land charges and
other
interests affecting the rights of landowners. If registered, these
charges are binding
on third parties who acquire the land affected or any interest in
it. If not registered,
however, they will not bind most third parties and thus lose their
effectiveness as
interests or rights of occupation in the land itself. A person
contemplating buying
or taking an interest (e.g. a mortgage) in land should therefore
search the relevant
registers to ensure that there are no charges registered that would
influence him
against proceeding. The registers are therefore always searched in
any
*conveyancing transaction by the purchaser or his solicitor. There
are four relevant
registers.
(1) Local land charges, arising in favour of a local authority from
the exercise of its
statutory powers, are recorded in a local land charges register
maintained by the
authority concerned in relation both to registered and unregistered
titles. Examples
include rights to the repayment of improvement grants,
compulsory purchase and
smoke control orders, and planning decisions affecting the
development or use of
premises. Local land charges do not appear in any national
register.
(2)When the title to land is registered (see LAND REGISTRATION),
encumbrances other
than local land charges can be protected by registration of the
appropriate entry III
the charges register of the title at the Land Registry. This may be
as a *minor
interest, protected by a *notice or by a *restriction or *caution.
Some encumbrances
also rank as *overriding interests and so do not require
registration.
(3) In the case of *unregistered land. registers are maintained by
the *Land Charges
Department of the following types of interest recorded against the
names of
persons owning land. .
(a) Land charges. comprising Class A: certain statutory charges
regIst.ered on the
application of the chargee; Class B: similar charges registered
auto~atICally;Class C:
(i) *puisne mortgages. (ii) *limited owners' charges, (iii)
*general equitable charges.
and (iv) *estate contracts; Class D: (i) Inland Revenue charges for
*inheritance..tax.
(ii) *restrictive covenants created after 1925 and affecting
freehold land. and (III)
equitable *easements created after 1925;ClassE:annuities created
before 1926and
registered after 1925;and Class F: spouses' rights of occupation
under the Family
Law Act 1996.
(b) *Pending actions relating to land or any interest in it, and
petitions for
*bankruptcy.
(c)Writs or orders of the court imposing a charge on, or appointing
a receiver or
sequestrator of, land, and all *bankruptcy orders.
(d) *Deeds of arrangement affecting land.
Land charges remain registered until discharged by the chargee or
the court.
Registration of pending actions, writs and orders, and deeds of
arrangement must be
renewed every five years.
(4)A floating charge on the assets (including land) of a limited
company.and any
other charge on a company's land that was created before 1970for
securing money
need only be registered at the Companies Registry, under the
Companies Act 1985. A
fixed charge on a company's land created after 1969 should be
registered both at the
Companies Registry and the Land Charges Department (or charges
register of the
registered title as appropriate). . .
Although a chargee is protected by registration against all persons
acqumng any
interest in the land affected. the Law of Property Act 1969
provides that a purchaser
is bound only by registered charges of which he knew or ought to
have known
when the contract was made. Thus if the purchaser discovers an
undisclosed
registered charge before completing the contract, he may rescind or
pursue other
contractual remedies against his vendor as the circumstances allow.
If he completes
the transaction, however, he will be bound by the charge.
registration of marriage The official recording of details ~elati~g
to a marriage
after it has been solemnized. (It is not to be confused with
reglstratlOn of notice of
an intended marriage.) The details usually registered include the
names, ages,
occupations, and addresses of the parties, names and occupations of
their fathers.
and place of solemnization of the marriage. Certified copies of the
details may be
issued on request.
registration of merchant ships See SHIP.
registration of title See LAND REGISTRATION.
regular forces Generally, the armed forces of the Crown other than
*reserve
forces or auxiliary forces.
regulated agreement Any *consumer-credit agreement or
*consumer-hire
agreement under the Consumer Credit Act 1974,other than one
specifically
exempted by the Act. Exempted agreements include
debtor-creditor-supplier
agreements secured by a land mortgage, in which the creditor is a
local authority or
building society who finances the purchase of that land or the
provision of
dwellings on the land, and *debtor-creditor agreements secured by a
land mortgage.
The Act also enables the Secretary of State to exempt other
consumer-credit
agreements in which the number of payments to be made by the debtor
does not
exceed a specified number, the rate of the total charge for credit
does not exceed a
specified rate, or the agreement has a connection with a country
outside the UK.
regulated mortgage A legal *mortgage (usually predating 8 December
1965) of
land that is subject to a *regulated tenancy binding on the
mortgagee. The Rent Act
1977(Part X)provides relief to mortgagors under regulated mortgages
in certain
cases of hardship.·
regulated tenancy A *protected tenancy or a *statutory tenancy. It
is a
protected tenancy until the contractual element is terminated, when
it becomes a
statutory tenancy. Regulated tenancies have been replaced by
*assured tenancies by
the Housing Act 1988.
regulations of the EU See COMMUNITY LEGISLATION.
regulatory agency Any of the nonministerial government departments
with
statutory duties of control over privatized industries. Each of the
statutes that
provided for the *privatization of services formerly provided by
public corporations
also made provision for the establishment of a regulatory agency
for the service in
question; these agencies include the Office of Telecommunications
(Oftel), the Office
of Gas and Electricity Markets (Ofgem), the Office of Water
Services (Ofwat), the
Office for Standards in Education (Ofsted), and the Office of the
National Lottery
(Oflot).
rehabilitation n. See PUNISHMENT; SPENT CONVICTION.
rehabilitation order An order relating to a building acquired by a
local housing
authority before 2 December 1974 in a *clearance area that is, in
the housing
authority's opinion, capable of being improved so as to be
available for use as a
dwelling for 15 years. Under a rehabilitation order, the
authority's duty to demolish
the building is replaced by one to improve it or ensure that it is
improved.
rehearing n. 1. A second hearing of a case already adjudicated
upon, e.g. an
*appeal to the Crown Court from conviction by a magistrates' court.
All the
evidence is heard again and either side may introduce fresh
evidence without
leave. 2. The hearing of an appeal by the *Court of Appeal, in
which the Court will
consider all the evidence presented to the trial court (if it is
relevant to the appeal)
by reading the verbatim transcript of the trial; it will not
usually permit fresh
evidence to be given. The Court of Appeal will usually not disturb
the trial judge's
findings on *primary facts, as opposed to the inferences to be
drawn from those
facts.
Reid test See LAY DAYS.
reinstatement order An order made by an *employment tribunal
directing an
employer who has been found to have unfairly dismissed an employee
(see UNFAIR
DISMISSAL) to restore him to his former job (compare
RE-ENGAGEMENT ORDER). The
employee is to be treated as if he had not been dismissed and is
therefore entitled to
recover any benefits (such as arrears of pay) that he has lost
during his period of
unemployment. However, pay in lieu of notice, ex gratia payments by
the employer,
state unemployment or supplementary benefits, and other sums he has
received
because of his dismissal or any subsequent unemployment will be
taken into
account. An employer cannot be forced to comply with an order for
reinstatement;
if he fails to do so, *compensation will be awarded to the employee
on the usual
principles together with an additional sum.
reinsurance n. The procedure in which an insurer insures himself
with another
insurer against some or all of his liability for a risk that he has
himself
underwritten in an earlier *insurance contract. Reinsurance is
undertaken when the
potential loss attached to the risk is too great for the insurer to
bear alone. A valid
contract of insurance gives the insurer an *insurable interest to
support a
reinsurance.
rejection of offer The refusal of an *offer by the offeree. Once an
offer has been
rejected, it cannot subsequently be accepted by the offeree. A
counter-offer ranks as
a rejection, but a mere inquiry as to the possibility of varying
some term does not.
See also LAPSE OF OFFER; REVOCATION OF OFFER.
rejoinder n. Formerly, a pleading served by a defendant in answer
to the
claimant's *reply. Such a pleading could only be served with the
court's permission.
relation back The treating of an act or event as having legal
effect from a date
earlier than that on which it actually takes place. Thus a grant of
*probate relates
back to the date of the testator's death.
relator n. A person at whose request an action is brought by the
*Attorney
General to enforce some public right. Although the relator is not
the claimant, he is
liable for the *costs of the proceedings. The Attorney General must
consent to the
issue of the originating process and his discretion in deciding
whether or not to sue
on behalf of the relator is absolute and cannot be reviewed by the
court.
release n. 1. The renunciation of a right of legal action against
another. The fact
that a release has been granted should be specifically pleaded as a
defence if the
person who granted it subsequently initiates court proceedings. 2.
Any document
by which one person discharges another from any claim with respect
to a particular
matter. 3. The freeing of a person formerly detained, either upon
*discharge when
sentencing him or at the end of a prison sentence. The early
release of prisoners is
subject to *parole, but the Home Secretary has a duty to release
unconditionally
anyone sentenced to less than 12 months' imprisonment after half of
the sentence
has been served. Other conditions for the early release of
prisoners are specified in
the Criminal Justice Act 1991.
release on licence See PAROLE.
relevance (relevancy) n. (in the law of evidence) The relationship
between two
facts that renders one probable from the existence of the other,
either taken by
itself or in connection with other facts. Although most relevant
facts are admissible
in evidence, relevance is not the same as *admissibility, since
even relevant evidence
must be excluded if it falls within one of the *exclusionary rules.
If no exclusionary
rule is involved, all facts that have logical relevance to a fact
in issue may be proved
even though they are not in issue themselves.
relevant evidence See RELEVANCE.
relevant facts See RELEVANCE.
relevant transfer A situation that may arise when a business or
part of a
business (the transferor) changes ownership and staff transfer to
the new owner
(the transferee). If the change of ownership falls within the scope
of the Transfer of
Undertakings Protection of Employment Regulations 1981 (TUPE), then
there is an
automatic transfer of an employee's contract of employment. TUPEwas
the UK
government's response to ECDirective 77/187, known as the Acquired
Rights
Directive, the main objective of which was to safeguard employees'
rights in the
event of a change of employer. Employees are protected via
TUPEwhere there is a
relevant transfer. This, however, is not always a straightforward
issue to determine.
Because the Acquired Rights Directive is very wide in its scope,
both the European
Court and national courts have taken a wide view of what situations
amount to a
relevant transfer. The situations in which a relevant transfer has
been held to
operate are numerous. The simplest situation is where one company
acquires
another and staff transfer. More complex situations include
contracting out services,
the transfer of contracts and franchises, and the transfer of
leases. TUPEoperates in
each of these situations if staff have followed the transfer or
have lost employment
as a consequence.
There are a number of important issues to note where a relevant
transfer occurs.
First there is an automatic transfer of the transferor's rights and
obligations arising
from the employment relationship they have with their staff.
Because of this the
employee's terms and conditions (with very limited exceptions in
the area of pension
rights) must be maintained by the new employer (the transferee).
Secondly, a
relevant transfer cannot be the basis for dismissal unless an
employee can be shown
to have been dismissed for economic reasons or as a result of
technical
reorganization. Where an employee, being aware of a proposed
transfer, informs
either the transferor or the transferee that he objects to the
transfer, his transfer
does not take effect and his contract of employment is terminated,
but he has no
claim for unfair dismissal. If a dismissal occurs as a direct
result of the transfer this
is automatically unfair. If an employer seeks to argue a dismissal
was for an
economic, technical, or organizational reason, it is not
automatically unfair but it
can be depending on the employer's procedure.
Finally, TUPEputs in place the need for a consultative process to
ensure the free
exchange of information between the transferee, the transferor, and
the staff who
may be affected. The transferor has a duty to inform and consult
with a recognized
independent trade union when any of its members may be affected by
the transfer.
The employer must inform union representatives in writing, long
enough before
the relevant transfer to enable consultations to take place, of the
fact that a
transfer is to take place; when this is to occur and the reasons
for it; the legal,
economic, and social implications of the transfer for the affected
employees; and the
measures the employer is to take (if any) in relation to those
employees. If there are
no employee representatives, information must be given to all
employees. The
transferee has a duty to provide the transferor with sufficient
information to
enable him to give these facts. During consultations the employer
has a duty to
consider any representations made by trade union or staff
representatives and reply
to them; if he rejects them he is obliged to give his reasons for
doing so. If any
employer fails to inform or consult, a complaint may be presented
to an
employment tribunal within three months of the completion of the
relevant
transfer. The employer can argue that his failure to perform a
particular duty was
due to special circumstances but that he took all reasonably
practicable steps to
inform and consult. Although this is a potential defence, tribunals
interpret it very
narrowly. Insolvency does not amount to special circumstances. If
the complaint is
upheld, the tribunal can order the employer to pay appropriate
compensation not
exceeding 13 weeks' pay for the employee(s) in question.
The scope of the Acquired Rights Directive has now been expanded;
consequent
modifications to TUPE are currently under discussion. Changes
include a discretion
for EU member states to extend the protection of national law to
require
transferees to provide equivalent pensions, and for contractual
terms to be varied
when a transfer is coincidental with insolvency proceedings and
when the variation
in a contract of employment is to ensure continuation of the
organization. It will
also be possible for employee representatives to negotiate changes
in contractual
terms following the transfer of an important business. There are
new provisions
dealing with employee representation as well as amendments to the
procedures for
information and consultation.
relief n. 1. See REMEDY. 2. A tax concession; for example, a
personal allowance (see
INCOME TAX) or roll-over relief (see CAPITAL GAINS TAX). 3. Payment
by a feudal tenant
following succession to him of land after the death of the former
tenant.
relief from forfeiture A discretionary power of the courts to
restore a lease to a
tenant when the landlord claims or has exercised his right of
*forfeiture.
remainder n. An interest in land that comes into effect in
possession only when a
prior interest ends. For example if A settles land on B for life
then on C in fee
simple, C's interest is in remainder until B dies. All interests in
remainder are
necessarily equitable (see FEE SIMPLE ABSOLUTE IN POSSESSION). A
settlement may create
several successive remainders; for example, a settlement on A for
life, remainder to
B for life, remainder to C in tail, remainder to D in fee simple.
B,C, and D are called
remaindermen. There can be no remainder after a fee simple. See
also REVERSION.
remainderman n. See REMAINDER.
remand vb. To commit an accused person to custody or release him on
*bail
during an adjournment. After arrest a suspect is normally kept at
the police station
until he is brought before the magistrates. If the offence with
which he is charged
is triable summarily or is an indictable offence that is being
tried summarily (see
OFFENCES TRIABLE EITHER WAY), the court may adjourn the case and
remand the
accused. If the offence is being tried on indictment, the court may
likewise adjourn
the case and remand the accused before inquiring into the offence
as examining
justices. Remand in custody has traditionally been made for no more
than eight
clear days, excluding the day on which the accused was remanded and
the day on
which he is to appear again before the court (the "eight-day
rule"). If the accused
had to be remanded for more than eight days, he was normally
released on bail
unless there was some special reason why bail should be refused.
However, the court
could remand a suspect for a further period (or any number of
further periods) of
eight days after the end of the original remand order. If the
period of time spent on
remand became excessive, the accused could apply for bail. However,
following
claims that eight-day remand hearings served no useful purpose and
wasted prison
service resources, the Home Secretary was empowered in 1988 to
provide remand
periods not exceeding 28 days for accused persons aged 17 or over,
in particular
areas or classes of case. The abolition of the eight-day rule was
extended, by the
Criminal Procedure and Investigations Act 1996, to those under 17
for offences
alleged to have been committed on or after 1 February 1997. A
remand order may
also be made upon adjournment of a trial at any stage, at the
request of either the
prosecution or the defence, or after conviction, if the court
wishes to obtain a
report before sentencing. Bail must normally be granted, however,
when remanding
for reports.
Upon remand the suspect is sent to the local prison. *Juvenile
offenders may be
remanded instead to local authority accommodation. Under the
Criminal Justice and
Public Order Act 1994, the court may remand a juvenile offender to
secure
accommodation in a *community home or a registered children's home,
provided
the charge or conviction is for a violent or sexual attack, the
offence is one for
which an adult could be imprisoned for at least 14 years, or there
is a recent history
of absconding and the charge or conviction relates to an
imprisonable offence
committed while remanded to the local authority. As a result of
major amendments
to the Children and Young Persons Act 1969,the minimum age for
being remanded
to secure accommodation has been reduced to 12.
remedial constructive trust See CONSTRUCTIVE TRUST.
remedy (redress. relief) n. Any of the methods available at law for
the
enforcement, protection, or recovery of rights or for obtaining
redress for their
infringement. A civil remedy may be granted by a court to a party
to a civil action.
It may include the common law remedy of *damages and/or the
*equitable remedies
of quantum meruit (see QUASI-CONTRACT), *injunction, decree of
*specific performance,
or *declaration.
remission n. Cancellation of part of a prison sentence. Formerly, a
prisoner could
earn remission of one-third of his sentence by good behaviour in
prison and was
released upon remission without any conditions. However, a prisoner
serving an
*extended sentence, or a prisoner serving more than 18 months'
imprisonment, who
was under the age of 21 when sentenced, could only be released on
licence (see
PAROLE). Remission of a sentence for good conduct was abolished by
the Criminal
Justice Act 1991, which specifies the conditions now required for
the early release of
prisoners.
remoteness of damage The extent to which a defendant is liable for
the
consequences of his wrongful act or omission. In contract, the
defendant
compensates for damage only if it was within his reasonable
contemplation. He is
presumed to have contemplated (and is therefore liable for) damage
likely to result
from the breach according to the usual course of events. Unusual
damage resulting
from special circumstances is regarded as within his contemplation
only if a
reasonable man, knowing what he knew or ought to have known, would
have
thought it liable to result.
In tort there is no single test to determine whether or not damage
is too remote.
In actions for *negligence and other forms of liability based on
fault, the defendant
is responsible only for damage of the type he should have foreseen,
but if damage of
that type is foreseeable, it is no defence that the extent of the
resulting damage is
greater than could have been expected. In torts of *strict
liability, the defendant
may be liable even for unforeseeable damage. Thus the keeper of an
animal
belonging to a dangerous species is liable for any damage it
causes, whether
foreseeable or not.
removal of action The transfer of a High Court action from a
district registry to
London (or vice versa) or of a county court action to the High
Court (or vice versa).
renewal of lease The grant of a fresh *lease on similar terms to
those of a preexisting
lease between the same parties. A lease sometimes contains a clause
that
gives the lessee an option to renew the lease when it expires.
If the renewal is to be
on the same terms, including the option to renew, the lease is
known as a
perpetually renewable lease; by statute, however, it is instead
deemed to be a
lease for 2000 years.
renouncing probate An executor's refusal, after the testator's
death and in
signed writing filed at a probate registry, to accept the office of
executor. In such
circumstances the person who would be entitled on intestacy to
apply for letters of
administration may apply for a grant of *letters of administration
cum testamento
annexo.
rent n. Payment by a tenant to his landlord under the terms of a
*lease or
*tenancy agreement. The obligation to pay rent is implied in all
leases. If the tenant
fails to pay his rent, the landlord can levy *distress for rent,
take action for
*forfeiture of the lease, or bring a court action against the
tenant to claim the rent
due. The manner and time of payment is as specified in the lease or
tenancy
agreement. If there is no express provision, rent should be paid to
the landlord or
his agent at the end of each *rental period or, in the case of a
*fixed term, at the
end of each year. The tenant can only deduct from the rent amounts
that the lease
or tenancy agreement allows. If the parties wish, the rent need not
be paid in
money: it may be in the form of service to the landlord or payment
in kind.
However, the amount of rent must be certain or capable of being
ascertained. See
also FAIR RENT.
rental period A period in a lease or tenancy for which the tenant
must make a
payment of rent. In the absence of agreement, this is yearly in the
case of a *fixed
term. For other periods, see PERIODIC TENANCY.
rent assessment committee A committee that decides any dispute
concerning
the amount of a *fair rent determined by a rent officer for a
tenancy of a dwellinghouse
under the Rent Act 1977(where it still applies). A rent assessment
committee
may also, on application by a tenant, determine whether a proposed
increase in rent
for an *assured tenancy (under the Housing Act 1988) is what the
landlord could
obtain on the open market and, if not, it may fix what this should
be. Committees'
members are drawn from panels appointed by the Secretary of State
and the Lord
Chancellor, and they are under the supervision of the Council on
Tribunals. See also
RENT TRIBUNAL.
rent book A book or other document used to record rent paid and
other tenancy
details. A landlord must give his tenant a rent book when there is
a weekly tenancy
of residential property unless a substantial proportion of the rent
is payment for
board.
rentcharge n. A periodic payment of money charged on land, but
excluding rent
payable under a lease or tenancy and sums payable as interest.
Depending on the
manner in which the rentcharge arose, it may be called a chief rent
or fee farm
rent, but the effect is similar. A rentcharge owned on terms
equivalent to a fee
simple absolute in possession or term of years absolute can be a
legal interest in
land, but one subsisting on other terms (e.g.for life) is an
equitable interest,
registrable as a *general equitable charge. If the rent falls into
arrears, the owner of
the rentcharge may (on 40 days' arrears) enter the land and take
its income until the
debt is paid or lease the land to trustees who have powers to raise
the money. On 21
days' arrears, he may enter the land and seize the debtor's goods
as security for the
rent (see DISTRESS). In general, a deed creating a rentcharge also
reserves to its owner
the right to forfeit the debtor's interest in the land if the rent
is not paid. The Law
of Property (Amendment) Act 1926 provides that freehold land
subject to a
rentcharge owner's right of forfeiture (a right of re-entry) can
still qualify as a fee
simple absolute in possession.
A rentcharge may also be secured on another rentcharge, rather than
directly on
land. For example, A grants a rentcharge (R1) over his land of £50
a year to B,who
grants a rentcharge (R2) secured on R1of £25 a year to C. If B is
more than 21 days in
arrear, C may appoint a receiver to collect the £50 from A and to
pay Chis £25 plus
the expenses of the recovery, and account to Bfor any
surplus.
The Rentcharges Act 1977prohibits the creation of new rentcharges
after 21
August 1977, except for (1) certain charges, usually in favour of
the landowner's
family, the effect of which is to make the land subject to a *trust
of land; and (2)
estate rentcharges. The latter are usually reserved by a developer
selling plots on
an estate subject to covenants given by the purchasers to protect
the character of
the estate; they entitle the owner of the rentcharge to enforce the
purchasers'
covenants even after all the plots have been sold off.
rent officer An official appointed by central government who
determines *fair
rents and keeps a register of all fair rents in his local area.
Under the Housing Act
1988,rent officers are given additional functions relating to
housing benefit and
rent allowance subsidy.
rent rebate A rent subsidy paid by local authorities to their own
needy tenants, as
part of *housing benefit. The conditions vary from one local
authority to another.
rent registration 1. The registration by a rent officer of a *fair
rent determined
by himself or a rent assessment committee under the Rent Act 1977.
This procedure
is now abolished except for rents already so fixed. 2. The
registration by a local
authority of a *restricted contract rent determined by a rent
tribunal or rent
assessment committee. Since the passing of the Housing Act
1988,rents of new
tenancies are not registered.
rent service 1. Any rent payable where a landlord and tenant
relationship
exists. 2. Originally, a rent payable to a feudal lord.
rent tribunal A tribunal to whom the determination of the rent
properly payable
under a *restricted contract may be referred. Rent tribunals also
have power to
grant limited security of tenure, but only if the contract was made
before the
commencement of the Housing Act 1980.Until that Act they were
distinctly
constituted bodies, but their functions are now carried out by
*rent assessment
committees sitting as rent tribunals. No new restricted contracts
can be made since
the passing of the Housing Act 1988.
renvoi n. [French: sending back] The doctrine whereby the courts of
one country in
certain circumstances apply the law of another country in resolving
a legal dispute.
A problem arises in private international law when one country's
rule as to conflict
of law refers a case to the law of a foreign country, and the law
of that country
refers the case either back to the law of the first country
(remission)or to the law
of a third country (transmission). For example, under English
conflict rules, if a
person dies intestate, the succession to his personal property is
governed by the law
of the country in which he is domiciled. Under Italian conflict
rules, however,
succession to personal property in such cases is governed by the
law of the
intestater's nationality. Thus if an English national dies
intestate while domiciled in
Italy, a renvoiproblem will arise - English law will refer the
matter to the law of his
domicile (i.e. Italian law) and Italian law would refer the matter
to the law of his
nationality (i.e. English law).
repairs pl. n. (in landlord and tenant law) See COVENANT TO
REPAIR.
reparations pl. n. (in international law) 1. Compensation for
injuries or
international torts (breaches of international obligations).
Whenever possible,
international courts or arbitration tribunals will rule that
reparations be made by
means of restitution in kind; if this is not possible, compensation
is by payment of
a sum equivalent to the value of restitution in kind. The aim of
reparations is to
eradicate the consequences of the illegal act. It is not clear,
however, whether
there is an obligation to make reparations for all breaches of
international law.
2. Payments made by a defeated state to the conquering state to
compensate for
damage suffered by the victor.
repatriation n. A person's voluntary return from a foreign country
to that of
which he is a national. Compare DEPORTATION.
repeal n. The total or partial revocation of a statute by one
passed subsequently. A
statute is normally repealed by express words, but if provisions of
a later statute are
inconsistent with those of an earlier one this will imply that
Parliament intended a
repeal. Repeal does not affect any transaction that has been
completed under the
repealed statute.
repeat offender An offender who commits the same offence on more
than one
occasion. Under the Crime (Sentences) Act 1997, from 1999 those
convicted for a third
time for dealing in hard drugs or for burglary face minimum
*sentences of seven
and three years, respectively, unless the judge finds that this is
unjust. The Act also
provides for a mandatory life sentence for those convicted for a
second time of rape
or attempted rape, manslaughter, attempted murder, wounding with
intent to do
grievous bodily harm, robbery with a firearm, or possession of a
firearm with intent
to endanger life. In exceptional circumstances the judge may choose
not to impose
the mandatory sentence on such an offender but must provide a full
explanation as
to why this has not been done.
replevin n. A procedure to recover goods that have been taken out
of the
claimant's possession (usually by way of distress for unpaid rent),
the effect of
which is to restore them to the claimant provisionally, pending the
outcome of an
action to determine the rights of the parties.
reply n. A statement of case served by the claimant in a civil
action in answer to
the *defence. It is often contained in the same document as a
defence to a
*counterclaim.
repossession n. (of mortgaged property) The right of a mortgagee to
obtain
vacant possession of the property occupied by a mortgagor, in
accordance with the
terms of the mortgage. All mortgagees have a right to possession of
the property
from the time the mortgage is granted unless they have contracted
out of the right.
It is, however, unusual for a mortgagee to exercise such a right
unless the
mortgagor has defaulted in some way. See alsoMORTGAGE; POWER OF
SALE.
representation n. 1. The state of being represented, e.g. by an
elected
representative in the House of Commons (see also PARLIAMENT), by a
defending counsel
in court, or by an agent acting on behalf of his principal. 2. (in
succession) Taking
the place of another. The court grants to executors or
administrators the right to
represent the deceased, i.e. to collect, sell, and transfer the
deceased's assets (in
accordance with the will or intestacy rules) as if they were the
owners. Under the
Wills Act 1837a *devise or *legacy in favour of a child or remoter
descendant of the
testator who predeceases him leaving descendants of his own does
not lapse but is
inherited by those surviving descendants, who therefore represent
their deceased
ancestor (see PER STIRPES). 3. (in contract law) A statement. A
person who has been
induced to enter into a contract on the basis of a statement that
is untrue or
misrepresents a material fact may sue for damages or for rescission
of the contract
(see MISREPRESENTATION). Under the Consumer Credit Act 1974a
representation
includes a *condition, *warranty, or any other statement or
undertaking, either oral
or in writing. Many contracts exclude all prior representations
from terms of the
contract, although in consumer contracts such an exclusion may be
void if unfair.
representative action An action brought by or against one or more
persons as
representative(s) of a larger group. All the persons represented
must have the same
interest in the proceedings, and therefore a representative action
cannot generally
be brought if each member of the group has a separate claim for
damages.
Judgment in a representative action is binding upon all the persons
represented.
Such actions are not normally possible under English law, although
they are
common in the United States. An example of a representative action
is one brought
by company members on behalf of themselves and other members
against the
company in respect of a wrong done to them by it (e.g.a denial of
their voting or
class rights embodied in the articles of association or an *ultra
vires act). Compare
DERIVATIVE ACTION; GROUP ACTION.
reprisals pl. n. Retaliatory measures taken by one state against
another to settle a
dispute occasioned by the other's illegal or unjustified conduct.
Reprisals include
boycotts, *embargoes, and limited military action. A military
reprisal. if otherwise
than for the purpose of lawful self-defence under Article 51 of the
United Nations
Charter, is now illegal under international law.
republication of will The re-execution with proper formalities of
an existing
will, or of a *codicil to it that contains some reference to the
will, which has the
effect of confirming that will. When republished, the will takes
effect as if made at
the date of republication. A republication may have the effect of
validating an
unattested alteration made to the will before its re-execution or
the execution of
the confirmatory codiciL Compare REVIVAL OF WILL.
repudiation n. (in contract law) 1. An anticipatory *breach of
contract. 2. A
minor's disclaimer of a contract that is voidable because of his
minority (see CAPACITY
TO CONTRACT; RESCISSION).
repugnancy n. Contradiction or inconsistency in the terms of a
document.
Generally the court construes documents to give effect to the
parties' primary
intention (the main purpose rule). If this cannot be established
and the document's
provisions are directly contradictory, the court treats the later
provision as effective
in the case of a will and the earlier one in the case of a deed.
Thus a transfer of
property to A and B "as beneficial joint tenants in equal shares"
confers a *joint
tenancy unless it was effected by will, when it will be treated as
conferring a
*tenancy in common in equal shares.
reputation n. The estimation in which a person is generally held.
See CHARACTER;
DEFAMATION.
reputed ownership Goods that at the beginning of the bankruptcy of
a trader
are in his possession with the consent of the true owner and in
circumstances
suggesting that the bankrupt is the owner are said to be in the
bankrupt's reputed
ownership. Such goods are treated as the bankrupt's own goods and
are therefore
available for distribution to his creditors.
request for further information See INTERROGATORY;
PARTICULARS.
requisition n. 1. (in land law) An application to HM Land Registry,
the Land
Charges Department, or a local authority for a certificate of
*official search to
reveal whether or not land is affected by encumbrances. 2. (in
*conveyancing) A
request by an intending purchaser or mortgagee arising from the
*abstract of title
supplied by the owner. For example if an abstracted deed shows that
the land is
affected by encumbrances contained in an earlier deed that has not
been abstracted,
the purchaser will raise a requisition demanding proper evidence of
the
encumbrances. 3. (in military law) The compulsory acquisition of
property for use
by the armed forces. The Army Act 1955and the Air Force Act 1955,
for example,
contain provisions that, if brought into force by a government
order made in the
public interest, enable commanding officers to issue requisitioning
orders
authorizing the acquisition (in return for payment and compensation
for damage) of
vehicles, horses' food, and stores.
reregistration n. The procedure enabling a registered company to
change its
status, e.g. from limited to unlimited or from public to private
(or, in either case,
vice versa).
resale n. See RIGHT OF RESALE.
resale price maintenance The fixing by a supplier of the price at
which his
goods may be sold by others. This may be attempted by contractual
arrangements or
by nonlegal means, such as blacklisting by trade associations.
Resale price
maintenance is now prohibited by the Competition Act 1998and
Article 81 of the
Treaty of Rome. Provisions in contracts of sale between suppliers
and dealers fixing
minimum prices are void, and it is illegal to withhold supplies on
the grounds of
adverse pricing. Fines of 10%of turnover can be imposed for breach
of these
provisions. Formerly, resale price maintenance was permitted for
books and certain
nonprescription drugs, but even these exceptions have now been
declared illegal.
rescission n. The setting aside of a *voidable contract, which is
thereby treated as
if it had never existed. Rescission is an irrevocable step and can
be effected by any
clear indication of intention to be no longer bound by the
contract; this intention
must be either communicated to the other party or publicly
evidenced in some way.
Rescission can also be effected by a formal action (a remedy
developed by the courts
of equity). There are limits on the right of rescission. It cannot
be exercised unless
restitutio in integrum is possible, i.e. unless it is possible to
restore both parties to
their original positions, and it cannot be exercised if this would
involve upsetting
rights acquired by third parties. Thus, a buyer of goods cannot
rescind if he cannot
return the goods, and a seller of goods cannot rescind if they have
been resold to a
third party.
The setting aside of a proprietary contract by a minor is normally
called
repudiation rather than rescission, but there is no distinction in
substance. The
treating of a contract as discharged by breach (see BREACH OF
CONTRACT) is frequently,
but misleadingly, called rescission. It does not operate
retrospectively and is
permissible whether or not restitutio is possible.
rescue n. 1. Action to save people or property from danger. There
is no general
duty to rescue people or property from danger, though a master of a
ship is bound
by statute to render assistance to people in danger at sea.
Voluntary attempts to
rescue people in danger are encouraged by the law. Someone injured
in such a
rescue attempt may recover damages from the person whose negligence
created the
danger. The rescuer is not regarded as having assumed the risk of
being injured and
courts are reluctant to find that his injuries were due to
*contributory negligence.
Attempts to rescue property may not be treated so sympathetically.
2. The forcible
removal of a person in the custody of the law, which is a criminal
offence. 3. The
recovery of property that has been taken by way of *distress. If
the distress was
unlawful, the owner is entitled to recover it.
resealed probate A grant of *probate issued in one country and
approved (and
sealed again) by the court of another, giving the executor
authority to deal with the
testator's property in that second country.
reservation n. 1. (in international law) A unilateral statement
made by a state,
when signing, ratifying, accepting, approving, or acceding to a
treaty, in order to
exclude or modify the legal effect of certain provisions of the
treaty in their
application to that state. This device is used by signatory states
to exempt particular
policies from challenge. The UKhas made one reservation in relation
to the *right
to education in Article 2 of the First Protocol to the European
Convention on
Human Rights. The *Human Rights Act 1998also excludes public
authorities from
duties under Article 2 where this reservation applies. 2. (in land
law) The creation of
an easement or other right in a conveyance of land that is for the
benefit of land
retained by the vendor or transferor. For example, if A is selling
Blackacre but
requires a right of way over it for access to land he is retaining,
the conveyance of
Blackacre to the purchaser will reserve the right of way for the
benefit of A's
retained land. Such a reservation may be implied in circumstances
of necessity. See
EASEMENT OF NECESSITY.
reservation of title See RETENTION OF TITLE.
reserve capital See AUTHORIZED CAPITAL.
reserve forces Forces not in active service. They include the Army
Reserve, the
Territorial Army, the Air Force Reserve, the Royal Auxiliary Air
Force, the Royal
Naval Reserve, the Royal Naval Special Reserve, and the Royal
Marines Reserve. The
Reserve Forces Act 1996 provides a new power allowing call-out of
reserve forces for
humanitarian disaster relief and operations and introduced two new
categories of
reserve. The high readiness reserve will consist of about 3000
volunteers who have
agreed, with their employers' consent, to accept increased
liability for being called
out. These volunteers will be people with special skills, such as
linguists and public
information specialists. The sponsored reserve will undertake some
support tasks
currently restricted to regular personnel. The legislation also
makes provision to
allow reservists to volunteer to undertake productive tasks other
than training
without being called out. There are powers to increase the military
pay of reservists
called out for operations if this pay is less than their civilian
pay would be. There
are also powers to pay employers for additional costs when the
reservists are called
out. A Reserve Forces Appeal Tribunal, set up under the 1996Act,
hears appeals
from reservists and employers who are dissatisfied.
res extincta [Latin] Matter that has ceased to exist. See
MISTAKE.
res gestae [Latin: things done] The events with which the court is
concerned or
others contemporaneous with them. In the law of evidence, res
gestae denotes: (1) a
rule of relevance according to which events forming part of the res
gestae are
admissible; (2)an exception to the rule against *hearsay evidence
under which
statements forming part of the res gestae are admissible, for
example if they
accompany and explain some relevant act or relate to the
declarant's
contemporaneous state of mind or his contemporaneous physical
sensations
residence n. 1. The place in which a person has his home. The
term has been
defined in various ways for different purposes in Acts of
Parliament. For example,
the Income and Corporation Taxes Act 1988 provides that, for the
purposes of tax, a
person is resident in the UK even if he has left the UKfor
occasional residence
abroad. Temporary residents are chargeable to tax in the UK if they
stay in the UK
for a period (or periods adding up to) six months in any year. It
is possible to be a
resident of more than one country at the same time. See also
DOMICILE; HABITUAL
RESIDENCE; MAIN RESIDENCE. 2. In the case of a *company not
incorporated in the
United Kingdom, the country in which central management and control
is located;
companies incorporated in the United Kingdom are deemed to reside
there
irrespective of the location of central management and control.
Residence
determines the company's liability to *corporation tax.
residence order See SECTION 8 ORDERS.
residential occupier A person who is living in a property as a
result of his
contractual rights, his statutory rights, his rights under a rule
of law, or because
other people are restricted by law from removing him. It is an
offence to force a
residential occupier to leave the property without complying with
the proper
procedure. See ADVERSE OCCUPATION; EVICTION; FORCIBLE ENTRY;
HARASSMENT OF OCCUPIER.
residuary devise See DEVISE.
residuary estate (residue) The property comprising a deceased
person's estate
after payment of his debts, funeral expenses, costs of
administration of the estate,
and all specific (and demonstrative) bequests and devises. If a
will does not dispose of
the whole of a testator's property, the residue passes to those
entitled under the
rules applying on *intestacy.
residuary legacy See LEGACY.
residue n. See RESIDUARY ESTATE.
res ipsa loquitur [Latin; the thing speaks for itself] A principle
often applied in
the law of tort of *negligence. If an accident has occurred of a
kind that usually
only happens if someone has been negligent, and the state of
affairs that produced
the accident was under the control of the defendant, it may be
presumed in the
absence of evidence that the accident was caused by the defendant's
negligence.
resisting arrest Taking any action to prevent one's arrest. A
person may use
*reasonable force to resist an illegal arrest. If he resists a
legal arrest, however, he
lays himself open to a charge of assaulting or *obstructing a
police officer in the
course of his duty. The fact that the police officer was in plain
clothes is no defence
to such a charge. The House of Lords has ruled that it is the right
and duty of every
citizen to take reasonable steps to prevent a breach of the peace
by detaining the
offender. The offender therefore has no right to resist such an
arrest on the
grounds of *self-defence; if he uses force to do so, he may be
guilty of an assault.
res judicata [Latin; a matter that has been decided] The principle
that when a
matter has been finally adjudicated upon by a court of competent
jurisdiction it
may not be reopened or challenged by the original parties or their
successors in
interest. It is also known as action estoppel. It does not preclude
an appeal or a
challenge to the jurisdiction of the court. Its justification is
the need for finality in
litigation. See also ESTOPPEL.
resolution n. 1. A decision reached by a majority of the members at
a company
meeting. See ELECTIVE RESOLUTION; EXTRAORDINARY RESOLUTION;
ORDINARY RESOLUTION;
SPECIAL RESOLUTION; WRITTEN RESOLUTION. 2. The decision of a
meeting of any other
assembly, such as the *United Nations. Such a resolution, strictly
speaking, has no
binding effect on either the Security Councilor the United Nations
as a whole.
respondeat superior [Latin; let the principal answer] The doctrine
by which an
employer is responsible for certain wrongs committed by his
employee in the course
of his employment. See VICARIOUS LIABILITY.
respondent n. The defending party in an appeal or petition to the
courts. Compare
DEFENDANT.
respondentia n. See HYPOTHECATION.
restitutio in integrum [Latin] Restoration to the original
position. See DAMAGES;
RESCISSION.
restitution n. The return of property to the owner or person
entitled to
possession. If one person has unjustifiably received either
property or money from
another, he has an obligation to restore it to the rightful owner
in order that he
should not be unjustly enriched or retain an unjustified advantage.
This obligation
exists when, for example, goods or money have been transferred
under compulsion
(duress), under mistake, or under a transaction that fails because
of illegality, lack of
formality, or for any other reason or when the person who has taken
the property
has acquired a benefit through his actions without
justification.
In certain circumstances the courts may make a restitution order in
respect of
property. Under the Theft Act 1968, if someone is convicted of any
offence relating
to stolen goods the court may order that the stolen goods or their
proceeds should
be restored to the person entitled to recover them. The court will
only exercise this
power, however, in clear cases that do not involve disputed
questions of fact or law.
Under the Police (Property) Act 1897, magistrates' courts are
empowered to make a
restitution order in favour of a person who is apparently the owner
of property
that has been obtained by the police in connection with any crime,
even when no
charge can be brought or the goods are seized under a search
warrant. If the owner
cannot be found, the court may make any order it thinks fit
(usually an order for
sale by auction). The police have no power to retain property
lawfully seized merely
because they think the court will probably make a restitution
order.
restraint of marriage A condition in a contract or other
disposition intended to
prevent someone from marrying. Such conditions are usually (unless
they are very
limited) void, as they are considered to be against *public
policy.
restraint of trade A contractual term that limits a person's right
to exercise his
trade or carryon his business. An example is a term in an
employment contract or
partnership agreement prohibiting a party from engaging in a
similar business for a
specified period after the relationship ends. Such a term is void
unless the party
relying on it shows that it does not offend *public policy; it must
also be reasonable
as between the parties. Many such terms are reasonable and
therefore valid. See also
GARDEN LEAVE CLAUSE.
restraint on alienation Provisions in a grant or conveyance of land
that purport
to prevent the owner from disposing of it. Restraints of an
absolute nature are
generally void. Partial restraints on alienation may be upheld by
the courts.
restraints of princes (in marine insurance) Political or executive
acts causing loss
or damage, as distinct from such acts as riots or ordinary judicial
processes. Such
acts, more common in time of war, need not be done by officials of
governments
but may be done by individuals exhorted or compelled to them by
the states of
which they are nationals.
restricted contract For the purposes of the Rent Act 1977, a
contract granting
someone the right to occupy a dwelling for a rent that includes
payment for the use
of furniture or for services. A contract creating a *regulated
tenancy is not,
however, a restricted contract. No new restricted contracts can be
made since the
Housing Act 1988 came into force. However, the occupant may qualify
for *security
of tenure as an *assured tenant.
restricted-use credit agreement (under the Consumer Credit Act
1974) A
regulated *consumer-credit agreement that either (1) finances a
transaction (which
mayor may not form part of the agreement) between the debtor and
the creditor,
e.g. a purchase of goods; (2)finances a transaction between the
debtor and a person
(the supplier) other than the creditor; or (3) refinances any
existing indebtedness of
the debtor's, to either the creditor or another person.
restriction n. (in land law) A limitation of the right of a
registered proprietor to
deal with the land or charge in a registered title. For instance, a
beneficiary may
enter a restriction against his trustees if the trust provides that
the land may not be
sold without the beneficiary's consent. A restriction may also be
entered by, or with
the concurrence of, the registered proprietor, and there are cases
in which the Chief
Land Registrar is obliged to enter a restriction (for example, when
persons are
registered as joint proprietors, and the survivor will not have
power to give a valid
receipt for *capital money arising on a disposition of the
land).
restriction order An order placing special restrictions (for a
specified period or
without limit of time) on the discharge from hospital of a person
detained there by
"a *hospital order. lt may be made by the Crown Court (but not a
magistrates' court)
when this appears necessary for the public protection, and its
principal effects are
that discharge may be authorized only by the Home Secretary and may
be subject to
conditions (e.g.subsequent supervision by a mental welfare
officer).
restrictive covenant An obligation created by *deed that curtails
the rights of
an owner of land; for example, a covenant not to use the land for
the purposes of
any business. A covenant imposing a positive obligation on the
landowner (the
covenantor), for example to repair fences, is not a restrictive
covenant. Third parties
who acquire freehold land affected by a restrictive covenant will
be bound by it if it
is registered (see REGISTRArION OF ENCUMBRANCES) or, in the case of
covenants created
before 1926, if they are aware or ought to be aware of it (see
CONSTRUCTIVE NOTICE).
The covenant may also be enforceable by successors of the original
beneficiary (the
covenantee) if it was annexed to (i.e. expressly taken for the
benefit of) the
covenantee's land or if the benefit of it was expressly assigned.
Section 78(1) of the
Law of Property Act 1925 has been interpreted as providing a form
of statutory
annexation. Thus, unless there is an express stipulation to the
contrary, all
covenants shall be deemed binding on successors to the original
covenantee. The
benefit of a covenant will not be annexed, however, if the
covenantee's land is not
actually capable of benefiting from the covenant; for example, if
it is too far away
to be affected. Restrictive covenants contained in leases are not
registrable but are
nevertheless generally enforceable between third parties (see
COVENANT RUNNING WITH
THE LAND). See also BUILDING SCHEME.
restrictive endorsement An *endorsement that prohibits the
further
negotiation (transfer) of a *bill of exchange (for example, "Pay X
only") or states that
it is a mere authority to deal with the bill as thereby directed
and not a transfer of
ownership of the bill (for example, "PayX or order for
collection"). A restrictive
endorsement gives the endorsee the right to receive payment of the
bill and to sue
any party to it that his endorser could have sued, but gives him no
power to
transfer his rights as endorsee unless it expressly authorizes him
to do so.
Restrictive Practices Court A superior *court of record created by
the
Restrictive Trade Practices Act 1956.lts jurisdiction was to
determine matters arising
under the legislation controlling *restrictive trade practices and
*resale price
maintenance, principally determining whether or not restrictive
agreements
registered with the *Director General of Fair Trading were contrary
to the public
interest. It was abolished under the Competition Act 1998and its
functions taken
over by the Office of Fair Trading.
restrictive trade practices Arrangements in industry designed to
maintain high
prices or earnings or to exclude outsiders from a trade or
profession. Examples
include *resale price maintenance contracts, agreements between
manufacturers to
restrict output so that demand remains unsatisfied and a high price
is maintained,
similar agreements concerning the provision of services, and rules
restricting entry
to a trade or profession. Under the Competition Act 1998, certain
types of restrictive
agreement are presumed to be against the public interest (and
therefore void) unless
they are first registered with the *Director General of Fair
Trading and then
justified to the Office of Fair Trading (OFT). The OFT can declare
whether or not an
agreement is contrary to the public interest and make orders
restraining the parties
from giving effect to it and from making a new similar agreement.
It can also
decide whether or not goods of any particular class should be
exempt from the
statutory prohibition on resale price maintenance.
Agreements that are important to the national economy or hold down
prices may
be exempted by the Secretary of State. The provision of certain
services (including
legal, dental, educational, surveying, and medical and related
services) are exempt
under the Act, as are ministers of religion and certain exclusive
dealings and
intellectual property agreements.
resulting trust A trust arising by operation of law and in some
cases based on the
unexpressed but presumed intention of the settlor. When the
beneficial interest of a
trust is not completely disposed of, the undisposed interest
results (i.e. goes back) to
the settlor or to his estate. A resulting trust is also created
when purchased property
is transferred to someone other than the person who provides the
price (compare
ADVANCEMENT); it may also arise when property is transferred
voluntarily. Resulting
trusts may be regarded either as similar to *implied trusts or as a
category of them.
There is sometimes no clear distinction between a resulting trust
and a
*constructive trust, and the courts sometimes appear to use the
terms
interchangeably.
resulting use (implied use) A *use that arose when legal ownership
(seisin) was
transferred, but the transferor did not state for whose use
(benefit) the property
was to be: the benefit of the property therefore still belonged to
the transferor.
retention of title (reservation of title) A stipulation on a
contract of sale that
the right of ownership of the goods shall not pass to the buyer
until the buyer has
paid the seller in full or has discharged all liabilities owing to
the seller. It is also
known as a Romalpa clause, from the case Aluminium Industrie BV v
Ramalpa
Aluminium Ltd (1976).
retirement age (in the state pension scheme) The age at which an
individual can
start to receive a state retirement *pension. The state retirement
age for men in the
UK is currently 65 and for women 60. However, the government is
harmonizing
retirement ages at 65 for both men and women, in order to comply
with EU law on
*equal pay.
retirement of jury The withdrawal of the *jury from the court at
the end of the
trial so that they may decide on their verdict in private. The jury
members are not
allowed contact with the public until they reach (or fail to reach)
a verdict. They
may not afterwards disclose the content of their discussions in
reaching a verdict.
retirement of trustees A right of trustees to be released from
their trusteeship.
Originally trustees were not allowed to retire, but retirement is
now possible
subject to certain safeguards. Under the Trusts of Land and
Appointment of
Trustees Act 1996,when there is no person nominated to appoint new
trustees in
the trust instrument and the beneficiaries are of full age, sound
mind, and
absolutely entitled, the beneficiaries may give a written direction
to the trustees to
retire from the trust.
retorsion (retortion) n. A lawful means of retaliation by one state
against
another. It is usually provoked by an equally lawful, but
discourteous, act of the
other state, such as trade discrimination measures that single out
foreign nationals
or by hostile propaganda produced via government-controlled sources
of
information. See alsoREPRISALS; SANCTION; SELF-HELP.
retour sans protet [French: return without protest] A direction on
a *bill of
exchange to the effect that the bill should be returned without
*protest if it is
dishonoured.
retrial n. See NEW TRIAL.
retribution n. See PUNISHMENT.
retrospective legislation (retroactive legislation) Legislation
that operates on
matters taking place before its enactment, e.g. by penalizing
conduct that was
lawful when it occurred. There is a presumption that statutes are
not intended to
have retroactive effect unless they merely change legal procedure
(see INTERPRETATION
OF STATUTES).
retrospective penalties See PENALTY.
return n. 1. A formal document, such as an *annual return or the
document
giving particulars of shares allotted and to whom (return of the
allotment), which
must be delivered to the Companies Registry within one month of
*allotment.
2. The official result of the votes cast in an election.
return day The day specified in a summons for the hearing of the
summons.
returning officer Under the Representation of the People Act 1983,a
person generally
the sheriff of a county or chairman of a district or London
borough
council - designated by an order made by the Secretary of State to
be responsible
for the conduct of parliamentary elections.
revenue statute An Act of Parliament concerning taxation.
reversal of judgment The alteration of a *judgment on appeal,
either wholly or
in part.
reversion (reverter) n. The interest in land of a person (called
the reversioner)
who has granted some lesser interest than his own to another but
has not disposed
of the whole of his own interest. For example, if A grants land to
B for life, A has an
interest in reversion, since the land reverts to him on B's death.
Similarly, a person
who lets or sublets land to another retains an interest in
reversion. The reversionary
inter -st of a lessor can subsist as a legal estate, but the
reversion after any other
interest than a lease is necessarily an equitable interest.
reversionary lease Any lease for a term beginning at a future date.
However,
under the Law of Property Act 1925 a lease granted at a rent or for
a capital sum is
void if it is to take effect more than 21 years after it is
executed.
reverter n. See REVERSION.
reverter of sites Reversion of land donated for charitable purposes
to the donor
or his successors in title when the land ceases to be used for the
specified purposes.
Many of these donations occurred under 19th-century statutes to
enable voluntary
schools, libraries, museums, and churches and chapels to be
established. Since that
time, many of these charitable purposes have ceased, and it has
often proved
difficult to trace the beneficial owners entitled to the reverter.
Under the Reverter
of Sites Act 1987, when a charitable purpose comes to an end, the
trustees holding
the land are given a right to manage it and keep it in repair. If
the beneficial owner
remains unidentifiable, the land can be sold and the proceeds used
for charitable
purposes.
revival of will The re-execution with proper formalities of a will
that has been
revoked other than by destruction, or the execution of a *codicil
to it, showing the
testator's intention that the will should be effective
notwithstanding the earlier
revocation. Under the Wills Act 1837 these are the only ways in
which a will that has
been revoked can be revived. A revived will operates as if executed
at the time of its
revival. Compare REPUBLICATION OF WILL.
revocation of offer The withdrawal of an *offer by the offeror so
that it can no
longer be accepted. Revocation takes effect as soon as it is known
to the offeree
(from whatever source); offers can be revoked at any time before
acceptance unless
they are coupled with an *option. See alsoLAPSE OF OFFER; REJECTION
OF OFFER.
revocation of probate The cancellation by the court of a grant of
probate that
was obtained by fraud or mistake. The revocation does not affect
those who have
purchased assets of the estate from the executors before the
revocation.
revocation of will The cancellation of a will. The testator may
revoke his will by
destroying it with that intention or by making a new will
inconsistent with the
original. A will is automatically revoked by the testator's valid
marriage, unless it
appears from the will that at the time it was made the testator was
expecting to
marry a particular person and that he intended his will not to be
revoked by the
marriage. A particular disposition in a will may similarly take
effect in spite of the
marriage. The dissolution of a marriage does not revoke a will but
the Wills Act 1837
provides that in the event of divorce or annulment any devise or
bequest to a
former spouse lapses in the absence of contrary intention in the
will.
right n. 1. Title to or an interest in any property. 2. Any other
interest or privilege
recognized and protected by law. 3. Freedom to exercise any power
conferred by
law. See alsoHUMAN RIGHTS; NATURAL RIGHTS.
right of abode See IMMIGRATION.
right of action 1. The right to take a particular case to court
(see CLAIM). 2. A
chose in action (see CHOSE).
right of audience The right of an *advocate to be heard in legal
proceedings.
Barristers have the right of audience in the Crown Court, High
Court, Court of
Appeal, and House of Lords. Solicitors have a limited right of
audience in some
Crown Court centres specified by the Lord Chancellor. In the county
courts and
magistrates' courts both barristers and solicitors can appear. Many
administrative
tribunals have no rules concerning rights of audience and a party
may be
represented by any person he chooses.
right of common See COMMON.
right of establishment The right under the Treaty of Rome of a
national of a
member state of the European Community to engage in and manage
businesses in
any other member state.
right of light An *easement giving the owner of a dominant tenement
the right
to the access across the servient tenement of a sufficient quantity
of light for the
ordinary purposes to which the dominant tenement may be put. No
easement can be
acquired for a greater amount of light than is necessary for such
purposes. See
ANCIENT LIGHTS.
right of re-entry See RE-ENTRY.
right of resale The right that the seller in a contract of sale has
to resell if the
buyer does not pay the price as agreed. When the goods are
perishable or the
*unpaid seller gives notice to the buyer of his intention to
resell, and the buyer does
not pay the price within a reasonable time, if the Seller is in
possession of the goods
he may resell them and recover from the first buyer damages for any
loss.
right of silence The right of someone charged with an offence or
being tried on
a criminal charge not to make any statement or give any evidence.
Often cited as a
prime example of the fairness of the English criminal system, being
intended to
protect the innocent, it was also criticized as unduly hampering
the conviction of
the guilty and has therefore been modified. If a suspect fails to
mention something
at the time of his arrest or charge that is later relied on in his
defence, this may
result in a court at a subsequent trial drawing such inferences as
appear proper (see
CAUTION). Sometimes, however, statute obliges him to answer, as in
certain fraud
investigations by the *Serious Fraud Office (although this has been
held contrary to
the European Convention on Human Rights).
Failure of an accused aged 14 or over to give evidence in his own
defence or
refusal to answer questions without good cause will also allow such
inferences to be
drawn. Inferences may also be drawn from a suspect's failure to
account for any
object, mark, or substance found on his person, in his clothing or
footwear, or
otherwise in his possession at the time of arrest. The police
officer must reasonably
believe that such items are attributable to an offence and inform
the suspect
accordingly. Inferences may also be drawn from a suspect's failure
to account for
his presence at a particular place.
right of support 1. An *easement conferring on the owner of the
dominant
tenement the right to have buildings on his land supported by those
on the servient
tenement. For example, houses forming a semidetached pair are
likely to have
mutual rights of support. 2. For the right to preserve support for
land in its
natural state, see NATURAL RIGHTS.
right of survivorship Uus accrescendi) The right of a joint owner
of property
to acquire absolute ownership of the entire property on the death
of the other
owner(s). See JOINT TENANCY.
right of water 1. An *easement conferring on the owner of a
*dominant
tenement rights in connection with water, such as the rights to
take water or to
discharge water onto another's land, or a right to enter another's
land to open sluice
gates in order to prevent flooding of the dominant tenement. 2. A
*natural right to
use water flowing through a channel on one's land.
right of way The right to pass over another's land. It may exist as
a public right
exercisable by anyone; as an *easement for the benefit of a
particular piece of land;
or as a *licence, purely personal to the person to whom it is
granted.
rights issue A method of raising share *capital for a company from
existing
members rather than from the public at large. Members are given a
right to acqUire
further shares, usually in proportion to their existing holding and
at a price below
the market value of existing shares. This right may be sold
(renounced) to a third
party. See alsoPRE-EMPTIVE RIGHT.
right to air The right to a flow of air over land or buildings from
neighbouring
premises. It may be enjoyed on any terms agreed by personal
arrangement between
neighbouring landowners, but can only exist as an *easement if the
right can be
sufficiently defined. Thus an easement for the flow of air through
a specific
ventilation passage may exist, but a right to a general flow of air
over the chimneys
of a house does not qualify as an easement so is not an interest in
the land itself.
right to begin The right of a party at trial to present his case to
the court first
(i.e. to open the case) by making the opening speech and presenting
his evidence.
The right to begin usually belongs to the party who carries the
persuasive *burden
of proof. Thus, in a criminal case the prosecution always has the
right to begin; in
civil cases the claimant normally begins, but the defendant may do
so when he has
the burden of proving all issues.
right to buy See SECURE TENANCY.
right to education A right set out in Article 2 of the First
Protocol to the
European Convention on Human Rights and now part of UK law as a
consequence of
the *Human Rights Act 1998. It is limited to primary and secondary
education and
does not create a duty to fund or subsidize private education. The
right includes a
duty to respect the religious and philosophical convictions of the
parents regardless
of whether or not the child is in the state sector.
right to life A right set out in Article 2 of the European
Convention on Human
Rights and now part of UK law as a consequence of the *Human Rights
Act 1998.
The right to life does not make the use of the death sentence
unlawful (but see
CAPITAL PUNISHMENT). Article 2 makes unlawful the use of lethal
force where the use
of force was greater than that which was absolutely necessary (this
is a higher test
than imposed by section 3 of the Criminal Law Act 1967). The right
to life also
imposes a duty on public authorities to take reasonable measures to
protect life
from threats from third parties. Article 2 also imposes a duty to
ensure that any
investigation of a death caused by a public body is independent and
effective.
right to marry A right set out in Article 12 of the European
Convention on
Human Rights and now part of UK law as a consequence of the *Human
Rights Act.
The right is not a particularly strong one; it only exists subject
to the national laws
governing the exercise of this right.
riot n. An offence committed when 12 or more persons, present
together,
intentionally use or threaten unlawful violence (see VIOLENT
DISORDER) for a common
purpose. The collective conduct must be such as would have
caused a reasonable
person to fear for his safety, though rio-one else need be present.
A person is only
guilty of riot if he intended to use violence or was aware that his
conduct might be
violent. The offence of riot is found in the Public Order Act
1986,though it can be
committed in private as well as in public places. It replaces the
common-law offence
of riot and is punishable with up to ten years' imprisonment and/or
a fine. Under
the Riot (Damages) Act 1886,when property has been destroyed,
damaged, or stolen
in the course of a tumultuous riot, the owner is entitled to
compensation out of
public funds. See also AFFRAY.
road n. For purposes of offences relating to road traffic, any
*highway or other
route to which the general public has access. A road must be a
route leading from
one place to another, and this is always a question of fact. It may
include a hotel
forecourt, a road privately owned but to which the public has
access, or a bridge
over which a road passes, but a car park is usually not regarded as
a road. Some
traffic offences are defined to cover roads and "other public
places".
road rage Aggressive behaviour while driving motor vehicles on
roads. Although
there is no specific road rage offence, such behaviour may involve
breach of other
laws. If the aggressor causes injury he may face a conviction for
*dangerous driving
or for some other similar offence.
road tax A tax (formally called vehicle excise duty) that must be
paid in respect
of any mechanically propelled vehicle used, parked, or kept on a
public road. It is an
offence to fail to pay it. Electrically propelled vehicles and
invalid vehicles do not
have to be taxed, and no tax is required when a motorist is driving
to and from a
prearranged *MOTtest. It is also an offence to fail to display a
tax disc showing that
the vehicle has been taxed, unless one has applied for a new disc
before the old one
expired and it is within 14 days from the date of expiry. The tax
disc must be
displayed on the nearside lower corner of the windscreen. Failure
to pay road tax or
display the tax disc is punishable by fine, but is not subject to
endorsement.
road traffic accidents If an accident has been caused by the
presence of a motor
vehicle on a road and results in injury to anyone or damage to
anyone else's vehicle
or to property on the road or neighbouring land (e.g.someone's
garden wall), it is an
offence for the driver of the vehicle not to stop, unless he can
show that he did not
know that the accident happened. It is also an offence to refuse to
give one's name
and address to anyone who reasonably requires it (e.g. a police
officer or another
driver or pedestrian involved in the accident), unless one reports
the accident to the
police as soon as possible (not later than 24 hours after it
occurred). If a person has
been injured in a road accident, it is an offence not to produce
one's certificate of
insurance (see THIRD-PARTY INSURANCE) for a police officer or
anyone else with
reasonable grounds for asking for it, unless one reports the
accident to the police
not later than 24 hours after it occurred and, at the same time or
within five days,
produces the certificate of insurance at any police station one
specifies. See also
ACCIDENT RECORD BOOK.
Failure to stop after an accident or give particulars is an
endorsable offence
(carrying 5-10 penalty points under the *totting-up system) and is
subject to a *fine
at level 5 on the standard scale and to discretionary
*disqualification.
robbery n. The offence of using force against any person, or
putting them in fear
of being subjected to force, in order to commit a theft, either
before the theft or
during the course of it. It is also robbery to threaten to use
physical force in these
circumstances, even if the person threatened is not frightened by
the threats. The
degree of force required is a question of fact in each case to be
decided by the jury;
nudging someone so that he loses his balance may constitute
sufficient force. The
force must, however, be directed against the person, rather than
his property.
Robbery and assaults with intent to rob are punishable by a maximum
sentence of
life imprisonment.
rogatory letter See LETTER OF REQUEST.
rolled-up plea A form of the defence of *fair comment in an action
for
defamation. If the words complained of contain a mixture of
statements of fact and
comment, the defendant may plead that "the said words in so far as
they consist of
allegations of fact are true in substance and in fact, and in so
far as they consist of
expressions of opinion they are fair comments made in good faith
and without
malice upon the said facts, which are a matter of public interest".
The defendant
must give particulars of which words he alleges are statements of
fact and of the
circumstances he relies on to show that the words are true.
Romalpa dause See RETENTION OF TITLE.
Rome Treaty See TREATY OF ROME.
root of title The document from which an owner of unregistered land
traces his
ownership. A good root must be at least 15 years old, deal with the
whole legal and
beneficial ownership of the land, describe it sufficiently to
identify it, and cast no
doubt on the title. A vendor must supply and the purchaser must
accept such a root
unless their contract provides otherwise.
rout n. An old public-order offence approximating to *riot.
royal assent The agreement of the Crown, given under the *royal
prerogative
and signified either by the sovereign in person or by royal
commissioners, that
converts a Bill into an *Act of Parliament or gives a Measure (see
CHURCH OF ENGLAND)
the force of an Act. It is the duty of the Clerk of the Parliaments
to endorse the date
on which it was given immediately after the long title.
royal prerogative The special rights, powers, and immunities to
which the
Crown alone is entitled under the common law. Most prerogative acts
are now
performed by the government on behalf of the Crown. Some, however,
are
performed by the sovereign in person on the advice of the
government (e.g. the
dissolution of Parliament) or as required by constitutional
convention (e.g. the
appointment of a Prime Minister). A few prerogative acts (e.g.the
granting of
certain honours, such as the Order of the Garter) are performed in
accordance with
the sovereign's personal wishes.
The Crown has limited powers of legislating under the prerogative,
principally as
respects the civil service and UK dependent territories. It does so
by Order in
Council, ordinance, letters patent, or royal warrant. The
dissolution and prorogation
of Parliament and the granting of the royal assent to Bills take
place under the
prerogative. OriginaIly the fountain of justice from which the
first courts of law
sprang, the Crown still exercises (through the Home Secretary) the
*prerogative of
mercy and retains the right (through the Attorney General) to stop
a prosecution by
entering a *nolle proseqUi. In foreign affairs, the sovereign
declares war, makes peace
and international treaties, and issues passports under the
prerogative. Many
appointments (e.g. the higher judiciary, archbishops, and diocesan
bishops) are made
under the prerogative, and a variety of honours, including new
hereditary peerages,
are conferred by the Crown as the fountain of honour. The sovereign
is head of the
armed forces, and, although much of the law governing these is now
statutory, their
disposition generally remains a matter for the prerogative.
There is a prerogative
power, subject to the payment of compensation, to expropriate or
requisition
private property in times of war or apprehended war. Miscellaneous
prerogative
rights include the rights to *treasure trove and to
*bonavacantia.An important
immunity of the sovereign is the prerogative of perfection. The
common-law
maxim that "the King can do no wrong" resulted in the complete
immunity of
the sovereign personally from all civil and criminal proceedings
for anything that
he or she might do. This personal immunity remains, but actions may
now be
brought against the Crown under the Crown Proceedings Act 1947 (see
CROWN
PROCEEDINGS).
If a statute confers on the Crown powers that duplicate prerogative
powers, the
latter are suspended during the existence of the statute unless it
either abolishes
them or preserves them as alternative powers.
royal proclamation A document by which the sovereign exercises
certain
prerogative powers (e.g.the summoning and dissolution of
Parliament) and certain
legislative powers conferred on her by statute (e.g. the
declaration of a state of
emergency; see EMERGENCY POWERS).
royal title See QUEEN.
royalty n. A sum payable for the right to use someone else's
property for the
purpose of gain. Royalties are paid on *wasting assets, which have
a limited lifespan.
For example, the royalty paid by a licensee to mine someone's land
is a fixed sum
per tonne of the mineral he extracts, and an author's royalty is
similarly determined
by the total number of his books the publisher sells. Royalties are
paid generally for
the licensing of *intellectual property.
RSC See RULES OF THE SUPREME COURT.
rule against bias See NATURAL JUSTICE.
rule against double portions A rule designed to ensure, as far as
possible,
equality between children entitled under a settlement and under a
will, both made
by the same person. Thus if a father promises to pay substantial
sums of money to
certain of his children to advance them and at his death the money
has not been
paid, but the children (together with others) are entitled to
legacies under his will,
the payment of the legacies and the moneys due under the settlement
will be
considered together. Thus if an advancement of £10,000 and a legacy
of £5000 are
due to one son and a legacy of £10,000 is due to another son, the
first son will not
receive his legacy, to ensure equality between the children. See
HOTCHPOT.
rule against inalienability A rule that prevents property from
being rendered
incapable of transfer within the perpetuity period, i.e. a life
presently existing plus
a period of 21 years. A gift that prevents transfer within this
period is void. The rule
is similar to the *rule against perpetual trusts.
rule against perpetual trusts The rule that prohibits noncharitable
trusts from
lasting beyond the perpetuity period, i.e. a lifetime presently
existing plus a period
of 21 years. A trust that may last beyond that period is void.
Compare RULE AGAINST
INALIENABILITY; RULE AGAINST PERPETUITIES.
rule against perpetuities (rule against remoteness of future
vesting) A rule
developed by the *common law to enable a court to declare void any
future or
postponed interest in property that might possibly vest (i.e.
become enjoyable as of
right) outside the perpetuity period. This comprises (1) the
lifetimes of persons
mentioned (or mentioned by implication) in the disposition who are
alive at that
time and whose existence governs the timing of the vesting of the
future interest
(the relevant lives in being), plus (2)21 years, plus (3) (in the
case of a posthumous
beneficiary) any actual period of gestation. The period runs from
the date of
execution of the deed or, if the disposition is contained in a
will, from the death of
the testator. The purpose of the rule is to prevent land being tied
up for an
indefinite period, which would hinder its ultimate disposal.
The common law rules relating to perpetuities have been
supplemented (though
not replaced) by the Perpetuities and Accumulations Act 1964. When
a disposition
would otherwise be void under the common law rules, the Act allows
a period in
which one can wait and see whether the interest will in fact vest
within the
perpetuity period; only if it becomes clear that it cannot do so
will the disposition
be void. For these purposes, the perpetuity period is varied in
that the Act provides a
new list of lives in being (the statutory lives in being). The Act
also provides for a
fixed perpetuity period unrelated to lives.
rule against remoteness of future vesting See RULE AGAINST
PERPETUITIES.
rule in Saunders v Vautier [from the case Saunders v Vautier
(1841)JA rule under
which the beneficiaries of a trust, if of full age (18), sound
mind, and between them
wholly entitled to the trust property, may direct the trustees to
end the trust and
transfer the trust property to themselves as beneficiaries
absolutely.
rule of law 1. The supremacy of law. 2. A feature attributed to the
UK
constitution by Professor Dicey (Law of the Constitution, 1885). It
embodied three
concepts: the absolute predominance of regular law, so that the
government has no
arbitrary authority over the citizen; the equal subjection of all
(including officials)
to the ordinary law administered by the ordinary courts; and the
fact that the
citizen's personal freedoms are formulated and protected by the
ordinary law rather
than by abstract constitutional declarations.
rules of court Rules regulating the practice and procedure of a
court, usually
made by a rule committee acting under a statutory power. See also
CIVIL PROCEDURE
RULES; CROWN COURT RULES.
Rules of the Supreme Court (RSC) Formerly, rules governing the
practice and
procedure of the *Supreme Court of Judicature. The rules were made
under a
statutory power by the Supreme Court Rule Committee, a body
appointed by the
*Lord Chancellor and comprising himself, the *Master of the Rolls,
the heads of the
Divisions of the High Court, and four practitioners. The Rules were
revoked in 1999
by the *Civil Procedure Rules, which have re-enacted some of the
rules of the RSC.
running-account credit (under the Consumer Credit Act 1974) A
facility under a
*personal-credit agreement that enables a debtor to receive
periodically from the
creditor or a third party cash, goods or services to an amount or
value that does not
exceed the *credit limit (if any), taking into account payments
made by or to the
credit of the debtor. Examples are bank overdrafts and credit
cards. The credit
provided will be taken not to exceed £25,000and the agreement will
be a consumercredit
agreement if the credit limit does not exceed £25,000. The Act
specifies three
situations in which running-account credit will not exceed £25,000
in cases in which
there is no credit limit or, if there is, it exceeds £25,000.
running days See LAY DAYS.
running with the land See COVENANT RUNNING WITH THE LAND.
Rylands v Fletcher, rule in A principle of strict liability for
dangerous things
accumulated on land that escape from the land and cause damage. It
was first stated
in the case Rylandsv Fletcher (1868). in which the defendant had a
reservoir built on
his land that caused flooding of the claimant's mine. The
accumulation of dangerous
things must constitute a non-natural use of the land. A use is
non-natural in .
modern law if it is a special use creating an abnormal risk of
damage. The occupier
of the land is liable for damage caused by an escape if the damage
is of a kind that
is a reasonably foreseeable consequence of the escape. subject to
the defences of
common benefit. act of a stranger. statutory authority. consent of
the claimant.
default of the claimant. or act of God.
S
s. (pl. 55.) The recognized abbreviation used in citing a
particular section of a
statute. as in "s, 4". "ss. 70-73".
Sabbath n. See SUNDAY TRADlNG.
sabotage n. Damage to or destruction of property. especially the
property of an
employer during a strike or of the state for political reasons.
Sabotage as such is not
an offence. although it may be treated as *criminal damage. The
courts have.
however. interpreted the phrase "prohibited place" in the Official
Secrets Act 1911 to
bring sabotage against the state within the scope of that Act. even
though it is clear
that Parliament's intention was only to prohibit spying. See
OFFICIAL SECRETS.
safe haven A zone of territory within a sovereign state demarcated
by the United
Nations (or other international organization) as a refuge to which
a persecuted
*ethnic minority can choose to retire. While within such a zone the
ethnic minority
is afforded military protection by the body that established the
zone. The
international community set up safe havens in Iraq and the former
Yugoslavia in
response to acts of systematic persecution carried out by the
government of the
sovereign state concerned against part of its own population. See
also HUMANITARIAN
INTERVENTION.
safety at work Every employer has a common-law duty to take
reasonable care
for his employees' health. safety. and welfare at work: he may be
sued in the courts
for damages if an employee is injured through the employer's
negligence or failure
to observe the safety regulations. The employer cannot contract out
of this liability
and. under the Employers' Liability (Compulsory Insurance) Act
1969. must insure
against his liability for employees' injuries and diseases
sustained or contracted at
work. The Health and Safety at Work Act 1974 further requires
employers to ensure.
as far as is reasonably practicable. that their working methods.
equipment. premises.
and environment are safe and to give such training. information.
and supervision as
will ensure their employees' health and safety (see HEALTH AND
SAFETY COMMISSION).
Anyone employing more than five persons must maintain a written
statement of
his general policy concerning his employees' health and safety
(dealing. for example.
with safety rules and protective clothing) and must keep them
informed of it. He
must also give relevant information to the *safety representatives
of his employees'
trade unions and establish a *safety committee where
appropriate.
The Employment Act 1989 contains legislation for the protection of
female
workers. It is prohibited to employ women in a factory within four
weeks of
childbirth; to employ women in a range of processes involving lead
or lead
compounds; and to employ women in a range of processes in the
pottery industry.
There are also restrictions on women working on ships and
aeroplanes during
pregnancy.
Employees also have a duty to take reasonable care for their own
health and
safety. for example by complying with safety regulations and using
protective
equipment supplied to them. Employers and employees who fail to
comply with the
requirements of the Health and Safety at Work Act 1974 face
prosecution in the
criminal courts. An employee dismissed for health and safety
reasons is under
certain circumstances regarded as having been unfairly dismissed.
It is also regarded
as automatically unfair to select an employee for redundancy on
certain grounds
connected with health and safety.
safety committee A committee that, under the Health and Safety at
Work Act
1974,an employer must establish within three months after a written
request from
at least two employees' *safety representatives. The employer must
consult with the
safety representatives as to the composition of the committee and
must also display
a notice in his premises informing his employees of its composition
and the
workplaces it covers. The *code of practice published by the Health
and Safety
Commission suggests that safety committees' responsibilities should
include
monitoring accidents and disease occurring in the workplace and
developing
improved safety rules and systems of work and training of employees
with regard
to safety.
safety representatives Employees appointed by trade unions to
represent the
interests of their colleagues regarding their health, safety, and
welfare at work.
Regulations made under the Health and Safety at Work Act 1974 give
a trade union
recognized as having negotiating rights on behalf of a group or
class of employees
the right to appoint at least one of those employees as a safety
representative. The
representatives' statutory powers include the investigation of
accidents and
industrial diseases occurring at the workplace and inspection of
the premises to
determine their causes. The employer must allow them time off work
with pay to
train for and perform their duties and to attend meetings of
*safety committees.
See also DISCLOSURE OF INFORMATION.
sale n. A contract involving the *sale of goods or a similar
contract involving the
transfer of land.
sale by description A contract of sale of goods containing words
identifying its
subject matter, e.g. 1000 tonnes of Western White Wheat. Even when
the subject
matter of the contract is physically ascertained at the time of
contracting, e.g. a
particular motor car, the contract may contain words of description
or
identification. The goods delivered must match their description in
the contract;
otherwise the seller is in breach of an *implied condition of the
contract and the
buyer, if he acts promptly, may reject the goods.
sale by sample A contract of sale of goods made on the basis that
the bulk of
goods to be delivered to the buyer will match a sample submitted by
the seller. If
the bulk does not match the sample the seller is in breach of an
*implied condition
of the contract and the buyer may reject the goods. The seller must
give the buyer a
reasonable opportunity of comparing the bulk with the sample and
the goods must
be free from any defect making them unmerchantable that would not
be apparent
on reasonable examination of the sample.
sale of goods A contract by which a seller transfers or agrees to
transfer the
ownership of goods to a buyer in exchange for a money price. If
ownership is to
pass at a future time the contract is called an agreement to sell.
The contract,
which need not be in writing, may contain *express terms. Terms may
also be
implied by law (see also IMPLIED CONDITION); for example, that the
seller has a right to
sell, that the goods correspond with the description under which
they are sold, and
that the goods are of *satisfactory quality and are reasonably fit
for the buyer's
purpose. Unless the parties agree otherwise the seller must hand
over the goods in
exchange for the price and the buyer must pay the price in exchange
for the goods.
Much of the law governing the sale of goods is codified in the Sale
of Goods Act
1979.
sale on approval See SALE OR RETURN.
sale or return (sale on approval) The delivery of goods to a person
on terms
that allow him to keep the goods for a time before he decides
whether or not to buy
them. Unless otherwise agreed, such a person becomes the owner if
he signifies his
approval of the goods or carries out any other act adopting the
transaction. He will
also become the owner if he retains the goods beyond the time fixed
for their
return, or, if no time has been fixed, beyond a reasonable
time.
salvage n. The service rendered by a person who saves or helps to
save maritime
property. Salvage may be the subject of an express agreement. In
the absence of any
agreement, a salvor is entitled by law to an award (also known as
salvage), which is
assessed by the court and payable out of the salvaged property, if
he shows that the
property was in real danger and that he acted with some skill and
in a purely
voluntary capacity. The award can also take account of the saving
of life, but this
alone gives no claim to an award as there is no property saved out
of which
payment can be ordered. The rules apply equally to aircraft.
However, no award of
salvage may be made unless the ship or aircraft is on or over the
sea or tidal waters.
Property saved in a nontidal river cannot be subject to a salvage
claim.
salvage of trust property A power that existed before 1926 for the
court to
authorize a payment for preserving (or salvaging) trust property
(e.g. repairing
buildings) even though the document creating the trust did not
permit such
payment. A wider power was given by statute in 1925,under which the
court can
authorize any transaction that is expedient.
sanction n. 1. A *punishment for a crime. See NULLA POENA SINE
LEGE. 2. A measure
taken against a state to compel it to obey international law or to
punish it for a
breach of international law. It is often said that international
law is deficient
because it lacks the power to impose sanctions or even to compel
states to accept
the jurisdiction of courts (see INTERNATIONAL COURT OF JUSTICE).
There are, however,
certain sanctions that can be applied. A state may, in certain
cases, use force in selfdefence,
or as a sanction against an act of aggression, or as a reprisal
(for example,
by expropriating property belonging to citizens of a country that
had previously
carried out unlawful acts of expropriation). It may also act by way
of *retorsion.
There are also certain powers of sanction available under the
United Nations system,
such as economic (and, at least in theory, military) sanctions,
although the powers of
the Security Council to impose sanctions are subject to veto. See
alsoANGARY.
Sanderson order See BULLOCK ORDER.
sanity n. See PRESUMPTION OF SANITY.
sans recours (without recourse to me) A stipulation that the drawer
or an
endorser of a *bill of exchange may add to his signature, thus
repudiating his
liability to the holder. If the bill is dishonoured, the holder has
no recourse to the
drawer or endorser who has made such a stipulation.
SARs (Substantial Acquisition Rules) Rules, administered by the
Panel on
Takeovers and Mergers, governing the acquisition of substantial
shareholdings in
public companies. See CITY CODE ON TAKEOVERS AND MERGERS; CONCERT
PARTY; DAWN
RAID.
satisfaction n. 1. The fulfilment of a claim. See alsoACCORD AND
SATISFACTION.
2. A doctrine of equity under which an obligation is discharged by
payment,
performance, or some similar act. The doctrine applies when the
a
are unclear. If the settlor discharges his obligation by an act
different from that
required, the obligation is said to be satisfied provided that the
act he does is a
sufficient substitute for the act he is charged to do. Thus if he
owes a debt and
leaves a legacy of the same or a greater amount to the creditor,
the creditor is
satisfied. Closely analogous to satisfaction are cases in which
payment of a legacy is
satisfied by payment of a *portion and one legacy is satisfied by
payment of another
(see ADEMPTION): in these cases, however, there is no prior
obligation owed by the
settlor.
satisfactory quality An *implied condition that goods sold in the
course of
business will meet the standard that a reasonable person would
regard as
satisfactory. In assessing this, account is taken of any
description of the goods, the
price (if relevant), and all other circumstances. The quality of
goods includes their
state and condition, taking account of their fitness for purpose,
appearance and
finish, freedom from minor defects, safety, and durability. Most
commercial
agreements exclude the implied conditions and replace them with
express
*warranties, although unreasonable exclusions in standard-form
contracts, even
between two businesses, may be void under the law relating to
*unfair contract
terms. Satisfactory quality replaced the term merchantable quality
by the Sale and
Supply of Goods Act 1994,with effect from 3 January 1995.
satisfied term The expired period of an interest in land for a term
of years
created for a specific purpose that has been fulfilled. For
example, when land under
a *strict settlement is assigned to trustees for a term of years on
trust to raise
capital sums for members of the settlor's family, the term is
satisfied when the
sums have been raised. Under the Law of Property Act 1925, the
estate or interest in
the land ceases when the purpose is fulfilled. A term of years that
has not expired
although the purpose for which it was created has been fulfilled is
called an
outstanding term.
Saunders v Vaufier See RULE IN SAUNDERS V VAUTIER.
scandalous statement A statement that is irrelevant and abusive.
When such a
statement appears in statements of case or in an affidavit the
court or a judge may
order it to be struck out.
schedule n. An appendix to an Act of Parliament or other
legislation that deals
with points of detail supplementary to the main part.
scheme n. A document, normally approved by the court, that contains
provisions
for the management or distribution of property or for resolving a
dispute
concerning allegedly conflicting rights. For example, the court or
the *Charity
Commissioners may approve a scheme for the management of a
charitable trust.
scheme of arrangement 1. An agreement between a debtor and his
creditors to
arrange the debtor's affairs to satisfy the creditors. The debtor
usually agrees to
such an arrangement in order to avoid *bankruptcy. If the
arrangement is agreed
when no *bankruptcy order has been made, it is governed primarily
by the ordinary
law of contract. However, if it is for the benefit of the debtor's
creditors generally,
or if the debtor is insolvent and it is for the benefit of at least
three of his creditors,
it is a *deed of arrangement and subject to statutory control
unless it is a voluntary
arrangement. An arrangement agreed after a bankruptcy order has
been made is
governed by the statutory provisions relating to bankruptcy (see
VOLUNTARY
ARRANGEMENT). 2. An agreement between a company and its creditors
or members
when the company is in financial difficulties or to effect a
*takeover. It must be
approved by a majority in number (holding 75% in value) of those
creditors or
members at separate meetings and sanctioned by the court. All
creditors or
members involved in the scheme are bound by it, although the court
can make
special provision for those who dissent (Companies Act 1985).
Agreements with
company creditors can often be more conveniently concluded by
*voluntary
arrangement under the Insolvency Act 1986.
Schengen Agreement The agreement between most member states of
the
European Union (but not the UK)to abolish internal border controls.
It came into
force on 26 March 1995. See also PASSPORT.
scienter rule See CLASSIFICATION OF ANIMALS.
Scottish Parliament A body established by the Scotland Act 1998
(and operative
from July 1999), having 129 elected members (Members of the
Scottish Parliament;
MSPs) and possessing limited primary legislative powers over such
matters as
health, school education, and forestry, as defined within the Act.
It may alter the
basic rate of income tax in Scotland by up to three pence in the
pound. The
Scottish Executive (the devolved government of Scotland) is formed
by the party or
parties with the majority of seats in the Parliament. See
DEVOLUTION.
Scott Schedule A document used in *official referee's business for
giving
*particulars when the claim is in respect of a large number of
individual items (e.g.
a landlord's claim for dilapidations). The Scott Schedule is
divided into columns
providing for (1) the consecutive numbering of the items; (2) the
full description of
each item; (3) the contention of each party against each item as to
liability or
amount; and (4) a column for the use of the court. It is named
after a former
official referee.
scuttling n. Sinking a ship (particularly with a view to making a
fraudulent
insurance claim) by making or opening holes in its hull to allow
the entry of
water.
seal n. Wax impressed with a design and attached to any document as
a sign of its
authenticity; alternatively, an adhesive wafer or anything else
intended to serve the
purpose of a seal may be used. Under the terms of the Law of
Property
(Miscellaneous Provisions) Act 1989, *deeds no longer require a
seal in order to be
validly executed.
SEAQ (Stock Exchange Automated Quotations System) See
QUOTATION.
search 1. vb. To examine the registers maintained by HM Land
Registry, the Land
Charges Department, or the registers of local land charges during
an *official
search. 2. n. See POWER OF SEARCH.
search before Crown Court The searching of a person on the order of
the
Crown Court when that person has been ordered by the court to pay a
fine or to pay
money for some other reason (e.g.forfeiture of a *recognizance).
Any money found
on the person can be used towards payment of the sum due, any
excess being
returned.
search of ship The right that a belligerent power has during
wartime, under
public international law, to search any ship of a neutral power on
the high seas in
order to discover whether it is carrying *contraband.
search order An order made by the High Court (usually the Chancery
Division)
requiring a defendant to permit a claimant or his representatives
to enter the
defendant's premises to inspect or take away material evidence
that the defendant
might wish to remove or destroy in order to frustrate the
claimant's claim, or to
force a defendant to answer certain questions. Formerly (until
1999) known as an
Anton Piller order, from the case Anton Piller KG v Manufacturing
Processes (1976),
the order is commonly used in cases where the copyright of video
films or tapes or
computer software is alleged to have been infringed. By statute the
*privilege
against self-incrimination does not apply.
search warrant See POWER OF SEARCH.
seat belt A belt fitted in a motor vehicle, designed to restrict
the forward
movement of a driver or front-seat passenger in the event of an
accident. All
passenger vehicles with seating for fewer than 13 passengers and
most four-wheeled
goods vehicles registered after 1 January 1965 must comply with
statutory
regulations governing seat belts, although the details of these
regulations vary
according to the date when the vehicle was first registered. lt is
compulsory for all
drivers and front-seat passengers in cars registered after 1964,
light vans registered
after 1966, and three-wheeler vehicles registered after 1969 to
wear seat belts at all
times when the vehicle is moving, and for back-seat passengers to
wear seat belts
when these are fitted, subject to certain exceptions. These
exceptions are: (1) drivers
carrying out any manoeuvre that includes reversing (passengers must
still wear
their seat belts during such manoeuvres); (2) drivers making local
delivery or
collection rounds in specially adapted vehicles (e.g.milkmen in
milk vans); (3)anyone
whose seat belt has become faulty during the drive or who has
already arranged to
have a faulty belt repaired; (4)anyone whose belt has locked on a
steep hill; (5)
anyone supervising a learner who is reversing; (6) certain
categories of people with a
special exemption certificate on medical grounds.
Any front-seat passenger over the age of 14 is responsible for
wearing his own
seat belt, but the driver of the car is responsible for ensuring
that front-seat
passengers under the age of 14 wear a seat belt. Children under the
age of one must
wear an approved child restraint. Over the age of one they can wear
an adult seat
belt, preferably with an approved booster cushion to raise them to
a suitable height.
Alternatively they can sit in the back seat fitted with an approved
restraint. When
more passengers are carried than there are seat belts available,
the passengers who
do not have seat belts do not break the law by not being
restrained. Thus in a fourseater
car with a fifth passenger sitting in the middle of the back seat,
the middle
back passenger does not break the law by being unrestrained.
Failure to wear a seat belt carries a *fine at level 2 on the
standard scale and may
also be regarded as *contributory negligence in a claim for
injuries sustained in a
road traffic accident, leading to a reduction in damages.
sea waybill A receipt for goods that contains or evidences the
contract for the
carriage of goods by sea and also identifies the person to whom
delivery of the
goods is to be made by the carrier in accordance with that
contract. A sea waybill is
not a *bill of lading: it is commonly used in container transport
and, unlike a bill of
lading, does not have to be produced at the port of discharge in
order to obtain
delivery.
seaworthy adj. 1. Having at the start of a voyage the degree of
fitness (as respects
the ship, her crew, and her equipment) for that particular voyage
that a careful
owner might be expected to require of his ship. 2. The suitability
of a particular
ship to carry a particular cargo. Obligations relating to
seaworthiness are implied by
law in charterparties and imposed by the Hague Rules in bills of
lading. A marine
insurance policy incorporates by statute a warranty that the
insured ship is
seaworthy.
secession n. The action of breaking away or formally withdrawing
from an
alliance, a federation, a political or religious organization, etc.
An example of
secession is the attempted withdrawal of the Confederate States
from the United
States in the War of Secession (1861-65).
secondary evidence Evidence that by its nature suggests the
existence of better
evidence and might be rejected if that better evidence is available
(e.g.a copy of a
document). Secondary evidence is generally admissible if the
absence of the
*primary evidence is explained.
secondary party An *accessory to a crime.
secondary use See SHIFTING USE.
Secretary of State See MINISTER.
secret profits Profits made by an *agent during the course of his
agency without
the knowledge or authorization of his principal. The principal may
require the agent
to account for secret profits.
secret trust A trust whose existence is not revealed in the
document transferring
the property to the person who is to be the trustee. It arises when
a testator (or
more rarely a settlor) gives property to someone on that person's
express or implied
promise to hold the property on trust for a third party. On the
face of the
document the transaction appears to be an outright gift, and the
existence of a
trust is not apparent. Such trusts are sometimes called fully
secret trusts, to
distinguish them from *half-secret trusts, but the term secret
trust is sometimes
used for both. Doctrinal difficulties have arisen with secret
trusts because they
appear to allow a will to be altered indirectly without the need to
comply with the
formalities of the Wills Act 1837,and their theoretical basis is
unclear. Some recent
cases have suggested that there is no conflict with the Wills Act,
since the trust
operates ordinary equitable jurisdiction.
section 8 orders Court orders under the Children Act 1989 that
settle practical
details concerning the child's care and upbringing in any family
proceedings in
which the child's welfare is a matter for consideration (such as
matrimonial,
wardship, or adoption proceedings). Section 8 orders, which replace
the old access,
custody, and care and control orders, include residence, contact,
prohibited steps, and
specific issues orders. A residence order settles arrangements
about where a child is
to live. Such an order is typically made when parents live apart
and cannot agree
where the child is to live. Residence orders may also be made in
respect of
nonparents: in such a case, the order would confer parental
responsibility on those
in whose favour the order is made. A contact order defines the
extent and nature
of the contact the child is to have with other individuals. A
contact order cannot be
made in favour of a local authority or while the child is in care.
A prohibited steps
order prohibits certain specified steps (for example, taking a
child abroad) being
taken without the consent of the court and can be made against
anyone regardless
of whether he or she has parental responsibility for the child. A
specific issue
order deals with any specific issues concerning the child's
upbringing, such as
education or medical treatment.
Section 8 orders are only necessary when there is a dispute between
the parents or
others in relation to a child and are usually only made in respect
of children up to
the age of 16. In determining whether or not to make such an
order, the court must
treat the child's welfare as paramount.
section 30 order (parental order) An order of the court made under
section 30
of the Human Fertilization and Embryology Act 1990,which provides
for a child to
be treated in law as the child of the parties to a marriage if the
child has been
carried by a woman other than the wife as a result of *human
assisted
reproduction. Application must be made within six months of the
child's birth
and the child's home must be with the husband and wife at the time
of the
application.
section 37 investigation An investigation of a child's
circumstances ordered by
the court to be carried out by a local authority when the court has
cause for serious
concern about the child's upbringing. The order may be made in any
*family
proceedings, for example when an application for a residence or
contact order is
being made by a parent (see SECTION 8 ORDERS). The local authority
carrying out the
investigation must consider whether it should apply for a *care
order or a
*supervision order or assistance for the child or its family or
take any other action
with respect to the child.
section 47 enquiry An enquiry carried out by a local authority in
order to enable
it to decide whether or not it should take any action to safeguard
and promote the
welfare of a particular child. The local authority is under a duty
to carry out such
an investigation if it has reasonable cause to suspect that a child
is suffering or
likely to suffer significant harm, or is the subject of an
*emergency protection
order, or is in police protection (see POLICE PROTECTION ORDER). As
a result of its
enquiries a local authority might decide that no action is
required; alternatively, it
may decide that the family in question is in need of support and
provide the
appropriate services, or it may apply for an emergency protection
order, a *care
order, a *supervision order, or a *child assessment order. If, in
the course of its
enquiries, a local authority is denied access to a child, it should
immediately apply to
court for an emergency protection order.
sector theory A proposed basis for national claims to sovereignty
over both the
Arctic and Antarctica. The sector theory delineates a meridian line
from the pole to
the farthest extremity of the contiguous state's land mass. All
territory within that
sector is thereupon purported to be under the sovereignty of the
claimant state. It
should be.noted that this theory is not universally recognized as
the sole basis for
claiming territory in these regions.
secure accommodation order An order that allows a local authority
to restrict
the liberty of a child whom it is looking after by placing him in
secure
accommodation. Under the Children Act 1989 such orders may only be
sought in
respect of a child who has a history of absconding from unsecure
accommodation
and who, if he does abscond, is likely to suffer significant
harm.
secured creditor A person who holds some security, such as a
mortgage, for
money he has lent. If the debtor becomes bankrupt the creditor has
a choice. He
may surrender his security and claim the amount of the debt from
the bankrupt's
assets; he may realize or evaluate the security and claim any
balance of the debt in
excess of the value of the security; or he may rely on the security
and not make any
claim in the bankruptcy proceedings. Compare UNSECURED
CREDITOR.
secure tenancy A residential tenancy in which the tenant has
statutory
protection if he occupies the rented property as his home. It
applies only if there is
a certain kind of landlord, such as a local authority, the *Housing
Corporation, or a
*housing action trust. Certain tenants are excluded from
protection; these include
students, the occupants of almshouses, licensed premises, and
accommodation for
the homeless, and those renting accommodation on long leases or who
have a
*service tenancy.
If a secure tenancy is for a fixed term, the tenancy continues at
the end of the
term as a *periodic tenancy. A landlord can only terminate a secure
tenancy by
serving a notice on the tenant in a special statutory form and can
only obtain
possession with the tenant's consent or, if this is refused, by a
court order. An order
is granted only if the landlord has statutory grounds similar to
those required in the
case of an *assured tenancy. When the holder of a secure tenancy
dies, his spouse or
a member of his family who has lived with him for the past 12
months can succeed
him as tenant. Under certain conditions, secure tenants have a
right to buy their
rented property, at a discount on the market value of the property,
and with their
landlord supplying a mortgage. The Housing Act 1988 contains
provisions for the
transfer of public-sector housing to the private sector and to
housing action trusts.
See alsoINTRODUCTORY TENANCY.
secure training order See JUVENILE OFFENDER.
securities pl. n. Loosely, *stocks, *shares, *debentures, *bonds,
or any other rights
to receive dividends or interest. Strictly, the term should only be
used for rights
backed by some sort of security, as in the case of
debentures.
Securities and Investment Board (SIB) The agency set up under the
Financial
Services Act 1986 to ensure that those who are engaged in
investment business
(including dealing in, arranging deals in, and managing investments
and also giving
investment advice) are honest, competent, and solvent. It is an
offence, unless
exempt, to carryon investment business without SIBauthorization
(which may be
obtained directly or via membership of a recognized
*self-regulatory organization or
professional body). Those in contravention may be unable to enforce
transactions,
and investors who suffer loss may be entitled to compensation. The
composition of
the Board must reflect a proper balance between the interests of
those who carryon
investment business and the interests of the public.
Security Council (of the UN)See UNITED NATIONS.
security for costs A sum payable by a claimant to a civil action as
a condition of
being permitted to continue with the action. The court has
discretion as to whether
or not to order security for costs and may exercise it only in four
circumstances: (1)
when the claimant is ordinarily resident out of the area of the
jurisdiction; (2)when
the claimant is suing on behalf of someone who will be unable to
pay the
defendant's costs if ordered to do so; (3)when the claimaint's
address is dishonestly
not stated or incorrectly stated on the originating process; or (4)
the claimant has
changed his address during the course of the proceedings in order
to evade the
consequences of the litigation. A defendant may not be ordered to
give security for
costs. When security is ordered the claimant is usually ordered to
pay a sum into
court.
security of tenure Statutory protection given to tenants that
restricts landlords'
rights to obtain possession. The conditions for obtaining
possession vary according to
the kind of tenancy, but a court order is usually required. See
AGRICULTURAL HOLDING;
ASSURED AGRICULTURAL OCCUPANCY; ASSURED SHORTHOLD TENANCY; ASSURED
TENANCY;
BUSINESS TENANCY; LONG TENANCY; PROTECTED TENANCY; PROTECTED
OCCUPANCY; SECURE
TENANCY; STATUTORY TENANCY.
sedition n. The speaking or writing of words that are likely to
incite ordinary
people to public disorder or insurrection. Sedition is a common-law
offence (known
as seditious libel if the words are written) if it is committed
with the intention of
(1) arousing hatred, contempt, or disaffection against the
sovereign or her successors
(but not the monarchy as such), the government of the UK,or either
House of
Parliament or the administration of justice; (2) encouraging any
change of the law
by unlawful means; or (3) raising discontent among Her Majesty's
subjects or
promoting ill-will and hostility between different classes of
subjects. There must
be an intention to achieve these consequences by violence and
disorder. An
agreement to carry out an act to further any of these intentions is
a criminal
*conspiracy.
seduction n. 1. Enticement to have sexual intercourse. Until 1971
parents could sue
a seducer for loss of services of their child, but this has now
been abolished. lt is an
offence for a parent to cause or encourage the seduction of a
daughter under the
age of 16, the *age of consent. 2. The offence under the Incitement
to Disaffection
Act 1934 of maliciously and advisedly endeavouring to persuade any
member of HM
forces to abandon his duty or allegiance to the Crown.
seisin n. Possession of a freehold estate in land. Historically,
availability of certain
remedies for a landowner depended on being able to show seisin. In
modern times it
is unnecessary to distinguish between seisin and possession, the
latter being the
basis of most remedies available to a landowner. See also UNITY OF
SEISIN.
select committee A committee appointed by either House of
Parliament or
both Houses jointly to investigate and report on a matter of
interest to them in
the performance of their functions. Examples are the committees of
the
Commons that examine government expenditure or the activities of
government
departments and the nationalized industries, and the *Joint
Committee on Statutory
Instruments.
self-assessment n.A system enabling taxpayers to assess their own
tax liabilities
for the year. Modified tax forms, introduced with effect from the
tax year 1996-97,
contain an optional self-assessment section. Individuals who do not
want to assess
their own tax must complete the return with details of their
taxable income, etc.,
and return it by 30 September in order for the Inland Revenue to
calculate the tax
due. Taxpayers who opt for self-assessment must fill in the
relevant section and
return their tax forms by 31 January. There are automatic penalties
for late returns.
Self-assessment mainly affects company directors, employees paying
tax at the
higher rate of 40%,and the self-employed.
self-build society A *housing association whose object is to
provide, for sale to
or occupation by its members, dwellings built or improved
principally by their own
labour.
self-defence n. 1. A defence at common law to charges of *offences
against the
person (including homicide) when *reasonable force is used to
defend oneself, or
one's family, or anyone else against attack or threatened attack.
The scope of the
defence often overlaps with the statutory right to use reasonable
force to prevent a
crime, but also extends to cases in which the statutory right is
inapplicable (for
example, when the attacker is for some reason not guilty of a
crime). There is no
rule of law that a person must retreat before acting in
self-defence. If a person
acting in self-defence mistakenly uses more force than was
necessary in the
circumstances and kills his attacker, he has no defence of
self-defence (since the
force was not reasonable) and the killing will therefore amount to
murder, unless
he can show that there was also *provocation. However, in
deciding whether the
force used was justified or reasonably thought to be justified, the
jury must bear in
mind the difficulty of quickly assessing the correct amount of
force to be used. See
also GENERAL DEFENCES. 2. One of the very few bases for a legal use
of force under
international law. Under *Chapter VII (Article 51) of the United
Nations Charter,
the inherent right of self-defence is preserved. Reference to
"inherent right" has
promoted the belief that the pre-Charter right of self-defence in
customary
international law is specifically preserved by the Charter.
However, the pre-existing
right is arguably wider in scope than that allowed for by the terms
of Article 51
and may arguably also allow for anticipatory self-defence. See also
SELF-HELP; USE OF
FORCE.
self-determination n. (in international law) The right of a people
living within a
non-self-governing territory to choose for themselves the political
and legal status
of that territory. They may choose independence and the formation
of a separate
state, integration into another state, or association with an
independent state, with
autonomy in internal affairs. The systems of *mandates and
trusteeship marked a
step towards recognizing a legal right of self-determination, but
it is not yet
completely recognized as a legal norm. lt is probably illegal for
another state to
intervene against a liberation movement and it may be legal to give
assistance to
such a movement. See alsoERGA OMNES obligations.
self-employed adj. In business on one's own account, i.e. not
engaged as an
employee under a *contract of employment. Statutory employment
provisions do
not apply to the self-employed. A self-employed person may
nevertheless be the
employer of others.
self-help n. 1. Action taken by a person to whom a wrong has been
done to
protect his rights without recourse to the courts. Self-help is
permitted in certain
torts, such as *trespass and *nuisance. A trespasser may be evicted
provided only
reasonable force is used. A nuisance may be abated (see ABATEMENT).
See also
RECAPTION. 2. Independent and self-directed action taken by an
injured state against
the transgressing state in order to gain redress. Until the middle
of the 20th century
the right of self-help was claimed by states as one of the
essential attributes of
*sovereignty. In the absence of an international executive agency,
an injured state
undertook on its own account the defence of the claim it was
making. Forcible
measures falling short of war might prove sufficient; failing
these, war might be
resorted to as the ultimate means of self-help. Since self-help was
regarded at
international law as a legal remedy, the results secured by it were
recognized by the
international community as a final settlement of the case. Since
the establishment
of the United Nations, self-help with regard to *use of force can
only be legal in so
far as it forms part of a legitimate claim to *self-defence. The
remaining forms of
self-help are countermeasures, such as *retorsion and
*reprisals.
self-regulatory organization (SRO) A body whose members
carryon
investment business and regulate their own conduct. When its rules
and practices
ensure that its members are fit and proper persons, it may be
recognized by the
*Securities and Investment Board; its members then become
authorized under the
Financial Services Act 1986.
seller n. The party to a contract of *sale of goods who transfers
or agrees to
transfer ownership of the goods to the buyer. The term may also be
used in the
context of the transfer of the ownership of land, but a seller of
land is more usually
called a vendor.
Seller's Property Information Form See CONVEYANCING.
semiconductor topography Etching on a computer chip otherwise known
as a
mask work or right: an *intellectual property right protecting the
layout of a
semiconductor chip or integrated circuit. Such rights are protected
in the EU under
directive 87/54.
semi-secret trust See HALF-SECRET TRUST.
sending distressing letters The finable offence, under the
Malicious
Communications Act 1988, of sending to someone a letter or some
other article that
conveys an indecent or grossly offensive message, a threat, or
information that is
false and known or believed by the sender to be false. Sending an
indecent or grossly
offensive article is similarly punishable. The sender must have
aimed to cause
distress or anxiety. If the material contains a threat, there is a
defence similar to
that available on a *blackmail charge.
sentence n. The judgment of a court stating the *punishment to be
imposed on a
defendant who has pleaded guilty to a crime or been found guilty by
the jury.
Before the sentence is imposed, the prosecution must present the
judge with the
accused's *antecedents and the defence may then make a plea in
*mitigation of the
sentence. If the probation officer wishes to make a report, this
should be done
before the defence makes its plea in mitigation (see SOCIAL INQUIRY
REPORT). The judge
may also obtain reports from nonlegal specialists (medical experts
or social workers)
on the mental, physical, social, or personal circumstances of the
accused; if such
reports are not immediately available, he may adjourn the case (and
remand the
accused) until they are obtained. Reports are desirable when the
sentence may
involve a *community rehabilitation order or when the defendant is
facing his first
prison sentence. The court must have reports before making a
*community
punishment order, when the offender is under 21 years old, or
before attaching
conditions for medical treatment to a community rehabilitation
order. A report is
no longer required when an adult is being sentenced to
custody.
Sentence must be pronounced in open court by the presiding judge
and is almost
always pronounced in the presence of the accused. The sentence may
be altered (or
rescinded) within 28 days by the trial court, and the Crown Court
also has a further
(common-law) power to postpone sentence for more than 28 days
when
circumstances require this (e.g. when disqualifying from driving
under the *tottingup
provisions, if the driving licence is not available). There is a
power to postpone
sentence for up to six months (see DEFERRED SENTENCE).
Courts have very wide discretionary powers of sentencing in all
crimes (except
murder and treason). The penalties prescribed by law are maximum
penalties, to be
imposed in the most serious cases, and the judge must decide what
is the
appropriate sentence in each case. However, the Crime (Sentences)
Act 1997
introduces automatic minimum sentences for second-time violent
offenders (see
REPEAT OFFENDER) and for persistent burglars (see BURGLARY) and
dealers in hard drugs
(see CONTROLLED DRUGS). Judges may give a lesser sentence for
burglary and drug
dealing if the court considers the minimum would be unjust in all
the
circumstances. See also CUSTODY.
Apart from imprisonment (which may be a *concurrent sentence or a
*suspended
sentence) and *fines, the courts can impose community
rehabilitation orders,
community punishment orders, *curfew orders, confiscation orders,
and *hospital
orders, as well as an absolute or conditional *discharge. (For the
sentencing of young
offenders, see JUVENILE OFFENDER.) Magistrates' courts have less
extensive powers of
sentencing, but may sometimes, upon convicting an offender, remit
him to the
Crown Court for sentence (e.g.when he has been tried summarily for
an offence
triable either way). They are not empowered to sentence first
offenders to
imprisonment unless satisfied there is no other appropriate way of
dealing with
them. There is usually a right of appeal against sentence to the
*Court of Appeal.
The *Attorney General may refer cases to the Court of Appeal (with
its permission)
when Crown Court sentences appear unduly lenient. The Court of
Appeal may then
quash the sentence and substitute any sentence that they think
appropriate and that
the Crown Court had power to pass. See alsoNULLA POENA SINE
LEGE.
separate trials See JOINDER OF DEFENDANTS.
separation n. See JUDICIAL SEPARATION ORDER; LIVING APART.
separation agreement An agreement between husband and wife
releasing each
other from the duty to cohabit. Such an agreement will only be
valid (subject to the
ordinary rules of the law of contract) if the marriage has already
broken down; it
will be void (contrary to public policy) if they enter into it to
provide for the
contingency that the marriage may break down at some future date.
Separation
agreements often contain further clauses (such as nonmolestation
clauses,
maintenance clauses, dum casta clauses) or an agreement not to
bring other
matrimonial proceedings based on past conduct ("Rose v Rose
clauses"). Under the
Family Law Act 1996 such orders will not be granted unless the
interests of the
children are settled first. A spouse may also relinquish his rights
or powers in
relation to his children, but the court has an overriding
discretion not to enforce
such provisions if they are not for the children's benefit. A
separation agreement in
writing may be a *maintenance agreement and governed by the
Matrimonial Causes
Act 1973.
separation of powers The doctrine that the liberty of the
individual is secure
only if the three primary functions of the state (legislative,
executive, and judicial)
are exercised by distinct and independent organs. It was propounded
by
Montesquieu (De l'Esprit des Lois, 1748), who regarded it as a
feature of the UK
constitution. In fact, however, while the judiciary is largely
independent, the
legislature and the executive depend on one another and their
members overlap.
The doctrine had a great influence over the form adopted for the
constitution of
the USAand many other countries.
separation order See JUDICIAL SEPARATION ORDER.
sequestration n. A court order in the form of a writ to (usually
four)
commissioners (sequestrators), ordering them to seize control of a
person's
property. The order may be made against someone who is in *contempt
of court
because he has not complied with a court order (such as an
injunction). The property
is detained until he complies with the order.
Serious Fraud Office (SFO) A body established in 1987 to be
responsible for
investigating and prosecuting serious or complex frauds. The
*Attorney General
appoints and superintends its director. The director is empowered
to investigate any
suspected offence that appears to involve serious fraud and may
employ any
suitable person to help in the investigation. Serious and complex
fraud cases can go
straight to the Crown Court without *committal for trial. That
court can hold
*preparatory hearings to clarify issues for the jury and settle
points of law.
SERPS See STATE EARNINGS RELATED PENSION SCHEME.
servant n. An *employee.
service n. 1. The delivery of any document relating to court
proceedings. Service
may be made by physically handing the document to the person
concerned (see
PERSONAL SERVICE) or it may be delivered to the *address for
service supplied by that
person (see also SUBSTITUTED SERVICE). Once the document has been
formally issued by
the court, it must be served within 12 months (or, in the case of
claim forms, four
months) unless the court allows this period to be extended. In the
case of certain
motoring offences, such as speeding and careless and inconsiderate
driving, the
police must serve a summons within 14 days unless the accused was
warned at the
time of the offence that he might be prosecuted or unless they
serve a *notice of
intended prosecution within 14 days. 2. (contract of service) See
CONTRACT OF
EMPLOYMENT.
service court A court with jurisdiction over service personnel, who
are subject
to the services' discipline Acts, which are renewed every five
years. See also SERVICE
LAW.
service law The law that regulates the conduct of members of the
armed forces.
It consists of naval law, military law, and air-force law (military
law is the
branch relating to the army, but the expression is frequently used
to describe all
three branches). Its primary sources are the Naval Discipline Act
1957, the Army
Act 1955, and the Air Force Act 1955; supplementary sources are
Admiralty
Instructions and the Queen's Regulations both for the Army and for
the Royal
Air Force. The three Acts concerned require annual renewal. Every
fifth year an
Armed Forces Act enables them to continue in force for one year and
provides
that for each of the following four years they may be continued in
force by an
Order in Council that has been approved by resolution of each House
of
Parliament (the last such Act was the Armed Forces Act 2001, which
applies from
11 May 2001). The purpose of this procedure (which did not apply to
the Naval
Discipline Act 1957until this was provided by the Armed Forces Act
1971) is to
ensure that Parliament has an annual opportunity of debating
matters relating to
the armed forces.
Service law is a specialized code of criminal law. Its essential
concern is the
maintenance of discipline and it embodies a variety of offences
(including
*desertion, malingering, and insubordination) that have no
counterpart in the
ordinary criminal law. Since 1 April 1997it has been an offence
against service law to
refuse to take a service compulsory drug test; in addition, the
service authorities
have been empowered to take fingerprints or DNAsamples from those
convicted of
service offences, for criminal records purposes. Commanding
officers have powers
of dealing with minor offences summarily and, with effect from 2
October 2000, a
member of the armed forces may appeal against the commanding
officer's finding
and/or award to a Summary Appeal Court. The Summary Appeal Court,
consisting
of a judge advocate and two officers, may uphold, quash, or vary
the commanding
officer's finding or award. But the tribunals primarily responsible
for the trial and
punishment of offences are the *courts martial. Service law applies
to a member of
the armed forces wherever he may be. In the UK he is subject both
to service law
and to the ordinary criminal law. When he is not in the UK,the
ordinary criminal
law does not in general apply to him; the relevant Acts therefore
provide that it is
an offence under service law for any serviceman to do anything that
constitutes an
offence under the ordinary criminal law. The effect of this general
provision is to
create, in the case of a member of the armed forces who is in the
UK, a duality of
offences. If, for example, a soldier in the UK steals, he commits
an offence against
both the ordinary criminal law and service law. He cannot, however,
be punished
under both.
Although service law applies primarily to members of the armed
forces,
certain classes of civilians are also subject to it. These include
civilians employed
outside the UKwithin the limits of the command of any officer
commanding a
body of the regular forces and the families of members of the armed
forces
residing with them outside the UK.The inclusion of the latter has
had the effect
of extending the jurisdiction of courts martial to cases with which
they are
manifestly not equipped to deal. This has led to the establishment
of *standing
civilian courts.
service out of the jurisdiction *Service of a claim form or other
originating
*process outside England and Wales. Permission of the court is
required, which
will only be granted in a limited number of situations specified by
*rules of court.
In general, some particular connection must be shown between the
defendant or
the subject matter of the proceedings and the jurisdiction of the
English courts.
If the defendant is domiciled in a member state of the EU,the Civil
Jurisdiction
and Judgments Act 1982 normally requires him to be sued in the
courts of his
domicile, but the court's permission is not required to serve
originating process
against such a defendant in respect of cases where the English
courts have
jurisdiction.
service tenancy A tenancy in which the landlord is also the
tenant's employer
and the premises were let as a condition of that employment.
Although such a
tenancy may be an *assured tenancy, the landlord can apply to the
county court for
possession when he ceases to employ the tenant. The court has a
discretion whether
or not to grant possession in this case.
servient tenement Land that is subject to an encumbrance, such as
an easement,
profit aprendre, or restrictive covenant, created for the benefit
of other land, called
the dominant tenement.
servitude n. A restriction upon the exercise of a state's
sovereignty over its
territory. For example, in 1856 Russia agreed by treaty not to
fortify its own islands
in the mouth of the Gulf of Bothnia.
set-off n. 1. A monetary cross-claim that is also a defence to the
claim made in the
action by the claimant. In modern practice, any claim by a
defendant to a sum of
money (whether of an ascertained amount or not) that is also used
as a defence may
be set off against the claimant's claim. The importance of the
distinction between a
set-off and a *counterclaim arises principally in relation to
*costs when both parties
are successful. If the defendant's plea is a set-off, the claimant
will recover the
amount of his claim less the amount set off, and in the county
court, the costs will
normally be calculated in relation to the net sum recovered. If the
defendant's plea
is a counterclaim, the claimant will recover the costs of the claim
and the defendant
the costs of the counterclaim, subject to the court's overriding
discretion as to
costs. 2. The deduction of monies owed against sums due to be paid.
Many
commercial contracts lawfully contain a clause prohibiting set-offs
or counterclaims.
However, in the absence of such a clause the right to set off sums
in this way is
permitted.
setting aside An order of a court cancelling or making void some
other order or
*judgment or some step taken by a party in the action.
setting down for trial Formerly, the final stage of the
interlocutory (interim)
proceedings in an action begun by writ in the High Court. Under
the *Civil
Procedure Rules, this is now dealt with through the procedure for
*allocation for
trial.
settled adj. Ordinarily resident in the UKand not subject under
immigration law
to any restriction on length of stay there. See BRITISH
CITIZENSHIP; IMMIGRATION.
settled land Land that is the subject of a *settlement under the
Settled Land Act
1925,i.e. land in which two or more beneficial interests exist in
succession to one
another or land that is subject to certain other fetters on the
owner's powers. No
such settlements can be created after 1996; most of the
arrangements described
below can now exist as *trusts of land with the exception of
*entailed interests,
which can no longer be created. Existing settlements continue until
coming
naturally to an end. The categories were as follows. (1) Land held
in trust for any
persons by way of succession; for example, in trust for A for life
then Bfor life
then C in fee simple. (2) Entailed interests. (3)Land owned subject
to a *gift over on
a specified event. (4)Land owned for a *determinable interest. (5)
Land conveyed to a
person under 18 years (a minor cannot own or convey a legal estate
in land). (6)Land
in which a future interest may come into possession on a specified
event. For
example, when land is left to A and B provided they respectively
attain the age of
18, the elder is absolutely entitled to a half share on reaching 18
but may become
entitled to the whole of the land absolutely if the younger dies
during minority.
(7) Land charged voluntarily (i.e. without *consideration) or in
consideration of
marriage or by way of family arrangement with payment of any
rentcharge or
capital sum; for example, when the owner charges his land with
payment of income
to his wife during her life or widowhood.
A settlement made during the life of the settlor was effected by a
trust
instrument and a vesting deed. The trust instrument declared the
beneficial
interests in the land and appointed two or more individuals, or a
trust corporation
(e.g.a bank), as trustees of the settlement (see SETTLED LAND ACT
TRUSTEES). The
vesting deed transferred the legal estate in the settled land to
the immediate
beneficiary; it also had to identify the trustees of the
settlement. A will that
effected a settlement constituted the trust instrument; the legal
estate devolved
upon the testator's personal representatives on trust to vest it,
by deed or *assent, in
the immediate beneficiary. When the legal estate could not be
transferred to the
immediate beneficiary (e.g. because he was under 18), it had to be
vested in a
*statutory owner.
The purpose of the Act was to balance the protection of
beneficiaries with
future interests against the principle that the person immediately
entitled in
possession should not be prevented by the existence of future
interests from
prudently managing and dealing with the land. Thus the Act
conferred on the
immediate beneficiary powers to sell the land at the best price
reasonably
obtainable, to exchange it for other land, and to grant certain
leases (up to 50 years,
or 100 years for mining, or 999 years for building or forestry).
These transactions
*overreached the interests of the subsequent beneficiaries, who
acquired
corresponding interests in the capital money or income arising from
them. The
immediate beneficiary could also mortgage the land to raise money
to payoff other
encumbrances, to give equality of value on an exchange, and to pay
for certain
improvements. He could insist that the cost of certain improvements
(such as
rebuilding the *principal mansion house and installation of
drainage and electricity)
be paid out of capital. His statutory powers could be extended by
the terms of the
settlement but could not be excluded or restricted. The Act imposed
on the
immediate beneficiary, in exercising these powers, the duties of a
trustee for all
parties having a beneficial interest in the land. The beneficiary
thus had a dual role.
When the immediate beneficiary sold or otherwise disposed of
settled land, the
vesting deed formed the basis of his title. The purchaser was not
concerned with the
interests of beneficiaries whose rights are overreached (see
CURTAIN PROVISIONS) but
had to pay the price to the trustees of the settlement or, at the
direction of the
immediate beneficiary (the tenant for life or the person exercising
the powers of
the tenant for life), into court.
Settled land Act trustees (trustees of the settlement) Two or
more
individuals or a trust corporation (such as a bank) who are
trustees of *settled land.
Their primary function is to receive *capital money arising on a
sale or other
disposition of the land by the immediate beneficiary and to hold it
in trust for those
entitled under the settlement. Their consent is also necessary
before the immediate
beneficiary can validly exercise certain of his statutory powers;
for example, to sell
the *principal mansion house or timber cut from the land if the
settlement so
requires or to vary rights (such as easements) over other land that
benefit the
settled land.
The trustees are generally appointed by the trust instrument but
must be named
in the vesting deed. If no trustees are appointed, the Settled Land
Act 1925 provides
that they will be either (1) trustees having a power of sale of
other land comprised
in the settlement and held on similar trusts; (2) trustees having a
future power of
sale of the settled land; (3) persons appointed by the
beneficiaries if they are of full
age and entitled to dispose of the whole settled estate; or (4) the
settlor's personal
representatives, when the settlement is effected by will. Trustees
can also be
appointed by the court.
settlement n. A disposition of land or other property, made by
deed, will, or very
rarely by statute (as in the Duke of Marlborough Annuity Act 1706),
under which
trusts are created by the *settlor designating the beneficiaries
and the terms on
which they are to take the property. Settlements are of many
different kinds; for
example, *marriage settlements, *strict settlements, *voluntary
settlements, and,
particularly, settlements under the Settled Land Act 1925(see
SETTLED LAND). All
settlements of land now take effect (since 1997) as "trusts of
land.
settlement of action The voluntary conclusion of civil litigation
by
agreement of the parties. Settlement may be made at any time and is
usually
followed by the claimant filing a *notice of discontinuance. No
particular
formality must be followed, but if money is claimed by a party
under a disability
(e.g.a minor or a mental patient), a settlement is not valid (in so
far as it relates to
his claim) without the approval of the court. See also STRUCTURED
SETTLEMENT; TOMLIN
ORDER.
settlor n. A person who creates a *settlement. In a broad sense the
term includes
testators; in a more restricted sense it signifies one who settles
property during his
life.
several adj. Separate (in contrast to 'joint'), as in *joint and
several, *several
tenancy.
several tenancy Ownership of land by one person absolutely, not
jointly or in
common with another. Compare JOINT TENANCY; TENANCY IN
COMMON.
severance n. 1. The conversion of an equitable *joint tenancy in
land into a
*tenancy in common. Severance may be effected, for example, by
mutual agreement
of the joint tenants, by the bankruptcy of one of them, by sale
of the land or of one
joint tenant's interest, or by written notice to the other joint
tenants. It is not
possible to sever a legal joint tenancy, since a tenancy in common
cannot exist as a
legal estate. Any words in a conveyance of land to two or more
people that show an
intention that they take separate shares will be construed as words
of severance
creating an equitable tenancy in common, rather than a joint
tenancy. 2. The
separation of the good parts of a contract from the bad, which are
rejected. The
doctrine of severance applies to any contract which contains
clauses that are void by
statute or common law, or even, in some cases, illegal, provided
there are no *public
policy grounds against severing (see VOID CONTRACT). The courts
will, if possible, save
the contract from total invalidity by severing the offending part
and the rest of the
contract will stand under what is known as the "blue pencil" test.
When little
remains after severance, the whole contract terminates. Many
commercial contracts
contain a clause stating that void provisions may be severed. 3. An
order amending
an *indictment so that the accused is tried separately on any count
or counts of the
indictment.
severance pay Money to which an employee is entitled at common law
upon the
termination of his contract of employment; for example, pay in lieu
of notice, when
he is dismissed with inadequate notice or none. An employee
dismissed before the
expiry of a fixed-term contract can claim damages in the courts to
compensate him
for the loss of pay he would have earned during the rest of the
term, unless he was
dismissed for a breach of contract entitling the employer to
dismiss him. See also
REDUNDANCY PAYMENT; UNFAIR DISMISSAL; WRONGFUL DISMISSAL.
severe disablement allowance A noncontributory tax-free benefit
formerly
payable to those unable to work due to long-term sickness or
disablement and who
had not enough national insurance contributions to claim
*incapacity benefit. The
claimant had to show that he had been continuously incapable of
work for the
preceding 28 weeks. This benefit has been abolished by the Welfare
Reform and
Pensions Act 1999and no new claims can be made.
severe mental impairment See ARRESTED DEVELOPMENT.
sex change A change in a person's sexual characteristics, usually
by means of
surgical operation and hormone treatment. For the purposes of
marriage, the law
does not recognize the validity of such a change; sex is deemed to
be determined at
birth and cannot be changed. For the purposes of employment,
however, English law
now recognizes the validity of a sex change (see GENDER
REASSIGNMENT). See also
TRANSSEXUAL.
sex discrimination Discrimination on the ground of sex under either
the Sex
Discrimination Act or the Equal Pay Act. The Sex Discrimination Act
has a wider
definition of sex than the Equal Pay Act in that it includes within
its scope
discrimination on grounds of transsexualism (see GENDER
REASSIGNMENT) and
(probably) sexual orientation. The Equal Pay Act 1970forbids having
different terms
for men and women in their contracts of employment (see also EQUAL
PAY). The Sex
Discrimination Act 1975(as amended by the Sex Discrimination Act
1986)goes
further, prohibiting discrimination when offering a contract of
employment and
before entering into such a contract. It also prohibits
discrimination in employment
on the grounds of marital status and discrimination in partnerships
with six or
more partners, trade unions, qualifying or authorizing bodies,
vocational training,
and education. The Act provides for special exceptions; for
example, when male or
female characteristics are a genuine requirement of the job. It is
also unlawful to
victimize someone who has complained of illegal discrimination. The
Act covers both
direct and indirect discrimination. The latter includes making
conditions that apply
to both sexes but in such a way that, for instance, the proportion
of women who
can fulfil the conditions is considerably less than men. An example
would be
insisting on a record of continuous service for promotion, which is
far more
difficult for women to satisfy because of pregnancy and motherhood.
The Acts are
reviewed by the *Equal Opportunities Commission and enforced by
*employment
tribunals.
Restrictions preventing women from working where they wish,
including the
right to work underground, were removed by the Employment Act
1989.
sex offenders See SEXUAL OFFENCE.
sexual intercourse The penetration of the vagina by the penis. For
the purposes
of sexual offences involving intercourse, penetration need only be
slight and
rupture of the hymen or ejaculation is not required. See also
UNLAWFUL SEXUAL
INTERCOURSE.
sexual offence Any crime that involves sexual intercourse or any
other sexual
act. The main crimes in this category are *rape, "buggery, *incest,
"indecent
assault, *indecent exposure, *gross indecency, and *abduction (see
also CHILD ABUSE).
The Sex Offenders Act 1997created a national register of sex
offenders; the names
of those convicted of any of a range of sexual offences are entered
in this register.
Under the 1997Act, sex offenders are obliged to tell police every
time they move;
those failing to register a change of address within 14 days may be
jailed for up to
six months and ordered to pay a fine of up to £5000. Under the
Crime and Disorder
Act 1998, convicted sex offenders are subject to supervision on
release for up to ten
years.
SFO See SERIOUS FRAUD OFFICE.
shadow director A person who is not a director of a company but who
gives
instructions (rather than professional advice) upon which the
directors are
accustomed to act. Certain statutory provisions (for example, those
relating to put
and call *options) apply to both shadow directors and directors
proper.
sham marriage A marriage entered into for some ulterior motive,
without the
intention of cohabiting with the other party. Such marriages will
usually
nonetheless be deemed valid, unless one of the parties (e.g.a
person trying to
escape extradition) deceives the other party as to his identity or
the marriage is
entered into to escape a threat to life, limb, or liberty (e.g. to
enable a person
imprisoned under harsh conditions to leave his or her country) or
to escape
imprisonment.
sham plea See FALSE PLEA.
share n. A unit that measures the holder's interest in and
liability to a company.
Because an incorporated *company is in law a separate entity from
the company
membership, it is possible to divide and sell that entity in
specified units (see
(NOMINAL) CAPITAL). In the case of a company limited by shares (see
LIMITED COMPANY)
the liability of shareholders is confined to the purchase price of
the shares. Once
purchased, these units of the company become intangible property in
their own
right and can be bought and sold as an activity distinct from the
trading activities
of the company in question. While the company is a going concern,
shares carry
rights in relation to voting and sharing profits (see DIVIDEND).
When a *limited
company is wound up the shareholders have rights to share in the
assets after debts
have been paid. If there are no such assets shareholders lose
the amount of their
investment but are not liable for the company's debts (see
FRAUDULENT TRADING;
WRONGFUL TRADING).
Preference shares usually carry a right to a fixed percentage
dividend, e.g. 10% of
the nominal value (see AUTHORIZED CAPITAL), before ordinary
shareholders receive
anything and holders also have the right to the return of the
nominal value of their
shares before ordinary shareholders (but after creditors). Holders
of participating
preference shares have further rights to share surplus profits or
assets with the
ordinary shareholders. Preference shares are generally cumulative,
i.e. if no dividend
is declared in one year, holders are entitled to arrears when
eventually one is paid.
Usually preference shareholders can vote only when their *class
rights are being
varied.
Ordinary shares constitute the risk capital (also called equity
capital), as they
carry no prior rights in relation to dividends or return of nominal
value. However,
the rights they do carry are unlimited in extent: if the company is
successful, the
ordinary shareholders are not restricted to a fixed dividend
(unlike the preference
shareholders) and the high yield upon their shares will cause these
to increase in
value. Similarly, if there are surplus assets on a winding-up, the
ordinary
shareholders will take what is left after the preference
shareholders have been
satisfied. Because ordinary shareholders carry the risk of the
enterprise, they
generally have full voting rights in a *general meeting (though
some companies
issue nonvoting ordinary shares to raise additional capital without
diluting the
control of the company).
Redeemable shares are issued subject to the proviso that they will
or may be
bought back (at the option of the shareholder or the company) by
the company.
They cannot be bought back unless fully paid-up and then only out
of profits (see
CAPITAL REDEMPTION RESERVE) or the proceeds of a fresh issue of
shares made for the
purpose.
A golden share enables the holder, usually the government, to
outvote all other
shareholders on certain types of company resolution.
share capital See CAPITAL.
share certificate A document issued by a company evidencing that a
named
person is a company member and stating the number of shares
registered in his
name and the extent to which they are paid up (see CALL). A company
can be
precluded by *estoppel from denying its accuracy. The certificate
must normally be
produced on a <transfer of shares. Compare SHARE WARRANT.
share premium The amount by which the price at which a share was
issued
exceeds its nominal value (see AUTHORIZED CAPITAL). Share premiums
must be credited
by the company to a share premium account, which is subject to the
rules relating
to *reduction of capital and can only be used for certain purposes,
e.g. paying up
bonus shares (see BONUS ISSUE).
share transfer A document transferring registered shares, i.e.
shares for which a
*share certificate has been issued, usually on a stock transfer
form. A share
transfer in proper form must usually be delivered to the company
before it places
the transferee's name on the register of members (Stock Transfer
Act 1963). See also
TRANSFER OF SHARES.
share warrant A document issued by a company certifying that the
bearer is
entitled to the shares specified in it. The name of the bearer will
not appear on the
register of members until he surrenders the warrant to the company
in return for
*transfer of the shares, but he may be regarded as a company member
under the
provisions of the articles of association. The company is
contractually bound to
recognize the bearer as shareholder. Compare SHARE
CERTIFICATE.
sheriff n. The principal officer of the Crown in a county. In
relation to the
administration of justice, his (or her) functions (in practice
discharged by the undersheriff)
include the execution of *process issuing from criminal courts,
levying
forfeiture of *recognizances, and the *enforcement of judgments of
the High Court
by writs of fieri facias, possession, and delivery.
sheriff's interpleader See INTERPLEADER.
shifting use (secondary use) Formerly, a *use that operated to
terminate a
preceding use. For example, if property was given to X to the use
of A, but then to
the use of B when C paid £100 to D, B had a shifting use, which
arose when C made
the specified payment.
ship n. For the purposes of the Merchant Shipping Act 1894 (which
provides among
other things for the registration of British ships), any vessel
used in navigation and
not propelled by oars. The officially required registration of
ships is set out in the
Merchant Shipping (Registration, etc.) Act 1993: a central register
of British ships is
kept. For the purposes of ownership, a British ship is notionally
divided into 64
shares. Each share may be in different ownership, but no share may
be in the
ownership of an alien or a foreign company. Co-owners will commonly
appoint a
ship's husband or managing owner to manage the ship. The definition
of "British
ship" in the Merchant Shipping Act 1988,in relation to fishing
rights, has been
challenged under EU law (see FISHERY LIMITS; QUOTA).
shipwreck n. See WRECK.
shock n. See NERVOUS SHOCK.
shoplifting n. Dishonestly removing goods from a shop without
paying for them.
Shoplifters could be charged with *making off without payment under
the Theft
Act 1978, but it is more usual to charge them with *theft under the
Theft Act 1968.
It is not legally necessary to remove the goods from the shop
precincts in order to
be guilty of shoplifting, but in practice it is advisable to wait
until the accused has
left the shop before stopping him, as it is then easier to prove
the intention to steal
(see also ARREST). A cashier in the shop who deliberately rings up
a lower price than
the true price may be guilty of aiding and abetting theft.
short cause list A list of cases for hearing for which the trial is
expected to last
less than four hours.
short committal See COMMITTAL FOR TRIAL.
short notice A lesser period of notice of a company meeting than
that required
by law. In the case of an *annual general meeting it may be agreed
by all members
entitled to attend and vote at it; for other meetings 95% of the
shareholders must
agree. There are strict requirements for the details to be given
for short notice and
service of the notice.
short title See ACT OF PARLIAMENT.
SIB See SECURITIES AND INVESTMENT BOARD.
sickness benefit A former state benefit payable for 28 weeks to
those who did
not qualify for *statutory sick pay. It was replaced by
*incapacity benefit in April
1995.
sic utere tuo ut alienum non laedas [Latin] Use your own property
in such a
way that you do not injure other people's: a maxim often used in
cases of nuisance.
It is misleading, since only an unreasonable interference with a
neighbour's
property is actionable as a nuisance.
signature of treaty The formal and official affixing of names to
the text of a
*treaty by the representatives of the negotiating states. either as
a means of
expressing the definitive consent of the state to be bound by the
terms of the treaty:
or as an expression of provisional consent subject to
*ratification. acceptance. or
approval.
signature of will See EXECUTION OF WILL.
silence n. See RIGHT OF SILENCE.
silk n. See QUEEN'S COUNSEL.
similar-fact evidence Evidence that a party, especially the
accused, has on
previous occasions misconducted himself in a way similar to the
misconduct being
alleged against him in the proceedings before the court. The
evidence frequently
takes the form of a *previous conviction. In general, the
prosecution may not offer
similar-fact evidence as part of its case unless it can be shown to
be relevant to an
issue before the jury, for example by rebutting some defence
advanced by the
accused. Thus. if a person charged with fraud contends that he was
honestly
mistaken, the fact that he has committed similar frauds on previous
occasions may
be admissible. The judge may in his discretion exclude otherwise
admissible similarfact
evidence under section 78 of the Police and Criminal Evidence Act
1984 if he
considers that it would have an adverse effect on the fairness of
the proceedings.
simple contract (parol contract) Any *contract other than one made
by *deed.
simple trust See BARE TRUST.
sine die [Latin] Without a date. To adjourn a case sine die is to
adjourn it without
setting a date for a future hearing.
single administrative document (SAD) A single document declaring
an
import into an EU state. This is an improvement on the system it
replaced. in
which many documents were required before a product could be
imported into
the ED.
Single European Act The legislation passed in 1986 in the European
Community
(in force from 1 July 1987) that committed all member states to an
integrated
method of trading with no frontiers between countries by 31
December 1992.It was
the first Act to amend the principles of the Treaty of Rome. In
practice, some of its
terms on harmonization. such as the insurance market, have taken
considerably
longer to implement. The main creation of the Single European Act
is the *Single
Market for trading in goods and services within the ED.
Single Market The concept that underlies trading in the European
Union. as
codified in the *Single European Act 1986.The Single Market came
into force on
1 January 1993 with between 90%and 95% of the necessary legislation
enacted by
all member countries. The measures covered by the legislation
include: the
elimination of frontier controls (the full measures have been
repeatedly delayed);
the acceptance throughout the market of professional
qualifications; the acceptance
of national standards for product harmonization; open tendering for
public supply
contracts; the free movement of capital between states; a reduction
of state aid for
certain industries; and the harmonization of VAT and excise duties
throughout the
market.
single-member company See PRIVATE COMPANY.
single-union agreement A collective agreement within a company
or
establishment that recognizes only one *independent trade union for
the purposes
of *collective bargaining. The selection of the union to be
recognized for this
purpose is frequently now based on the so-called *beauty
competition. This
agreement does not restrict the rights of individual employees to
belong to a union
of their choice or not to belong to a union. However, their only
access to collective
bargaining is through the single union.
sittings pI. n. (in the *Supreme Court) The four periods of the
legal year during
which the full range of judicial business is transacted. The
sittings are Michaelrnas,
Hilary, Easter, and Trinity. Sittings were substituted for *terms
by the Judicature
Act 1873.See also VACATIONS.
slander n. A defamatory statement made by such means as spoken
words or
gestures. i.e. not in permanent form. Generally slander is only
actionable on proof
that its publication has caused special damage (actual financial or
material loss), not
merely loss of reputation. Proof of special damage is not necessary
when the slander
implies the commission of a criminal offence punishable by
imprisonment, infection
with a contagious disease, unchastity in a woman, or is calculated
to disparage a
person in his office, business, trade, or profession. See
DEFAMATION.
slander of goods (disparagement of goods) A false statement.
made
maliciously, that disparages the quality of goods manufactured and
sold by the
claimant. It is a form of the tort of *malicious falsehood. In
order to be actionable,
the statement must allege some specific defect in the claimant's
goods. A mere
assertion by a rival trader that his goods are better is not
sufficient, even if the
claim was false and malicious.
slander of title A false statement, made maliciously. that impugns
a vendor's title
to sell property. It is a form of the tort of *malicious
falsehood.
slavery n. The prohibition on slavery or forced labour as set out
in Article 4 of the
European Convention on Human Rights is now part of UKlaw as a
consequence of
the *Human Rights Act 1998. There are exceptions to this
prohibition for prisoners.
military service, normal civic obligations, and in
emergencies.
slip rule The rule permitting the correction of clerical mistakes
arising from any
accidental slip or omission in judgments or orders. Such errors can
be corrected at
any time by the court on application without an appeal.
small agreement 1. (under the Consumer Credit Act 1974) A
regulated
*consumer-credit agreement for credit not exceeding £50, other than
a hirepurchase
or conditional-sale agreement. or a regulated *consumer-hire
agreement
that does not require the hirer to make payments exceeding £50. In
both cases the
agreement is either unsecured or secured by a guarantee or
indemnity only. Some
small agreements are outside certain provisions of the Act. 2.
(under the
Competition Act 1998) An agreement in which the parties are exempt
from the
imposition of penalties (fines) for anticompetitive practices.
Section 39 of the Act
provides the exemption, and the Competition Act 1998(Small
Agreements and
Conduct of Minor Significance) Regulations 2000 defines an
anticompetitive
agreement as "small" when both parties to it have a total turnover
of under £20M.
However, no exemption applies for a price-fixing agreement.
Moreover, small
agreements are not exempt from other provisions of the 1998Act, and
thus
restrictive clauses in them may still be void.
small claims track The track to which a civil case is allocated
when the claim is
for an amount of no more than £5000 (see ALLOCATION). Before the
introduction of
the *Civil Procedure Rules in 1999, small claims were automatically
referred to
arbitration. However, a small claims hearing retains most of the
aspects of the
former procedure: the hearing is informal and in public, is based
on a paper
adjudication with the parties' consent, and there are generally no
experts and no
costs.
Despite the limit of £5000,with the approval of the court parties
may consent to
use the small claims track even if their claim value exceeds
£5000.
SMEs Small and medium enterprises: businesses having fewer than 500
employees
and a share capital or business capital of less than 75M euros.
SMEsare encouraged
by the European Commission through various aid programmes.
smuggling n. The offence of importing or exporting specified goods
that are
subject to customs or excise duties without having paid the
requisite duties.
Smuggled goods are liable to confiscation and the smuggler is
liable to pay treble
their value or a sum laid down by the law (whichever is the
greater); offenders may
alternatively, or additionally, receive a term of
imprisonment.
Social Chapter The section of the Treaty of Rome (European
Community Treaty;
Articles 117-121) that reflects the agreement of member states with
respect to the
social policies issues of the European Union. The objectives of the
Social Chapter are
to promote employment, improve living and working conditions,
establish dialogue
between management and workers by means of works councils,
implement proper
social protection, and develop human resources with a view to
lasting high
employment. The social provisions include unpaid *parentalleave for
new parents
and the principle of *equal pay for male and female workers for
equal work. The
British government finally agreed to the incorporation of these
social aims and
objectives into the main body of the founding Community Treaty in
1997with the
signing of the *Amsterdam Treaty. This has led to the adoption of a
number of
measures, including the implementation of unpaid parental leave and
*European
Works Councils and new rights for part-time workers (who are now
entitled to be
treated no less favourably than comparable full-time workers in
their contractual
terms and conditions).
social fund A fund established under the Social Security Act 1986
to meet special
needs of individuals who are entitled to benefit from it (e.g. by
cold-weather
payments). It is under the control of the Social Fund Commissioner,
who appoints
social fund officers to administer it and reports to the Secretary
of State for Work
and Pensions (formerly Social Security). Cold-weather payments are
paid (to those
entitled) for any consecutive seven-day period when the temperature
averages 0° C
or below. Other benefits from the social fund include interest-free
budgeting loans
and crisis loans, maternity and funeral payments, and
community-care grants. Loans
are repayable by deductions from social security benefits received
by the loan
recipients or their partners.
social inquiry report A report prepared by a probation officer and
made to a
criminal court to assist it in deciding what "sentence to impose on
a convicted
person. The report gives details of the person's background,
family, home
circumstances, relationships, attitudes, job situation, and
prospects. It is based on
interviews with the accused person and his family and friends. The
report gives the
probation officer's opinion on the suitability of particular kinds
of sentence; for
example, how well the accused would be likely to respond to an
order for
community service.
social policy rule See INTERPRETATION OF STATUTES.
Social Security Appeal Tribunal A tribunal that hears appeals from
decisions
by adjudication officers on claims for social security benefits
(see NATIONAL
INSURANCE). Such tribunals are subject to the supervision of the
*Council on
Tribunals; appeal against their decisions on a point of law can be
made to a Social
Security Commissioner.
sodomy n. See BUGGERY.
soft law (in international law) Guidelines of behaviour, such as
those provided by
treaties not yet in force, resolutions of the United Nations, or
international
conferences, that are not binding in themselves but are more than
mere statements
of political aspiration (they fall into a legal/political limbo
between these two states).
Soft law contrasts with hard law, i.e. those legal obligations,
found either in
*treaties or customary international law (see CUSTOM), that are
binding in and of
themselves.
software n. Computer programs, which are protected by *copyright
under the
Copyright, Designs and Patents Act 1988. EU Directive 91/250on the
legal protection
of computer programs provides that all member states must protect
computer
programs by copyright law. The directive also provides a right to
make back-up
copies of software and a very limited *decompilation right. A right
to repair is also
included, unless a software licence prohibits this. The UK
implemented the directive
by the Copyright (Computer Programs) Regulations 1992.
soldier's will See PRIVILEGED WILL.
solemn form See PROBATE.
sole solicitor A solicitor who is the sole principal of a practice,
rather than one
who practises in partnership with others.
soliciting n. 1. The offence by a prostitute of attempting to
obtain prospective
clients in a street or public place. It is punishable by a *fine at
level 2 on the
standard scale on a first conviction and at level 3 on a subsequent
conviction. Any
act committed by the prostitute (even smiling provocatively) may
constitute
soliciting, but an advertisement inviting men to visit her is not
soliciting. "Street" is
widely defined to include roads, lanes, bridges, courtyards,
alleyways, passages, etc.,
open to the public, as well as doorways and entrances of houses on
the street, and
ground adjoining and open to the street. If a prostitute in a
private house attracts
the attention of men in the street (for example by tapping on the
window and
inviting them in, or even merely by sitting at the window
illuminated by a red
light), this may be considered soliciting "in a street". 2. The
offence by a man of
persistently accosting a woman in a public place for the purpose of
prostitution (see
alsoKERB CRAWLING) or persistently accosting anybody in a public
place for immoral
purposes. "Persistently" requires either a number of single
invitations to different
people or more than one invitation to the same person.
solicitor n. A legal practitioner admitted to practice under the
provisions of the
Solicitors Act 1974.Solicitors normally take a three-year law
degree at university,
then a one-year legal practice course and examination at a law
college, followed by
two years as an employee under a training contract (previously
called articles of
clerkship), after which they are admitted as solicitors. Those
taking a nonlaw degree
spend two years at law college, taking a common professional
examination in the
first year. Practising solicitors must possess a *practising
certificate. Solicitors form
much the larger part of the English legal profession (compare
BARRISTER),
undertaking the general aspects of giving legal advice and
conducting legal
proceedings. They have *rights of audience in the lower courts but
may not act as
advocates in the Supreme Court (except in chambers) or the House of
Lords unless
they have acquired a relevant *advocacy qualification under the
terms of the Courts'
and Legal Services Act 1990. A solicitor may be sued for
professional negligence and
owes the duties of a *fiduciary to his client; these include the
duty to preserve the
confidentiality of the client's affairs.
solicitor and own client basis of costs A basis of *assessment of
costs on
which is calculated the sum that a privately represented client
must pay his own
solicitor. On this basis, all costs are allowed provided that they
are of a reasonable
amount and have not been unreasonably incurred.
Solicitor General A law officer of the Crown immediately
subordinate to the
*Attorney General. The Solicitor General is usually a Member of
Parliament of the
ruling party. He acts as deputy to the Attorney General and may
exercise any power
vested by statute in the latter (unless the statute otherwise
provides) if the office of
Attorney General is vacant or the Attorney General is unable to act
through illness
or has authorized him to act.
Solicitors' Disciplinary Tribunal A tribunal established under the
Solicitors
Act 1974for hearing applications and complaints against solicitors.
It has the
power to strike the name of a solicitor off the roll and to restore
the name of a
solicitor previously struck off, suspend a solicitor from practice,
and order the
payment of a penalty. The members of the tribunal are practising
solicitors of not
less than ten years' standing and some lay members. They are
appointed by the
*Master of the Rolls. Appeals from decisions of the tribunal can be
brought to the
High Court of the Master of the Rolls. See also OFFICE FOR THE
SUPERVISION OF
SOLICITORS.
solicitor's lien The right of a solicitor to retain papers or
property of his client as
security for the payment of his costs. There are two types of lien:
a retaining lien,
i.e. a right to retain property already in his possession until he
has been paid costs
due to him: and a lien on property recovered or preserved, i.e. a
right to ask the
court to direct that personal property recovered under a judgment
obtained by his
exertions stand as security for his costs of the recovery. By
statute the second type
of lien has been extended to confer upon the court the power to
make a *charging
order over real and personal property recovered or preserved in
proceedings by the
solicitor.
Solicitors Practice Rules Rules, made by the Council of the *Law
Society with
the agreement of the *Master of the Rolls, for regulating the
professional practice, ."
conduct, and discipline of solicitors. The power to make the rules
is conferred by the
Solicitors Act 1974.
sovereign n. See CROWN.
sovereign immunity The exemption of the sovereign or other head of
aforeign
state and foreign governmental departments from the jurisdiction of
the English
courts. The principles governing this exemption are now contained
in the State
Immunity Act 1978and are consistent with the European Convention on
State
Immunity. The immunity granted is no longer absolute; it is subject
to numerous
exceptions outlined in the Act. Subject to modifications, the
Diplomatic Privileges
Act 1964 extends to foreign sovereigns the same privileges and
immunities as are
granted to heads of diplomatic missions. It is now clear under
English law that such
immunity does not apply to former heads of state who are alleged to
have
committed crimes against humanity.
sovereignty n. Supreme authority in a state. In any state
sovereignty is vested in
the institution, person, or body having the ultimate authority to
impose law on
everyone else in the state and the power to alter any pre-existing
law. How and by
whom the authority is exercised varies according to the political
nature of the state.
In many countries the executive, legislative, and judicial powers
of sovereignty are
exercised by different bodies. One of these bodies may in fact
retain sovereignty by
having ultimate control over the others. But in some countries,
such as the USA, the
powers are carefully balanced by a constitution. In the UK
sovereignty is vested in
Parliament (see SOVEREIGNTY OF PARLIAMENT).
In international law, it is an essential aspect of sovereignty that
all states should
have supreme control over their internal affairs, subject to the
recognized
limitations imposed by international law. These limitations
include, in particular, the
international law of *human rights and the rules forbidding the use
of force.
However, no state or international organization may intervene in
matters that fall
within the domestic jurisdiction of another state. The concept of
state sovereignty
was outlined, among other things, in a declaration on Principles of
International Law
(Resolution 2625),proclaimed by the General Assembly of the United
Nations in 1970.
sovereignty of Parliament The constitutional principle that the
legislative
competence of Parliament is unlimited. No court in the UKcan
question its power
to enact any law that it pleases. In practice, however, Parliament
does not assume
unlimited authority; it can legislate only for territories that are
recognized by
international law to be within its competence, i.e. the UK, the
Channel Islands and
the Isle of Man, and UKdependencies. The *Welsh Assembly, *Scottish
Parliament,
and *Northern Ireland Assembly have devolved power in certain
areas.
SPC See SUMMONS PRODUCTION CENTRE.
Speaker n. See HOUSE OF COMMONS; LORD CHANCELLOR.
special administration See LIMITED ADMINISTRATION.
special agent See AGENT.
special business Business that can only be transacted at a general
meeting if its
general nature has been specified in the notice convening the
meeting. See ANNUAL
GENERAL MEETING; EXTRAORDINARY GENERAL MEETING.
special case 1. A statement of facts agreed by the parties to a
civil action and
directed by the court to be tried at a different time from that of
the trial of the
action. It may raise issues of fact or law and should be signed by
counsel if settled
by him. 2. Formerly, a statement of the findings of an arbitrator,
submitted for the
opinion of the High Court. This procedure has now been replaced by
a form of
"appeal on a question of law only.
special damages See GENERAL AND SPECIAL DAMAGES.
special defences See GENERAL DEFENCES.
special endorsement See ENDORSEMENT.
special hospital A hospital (e.g.Broadmoor or Rampton) controlled
and managed
by the Home Secretary for persons suffering from *mental disorder
who require
detention under special security conditions, because of their
dangerous, violent, or
criminal propensities.
speciality n. The principle that the state requesting the
*extradition of a fugitive
from another state must, in order for the request to succeed,
specify the crime for
which the accused is to be extradited. Further, the requesting
state must only try
the individual for the crime specified in the extradition request.
See alsoDOUBLE
CRIMINALITY.
special notice The 28 days' notice that is required to be given to
a registered
company of an intention to propose certain resolutions at a
*general meeting of the
company. These resolutions are: (1) appointing or removing an
auditor; (2)removing
a director before his term of office expires or appointing a new
director to replace
him at the same meeting; and (3)appointing or approving the
appointment of a
director over the age of 70. The company must then give 21 days'
notice of the
meeting to the members. See SHORT NOTICE.
special parliamentary procedure See SPECIAL PROCEDURE ORDERS.
special plea A *plea in bar of arraignment, e.g. *autrefois acquit
or *autrefois
convict.
special power See POWER OF APPOINTMENT.
special procedure (in divorce proceedings) A speedy, simple, and
cheap procedure
for uncontested divorce cases introduced in the mid-1970s.A
district judge
scrutinizes the divorce application and, if satisfied that the
ground is made out,
issues a certificate to that effect. The divorce is then formally
granted in open
court; neither party need appear. The introduction of the special
procedure
revolutionized divorce law and is now used in the majority of
cases.
special procedure material Jounalistic and other confidential
material acquired
or created in the course of a trade, business, profession, or
unpaid office. Under the
Police and Criminal Evidence Act 1984, *warrants to search for such
material can
only be obtained by following a special procedure and require the
authority of a
*circuit judge.
special procedure orders A form of *delegated legislation
consisting of orders
made by government ministers under powers that are expressed in the
enabling
statute to be exercisable by order subject to special parliamentary
procedure. The
Statutory Orders (Special Procedure) Act 1945 then applies, and,
after a local inquiry
is held, the order must be laid before Parliament and petitions for
its annulment or
amendment may be presented. Special procedure orders, which have
largely replaced
provisional orders, are used primarily to confer powers on local
authorities. The
*compulsory purchase of land must also in certain cases (e.g. land
owned by local
authorities or the National Trust) be effected by a special
procedure order.
special resolution A decision reached by a majority of not less
than 75% of
company members voting in person or by proxy at a general meeting.
At least 21
days' notice must be given of the meeting.
special trust See ACTIVE TRUST.
specialty n. See DEED.
special verdict 1. A verdict of not guilty by reason of *insanity.
2. A verdict on
particular questions of fact, without a general conclusion (in
criminal cases) as to
guilt or (in civil cases) in favour of the claimant or the
defendant. The judge asks
the jury their opinion on the facts, but decides the general
question himself. Such
verdicts in criminal cases are very rare. Compare GENERAL
VERDICT.
specification n. 1. (in *patent law) A document that must be lodged
with an
application for a patent for an invention. It must contain a
description of the
invention, a claim defining the matter for which the applicant
seeks protection, and
any drawing referred to in the description or claim. 2. A general
document in
which a commercial buyer or seller describes goods to be bought or
sold. It is
sometimes incorporated into the contract by reference.
specific delivery See WRIT OF DELIVERY.
specific devise See DEVISE.
specific directions See COMMUNITY LEGAL SERVICE.
specific goods Goods specifically identified at the time a contract
of sale is made,
e.g. a named car with a specified registration number. If the
subject matter is not so
identified, the contract is for the sale of *unascertained goods.
In a contract for the
sale of specific goods the seller is bound to deliver the
identified goods and no
others.
specific intent See INTENTION.
specific issue order See SECTION 8 ORDERS.
specific legacy See LEGACY.
specific performance A court order to a person to fulfil his
obligations under a
contract. For example, when contracts have been exchanged for the
sale of a house,
the court may order a reluctant seller to complete the sale. The
remedy is a
discretionary one and is not available in certain cases; for
example, for the
enforcement of a contract of employment or when the payment of
damages would
be a sufficient remedy.
specimen of blood A specimen of blood for analysis, used as an
alternative to a
*specimen of breath in cases involving *drunken driving. A police
officer may
require a specimen of blood if he reasonably believes that he
cannot demand a
breath specimen for medical reasons, if an approved and reliable
device for taking a
breath specimen is unavailable or cannot be used, or if the
defendant is suspected of
being unfit to drive and a doctor believes that his condition is
due to a drug. A
police officer may also ask for a blood specimen if the suspect is
in hospital (subject
to the consent of the doctor treating him). A suspect may be asked
to give a blood
specimen under these conditions even if he has already given a
breath specimen.
A blood specimen may only be taken with the defendant's consent and
by a
medical practitioner, otherwise it cannot be used as evidence in
any proceedings. It
must be analysed by a qualified analyst, who must sign a
certificate stating how
much alcohol he found. The suspect may ask to be given half the
specimen for his
own analysis, which may be used to contradict the prosecution's
evidence; if he has
asked for but was not given half of the sample, the other half may
not be used in
evidence against him. A *specimen of urine may sometimes be taken
as an
alternative to a blood specimen.
In all other respects the law relating to blood specimens is the
same as that
relating to breath specimens.
specimen of breath A specimen of breath for analysis taken from a
person
suspected of *drunken driving. It is this specimen that usually
forms the evidence
for a prosecution and conviction for offences of drunken driving
and should not be
confused with the preliminary *breath test. The specimen may be
required
whenever the police are investigating any of these offences, but
only if the suspect
is at the police station. Usually he will have been brought to the
station under arrest
as a result of a positive breath test or refusal to undergo such a
test. It is an offence
not to provide a specimen without a reasonable excuse, and the
police officer should
warn a suspect of this when asking for the specimen. This offence
is punishable by
fine or imprisonment, endorsement (which carries 10 penalty points
under the
*totting-up system), and discretionary disqualification (in cases
of being in charge
of a vehicle) or compulsory disqualification (in cases of driving
or attempting to
drive).
The suspect must give two breath specimens, which should be
measured by means
of an approved electronic device (not the *breathalyser used for
the preliminary
breath test) that automatically prints out the level of alcohol in
the breath. A printout
of the lower of the two readings is used as evidence in a
subsequent trial,
together with a signed certificate by a police officer that it
refers to the defendant's
specimen given at the stated time. The defendant must be given a
copy of these
documents at least seven days before his trial, and he may serve
notice not later
than three days before the trial that he requires the police
officer who signed it to
attend the hearing. At his trial, a defendant may bring evidence to
show that he
drank more alcohol between the time of the alleged offence and
giving the
specimen and that this accounted for his exceeding the prescribed
limit. It is an
offence, however, to deliberately drink more alcohol in order to
make it difficult to
prove his guilt.
Once a suspect has given a specimen he is free to leave the police
station, but the
police may detain him if they reasonably suspect that he is likely
to continue
driving with an excess alcohol level or while unfit to drive. Under
certain
circumstances the suspect can provide either a *specimen of blood
or a *specimen
of urine instead of a breath specimen. If the breath specimen
records a reading of
more than 35 but less than 50 micrograms of alcohol per 100 ml of
breath (and
prosecution is intended), the suspect is entitled to ask that it
should be replaced by a
blood or urine specimen.
specimen of urine A specimen of urine for analysis, used as an
alternative to a
*specimen of breath in cases involving *drunken driving. A specimen
of urine may
be required when there are objections to taking a breath specimen
and when a
medical practitioner thinks that a *specimen of blood should not be
taken for
medical reasons. A urine specimen must be provided within one hour
after it has
been asked for; two specimens are asked for, and it is the second
specimen that is
used as evidence in a subsequent trial. In all other respects the
law relating to urine
specimens is the same as the law relating to blood and breath
specimens.
speeding n. Driving a motor vehicle at a speed in excess of that
permitted. All
vehicles adapted to carry more than seven passengers (apart from
the driver) and all
goods vehicles are restricted at all times to a maximum speed of 40
mph (unless
they weigh less than 30 cwt unladen, in which case the maximum
speed is 50 mph).
Invalid carriages are restricted to 20 mph. Goods vehicles
exceeding 3 tons unladen
are restricted on motorways to 60 mph. Other vehicles are subject
to speed limits
determined by the class of road, unless road signs specifically
indicate otherwise (Le.
30 mph for restricted roads; 60 mph for single carriageways; 70 mph
for dual
carriageways and motorways).
The penalty for speeding is a fine, *endorsement (carrying 3
penalty points under
the *totting-up system), and discretionary *disqualification. A
person cannot be
convicted of a speeding offence on the evidence of one witness
alone, but the
evidence of a single police officer reading his speedometer may be
enough to secure
a conviction. Speeding may itself be evidence of *careless and
inconsiderate driving
or *dangerous driving, but it is an offence in its own right even
if it caused no
danger and the driver was not in any way at fault. Speeding
offences are subject to
the requirement of a *notice of intended prosecution.
spent conviction A conviction that, after a specified number of
years known as
the rehabilitation period, may in all subsequent civil proceedings
be treated as if it
had never existed. The length of the rehabilitation period depends
on the gravity of
the offence, and some convictions are not subject to rehabilitation
(e.g.when the
sentence was life imprisonment). Dismissal from a job on the
grounds of an
undisclosed spent conviction may amount to *unfair dismissal.
Similarly, to deny
that one has been convicted if the conviction is spent does not
amount to *perjury
or *deception. Malicious publication of statements about a person's
spent
convictions can make the publisher liable for defamation, even if
the statements are
true. The provisions relating to spent convictions do not apply in
criminal
proceedings, but counsel and the court should, as far as possible,
avoid referring to a
spent conviction and references to it in open court may only be
made with express
leave of the judge in the interests of justice. A spent conviction
in a record should
be marked as such. See also CRIMINAL RECORDS AGENCY.
spes successionis [Latin: hope of succeeding] See
POSSIBILITY.
split order Formerly, an order for custody of a child made by
divorce courts,
granting legal custody to one parent and care and control to the
other. It was made
obsolete by the Children Act 1989.See PARENTAL RESPONSIBILITY;
SECTION 8 ORDERS.
split trial A trial in the *High Court (or, exceptionally, in the
county courts) in
which the issues of liability and amount of damages are tried
separately.
springing use Formerly, a *use that arose on the occurrence of a
future event. If
property was given to X to the use of A when A married, A had a
springing use that
arose on his marriage.
spying (espionage) n. Obtaining or passing on to an enemy
information that
might prejudice the safety or interests of the state or be useful
to an enemy. See
OFFICIAL SECRETS.
squatter n. A person unlawfully occupying land. See ADVERSE
OCCUPATION; ADVERSE
POSSESSION; TRESPASS.
squatter's title See ADVERSE POSSESSION.
S1 Statement See WRIITEN STATEMENT OF TERMS OF EMPLOYMENT.
stag n. A speculator who applies for a new issue of securities in a
public company
with the intention of making a quick profit by reselling them if
they increase in
value within a few days of issue. This will only occur if the issue
is oversubscribed,
i.e. if there are more applicants for shares than there are shares
available.
stakeholder pension A new type of low-cost pension, available from
6 April
2001. Employers with five or more employees may have to make a
stakeholder
pension available to their staff. Employers can choose to do this
from 6 April 2001,
and they must do this by 8 October 2001. Stakeholder pensions are
also available
from authorized financial institutions, such as insurance
companies, banks, and
building societies. Stakeholder pension providers can only charge a
maximum of 1%
of the value of the pension fund each year to manage the fund, plus
costs and
charges (such as stamp duty). Any extra services and any extra
charges not provided
for by law, such as advice on choosing a pension or life assurance
cover, must be
optional. All stakeholder schemes will accept contributions of as
little as £20,
payable weekly, monthly, or at less regular intervals. The scheme
must be run by
trustees or by an authorized stakeholder manager.
stakeholder's interpleader See INTERPLEADER.
stalking Persistent threatening behaviour by one person against
another. The
Protection from Harassment Act 1997creates two offences relating to
stalking. If
the harasser's behaviour makes the victim fear for his or her
safety, the maximum
penalty is five years' imprisonment and/or an unlimited fine. When
the behaviour
does not lead to a fear of violence but does cause distress, the
maximum penalty is
six months in prison and/or a fine of up to £5000. The behaviour
must have taken
place on more than one occasion and the prosecution must show that
a reasonable
person would realize that the behaviour would have the effect of
causing the
victim to fear violence or feel harassed. Both offences are
immediately arrestable
without a warrant, and the police have power to search the
harasser's property. The
courts may make a restraining order immediately after convicting a
person of
either of the two offences. In Scotland the common law has always
provided
protection against stalking through the offence of breach of the
peace. See also
MOLESTATION.
stamp duty A tax payable on certain legal documents specified by
statute. It can
take the form either of a fixed duty, in which the same amount is
payable on all
documents of the same kind, or an ad valorem duty, when the amount
of duty varies
according to the value of the transaction effected by the document.
Documents that
are insufficiently or improperly stamped cannot be admitted as
evidence in civil
proceedings and they are therefore legally unenforceable. Documents
must be sent
for stamping within certain time limits to avoid incurring
penalties. Stamp duty is
controlled by the Inland Revenue. Stamp duty is payable on all
transfers of land at
0% up to and including a value of £60,000; 1%if the value of the
transfer is over
£60,000 but not more than £250,000, 3% on transfers over
£250,000but less than
£500,000, and 4% above £500,000. The rates on other types of
property, including
leases and stocks and shares, also vary with the value.
standard basis (of assessment of costs) See COSTS.
standard-form contract A commercial contract (e.g.a routine
contract of
carriage or insurance) that is concluded on terms issued by the
offeror in standard
form and allows for no effective negotiation. In French law such a
contract is
known as a contrat d'adhesion.
standard investment criteria See GENERAL POWER OF INVESTMENT.
standard of proof The degree of proof required for any fact in
issue in
litigation, which is established by assessing the evidence relevant
to it. In criminal
cases the standard is *proof beyond reasonable doubt (see also
BURDEN OF PROOF); in
civil cases (including divorce petitions) the standard is proof on
a balance of
probabilities.
standing civilian court A court, provided for by the Armed Forces
Act 1976,for
the trial outside the UK of lesser offences committed by certain
civilians, e.g. the
families of servicemen (see SERVICE LAW). The Secretary of State
for Defence (with the
approval of the Lord Chancellor) specifies which areas such courts
serve and draws
up panels of serving officers and civilians to sit as assessors.
The Lord Chancellor
appoints legally qualified persons to act as magistrates in the
courts.
standing committee A committee of the House of Commons appointed to
take
the committee stage of public Bills allotted to it by the
government. There are
about 8 such committees (the number varies according to need), each
consisting of
between 16 and 50 members who are nominated by a Committee of
Selection to
reflect the political composition of the House as a whole. Compare
COMMITTEE OF THE
WHOLE HOUSE.
standing mute The refusal of the defendant in a trial on indictment
to plead to
the indictment. A jury, drawn from any 12 people who happen to be
present, must
be empanelled to say whether the defendant is mute of malice (i.e.
is wilfully
refusing to plead) or is mute by visitation of God (i.e. is
suffering from some
physical or mental impairment that is preventing him from
pleading). None of the
jurors may be challenged by the defendant. If the verdict of the
jury is mute of
malice, a plea of *not guilty is entered; if mute by visitation of
God, the jury must
consider whether the defendant is *unfit to plead.
A person who is merely deaf and dumb may plead to an indictment
through an
interpreter. See alsoUNFIT TO PLEAD.
stare decisis [Latin: to stand by things decided] A maxim
expressing the
underlying basis of the doctrine of *precedent, i.e. that it is
necessary to abide by
former precedents when the same points arise again in
litigation.
state n. A sovereign and independent entity capable of entering
into relations with
other states (compare PROTECTED STATE) and enjoying
*internationallegal personality.
To qualify as a state, the entity must have: (1) a permanent
population (although, as
in the case of the Vatican or Nauru, this may be very small); (2) a
defined territory
over which it exercises authority (although its borders, as in the
case of Israel, need
not be defined or undisputed); (3)an effective government. There
are currently over
180 states. When a new state comes into existence, it is
automatically bound by the
principles of international law.
For some purposes, entities that do not normally qualify as fully
fledged states
may nonetheless be treated as such. Liechtenstein, for example, was
refused
admission as a state to the League of Nations (and did not become a
member of the
United Nations until 1990), but is a party to the Statute of the
International Court of
Justice, which is only open to states. See also BOUNDARY:
JURISDICTION.
state aid Government assistance, often to local businesses, which
is usually of a
financial nature and discriminates against businesses trying to
compete with them.
Articles 87-89 of the *Treaty of Rome and provisions in the *Paris
Treaty regulate
the granting of such aid. Article 87 prohibits state aid, but the
EU may approve
certain types of state aid that are beneficial. About 30 cases a
year are challenged by
the European Commission under these provisions.
State Earnings Related Pension Scheme (SERPS) A scheme run by the
UK
government to provide a pension for employees in addition to the
state retirement
*pension. Contributions are made through national insurance
payments. Those
wishing to contract out of SERPS may subscribe to a personal
pension scheme. SERPS
is expected to be reformed in September 2002, to provide more
generous benefits
for certain groups, such as the disabled. This will be called the
State Second
Pension.
statement of affairs 1. A document that must be prepared by a
debtor after a
*bankruptcy order has been made against him except when the
bankruptcy order
was made on his own petition or when the court excuses him. It
gives details of his
assets, debts and liabilities, the names and addresses of his
creditors, and what
securities they hold. The debtor must send the statement to the
official receiver, and
the creditors are entitled to inspect it. A debtor who wrongly
fails to submit a
statement of affairs is guilty of *contempt of court. See also
BANKRUPTCY. 2. See
VOLUNTARY WlNDING-UP.
statement of arrangement for children A statement of proposed
arrangements for the children of divorcing parents, which must be
filed before a
divorce is granted. The statement must be scrutinized by the court,
which may
make certain orders in respect of the children.
statement of case A formal written statement in a civil action
served by each
party on the other, containing the *allegations of fact that the
party proposes to
prove at trial (but not the evidence by which they are to be
proved) and stating the
remedy (if any) that the party claims in the action. Before the
introduction of the
*Civil Procedure Rules in 1999, statements of case were called
pleadings.
Statements of case include *claim forms, *particulars of claim,
*defences,
*counterclaims, and replies to defences. All statements must
include a *Statement
of Truth. Statements of case must contain only material facts, i.e.
those facts
essential to the party's claim or defence, and not the subordinate
facts that are the
means of proving them. It is customary to include the inferences of
law that the
party claims are to be drawn from the facts stated, although this
is not essential.
Allegations of law as such (legal arguments) are not permitted.
Since the purpose
of statements of case is to define clearly the issues in the action
and to give the
parties notice of the other side's case, sufficient details must be
given of each
allegation.
statement of claim Formerly, a pleading served by the claimant in
an action
begun by writ of summons in the High Court. Under the *Civil
Procedure Rules,
statements of claim are now known as *particulars of claim.
Statement of Objections A document issued by the European
Commission
setting out the case against a business that has infringed the
rules of competition
law under *Articles 81 and 82 of the Treaty of Rome. The statement
will set a
reasonable time limit for a reply, which can be extended (about 2~3
months is the
usual period initially given).
statement of reasons for dismissal A written notice of the reasons
for an
employee's dismissal or for the nonrenewal of a fixed-term
contract. Under the
terms of the Employment Rights Act 1996,a dismissed employee having
one year's
*continuous employment may demand such a statement from his
employer and
may complain to an employment tribunal if the statement is refused
or not
provided within 14 days. If an employee is dismissed during her
pregnancy or after
the birth of her child in circumstances in which her maternity
leave period ends by
reason of the dismissal, the employee is entitled to such a
statement without
making any request and irrespective of the period of continuous
employment (see
MATERNITY RIGHTS).
Statement of Truth (in civil proceedings) A statement made by a
party (or his
authorized agent, e.g. lawyer) that he believes the content of the
document in which
the Statement of Truth appears is true. The requirement of the
Statement of Truth
was the result of the *Civil Procedure Rules and seeks to avoid the
need to swear
affidavits in support of various statements made during a claim.
Statements of
Truth are required in *statements of case, witness statements, and
experts' reports.
The deliberate provision of false information in a Statement of
Truth is a contempt
of court.
statements of standard accounting practice (SSAP) Statements
published
by the Accounting Standards Board that define the principles on
which a
company's assets and liabilities should be valued and its profits
and losses
computed.
state of emergency See EMERGENCY POWERS.
state responsibility The obligation of a state to make reparation
arising from a
failure to comply with a legal obligation under international law.
See alsoESPOUSAL OF
CLAIM.
State Second Pension See STATE EARNINGS RELATED PENSION
SCHEME.
Stationery Office, The (tSO) The privatized body that, on 1 October
1996,took
over the functions of *Her Majesty's Stationery Office (HMSO) in
selling
government and related legislative material. All Acts of Parliament
and government
regulations can be purchased from tSO. HMSOremains in public
ownership; its
functions include administration of Crown and Parliamentary
copyright through its
Copyright Unit.
status n. A person's legal standing or capacity. The term derives
from Roman law,
in which it referred to a person's freedom, citizenship, and family
rights. Status is
an index to legal rights and duties, powers, and
disabilities.
statute n. See ACT OF PARLIAMENT.
statute-barred debt A debt that has not been recovered within the
period
allowed by the legislation relating to *Iimitation of actions. Such
a debt can no
longer be recovered by action. The limitation period for debts due
on promises made
by deed is 12 years from the date the debt became due. For other
debts the
limitation period is six years from the date the debt became due.
However, in
certain contracts of loan that do not provide for repayment of the
debt by a fixed
date and in which repayment is not conditional on a demand by the
creditor, the sixyear
period will not start to run until the creditor makes a demand in
writing for
repayment of the debt.
statute book The entire body of existing statutes.
statute law The body of law contained in Acts of Parliament.
Compare CASE LAw.
statutorily protected tenancy A tenancy that has *security of
tenure and, in
some cases, statutory control of rent.
statutory assignment See ASSIGNMENT.
statutory company A *company incorporated by the promotion of a
private Act
of Parliament. Compare REGISTERED COMPANY.
statutory corporation See PUBLIC CORPORATION.
statutory declaration A *declaration made in a prescribed form
before a justice
of the peace, notary public, or other person authorized to
administer an oath.
Statutory declarations are used in extrajudicial proceedings and
not in court, but
have similar effects to declarations made on oath.
statutory demand A standard form used for the enforcement of debts.
It
typically sets out a demand by a creditor to a debtor to honour
payment of an
amount owing. The amount may be due immediately or at a future date
(if the
creditor has reasonable grounds for believing that it will not be
paid at this date).
The demand will also specify a period of three weeks for repayment
or other
satisfactory solution. Failure to comply with the demand by the
debtor will be
evidence of an inability by the debtor to pay creditors and can be
used to support a
*compulsory winding-up petition.
Statutory Form of Conditions of Sale Standard terms of contract for
the sale
and purchase of land, published by the Lord Chancellor under the
Law of Property
Act 1925. They cover, for example, the vendor's obligations in
proving his title to the
land, the completion of the transaction, and the payment of
interest by the
purchaser if he fails to complete on the due date. The Statutory
Form applies
automatically to contracts made by correspondence subject to any
express
agreement between the parties, and any valid contract for the sale
and purchase of
land may be expressed to incorporate the Statutory Form.
statutory instrument Any *delegated legislation (not including
subdelegated
legislation) to which the Statutory Instruments Act 1946 applies.
This includes (1)
delegation made under powers conferred by an Act passed after 1947,
either on the
Crown or on a government minister, and expressed by that Act to be
exercisable by
Order in Council in the former case or by statutory instrument in
the latter; or (2)
delegation made after 1947 under powers conferred by an earlier Act
and formerly
governed by the Rules Publication Act 1893 (which was replaced by
the 1946 Act and
provided for the publication of delegated legislation to which it
applied in an
official series known as statutory rules and orders). Regulations
or orders made
before the 1946 Act came into force may still be statutory
instruments if the power
they exercise was a power to make statutory rules within the
meaning of preexisting
legislation, which was duly conferred on a rule-making authority
under
that legislation.
The 1946 Act relates in part to the publicity to be given to
statutory instruments,
requiring them to be numbered, printed, and published by the
Queen's printer.
They are numbered consecutively for each calendar year in the order
in which the
printer receives them; for example, the first statutory instrument
to be received in
1993would be cited as "S.1. 1993 No.1". Moreover, as a modification
of the rule
ignorantia juris non excusat (ignorance of the law is no excuse),
the Act makes
nonpublication a defence to proceedings for contravening a
statutory instrument
unless other adequate steps had been taken to bring it to the
public notice. The Act
is also concerned with certain aspects of parliamentary control. It
standardizes
negative resolution procedure for statutory instruments by
providing that, if the
enabling statute simply makes them subject to annulment by
resolution of either
House of Parliament, they are to be laid before Parliament for 40
days and liable to
annulment during that period. It further provides that any
statutory instrument
required to be laid (either because of that rule or because the
enabling statute
expressly says so) must be laid before becoming operative unless
there is good
reason to the contrary (in which case, an explanation must be given
to the Lord
Chancellor and the Speaker). See alsoJOINT COMMITTEE ON STATUTORY
INSTRUMENTS.
statutory interpretation See INTERPRETATION OF STATUTES.
statutory lives in being See RULE AGAINST PERPETUITIES.
statutory maternity pay See MATERNITY RIGHTS.
statutory owner A person having the powers of an immediate
beneficiary of
*settled land, where the beneficiary himself is under 18 or there
is no immediate
beneficiary (for example, in a discretionary settlement in which no
beneficiary
has been appointed). The statutory owner is either the person of
full age on whom
the powers are conferred by the settlement; the trustees of the
settlement (see
SETTLED LAND ACT TRUSTEES); or, in a settlement made by will on a
beneficiary under
18, the testator's personal representatives until a vesting
instrument has been
effected.
statutory periodic tenancy A *periodic tenancy that comes into
operation on
the expiration of an *assured tenancy for a *fixed term unless that
tenancy is
terminated by a court order or *surrender of the tenancy. The
statutory periodic
tenancy is on the same terms as the fixed term tenancy before it
expired, except for
the condition for terminating the tenancy at the end of the term.
However, the
landlord or tenant can apply to a *rent assessment committee to
vary the terms of
the tenancy. See alsoASSURED SHORTHOLD TENANCY.
statutory rules and orders See STATUTORY INSTRUMENT.
statutory sick pay (SSP) Weekly payments by employers to employees
unable to
work because of sickness; it is payable, after the first three days
of sickness, for a
period of up to 28 weeks, after which employees can claim
*incapacity benefit.
Employees who do not qualify for SSPinclude those with fixed
contracts of no more
than three months and recipients of any social security benefits
during the previous
eight weeks. Formerly all employers were entitled to an 80%
reimbursement for SSP
by the government, and smaller companies were entitled to full
reimbursement
after the first six weeks of each SSPclaim. However, this position
has been gradually
altered since 1994. Currently in most cases no recoupment will be
possible. The only
exception is where an employer pays out, in any income-tax month,
SSPexceeding
13%of his liability to pay national insurance contributions in that
month. In such
circumstances that excess can be recouped.
statutory tenancy A tenancy that comes into existence when the
contractual
element of a *protected tenancy is terminated and the former
protected tenant
continues to live in the property (a company cannot be a statutory
tenant). A
statutory tenancy continues only for as long as the tenant lives in
the property
(therefore it will end if the tenant attempts to sublet). When the
tenant dies,
however, the statutory tenancy can be transmitted to his spouse if
she was living in
the dwelling immediately before the tenant's death. If there is no
spouse, the
tenancy can be transferred to another member of the tenant's family
who was
living with him for the previous two years. This is known as a
statutory tenancy
by succession. The terms of a statutory tenancy are, in general,
the same as those
of the original contractual tenancy. If there is no provision for
notice in the original
tenancy, the tenant must give three months notice to terminate his
tenancy. A
landlord can terminate a statutory tenancy only by obtaining a
court order for
possession. Statutory tenancies are being phased out as no new
protected tenancies
can be created after the Housing Act 1988.See ASSURED TENANCY
statutory trust Until 1997, a trust created by statute when land
was held by
trustees on trust pending its sale (see TRUST FOR SALE). Any income
from the land
prior to its sale and the proceeds of sale itself was held in trust
by the trustees.
Unless there was a contrary intention, the trustees had the right,
at their discretion,
to postpone sale. Since 1997, statutory trusts have been replaced
by *trusts of land
governed by the Trusts of Land and Appointment of Trustees Act
1996.
stay of execution An order suspending the *execution of the order
of a court. In
the High Court a stay of execution by writ of *fieri facias may be
granted subject
to the condition that the debtor pays the judgment debt by
specified instalments
(unlike the county courts, the High Court has no other power to
order the payment
of judgment debts by instalments).
stay of proceedings An order by the court suspending proceedings,
usually
because of some misconduct by the claimant (e.g. in a claim for
damages for
personal injury, unreasonably refusing to attend for medical
examination by a
doctor nominated by the defendant).
step-parent n. A person who is married to the father or mother of a
child but is
not the natural parent of the child. A step-parent has no automatic
legal status in
relation to his or her step-children, but will usually qualify to
apply, as of right,
for a *section 8 order in respect of the child by virtue of being
married to the
child's natural parent. Step-parents may acquire *parental
responsibility either by
applying to court for a residence order (which automatically
confers parental
responsibility) or by applying to adopt the child together with the
child's natural
parent. There is, however, a policy of discouraging step-parent
adoption since the
effect will be to irrevocably sever the child's legal ties with its
other natural
parent.
stipendiary magistrate See DISTRICT JUDGE (MAGISTRATES'
COURT).
stock n. 1. A fixed-interest loan raised by the government or a
local authority.
2. Shares in a registered company that have been converted into a
single holding
with a nominal value equal to that of the total of the shares. For
example, a holder
of 100 shares of £1 each will have £100 stock after conversion. 3.
See LOAN CAPITAL.
Stock Exchange The International Stock EXchange of the UKand the
Republic of
Ireland Ltd: the body responsible for regulating the issue and
marketing of
company securities. Admission to the Listed Market must be
sponsored by a
member of the Stock Exchange and is available only to shares of
large public
companies that have published *accounts for the three years
preceding the
application and that have satisfied the listing rules (the Yellow
Book). These rules
ensure that sufficient information is supplied, both on admission
and subsequently,
to enable investors to assess the merits of the shares. Admission
to the Alternative
Investment Market (AIM) is available to smaller companies who meet
the statutory
requirements. Deals in listed shares will usually be arranged
through a member of
the Stock Exchange acting as a market intermediary and taking a
commission. Some
market intermediaries specialize in particular securities;
intermediaries who arrange
deals in these securities are called matching brokers;
intermediaries who will
themselves buy or sell the securities are called market makers, and
the prices they
quote are quotations.
stock transfer form See SHARE TRANSFER.
stop notice 1. A court procedure available to protect those who
have an interest
in shares but have not been registered as company members. The
notice prevents
the company from registering a transfer of the shares or paying a
dividend upon
them without informing the server of the notice. 2. A notice served
by a local
planning authority when they consider that any activity specified
in an
*enforcement notice should be prevented before the time for
compliance given by
that notice. It takes effect on a date specified therein, which is
3 to 28 days after
service, and a site notice may be posted, drawing attention to its
provisions.
stoppage in transitu A remedy available to an *unpaid seller of
goods when the
buyer has become insolvent and the goods are still in course of
transit. If the seller
gives notice of stoppage to the carrier or other bailee of the
goods, he is entitled to
have them redelivered to him and may then retain possession of them
until the
price is paid or tendered. If the right is not exercised, the goods
will fall into the
insolvent buyer's estate and go towards satisfying his creditors
generally.
stowaway n. A person who secretes himself upon a ship and goes to
sea. This is a
criminal offence under the Merchant Shipping Act 1894.
street offence Any offence relating to the use of public streets.
Examples are
*obstruction, failing to obey police regulations about movement of
traffic or
pedestrians, *kerb crawling, and *soliciting.
strict construction See INTERPRETATION OF STATUTES.
strict liability 1. (in criminal law) Liability for a crime that is
imposed without
the necessity of proving "mens rea with respect to one or more of
the elements of
the crime. There are few crimes of strict liability at common law
but such crimes
are often created by statute, particularly to control or regulate
daily activities;
examples include offences relating to the production and marketing
of food and
*offences relating to road traffic. The usual penalty for crimes of
strict liability is a
fine. Most crimes of strict liability do, however, require mens rea
in respect of at
least some of the elements of the crime. In some cases statute
provides for strict
liability, but then allows a defence if the accused can prove (see
BURDEN OF PROOF)
that he had no reason to know of or suspect certain facts, so that,
in effect, the
crime becomes one of *negligence. *Automatism is a defence to all
crimes, inclUding
crimes of strict liability. 2. (in tort) Liability for a wrong that
is imposed without
the claimant having to prove that the defendant was at fault.
Strict liability is
exceptional in the law of tort, but is imposed for torts involving
dangerous animals
(see CLASSIFICATION OF ANIMALS) and dangerous things (the rule in
*Rylands v Fletcher),
*conversion, *defamation, *products liability, and some cases of
*breach of
statutory duty. It is no defence in these torts that the defendant
took reasonable
care to prevent damage, but various other defences are
admitted.
strict settlement A trust conferring beneficial interests in land
that render it
*settled land, governed by the Settled Land Act 1925.Generally the
purpose of a
strict settlement is to create successive interests that will keep
the land in the
settlor's family. The usual form of marriage settlement gave a life
interest to the
husband with remainder (after provisions for the wife during
widowhood and for
younger children of the marriage) to the first and other sons in
*tail, a further
remainder to any daughters as tenants in common in tail, and a
final remainder to
the husband in fee simple. The beneficiaries under a strict
settlement have equitable
interests in the land. Since 1997, such settlements exist as a
TRUST OF LAND.
strike n. A cessation of work or refusal to work by employees
acting together in
connection with a *trade dispute to secure better terms and
conditions of
employment for themselves and/or other workers. A trade union
cannot call its
members out on strike unless it has held a secret ballot and the
majority agree to
the action. Under terms of the Trade Union and Labour Relations
(Consolidation)
Act 1992 trade union ballots for industrial action must be fully
postal and, if a
ballot involves 50 or more members, it must be subject to
independent scrutiny.
Seven days' notice of the union's intention to ballot its members
on industrial
action must be given to the employer and the union must provide the
employer
with details of the ballot result and give him at least seven days'
written notice of
those members it intends to call out on strike. A strike ballot
remains effective for
four weeks. This period may be extended to eight weeks if the union
and
employer agree. The Trade Union and Labour Relations
(Consolidation) Act 1992
provides for a "Citizen's Right" for any individual to sue the
union if he is deprived
(or likely to be deprived) of any goods or services because of
unlawfully organized
industrial action. Until recently a claimant suing under the
"Citizen's Right"
provision could seek financial assistance from the Commissioner for
Protection
Against Unlawful Action, but this office was abolished by the
Employment Relations
Act 1999. The functions of the Commissioner have been transferred
to the
*Certification Officer.
striking off 1. The removal of a solicitor's name from the roll of
solicitors of the
Supreme Court, either at his request or for misconduct. 2. A
similar procedure in
other professions (e.g. the erasure of a doctor's name from the
register of general
medical practitioners). 3. The removal of a limited company from
the companies
register, often because it has failed to file accounts.
structured settlement A form of *settlement of action used in cases
of serious
personal injuries in which it is agreed that the injured person
will receive, in
addition to a lump sum for losses already suffered, further
payments on a periodic
basis to cover future needs. The periodic payments are funded by an
annuity
purchased by the defendant and can be index-linked to provide for
inflation.
structure plan A written statement formulating a local planning
authority's
policy on development and land use, including environmental
improvement and
traffic management policy.
subdelegated legislation Legislation made under powers conferred
by
*delegated legislation or by subdelegated legislation itself (in
which case it is
technically sub-subdelegated legislation). Subdelegated legislation
is quite common
(as when the parent Act authorizes a minister to make regulations
and these in
turn authorize others to make orders), but sub-subdelegated
legislation is rare
(though examples have existed in wartime); the chain has not in
practice been
further extended. Subdelegated legislation is not subject to any
form of
parliamentary control but it is subject to judicial control by
means of the doctrine
of *ultra vires.
subject to contract See ACCEPTANCE.
sub judice rule 1. A rule limiting comment and disclosure relating
to judicial
proceedings, in order not to prejudge the issue or influence the
jury. See CONTEMPT
OF COURT. 2. A parliamentary practice in which the Speaker prevents
any reference
in questions or debates to matters pending decision in court
proceedings (civil or
criminal). In the case of civil proceedings, he has power to waive
the rule if a matter
of national interest is involved.
sublease (subtenancy, underlease) n. A *lease granted by a person
who is
himself a lessee of the same property. The sublease must be shorter
than the main
lease. Thus a lessee with a lease for 10 years can grant a sublease
for a period up to
10 years less one day. The formalities for creating and terminating
a sublease are the
same as those for a lease. There is often a covenant in a lease
prohibiting subletting.
If a lessee sublets in breach of the covenant the sublease will be
valid, but the
landlord may have a right of *forfeiture of the lease. In some
cases the lease
specifies that the lessee may only sublet with the landlord's
consent. In this case, the
landlord may not withhold his consent unreasonably and he cannot
charge a fee for
giving his consent unless there is express provision for this in
the lease. If the main
lease is forfeited, any sublease automatically comes to an end.
However, the
surrender of a lease does not affect any sublease.
subletting n. The granting of a *sublease.
submortgage n. A mortgage of a mortgage. A submortgagor is a person
who
holds a mortgage over another's land and charges that mortgage as
security for a
debt he owes to a third party (the submortgagee). If the
submortgagor defaults,
the submortgagee may sell the mortgage (but not the land) and
recover the debt
from the proceeds.
subordinate legislation See DELEGATED LEGISLATION.
subornation n. Procuring another to commit an offence. Normally
subornation is
included in the offence of aiding, abetting, or procuring (see
ACCESSORY), but there is
a special statutory offence of subornation of perjury.
subpoena n. See WITNESS SUMMONS.
subrogation n. The substitution of one person for another so that
the person
substituted succeeds to the rights of the other. Thus an insurer
who indemnifies his
insured against the loss of goods may be subrogated to the insured
person's rights
against a third party whose negligence caused the loss.
SUbscribing witness A person who signs a written document as an
attesting
witness to the signature of another.
SUbsidiarity n. A principle of the European Union, introduced by
Article 3A of the
*Maastricht Treaty, ensuring that in areas which do not fall within
the exclusive
competence of the EU,it shall not take action unless the objectives
of the proposed
action cannot be adequately achieved by individual member states.
Thus it provides
for legislation at national level when EU measures are not
required.
SUbsidiary company A company controlled by another company, its
holding (or
parent) company. For general purposes, such control is established
when the
holding company has a majority of the voting rights attached to its
shares (either by
virtue of its ownership of those shares or because of an agreement
with other
shareholders) or the right to appoint or remove a majority of its
board of directors.
If company A controls company B,which itself controls company C,
then company C
is the subsidiary of both company B and company A. For the purposes
of *group
accounts, a wider definition applies: the subsidiary need not be
incorporated (see
COMPANY) and control can also be established in other ways, e.g.
when the holding
company has the right, under the subsidiary's *articles or
*memorandum of
association, to exercise a dominant influence over it.
Substantial Acquisition Rules See SARS.
substantial damages See DAMAGES.
substantial performance See PERFORMANCE OF CONTRACT
substantive law The part of the law that deals with rights,
duties, and all other
matters that are not matters purely of practice and procedure.
Compare ADJECTIVE
LAW.
substituted service The service of documents in civil litigation
other than by
*personal service or (when postal service is permitted) by post. An
order of the court
is required for substituted service, and the application for it
must be supported by
an *affidavit. It may take the form of service by letter,
advertisement, or any other
method likely to bring the proceedings to the attention of the
defendant.
Substituted service has all the effects of personal service. It is
often sought against
defendants who are deliberately evading personal service.
substitutional legacy A legacy that passes to descendants of a
beneficiary who is
named in a will if this beneficiary has predeceased the testator.
See also
REPRESENTATION.
subtenancy n. See SUBLEASE.
subtenant n. A tenant who holds a *sublease.
sub-trust (derivative trust) n. A trust created out of a trust. If
A has an interest
under a trust and declares himself trustee of the interest for Band
C, Band C have
interests under a subtrust as far as the original settlor is
concerned.
succession n. 1. The law and procedures under which beneficiaries
become
entitled to property under a testator's will or on intestacy. 2.
(in international law)
The transfer of sovereignty over a territorial entity from one
subject of
international law (i.e.one state) to another. As a result of
succession, an existing
state becomes totally extinguished (as when Tanganyika and Zanzibar
ceased to exist
in 1964 on the formation of Tanzania) or a state transfers part of
its territory to
another state.
sue vb. To make a claim for a remedy in the civil courts by issuing
court
proceedings.
sufferance n. See TENANCY AT SUFFERANCE.
suicide n. The act of killing oneself intentionally. Since
1961suicide itself is not a
crime, but there is a special statutory crime (punishable by up to
14 years'
imprisonment) of aiding, abetting, counselling, or procuring a
suicide. In practice
very few prosecutions are brought for this offence. Doing nothing
to stop someone
else from committing suicide is not abetting it, but euthanasia
(mercy killing) in the
form of giving assistance to the sufferer (rather than actually
killing him) may
amount to aiding. VVhen two people agree that one of them shall
kill the other and
then commit suicide (a suicide pact), the one who does the killing
is guilty, if he
survives, not of murder but of manslaughter.
sui generis [Latin: of its own kind] Forming a class of its own;
unique.
sui juris [Latin: of his own right] Describing the status of a
person who is of full
age and capacity. Compare ALIENI JURIS.
suit n. A court claim. The term is commonly used for any court
proceedings
although originally it denoted a suit in equity as opposed to an
action at law. When
a case is referred to as (for example) "Jones at the suit of Smith"
(or "Jones a.t.s.
Smith") Jones is the defendant in an action brought by Smith.
summary conviction A *conviction in a magistrates' court. The
magistrates are
the judges of both fact and law and must either convict the accused
or dismiss the
case. T~e usual form of words for a conviction is 'We find the case
proved", and a
conviction may be returned on a simple majority verdict. Under the
Magistrates'
Courts Act 1980,the magistrates may remand the accused for a
medical examination
if they are satisfied that he has committed the act he is charged
with, but are in
do:rbtas to his mental condition and whether or not to make a
hospital order. Such
a fmdmg has the force of a conviction for purposes of the accused's
right to be
granted bail.
summary financial statement A statement providing financial
information
about a company that is derived from its annual *accounts. *Listed
companies may
opt to supply this abbreviated form of the accounts to their
members in place of
the full accounts, but only if the members do not object.
summary jUdgment A procedure enabling a claimant in an action for
debt or
damages in the High Court to obtain judgment without the defendant
being
?ermltted to defend the action. It can be used in most actions
except when these
mclude a claim for *libel, *slander, *malicious prosecution, or
*false
imprisonment or an allegation of *fraud. Summary judgment will be
entered on
behalf of a claimant in those situations in which the court is
satisfied that there is
no real possibility of the defendant successfully defending himself
against the
claim. The procedure may also be invoked by the defendant in those
situations in
which it is accepted by the court that there is no real possibility
of the claim
succeeding.
summary offence An offence that can only be tried summarily, i.e.
before
magistrates. Most minor offences (e.g.common assault and battery)
are summary.
Prosecutions for all summary offences must be started within six
months of the
commission of the offence, unless statute expressly provides to the
contrary.
Compare INDICTABLE OFFENCE: OFFENCES TRIABLE EITHER WAY.
sum~ary trial Trial by magistrates without a jury. All summary
offences are
tried m this way, as well as some *offences triable either way. The
main
procedural principles followed in *trial on indictment also apply
to summary trial,
but there are some differences of which the most important are as
follows. (1) The
accused does not usually have to be present at the hearing. (2)
Objections cannot
usually be made either to information laid before the magistrates
or to a summons
or warrant served on the defendant on the grounds of "defects of
substance or
form" (unless they are fundamental defects). (3) In the case of
summary offences, the
accused may send in a written plea of guilty, together with a
statement of
mitigation, and the case may then be tried without the prosecution
or defence
appearing.
summing up A judge's speech at the end of a trial by *jury, in
which he
explains to the jury what its functions are, directs the members of
the jury on any
relevant pomts of law, and summarizes all the evidence that has
been given in the
trial.
summons n. A court order to an individual to appear in court at a
specified place
and tIme. The term is used in criminal cases for appearance at a
magistrates' court.
Before the introduction of the *Civil Procedure Rules in 1999,it
was used in civil
cases for hearings in the county court and applications to a judge
sitting in
chambers about procedural matters prior to the court hearing. Such
orders are now
made by application notice. See alsoWITNESS SUMMONS.
Summons Production Centre (SPC) An organization within the
administrative
structure of the *county courts system for the production of
summonses issued by
large-scale users of the county court, particularly public
utilities. It is located in
Northampton.
Sunday trading The opening of shops for trading on a Sunday, wh~ch
is governed
by the Sunday Trading Act 1994as consolidated in the Employment
Rights Act 1996.
Small shops may open at will on a Sunday. The 1994Act repealed the
Shops Act 1950,
which prohibited large shops from Sunday trading. Large shops WIth
a floor area
over 280 square metres may now open on Sunday if notice is givento
the local .
authority, provided that they open for no more than SIX hours
begm~mg no ear her
than 10.00a.m. and ending no later than 6.00 p.m. These rules do
not include Easter
Sunday or Christmas Day when it falls on a Sunday. Local
authorities may keep
registers of large shops open for Sunday trading; these are open to
inspection'.
Certain large shops can open on a Sunday without the need to
register, including
farm shops, off-licences, motor and cycle suppliers, pharmaci~s,
airport shops, shops
at railway stations, motorway service areas, petrol-filling
stations, shops supplymg
ships or aircrafts, stores selling at exhibitions, and shops
occupied by people who
observe the Jewish Sabbath (Saturday). Fines can be levied for
breach of the
requirements. The Act also controls noisy unloading on a
Sunday.
Shopworkers who were taken on before 25 August 1994 (other than
those
employed for Sunday working only), and those who were taken on
after th~t date
who are not required by their contracts to work on Sundays, have a
legal right to
refuse to work on Sundays unless they have agreed to do so (for
example, by signing
an "opting-in notice").
superior court Any of the higher courts of the legal system, whose
jurisdiction is
not limited, for example, by geography or by value of the subject
matter of the.
claim and whose decisions have weight as *precedents. In English
law, the supenor
courts are the *House of Lords, the *Court of Appeal, the *High
Court, and the
*Crown Court, together with the *Judicial Committee of the Privy
Cou?,cil.
Decisions of superior courts are not subject to judicial review by
the High Court.
Compare INFERIOR COURT.
superior orders A plea that certain conduct does not constitute a
crim~ because
it was committed in obedience to the orders of a supenor (usually a
supenor officer
in the armed forces). It could arise, for example, on the
unjustified s~ooting of a
rioter when the military are restoring order. UK law does not
recogmze the plea as a
defence in itself. If an order is unlawful, a soldier's duty is to
disobey it. If, however,
an unlawful order is not manifestly so, the plea could be raised as
establishing that
the soldier did not have the necessary mens rea.
supervision order 1. An order of the court placing a child under
the .
supervision of a local authority or a probatio~ .officer whose ~uty
It ~s t*o advise and
assist the child. The court can make a supervision order only if
certam threshold
criteria are satisfied. A supervisor may have wide powers, for
example to ensure
that the child lives as directed or attends specified activities;
in addition, the
supervisor may apply for an education supervision order if the
child is of
compulsory school age and not receiving adequate education. A
supervision order
does not confer *parental responsibility and initially lasts only
for one year WIth a
possible extension for up to a maximum of three years. Compare CARE
ORDER. 2. See
SUSPENDED SENTENCE.
support funding See COMMUNITY LEGAL SERVICE.
suppression of documents The dishonest destruction, hiding, or
defacing of
any valuable security (i.e. almost any document creating,
extinguishing, or
transferring a right in money or property), will or similar
document, or any original
document (but not a copy) belonging to or filed in any court or
governmental
department. If done with the purpose of gaining as a result, or
causing loss to
someone else, it is an offence punishable by up to seven years'
imprisonment. See also
FORGERY.
supra protest See ACCEPTANCE SUPRA PROTEST.
supremacy n. The prevalence of one law or document over another
that conflicts
with it. Within the European Union, EU law prevails over national
law; there are
many instances of national law being overturned by the *European
Court of Justice
when a member state has ignored provisions of the Treaty of Rome.
However, in
certain areas, for example competition law, national laws may be
permitted when
they are stricter than provisions in EU law.
Supreme Court of Judicature A court created by the Judicature Acts
1873-75 to
take over the jurisdiction of all the higher courts, other than the
House of Lords,
existing at that time. It does not sit as a single court but
comprises the *High Court
of Justice, the *Court of Appeal, and the *Crown Court. Its
practice and procedure
are regulated by the *Civil Procedure Rules.
Supreme Court Rule Committee See RULES OF THE SUPREME COURT.
surety n. 1. Security in the form of money to be forfeited upon
nonappearance in
court, offered either by the defendant himself or by other people
of suitable
financial resources, character, and relationship to the defendant.
2. Any person who
offers security for another. See BAIL; RECOGNIZANCE.
surname n. A family name. Upon marriage a wife is entitled to take
her husband's
surname (and title or rank) and to continue using it after his
death or divorce
(unless she uses it for fraudulent purposes), although she is not
obliged to do so.A
legitimate child, by custom, takes the name of his father and an
illegitimate child
that of his mother (although the father's name may be entered on
the birth
registration if both parents agree or an affiliation order names
the man as the
putative father). Upon adoption a child automatically takes the
name of his adoptive
parents. See also CHANGE OF NAME.
surprise n. (in court procedure) An unexpected event that causes a
party to be put
at some disadvantage in litigation. Many rules of pre-trial
procedure are designed to
prevent surprise; for example, any matter that might otherwise take
the opposite
party by surprise must be specifically pleaded, and there are rules
concerning the
exchange of the reports of expert witnesses. Surprise is an
argument often put
forward by parties seeking to resist amendments of statements of
case and other
documents; if justifiably raised at trial, it may result in an
adjournment being
offered to the disadvantaged party.
surrebutter n. Formerly, a pleading served by a claimant in reply
to the
defendant's *rebutter. Such a pleading was very rare in modern
practice and no
longer exists under the *Civil Procedure Rules.
surrejoinder n. Formerly, a pleading served by a claimant in answer
to the
defendant's *rejoinder. Such a pleading was very rare in modern
practice and no
longer exists under the *Civil Procedure Rules.
surrender of tenancy The termination of a *Iease, which occurs when
a tenant
gives up his interest to his landlord. Surrender can be express
or implied. Express
surrender is usually in the form of a deed. When the lease is for
less than three
years, no deed is needed provided that the tenant signs a written
agreement to
surrender. Implied surrender occurs when the actions of both
parties show that
they consider the lease to be at an end; for example, when the
tenant gives up
possession and the landlord reoccupies the property.
surrender to custody To give oneself into the custody of the court
or police at
an appointed time and place. It is the primary condition of all
releases on *bail to
surrender to custody; in order to achieve this, the court may
attach conditions to
the bail, such as the provision of a *surety or restrictions on
movement. Failure to
surrender to custody is an offence (see ABSCONDING). The police may
arrest without
warrant anyone whom they reasonably believe is not going to
surrender to custody
or anyone whom they have been informed by a surety (who wishes to
be relieved of
his undertaking) is not going to surrender.
surrogacy n. The role of a woman (a surrogate mother) who is
commissioned to
bear a child by a married couple unable to have children
themselves. The pregnancy
is usually initiated through artificial insemination of the
surrogate mother by the
husband, although sometimes the wife's eggs are used; in this case
the surrogate has
no genetic relationship to the child, being simply a host for the
embryo. The
Surrogacy Arrangements Act 1985prohibits commercial agencies from
engaging
women to act as surrogate mothers. Breach of the prohibition is
punishable with a
fine of up to £2000 or three months' imprisonment. Surrogate
mothers and
commissioning parents are exempt from liability. Advertising
surrogacy services is
punishable with a similar maximum fine. See also SECTION 30
ORDER.
surveillance n. Keeping watch on a suspect. The Police Act
1997provides a formal
system for authorization of intrusive surveillance operations by
chief police officers.
A team of independent commissioners oversees the arrangements and
investigates
complaints. Police and customs officials are also required to seek
prior approval
from a commissioner for authorizations in particularly sensitive
cases - such as
those involving legal *privilege, for example - except in cases of
emergency. See also
ELECTRONIC SURVEILLANCE.
survival of cause of action on death At common law all causes of
action in
personal actions (i.e. contract and tort) died with the person in
whom they were
vested (actio personalis moritur cum persona). By statute, however,
all such causes of
actions, except for defamation and claims for certain types of
loss, survive against or
for the benefit of the deceased. See alsoFATAL ACCIDENTS.
survivorship n. See COMMORIENTES; RIGHT OF SURVIVORSHIP.
sus law The law that formerly empowered the police to arrest any
reputed thief
or suspected person found loitering with intent to commit an
arrestable offence.
This law caused much public concern and was abolished by the
Criminal Attempts
Act 1981. See INTERFERING WITH VEHICLES.
suspended sentence A prison sentence that does not take effect
immediately.
When a person is sentenced to imprisonment for less than two years,
the court may,
in exceptional circumstances, order that he should not actually be
imprisoned unless
he commits another offence within a specified operational period of
between one
and two years. If the suspended sentence is for a prison term of
more than six
months, the court may also make a suspended sentence supervision
order,
placing the offender under the care of a probation officer. If the
offender fails to
comply with the terms of such an order he is liable to a
fine.
Formerly, when an offender had been sentenced to a term of
imprisonment of
more than three months but less than two years, and the court felt
that it would
not be right to suspend the whole of the sentence, it could instead
make an order
for a partially suspended sentence, under which the offender served
part of the
sentence. Partially suspended sentences were abolished by the
Criminal Justice Act
1991.
symbolic delivery See DELIVERY.
synallagmatic contract See BILATERAL CONTRACT.
synod n. A deliberative assembly of the clergy. See CHURCH OF
ENGLAND.
T
Table A Model *articles of association that apply to companies
limited by shares
unless other articles excluding or modifying them are delivered to
the Companie~
Registry when the company is registered. The company is sUbje~t to
the Table A m
force at the time it was registered. Tables B, C, D, E,and F
specify forms of
<memorandum of association and *articles of association to be
adopted by
particular types of company.
tacking n. Before 1926, the right of a mortgagee who made a s~cond
adva~ce to the
mortgagor to attach his second advance to the first one so that It
h~d priority ?ver
the claims of any intervening mortgagee, provided that he ~as
rec;Ived ~o notice of
any intervening mortgage. ThIS exception to the rules relatmg to
priority of
mortgages was abolished in 1925.
tail n. An *entailed interest.
tail general An *entailed interest under which the cla~s of
descendants ";'ho can
succeed to the land is not limited to the issue of a specified
spouse of the first
tenant in tail. Compare TAlL SPECIAL.
tail male An *entailed interest under which only male descendants
of the original
tenant in tail can succeed to the land. If the male line dies out,
the land goes to the
person next entitled in *remainder or in *reversion. The interest
may be general or
special: see TAIL GENERAL; TAIL SPECIAL.
tail special An *entailed interest under which only the descendants
of the first
tenant in tail and a specified spouse can succeed to the land; for
example, when land
is settled on "John and the heirs of his body begotten on Mary".
Compare TAIL
GENERAL.
takeover n. The acquisition of control by one company over another,
usu~lly
smaller, company (the target company).This is usually achieved
(1)by buying shares
in the target company with the agreement of all ItS members (If
they are few) or of
only its *controllers; (2) by purchases on the *Stock Exchange; or
(3) by means of a
*takeover bid. Compare MERGER. See also CITY CODE ON TAKEOVERS AND
MERGERS; CONCERT
PARTY; DAWN RAID.
takeover bid A technique for effecting a *takeover or a *merger.
The bidder
makes an offer to the members of the target company to acquire
their shares
(either for cash or in exchange for shares in the bidding company)
in the hope of
receiving sufficient acceptances to obtain voting cont~ol of the
target company.
Unless there is a *scheme of arrangement - and providing that the
court does not
order otherwise - if members holding not less than 90% in value of
the shares
involved in the bid accept the offer, the bidding company can
compulsorily acquire
the shares of the remaining members.
taking at sea A risk commonly covered in policies of marine
insurance, which
includes seizure or capture of a vessel by enemies or
pirates.
talaq n. An Islamic divorce, usually effected by a triple
declaration ("I di~orce 'you")
by the husband to the wife in front of witnesses. In some Moslem
countries this
may be done informally; in other countries it must be pronounced
before an
authorized officer of the court. It may also be effected by a
written talaqnama. See
also EXTRAJUDICIAL DIVORCE.
tangible property *Property that has a physical existence, e.g.
chattels and land
but not *choses in action nor incorporeal *hereditaments (which are
intangible
property).
tax n. A compulsory contribution to the state's funds. It is levied
either directly on
the taxpayer by means of *income tax, *capital gains tax,
*inheritance tax, and
*corporation tax; or indirectly through tax on purchases of goods
and services (see
VALUE-ADDED TAX) and through various kinds of duty, e.g. *road tax,
*stamp duty, and
duties on betting and gaming.
taxable person See VALUE-ADDED TAX.
taxable supply See VALUE-ADDED TAX.
taxation of costs See ASSESSMENT OF COSTS.
tax avoidance The lawful arrangement or planning of one's affairs
so as to
reduce liability to tax. Compare TAX EVASION.
tax evasion Any illegal action taken to avoid the lawful assessment
of taxes; for
example, by concealing or failing to declare income. Compare TAX
AVOIDANCE.
Tax Exempt Special Savings Account (Tessa) A savings account,
introduced
with effect from January 1991, that is exempt from *income tax and
*capital gains
tax. The exemption is limited to an amount of £9000 in total. and
there is a limit of
£3000 on investments in the first year and £1800 in each subsequent
year (the
maximum of £1800 can only be invested in the fifth year if a
reduced amount was
invested in one of the previous years). Savers with a matured Tessa
could invest all
the capital (i.e. up to £9000) from this account in a new Tessa
during the first year,
provided the new account was opened within six months of the
maturity date of
the old Tessa. There are restrictions on permissible withdrawals
from the account.
No new Tessas can be opened after 5 April 1999, but existing Tessas
continue until
maturity; the capital of a matured Tessa can be transferred to an
*Individual
Savings Account (ISA) without affecting the annual ISAallowance,
provided that this
is done within six months of the maturity date of the Tessa.
taxing master See COSTS OFFICER.
taxing statute An Act of Parliament that imposes tax. Any ambiguity
is
construed in favour of the taxpayer (see INTERPRETATION OF
STATUTES).
tax point The date on which a taxable supply becomes liable for
*value-added tax.
The rate of tax chargeable on the supply is the rate in force at
the tax point, and
the supply must be accounted for in the tax period in which the tax
point occurs. If
the supply is a straightforward sale of goods, the tax point is
normally the date on
which the customer takes possession of the goods. For the supply of
services, the tax
point is normally the date on which the service is completed. In
the case of hirings,
rentals, continuous or metered supplies (e.g. electricity), and
supplies that are subject
to progress payments, the tax point is either the date on which an
invoice is issued
or the date on which payment is received, whichever is earlier. If
the supplier issues
a tax invoice, this must show the tax point.
tax year (fiscal year) The year of assessment for *income tax and
*capital gains
tax purposes. It runs from 6 April to 5 April in the following
year. See also FINANCIAL
YEAR.
Technology and Construction Court See OFFICIAL REFEREE.
technology transfer The licensing of *intellectual property. EU
regulation
240/96 provides *block exemption from *Article 81 (competition law)
for certain
categories of patent and *knowhow licence (and also for trade mark,
design.
copyright. and other intellectual property licences that are
ancillary to a patent or
knowhow licence). The regulation, which replaced earlier
legislation on 1 April 1996.
applies to new licences entered into after that date and sets out
those provisions in
licensing agreements that are permitted. those that are exempted.
and those that
are prohibited (blacklisted). the presence of which prevents the
exemption from
applying. The regulation also provides that agreements that do not
contain
blacklisted provisions but otherwise do not come within the
regulation may be
notified to the Commission for individual exemption; if no
objection is raised by the
Commission within four months. the agreement may be deemed
acceptable (this is
called the opposition procedure).
telephone tapping Secretly listening to telephone conversations by
interfering
with the line. It is illegal except when authorized by the Home
Secretary. See also
ELECTRONIC SURVEILLANCE.
teleworking n. A form of employment in which employees use
information
technology to enable them to work mainly from home. The advantages
to the
employer are the elimination of transport problems, reduction in
office overheads.
and increased flexibility. Teleworkers are distinguished from
outworkers in that
the former are engaged in white-collar work. as opposed to the
manual tasks
performed by poorly paid female outworkers.
tenancy n. Broadly. the interest of one who holds land by any right
or title. The
term is often used in a more restricted sense, however, for the
arrangement in
which the owner (the *Iandlord) allows another person (the tenant)
to take
possession of the land for an agreed period, usually in return for
rent. There are
many ways of establishing a tenancy, from a formal *Iease by deed
to an informal
verbal arrangement. The latter is legally binding on the parties if
it satisfies the
requirements for an *agreement for a lease. A tenancy can also come
into existence
through statute law (see STATUTORY PERIODIC TENANCY).
The different kinds of tenancy are: tenancy for a *fixed term.
*joint tenancy,
*periodic tenancy. *tenancy at sufferance. *tenancy at will,
*tenancy by estoppel,
and *tenancy in common. The terms and conditions of tenancies vary
considerably
according to the kind of tenancy and the wishes of the parties.
There are many
statutory controls which affect tenancies. particularly in relation
to *security of
tenure and rent. See alsoASSURED TENANCY.
tenancy at sufferance A tenancy that arises when a tenant is
*holding over and
the landlord has not indicated whether or not he agrees to the
tenant's continued
occupation. If the landlord gives his express agreement. the
tenancy becomes a
*tenancy at will.
tenancy at will A tenancy that can be terminated by the landlord or
the tenant
at any time. A tenancy at will usually arises by implication. when
the owner of land
allows a person to occupy it although he has no *fixed term.
*periodic tenancy. or
*Iicence (for example. when a landlord agrees to the tenant
*holding over). More
rarely. a tenancy at will may be created by express agreement. If
the landlord starts
to accept rent on a regular basis. an ordinary *periodic tenancy is
created. A tenant
who holds over after a fixed-term *assured tenancy expires may have
a *statutory
periodic tenancy. A tenancy at will of business premises does not
have the statutory
protection given to a *business tenancy. In the case of residential
premises, however,
the usual statutory protection from *eviction will apply. A tenancy
at will can be
terminated by the landlord demanding possession or if either he or
the tenant dies
or parts with his interest in the land.
tenancy by estoppel A tenancy that exists despite the fact that the
person who
granted it had no legal right to do so. Such a tenancy is binding
on the landlord and
tenant but not on anyone else. If the landlord subsequently
acquires the right to
grant the tenancy, it automatically becomes a full legal
tenancy.
tenancy for years A tenancy for a *fixed term.
tenancy from year to year A yearly *periodic tenancy.
tenancy in common Equitable ownership of land by two or more
persons in
equal or unequal *undivided shares. Each co-owner may sell or
dispose of his share
by will, and a share does not pass automatically by the right of
survivorship on the
death of a co-owner but forms part of his estate (compare JOINT
TENANCY). Under the
Law of Property Act 1925 the legal estate is held by the co-owners
as joint tenants on
trust for themselves as equitable tenants in common. and a *trust
of land is implied.
tenant n. A person who is granted a *Iease or a *tenancy. A tenant
need not be an
individual; for example. a company can be a tenant.
tenantable repair The maintenance of a property in a condition fit
for letting to
a tenant. The phrase is sometimes used in a *covenant to repair.
The use of the word
"tenantable" has no significant effect on the parties' usual
obligations under the
covenant.
tenant for life (life tenant) A person owning land for an equitable
interest that
subsists for the whole of his life but terminates on his death (see
alsoLIFE INTEREST).
The statutory powers of a tenant for life are laid down by the
Settled Land Act 1925
(see SETILED LAND). See also TRUST OF LAND.
tenant in tail A person entitled in possession or on the death of
his ancestor to an
*entailed interest.
tenant in tail after possibility of issue extinct The interest of
an original
tenant in *tail special when the specified spouse has died and
there are no heirs
entitled to succeed to the entailed interest. The tenant in tail
retains his powers
under the Settled Land Act 1925 (see SETILED LAND) but cannot bar
the entail (see
ENTAILED INTEREST). This position cannot arise when the land is
held in tail general,
since while the tenant in tail lives there is always a possibility
he may have children
by another wife.
tenant pur autre vie See ESTATE PUR AUTRE VIE.
tenant's fixtures Fixtures attached to rented property by a tenant
that the
tenant is entitled to remove at the end of the tenancy. These are:
*trade fixtures,
ornamental and domestic fixtures (such as blinds and mirrors) whose
removal does
no serious damage. and (subject to certain statutory rules)
agricultural fixtures.
Tenants are not entitled to remove any other fixtures.
tender n. 1. An offer to supply (or to purchase) goods or services.
Normally a
tender must be accepted to create a contract, except when the
invitation to tender
states unequivocally that the lowest (or highest) tender will be
accepted. If the
tender is to supply goods as required by the other party. it may be
a standing offer
and creates contracts as and when particular orders are placed.
Whether or not the
tenderer can withdraw from supplying future orders depends upon
the terms of
the tender, in particular whether the tenderer binds himself (for
consideration) to
execute all orders. 2. An offer of performance, acceptance of which
requires the
concurrence of the other party, e.g. the tender of the price of
goods by a buyer to a
seller.
tender before action (tender before claim) A *defence to a claim
for a debt or
liquidated demand alleging that the defendant offered to pay the
sum claimed
before the claimant began his action. In order to rely upon this
defence the
defendant must pay the sum tendered into court and give notice of
the payment to
the claimant. See also PART 36 OFFERS AND PAYMENTS.
tender offer An offer of a company's securities to the public (see
FLOTATION) at a
uniform price (above a specified minimum) that is determined by the
bids received
and ensures that all the securities are taken up.
tenure n. Under the *feudal system, the relationship between lord
and tenant,
which determined the conditions under which the land was held.
Today the term is
used to indicate the nature of a legal estate in land, i.e.
freehold or leasehold. The
only tenurial relationship of practical significance in modern law
is that of landlord
and tenant (or leasehold). See also SECURITY OF TENURE.
term n. 1. Originally, any of four periods of the year during which
judicial business
had to be transacted. For this purpose terms were abolished by the
Judicature Acts
1873-75, and the legal year is now divided into *sittings and
<vacations. In the *Inns
of Court the year is still divided into terms that have the same
names as the court
sittings but are shorter. A student keeps term as part of the
qualification for call to
the Bar by dining in his Inn on a specified number of occasions
during the term.
2. Any provision forming part of a contract. A term may be either a
*condition, a
warranty, or an *innominate term, depending on its importance, and
either an
*express term or an *implied term, depending on its form. 3. The
duration of a
leasehold interest in land. See TERM OF YEARS.
term for years See TERM OF YEARS.
term of years (term for years) An interest in land that subsists
for or by
reference to some specified period of time. It includes interests
subsisting for less
than a year (e.g.a lease for six months) and periodic tenancies
(e.g. a weekly, .
monthly, or yearly tenancy determinable by notice to quit). It can
also include tuneshare
agreements, e.g. of one specified week in each of a number of
years. The
commencement date and maximum duration of the term must be
identifiable
before the lease takes effect. See alsoTERM OF YEARS
ABSOLUTE.
term of years absolute A leasehold estate in land: a *term of years
that mayor
may not be brought to an end by notice, forfeiture, or any other
event except the
death of any person. Thus a lease "to X for 25 years if Y shall so
long live" is not a
valid term of years absolute. Under the Law of Property Act 1925a
term of years
absolute can exist as a *legal estate provided it is created in the
required manner, i.e.
by deed in the case of a term of three years or more.
terra nullius See DISCOVERY.
territoriality n. (in international law) The principle that states
should not exercise
their jurisdiction outside the area of their territory. They are
entitled, however, to
exercise jurisdiction within their territory over acts committed by
their citizens
outside their territory, and all states have jurisdiction over
*offences against
international law and order. The territory of a state for purposes
of jurisdiction
includes its ships and aeroplanes. A state may exercise
jurisdiction over crimes that
are either originated within its territory but completed outside or
originated
outside its territory and completed inside.
territorial limits The geographical limits within which an Act of
Parliament
operates, which include, in the UK,the territorial sea up to the
12-mile limit. The
limits are restricted by international law (see SOVEREIGNTY OF
PARLIAMENT).
territorial waters The band of sea between the limit of the
*internal waters of a
state (see BASELINE) and the *high seas, over which the state has
certain specified
rights. These rights are governed by a 1958Geneva Convention, which
is taken to
represent the position under customary international law. New rules
were proposed
in a 1982 United Nations Convention on the Law of the Sea (see LAW
OF THE SEA). A
coastal state exercises sovereignty over its territorial waters,
which includes, in
particular, the following. (1) An exclusive right to fish and to
exploit the resources
of the seabed and subsoil of the seabed and exclusive use of the
airspace above the
territorial sea. (2)The exclusive right to use the territorial
waters to transport
people and goods from one part of the state to another. (3)The
right to enact laws
concerning navigation, immigration, customs dues, and health, which
bind all
foreign ships. (4)The right to ask a warship that ignores
navigation regulations to
leave the territorial waters. (5) Certain powers of arrest over
merchant ships and
people on board and jurisdiction to try crimes committed on board
such ships
within the territorial waters. (6)The right to exclude fighting in
the territorial
waters during a war in which the coastal state is neutral. All
foreign ships, however,
have a right of innocent passage through the territorial sea, i.e.
the right to pass
through, provided they do not prejudice the peace, security, or
good order of the
coastal state (submarines must navigate on the surface). See also
HOT PURSUIT, RIGHT
OF.
The extent of the territorial sea is usually measured from the
low-tide mark on
the shore, but in estuaries and small bays it is measured from a
closing line
between two points on the shore, which delimits the state's
internal waters. The
width of the territorial sea is a matter of dispute in
international law. Traditionally
it has been fixed at 3 nautical miles (see CANNON-SHOT RULE), but
many states have
claimed 12 miles or more, and this will probably become the normal
width. The
Territorial Sea Act 1987fixes the territorial waters of the UKat 12
nautical miles.
Beyond the territorial sea, states have a contiguous zone, not
exceeding 24 nautical
miles, in which they may exercise jurisdiction over certain
infringements of their
customs, fiscal, immigration, or sanitary regulations. In recent
years many states
(including the UK) have also claimed exclusive fishery zones
extending 200 miles
beyond the low-tide mark. The UKis subject to the EU's *Common
Fisheries Policy
in relation to fishing. See alsoEXCLUSIVE ECONOMIC ZONE.
terrorism n. The use or threat of violence for political ends,
including putting
the public in fear. The Terrorism Act 2000 has abolished all the
previous statutory
provisions relating to terrorism, apart from a number of specific
provisions that
continue to exist under the Northern Ireland (Emergency Provisions)
Act 1996, the
Terrorism (Temporary Provisions) Act 1989,and the Criminal Justice
(Terrorism and
Conspiracy) Act 1998. The Terrorism Act 2000 defines terrorism in
section 1 as
(a) the use or threat of action that involves serious violence
against a person or
serious damage to property, endangers a person's life, creates a
serious risk to the
health or safety of the public or a section of the public, or is
designed to interfere
with or disrupt an electronic system, or (b) the use or threat of
violence designed to
influence the government or intimidate the public or a section
of the public: in
both cases the use or threat of such action or violence is made for
the purpose of
advancing a political, religious, or ideological cause. The Act
also provides that the
action referred to includes that taken within as well as outside
the United Kingdom.
The Act contains provisions that allow for certain organizations to
be declared as
proscribed organizations. It then becomes an offence to be a member
of such an
organization. The Act also contains detailed provisions as to
property defined as
being "terrorist property" and the forfeiture of such property.
There are detailed
provisions relating to the investigation of terrorist activities
that grant the police
and security services special and extra powers. These include
special powers to stop
and search, detain, and interrogate those suspected of involvement
in terrorist
activities.
The Act was a further attempt at bringing UK legislation into line
with the 1977
European Convention on the Suppression of Terrorism. This was
needed in order to
ensure that persons within the UKwho were suspected of terrorist
activity in other
parts of Europe could be successfully extradited to face trial in
those other states.
Much of the legislation is directed at the situation in Northern
Ireland. However,
this is likely to change as the focus now shifts to dealing with
international
terrorism.
Tessa n. See TAX EXEMPT SPECIAL SAVINGS ACCOUNT.
testament n. A *will. Strictly speaking, a testament is a will
dealing only with the
testator's personal property, not his land.
testamentary capacity The ability to make a legally valid will.
Persons under 18
years (apart from members of the armed forces on active service -
see PRIVlLEGED
WILL) and mental patients do not have testamentary capacity. The
testator must, at
the time he makes his will, understand the nature of the document,
the property of
which he is disposing, the persons who have a natural claim to
provision from his
estate, and the manner in which he provides for his estate to be
distributed.
testamentary expenses Costs incurred by a deceased's personal
representatives
in administering his estate.
testamentary freedom The principle that a person is free to dispose
of his
property by will in whatever manner he chooses. This freedom is
restricted by the
Inheritance (Provision for Family and Dependants) Act 1975, which
allows members
of a deceased person's family or his dependants to apply to the
court for provision
from his estate if his will does not adequately provide for
them.
testamentary guardian A person appointed by will to be the
*guardian of a
child under 18.
testamentary intention The principle that a person's will must
reflect his true
wishes. Thus a will executed as a result of coercion, fraud, or
undue influence will
be set aside by the court.
testamentary trust A trust contained in a will.
testate adj. Having left, at one's death, a legally valid
will.
testator n. A person who makes a will.
testatum n. See DEED.
test case A case brought to test a principle of law that, once
established, can be
applied in other cases. Thus when there are a number of claimants
with similar
claims, a test case may be brought by one of them, after which the
remainder of the
claims can be settled out of court on the same basis. Compare
REPRESENTATIVE ACTION.
testimonium n. See DEED.
testimony (testimonial evidence) n. A statement of a witness in
court, usually
on oath, offered as evidence of the truth of what is stated.
textbooks pl. n. Textbooks are sometimes cited in court to assist
in the
interpretation of the law. They have no authority as a source of
law but merely
provide an expert opinion as to the current state of the law. There
was formerly a
convention that only the works of dead authors could be cited, but
modern practice
also allows citation of living authors. The Books of Authority,
i.e. the works of
Glanvil, Bracton, Littleton, Coke, and Blackstone, are treated as
having the same
authority as cases of the same period.
thalweg. rule of the [from German: downway] The rule for
determining the
BOUNDARY line between two states that are separated by a navigable
river containing
a newly formed island. According to this rule, the boundary line
moves with the
centre of the navigable channel, i.e. it is delineated as being the
centre of the course
with the strongest current, so that the newly formed island must
lie on one side of
it or the other. On non-navigable rivers, however, the middle line
of the river will
mark the boundary between the two states between which it flows.
Thus, a newly
formed island might well fall partly on one side of the boundary
line and partly on
the other. See alsoACCRETION; AVULSION.
theft n. The dishonest appropriation of property belonging to
someone else with
the intention of keeping it permanently (see DISHONESTY).
"Appropriation" is defined
in the Theft Act 1968as the assumption of the rights of the owner
of the property
and includes any act showing that one is treating the property as
one's own, which
need not necessarily involve taking it away. For example, switching
price tags from
one item to another in a shop to enable one to buy goods at a lower
price could
amount to an appropriation, as could purporting to sell someone
else's property. If a
person acquires property without stealing it, but later decides to
keep the property
unlawfully, he may be regarded as having appropriated it. For
example, if A lends
his golf clubs to Bfor a week and B subsequently decides to keep
the clubs or sell
them, this indicates that B has assumed the rights of the owner
unlawfully.
"Property" includes all tangible and intangible objects and choses
in action (e.g. bank
balances) but there are special rules in the Theft Act 1968
governing land and wild
plants and animals (see POACHING). Property belongs to anyone who
either owns it or
has physical possession or control of it. The Act expressly states
that a person is not
dishonest if he believes (even if unreasonably) that he is legally
entitled to
appropriate the property or that the owner would consent or could
not be
discovered by taking reasonable steps. The punishment for theft is
up to ten years'
imprisonment.
Under the Theft Act 1978, obtaining goods or services without
paying for them is
now covered by the offence of *making off without payment (see also
SHOPLIFTING).
Cases in which property is obtained by deception are usually dealt
with as
*deception offences. Theft involving the use of force may amount to
*robbery. See
also BURGLARY; CONVEYANCE.
thing n. See CHOSE.
third-party insurance Insurance against risks to people other than
those that are
parties to the policy. It is illegal to use, or allow anyone else
to use, a motor vehicle
on a road unless there is a valid insurance policy covering
death, physical injury, or
damage caused by the use of the vehicle in Great Britain. It also
covers any liability
resulting from the use of a vehicle (or a trailer) that is
compulsorily insurable in EU
countries. The policy is only considered valid when a certificate
of insurance has
been issued.
There is a duty upon anyone driving a motor vehicle to give his
name and address
and that of the car owner and to produce the certificate of
insurance whenever
asked to do so by a police officer. He may, however, produce it
within five days at
any police station he specifies at the time he was asked to produce
it. There is also a
duty to give details of one's insurance to any person making a
claim against it or to
any chief police officer who is checking whether the legal
requirements of
insurance are complied with. Breach of any of these duties is
punishable by fine. See
also DRIVING WITHOUT INSURANCE.
third-party proceedings Proceedings brought by a defendant to a
civil action
against a person not already a party to the action. Under the
*Civil Procedure Rules
such proceedings are now known as *Part 20 claims.
threat n. The expression of an intention to harm someone with the
object of
forcing them to do something. A threat (or menace),or the action of
threatening
someone (see INTIMIDATION), is an ingredient of many crimes. See
BLACKMAIL; BOMB HOAX;
CRIMINAL DAMAGE; DURESS; FORCIBLE ENTRY; INTIMIDATION; RACIAL
HATRED; RAPE; SENDING
DISTRESSING LETTERS; THREATENING BEHAVIOUR; VIOLENT DISORDER.
threatening behaviour It is an offence, punishable with up to six
months'
imprisonment and/or a fine, to use towards another person
threatening, abusive, or
insulting words or behaviour. It is a similar offence to distribute
or display anything
that is threatening, abusive, or insulting. In both cases it must
be proved either that
the accused person had the specific intent (see INTOXICATION) to
cause the other
person to believe that immediate unlawful violence would be used
against him or,
simply, that the threatened person was likely to believe that
violence would be used
against him. A constable may *arrest without warrant anyone he
reasonably
suspects is committing either of these offences.
It is also an offence, punishable with a fine, to use threatening
or disorderly
behaviour, or to display anything that is threatening, abusive, or
insulting, within
the hearing or sight of anyone likely to be harassed, alarmed, or
distressed by it.
Here, it is a defence if the accused person proves (see BURDEN OF
PROOF) either that he
had no reason to believe that there was anyone within hearing or
sight who was
likely to be harassed, alarmed, or distressed, or that he was
inside a dwelling (any
living accommodation, including a hotel bedroom) and had no reason
to believe that
the behaviour or display would be heard or seen by someone outside,
or that his
conduct was reasonable. A constable may *arrest without warrant
anyone he
reasonably suspects of committing this offence if, after warning
him to stop, the
person repeats the offence.
All these offences were introduced by the Public Order Act 1986 to
replace similar
offences; they may be committed in private as well as public places
unless the
behaviour or display took place inside a dwelling. A further
offence of intentionally
causing harassment (primarily aimed at racial harassment) was
introduced by the
Criminal Justice and Public Order Act 1994; it is punishable by a
fine and/or six
months' imprisonment. See alsoRACIAL HATRED; RACIST ABUSE;
STALKING; VIOLENT
DISORDER.
three certainties See TRUST.
three-tier system A system for allocating cases between *Crown
Court centres.
First-tier centres deal with both criminal and High Court civil
cases and are served
by High Court *puisne judges, *circuit judges, and *recorders.
Second-tier Centres
deal only with criminal cases, but are served by the same kinds of
judge as first-tier
centres. Third-tier centres deal only with criminal cases and are
served by circuit
judges and recorders only.
threshold criteria The minimum preconditions that must be met
before the
court is able to make a care or supervision order. These are set
out in the Children
Act 1989 and are that the child is suffering or likely to suffer
significant harm
either caused by the care or lack of care given to it by its
parents or because the
child is beyond parental controL See also CARE ORDER; SUPERVISION
ORDER.
tidal waters Under the Merchant Shipping Act 1894,any part of the
sea and of a
river within the ebb and flow of the tide at ordinary spring tides,
excluding
harbours.
tied. cottage. A dwelling provided for the tenant of a *service
tenancy, usually in
relation to agricultural workers' accommodation. See
alsoAGRICULTURAL DWELLINGHOUSE
ADVISORY COMMITTEE; ASSURED AGRICULTURAL OCCUPANCY.
time charter See CHARTERPARTY.
time immemorial See LEGAL MEMORY.
time policy A marine insurance policy that covers a ship against
risks arising in
the course. of any voyage durin.g.a specified period. It differs
from a voyage policy,
covering risks arising In a specified voyage of any duration. A
policy may, however,
be mixed, i.e. restricted in cover as to both time and voyage. See
also DEVIATION.
time provisions in contracts Provisions in contracts that relate to
the time
~thin which acts are to be performed. The question often arises
whether or not a
tIme provision constitutes a *condition of the contract. If it
does, it is said that time
is of the essence. In general, time is of the essence only if the
contract says so or if
an intention that it should be so is to be inferred from the nature
of the transaction
or the circumstances surrounding it. Most suppliers' contracts,
however, include an
express term that time is not of the essence.
title n. 1. A person's right of *ownership of property. Someone
with a good title
has adequate evidence to establish his right. See ABSOLUTE TITLE;
QUALIFIED TITLE; TITLE
DEEDS. 2. The heading of an *Act of Parliament, which may be a long
title or a
short title. 3. The name of a particular court action, which is
derived from the
heading of the originating *process that initiated it.
title deeds Documents that prove a person's ownership of land and
the terms on
which he owns it. In the case of unregistered land they consist of
all *conveyances,
*mortgages, and other documents tracing ownership of the land back
to a good
*root of title at least 15 years old. Title deeds to registered
land are the land
certificate or charge certificate (see LAND REGISTRATION).
Tobar doctrine The doctrine that *recognition of a government
should only be
granted If that administration came to power by legitimate
democratic means.
Named after its creator, the Ecuadorian Minister of Foreign
Relations, it was first
adopted by five Central American states in 1907 and embodied in a
treaty. After later
US approval, the doctrine became known as the Wilsonian policy.
Although it had
the laudable aim of trying to maintain stability in a notoriously
unstable part of the
world, the doctrine has been applied inconsistently; since the end
of World War II
the USAand many other states have favoured the more pragmatic
*Estrada
doctrine.
TOLATA (TLATA) Acronym for the Trusts of Land and Appointment of
Trustees
Act 1996. See TRUST OF LAND.
Tomlin order A form of order used to give effect to a compromise of
litigation in
the High Court. It is based on a <Practice Direction issued by
Mr Justice Tomlin in
1927. The order is made by consent of the parties and states that
on terms agreed
between them (which are scheduled to the order) all further
proceedings are to be
stayed except for the purpose of putting the agreed terms into
effect.
tools of trade A workman's tools, which he is entitled to keep if
he is made
bankrupt. They include all tools, books, vehicles, and other items
of equipment
necessary for the bankrupt's personal use in his employment,
business, or
vocation.
tort n. [Old French: harm, wrong: from Latin tortus, twisted or
crooked] A wrongful
act or omission for which *damages can be obtained in a civil court
by the person
wronged, other than a wrong that is only a *breach of contract. The
law of tort is
mainly concerned with providing compensation for personal injury
and property
damage caused by *negligence. It also protects other interests,
however, such as
reputation (see DEFAMATION), personal freedom (see ASSAULT; FALSE
IMPRISONMENT), title
to property (see CONVERSION; TRESPASS), enjoyment of property (see
NUISANCE), and
commercial interests (see INTIMIDATION; CONSPIRACY; PASSING OFF).
It must usually be
shown that the wrong was done intentionally or negligently, but
there are some
torts of *strict liability. Most torts are actionable only if they
have caused damage,
but torts whose main function is to protect rights rather than to
compensate for
damage (such as trespass) are actionable without proof of damage.
The person
principally liable is the one who committed the tort (the
tortfeasor) but under the
rules of *vicarious liability one may be liable for a tort
committed by another
person. The main remedy for a tort is an action for damages, but in
some cases an
*injunction can be obtained to prevent repetition of the injury.
Other remedies are
*self-help and orders for specific restitution of property.
Some torts are also breaches of contract. Negligent driving by a
taxi-driver that
causes injury to his passenger is both the tort of negligence and
breach of the
contract to carry the passenger safely to his destination. The
passenger may sue
either in tort or for breach of contract, or both. Many torts are
also crimes. Assault
is both a crime and a tort. *Dangerous driving is a crime and may
give rise to an
action in tort if it causes injury to another person. The crime is
prosecuted by
agents of the state in the name of the Crown. It is left to the
injured person to seek
compensation from the wrongdoer by means of an action in
tort.
tortfeasor n. One who commits a *tort. See alsoJOINT
TORTFEASORS.
tortious adj. Having the nature of a "tort: wrongful.
torture n. Under section 134 of the Criminal Justice Act 1988, the
offence
committed by a public official (or someone with the official's
acquiescence) of
intentionally inflicting severe physical or mental suffering on any
person anywhere
in the world. It carries a maximum sentence of life imprisonment.
Under this Act,
the accused had a defence if he proved that his conduct was legally
authorized,
justified, or excusable. However, the prohibition on torture as set
out in Article 3 of
the European Convention on Human Rights is now part of UKlaw as a
consequence
of the *Human Rights Act. This right is an *absolute right, and
torture can never be
justified as being in the public interest, no matter how great that
public interest
might be. Public authorities have a limited but positive duty to
protect this right
from interference by third parties.
total loss (in marine insurance) See ACTUAL TOTAL LOSS; CONSTRUCTNE
TOTAL LOSS.
Compare PARTIAL LOSS.
totting up The system under which offences endorsed on a driving
licence are
added up to empower the courts to order *disqualification from
driving. Until 1
November 1982, certain road offences (listed in a Schedule to the
Road Traffic Act
1972) were totted up if, within three years before committing the
latest offence,
the accused had been convicted and had his licence endorsed on two
occasions. Since
that date the system has been altered. All traffic offences that
are subject to
compulsory or discretionary disqualification are now assigned a
number of penalty
points (reflecting the gravity of the offence). When a person is
convicted of any of
these offences, and his licence is endorsed but he is not
disqualified, the
endorsement states the number of points for that offence. If he is
disqualified for
the offence, the penalty points that would normally apply to that
offence are not
endorsed. When the penalty points endorsed within the past three
years - together
with the points acquired on the latest offence - amount to 12 or
more, the court
must order disqualification for a minimum of six months, but the
points applying
to the latest offence are not endorsed. If the accused has already
been disqualified
within the three years before the latest endorsable conviction, the
minimum
disqualification is for one year; if he has been disqualified more
than once, the
minimum is two years. Mitigating circumstances are still permitted
(to prevent
disqualification or shorten the period), but only upon proof of
exceptional hardship.
When several offences are committed together, the licence is only
endorsed with the
points relating to the gravest offence. If a person is disqualified
under this system,
all previous points are eliminated, and he gets back a clean
licence after
disqualification. Under the Road Traffic (New Drivers) Act 1995,
with effect from 1
June 1997, if a driver is convicted of an endorsable offence and
accumulates 6 or
more penalty points within two years of passing a driving test, his
licence is revoked
and he must retake the test. Penalty points for the most important
offences are as
follows.
3-11 points - any offence involving obligatory disqualification for
which
disqualification was not ordered because of special reasons or
mitigating
circumstances.
10 points - being in charge when unfit or with excess alcohol in
the body (see
DRUNKEN DRlVING); failing to provide a *specimen of breath.
5-10 points - failing to stop after a *road traffic accident;
failing to report an
accident.
3-9 points - *careless and inconsiderate driving.
8 points - taking a *conveyance.
6-8 points - *driving without insurance.
7 points - *driving while disqualified.
4 points - failing to provide a specimen for a preliminary *breath
test.
3 points - *speeding (if a fixed penalty); leaving a car in a
dangerous position (see
OBSTRUCTION).
2 points - *driving without a licence; driving under age.
All endorsements on the licence before 1 November 1982 count as 3
points.
touting n. Seeking business by approaching potential customers.
Under the
Criminal Justice and Public Order Act 1994 it is a summary offence
(punishable by a
fine) for unauthorized persons to offer or display for sale, in
a public place, a ticket
for a designated football match or other sporting event for which
more than 6000
tickets are issued. Similarly, it is a summary offence (punishable
by a fine) for taxi
operators to solicit persons to hire vehicles to carry them as
passengers unless they
are licensed operators within an authorized scheme that permits
such soliciting.
Both offences are *arrestable offences.
town and country planning A system of controlling the use of
land
administered by local planning authorities under the Town and
Country Planning
Act 1990,which is subject to supervisory powers of the Secretary of
State. These
authorities include both county and district councils (or unitary
authorities) and
also, in Greater London, the London borough councils and the Court
of Common
Council of the City. The background to control is the development
plan. Councils
formulate and keep under review structure plans of general policy
for their areas,
and the other authorities maintain local plans of detailed policy
for theirs. The
structure plan and local plan for an area constitute its
development plan. The
machinery of control is planning permission, without which no
*development of
land may take place. The Secretary of State has granted permission
for certain
classes of development ("permitted development") by a general
development order
applicable throughout England and Wales; permission may be granted
for particular
cases by special development orders. In all other cases permission
is a matter for
local planning authorities (normally at district or borough level),
with a right of
appeal to the Secretary of State against its refusal or against
conditions attached to
it. The implementation of control is by local planning authorities,
primarily by
serving an *enforcement notice.
town clerk The office held by the head of the permanent staff
(normally a
qualified solicitor) of some local authorities. Under the Local
Government Act 1972,
the office ceased to be obligatory and most authorities now appoint
a chief
executive instead.
tracing trust property (following trust property) The right of a
beneficiary
under a *fiduciary relationship to recover trust property or its
value if it is
wrongfully disposed of by the fiduciary. The right exists against
anyone except a
person who has purchased the trust property without notice of the
fiduciary
obligation; a beneficiary may, for example, recover the property
from a trustee who
has mixed trust property with his own funds, or from a person to
whom the
property has wrongly been given.
track (in civil proceedings) See ALLOCATION; CASE MANAGEMENT.
trade description Any direct or indirect indication of certain
characteristics of
goods or of any part of them, such as their quantity, size, fitness
for their purpose,
time or place of origin, method of manufacture or processing, and
price. Under the
Trade Descriptions Act 1968,it is a criminal offence to apply a
trade description to
goods that is false or to supply or offer to supply any goods to
which such a
description is applied (see FALSE TRADE DESCRIPTION).
trade dispute Any dispute between workers and their own employer
relating to
one or more of the following: (1) terms and conditions of
employment; (2) the
engagement or nonengagement, suspension, or dismissal of any
employee; (3)
allocation of duties between employees; (4)disciplinary matters;
(5) trade union
membership or nonmembership; (6) facilities for trade union
officials; and (7)
negotiating machinery and the recognition of trade unions'
negotiating rights on
behalf of employees. Under terms of the Trade Union and Labour
Relations
(Consolidation) Act 1992,a person cannot be sued in *tort for an
act that is
committed in contemplation or furtherance of a trade dispute on the
grounds that
it induces or threatens any breach or interference with the
performance of a
contract. Generally such immunity extends only to the acts of
employees against
their own employer. Secondary industrial action may be unlawful
when it is
directed against an employer who is neither a party to the dispute
nor the
customer or supplier of the employer in dispute (see also
PICKETING). Moreover,
there is no immunity in respect of action taken to enforce a
*closed-shop
agreement.
The 1992 Act gives similar immunity to trade unions for their acts
committed in
contemplation or furtherance of a trade dispute provided the act
concerned is
authorized by a majority vote in favour of the action in a secret
ballot of the
union's members. A trade union member can obtain a court order
preventing
industrial action being taken if it has not been authorized by a
ballot. When the
immunity does not apply, a union is only liable in respect of
action that has been
authorized or endorsed by a responsible person (which includes the
principal
executive committee, general secretary, president, paid officials,
or committees to
whom they report). The president, general secretary, or principal
executive
committee may repudiate such authorization or endorsement provided
they act
promptly and notify the person giving the authorization or
endorsement in writing
and without delay.
When a trade union's immunity does not apply and it is ordered to
pay damages
(other than for causing personal injury or for breach of duty
concerning the
ownership control or use of property, or for *products liability
under the Consumer
Protection Act 1987), the amount awarded may not exceed specified
limits. These
range from £10,000 for a union with under 5000 members to
£250,000for a union
with 100000 or more members, and the limits may be varied by
statutory
instrument. Payment of damages awarded against a trade union or
employers'
association may not be enforced against certain protected property,
including its
political and pension funds and the personal assets of its
trustees, members, or
paid officials, as distinct from assets they hold for the union's
or association's
purposes.
trade fixture A fixture attached to rented premises by a tenant for
the purpose
of his trade or business. A tenant can remove trade fixtures at any
time during his
tenancy, as well as at the end of it. See alsoTENANT'S
FIXTURES.
trade mark A distinctive symbol that identifies particular products
of a trader to
the general public. The symbol may consist of a device, words, or a
combination of
these. A trader may register his trade mark at the Register of
Trade Marks, which is
at the Patent Office (see PATENT). He then enjoys the exclusive
right to use the trade
mark in connection with the goods for which it was registered. Any
person or firm
that has a trade connection with the goods may register a trade
mark. For example,
he may be the manufacturer, a dealer, importer, or retailer. Under
the Trade Marks
Act 1994 (and EU directive 89/104), registration is initially for
ten years; it is then
renewable. Trade marks can be registered for ever. However, the
right to remain on
the register may be lost if the trade mark is not used or is
misused. The owner of a
trade mark may assign it or allow others to use it. If anyone uses
a registered trade
mark without the owner's permission, or uses a mark that is likely
to be confused
with a registered trade mark, the owner can sue for an *injunction
and *damages
or an *account of profits. Unregistered marks are protected by
*passing off. Since
1 April 1996 *Community Trade Marks can now be obtained. These are
cheaper than
trade marks obtained by registration in several individual EU
states. Trade marks
are an example of <intellectual property.
trade mark at common law A *trade mark that is not registered in
the
Register of Trade Marks but is identified with particular goods
through established
use. The trade mark's owner may bring an action for *passing off in
the case of
infringement.
trade secret Some process or product belonging to a business,
disclosure of which
would harm the business's interests. The courts will generally
grant injunctions to
prohibit any threatened disclosure of trade secrets by employees,
former employees,
and others to whom the secrets have been disclosed in confidence.
There is a
relationship of trust and confidence between employer and employee
that may be
destroyed if the employee discloses a trade secret, providing a
reason for dismissal;
such a dismissal may be fair if the procedure adopted complies with
the necessary
requirements. See RESTRAINT OF TRADE; UNFAIR DISMISSAL.
trade union An organization whose members are wholly or mainly
workers and
whose principal purposes include the regulation of relations
between workers and
employers or employers' associations. Unions' affairs are regulated
by the Trade
Union and Labour Relations (Consolidation) Act 1992. This provides
that: secret
ballots must be held for election of unions' executive committees
and before any
industrial action backed by the union (see STRIKE); union funds
cannot be used to
indemnify individuals for fines imposed by a court for a criminal
offence or
contempt of court; and unions' accounting records must be open to
inspection by
their members, who can challenge any unlawful use of the funds
through the
courts. There is a right for trade union members not to be
unjustifiably disciplined
by their union (for example for failing to take industrial action).
A member can
apply to an *employment tribunal for a declaration that he has been
unjustifiably
disciplined. The employment tribunal can award compensation if the
claim is
upheld. Trade-union members seeking to enforce their union
membership rights
can obtain advice and financial and legal assistance from the
*Certification Officer,
as the successor of the now abolished position of Commissioner for
the Rights of
Trade Union Members.
trade union official An officer of a trade union (or of a branch or
section of it)
or a person elected or appointed in accordance with the union's
rules to represent a
group of its members. An employee who is a trade-union official is
entitled to tune
off work, paid at his normal rate, for certain purposes. These must
be official union
duties concerning industrial relations between his employer and any
associated
employer and their employees or training approved by the Trades
Union Congress
and relevant to his union duties.
trading stamps Stamps bought from a trading-stamp company by a
retailer and
given to his customers when they purchase goods. The customer
obtains stamps in
proportion to the goods purchased, and when he has collected enough
stamps he can
exchange them for goods from the trading-stamp company. The issue
of trading
stamps is regulated by the Trading Stamp Act 1964. Each stamp must
be clearly
marked with a monetary value and the name of the issuing company.
The retailer
aims to cover the cost of the stamps by profits from the increased
custom he hopes
they will attract.
traffic offences See OFFENCES RELATING TO ROAD TRAFFIC.
transfer n. (in land law) A deed by which ownership of registered
land is conveyed.
See also CONVEYANCING.
transfer of action See REMOVAL OF ACTION.
transfer of risk The passing from the seller of property to the
buyer of the
incidence of the loss if the property is damaged or destroyed. The
Sale of Goods Act
1979 provides that, unless it is otherwise agreed, goods remain at
the seller's risk
until ownership passes to the buyer. After that they are at the
buyer's risk, whether
or not delivery has been made.
transfer of shares A transaction resulting in a change of share
ownership. It
usually involves (1) a contract to sell the shares; (2) their
transfer by delivery of a
*share warrant or execution of a *share transfer; and (3)entry of
the transferee's
name on the register of members of the company. Shares in private
companies and
partly paid shares may be subject to restrictions on transfer. See
alsoTRANSMISSION OF
SHARES.
transfer of undertakings See RELEVANT TRANSFER.
transferred malice See MALICE.
transformation n. (in international law) See DOCTRINE OF
INCORPORATION.
transmission of shares A transfer of shares that occurs
automatically, by
operation of law, upon bankruptcy (from the bankrupt to his trustee
in bankruptcy)
or upon death (to the personal representatives of the deceased).
The transferees do
not become company members until the company enters their names
upon the
register of members; in the meantime they are unable to attend or
vote at company
meetings. See also TRANSFER OF SHARES.
transnational corporation An enterprise consisting of commercial
entities in
more than one state that are linked by ownership or otherwise.
Transnational
corporations operate in such a way that they exercise a uniform,
cohesive, and
common policy in order to further their economic interests. This
policy can allow
them to wield significant influence over the activities of those
states in which they
carry out their commercial activities, i.e. by exerting pressure
over the direction of
domestic policy of the host states.
transparency n. An essential condition for those operating in a
market, which
ensures that the rules to which they are subject are made obvious.
Generally, it
ensures that the reasons behind measures and the applicable
regulations are clear to
all, so that all are treated fairly.
transsexual n. A person who firmly believes he or she belongs to
the sex opposite
to his or her gender at birth; transsexuals may undergo surgery and
drug treatment
to alter the external appearance of their bodies to conform with
their view of
themselves (see SEX CHANGE). Under English law, for the purposes of
marriage
transsexuals are regarded as belonging to the sex determined at
their birth and
registered on their birth certificates. For the purposes of
employment, however, the
law now recognizes the validity of sex changes in transsexuals (see
GENDER
REASSIGNMENT).
travaux preparatoires [French] Preparatory works that form a
background to
the enactment of legislation; for example, recommendations of Royal
Commissions
and consultative documents published by the government. They may
not be used by
the courts as an aid to interpreting the legislation. See
INTERPRETATION OF STATUTES.
traverse 1. vb. To deny an allegation of fact made in the claim
form or
defence. 2. n. The denial itself.
treachery n. Conduct that assists an enemy. This was defined under
the Treachery
Act 1940 as an offence relating to World War II, which was
punishable by death.
There is now, however, no specific crime of treachery: acts of this
sort are usually
dealt with under the Official Secrets Acts (see OFFICIAL SECRETS)
or, in some cases, as
*treason.
treason n. Conduct comprising a breach of allegiance owed to the
sovereign or
the state. Under the Treason Act 1351, high treason included
violating the king's
wife, eldest unmarried daughter, or wife of the king's eldest son;
openly attempting
to prevent the heir to the throne from succeeding; and killing the
chancellor or
any judge while performing their duties. Treason was redefined by
the Treason
Act 1795and the principal forms now include: (1) compassing the
death or serious
injury of the sovereign or his (or her) spouse or eldest son; (2)
levying war against
the sovereign in his (or her) realm, which includes any
insurrection against the
authority of the sovereign or of the government that goes beyond
*riot or
*violent disorder; (3)giving aid or comfort to the sovereign's
enemies in wartime.
The penalty for treason (fixed by law) was formerly death but is
now life
imprisonment.
treasure trove Formerly, items of gold and silver found in a
concealed place,
having been hidden by an owner who was untraceable. Under medieval
law they
belonged to the Crown, but only if it could be proved at a
coroner's inquest that the
owner had intended to retrieve the items and had not merely
abandoned them. If
the items were lost or abandoned, the finder acquired a right to
possess them. The
Treasure Act 1996 (in force from September 1997) altered the law in
this field; the
Act and the Code of Practice made under it apply only to England,
Wales, and
Northern Ireland. The definition of treasure now includes any
object at least 300
years old and containing more than 5% precious metal (excluding
single coins). The
Crown is now entitled to receive all treasure and will pay a reward
to the finder.
The Act creates a new offence of failing to report the discovery of
treasure, with a
maximum penalty of a £5000 fine or three months' imprisonment (or
both). The
Code of Practice sets out guidelines on such matters as which
objects should be
reported; how finders can seek advice from museums and
archaeologists in the
event of a large find; government policy on the payment of ex
gratia rewards,
including rewards to landowners and rewards for finds resulting
from trespass; and
policy and procedures for reaching valuations, including the
commissioning of
reports from independent experts and provisions for finders to
submit their own
valuations.
Treasury Counsel Treasury Counsel to the Crown at the Central
Criminal Court:
a group of barristers, nominated by the Attorney General, who
receive briefs from
the *Director of Public Prosecutions to appear for the prosecution
in trials at the
*Central Criminal Court (Old Bailey).There are six Senior Counsel
(who, despite the
name, are not Queen's Counsel) and ten Junior Counsel.
Treasury Solicitor (HM Procurator General and Treasury Solicitor) A
solicitor
who advises the Treasury on legal matters, instructs parliamentary
counsel on Bills,
instructs counsel to appear on behalf of the Crown in civil cases
involving Treasury
issues, and acts as *Queen's Proctor. Between 1883 and 1908 the
office was combined
with that of *Director of Public Prosecutions. The Treasury
Solicitor's Department is
the largest division of the Government Legal Service; the Treasury
Solicitor is the
head of this service.
treaty n. An international agreement in writing between two states
(a bilateral
treaty) or a number of states (a multilateral treaty). Such
agreements can also be
known as *conventions, pacts, *protocols, *final acts,
arrangements, and general
acts. Treaties are binding in international law and constitute the
equivalent of the
municipal-law contract, conveyance, or legislation. Some treaties
create law only for
those states that are parties to them, some codify pre-existing
customary
international law, and some propound rules that eventually develop
into customary
international law, binding upon all states (e.g. the Genocide
Convention). Federal
states, colonial states, and public international organizations are
sometimes also able
to enter into treaty obligations. The Vienna Convention on the Law
of Treaties (1969)
defines in detail the rules relating to inter-state treaties and is
itself generally
considered to declare or develop customary international law in
this area. Treaties
are normally concluded by the process of *ratification. See also
HIGH CONTRACTING
PARTIES; RESERVATION; SIGNATURE OF TREAIT.
In England the power to make or enter into treaties belongs to the
monarch,
acting on the advice of government ministers, but a treaty does not
become part of
English municipal law until brought into force by an Act of
Parliament.
Treaty of Paris See PARIS TREAIT.
Treaty of Rome The treaty founding the European Economic Community
(now
known as the "European Community) and the European Atomic Energy
Community
(see alsoEUROPEAN UNION). The treaty was signed in Rome on 25 March
1957by its
founder members, i.e. Belgium, West Germany, France, Italy,
Luxembourg, and the
Netherlands. It has since been amended (see SINGLE EUROPEAN ACT;
AMSTERDAM TREAIT)
and is now known as the European Community Treaty (Treaty
Establishing the
European Community as Amended by Subsequent Treaties).
Treaty on European Union See MAASTRICHT TREAIT.
tree preservation order An order made by a local planning authority
(see TOWN
AND COUNTRY PLANNING) prohibiting, in the interests of amenity, the
felling of a tree
(or trees) without its consent. See also CONSERVATION AREA.
trespass n. A wrongful direct interference with another person or
with his
possession of land or goods. In the middle ages, any wrongful act
was called a
trespass, but only some trespasses, such as trespass by force and
arms (vi et armis),
were dealt with in the King's Courts. The distinguishing feature of
trespass in
modern law is that it is a direct and immediate interference with
person or
property, such as striking a person, entering his land, or taking
away his goods
without his consent. Indirect or consequential injury, such as
leaving an unlit hole
into which someone falls, is not trespass. Trespass is actionable
per se, i.e. the act of
trespass is itself a *tort and it is not necessary to prove that it
has caused actual
damage.
There are three kinds of trespass: to the person, to goods, and to
land. Trespassto
the person may be intentional or negligent, but since negligent
physical injuries
are remedied by an action for *negligence, the action for trespass
to the person is
now only brought for intentional acts, in the form of actions for
*assault, "battery,
and *false imprisonment. Trespassto goods includes touching,
moving, or carrying
them away (de bonisasportatis). It may be intentional or negligent,
but *inevitable
accident is a defence. Trespassto land usually takes the form of
entering it
without permission. It is no defence to show that the trespass was
innocent (e.g.that
the trespasser honestly believed that the land belonged to him).
Trespass to land or
goods is a wrong to possession rather than to ownership. Thus a
tenant of rented
property, for example, has the right to sue for trespass to that
property. Trespass to
land is a tort but not normally a crime: the notice "Trespassers
will be prosecuted" is
therefore usually misleading.
However, trespass may sometimes constitute a crime. Thus squatters
may be
guilty of a crime (see ADVERSE OCCUPATION); it is a crime to
trespass on diplomatic or
consular premises or premises similarly protected by immunity; and
it is a crime to
enter and remain on any premises as a trespasser with a *weapon of
offence for
which one has no authority or reasonable excuse, or to be on any
premises, land, or
water as a trespasser with a *firearm for which one has no
reasonable excuse. The
Criminal Justice and Public Order Act 1994 created the offences of
aggravated
trespass and collective trespass. The summary offence of aggravated
trespass
occurs when a trespasser in the open air seeks to intimidate,
obstruct, or disrupt a
lawful activity, such as hunting; an offender can be arrested and
failure to leave the
land on the direction of a senior police officer is also an
offence. Collective
trespass occurs when two or more people are trespassing with the
purpose of
residing on land belonging to another person. The police have
powers to direct
collective trespassers to leave if they have caused damage, used
threatening or
abusive words towards the occupier, or brought six or more vehicles
(which may be
caravans) onto the land (see alsoUNAUTHORIZED CAMPING). Failure to
leave or re-entry
within three months is a summary offence for which a uniformed
police officer
has a power of arrest. Both collective and aggravated trespass are
punishable by a
fine and/or three months' imprisonment. See also AIRSPACE;
BURGLARY; TRESPASSORY
ASSEMBLY.
trespass ab initio [Latin: trespass from the beginning] A form of
trespass that
occurs when a person enters land with authority given by law, e.g.
to arrest a
criminal or search for stolen goods, and subsequently commits an
act that is an
abuse of that authority. The authority is cancelled retrospectively
and the entry is
deemed to have been a trespass from the beginning.
trespass by relation A form of trespass based on the legal fiction
that a person's
actual possession of land dates from the moment he became entitled
to possession.
It arose from the rule that only the possessor of land can sue for
trespass to it.
When someone entitled to immediate possession of land enters into
possession of it
at some later date, his possession is deemed to relate back to the
moment he became
entitled to it to enable him to sue for acts of trespass committed
in the intervening
period.
trespassory assembly An assembly of more than 20 people in the open
air on
land to which the public has no right, or a limited right, of
access, when the
occupier has not consented to the event and it is likely to result
in serious
disruption to the life of the community or significant damage to
land, monuments,
or buildings of historical, architectural, archaeological, or
scientific importance. A
chief office of police may apply to prohibit such an assembly if he
reasonably
believes it is going to be held. Knowingly organizing or inciting a
trespassory
assembly are *summary offences punishable by a *fine on level 4
and/or three
months' imprisonment; knowingly taking part attracts a fine on
level 3.A ,
uniformed police officer has powers of arrest for these offences as
well as a power:"
to stop people proceeding to such an assembly.
trial n. The hearing of a civil or criminal case before a court of
competent
jurisdiction. Trials must, with rare exceptions (see IN CAMERA), be
held in public. At
the trial all issues of law and fact arising in the case will be
determined. See also
SUMMARY TRIAL; TRIAL ON INDICTMENT.
trial at bar *Trial on indictment before three or more judges of
the *Queen's
Bench Division and a jury: formerly used for the trial of criminal
cases of
exceptional public importance. The last such trial was that of Sir
Roger Casement
for treason in 1916 and the procedure was abolished by the Courts
Act 1971.
trial on indictment The trial of a person charged with an
*inclictable offence,
which is by jury in the *Crown Court. The *indictment is read out
to the accused at
the start of the trial. There are a number of differences between
trial on indictment
and *summary trial (i.e. by magistrates). The courts have power to
impose greater
penalties on indictment and there is no time limit before which
indictable offences
must be tried (most summary offences must be tried within six
months).
tribunal n. See ADMINISTRATIVE TRIBUNAL; DOMESTIC TRIBUNAL;
TRIBUNAL OF INQUIRY.
tribunal of inquiry A tribunal appointed under the Tribunals of
Inquiry
(Evidence) Act 1921to investigate a matter of public importance.
The Act provides
machinery for the thorough examination of any matter (e.g.a
national disaster or
alleged corruption in government) that is a source of public
disquiet but is not the
subject of ordinary proceedings in the ordinary courts. A tribunal
is appointed on
resolutions of both Houses of Parliament, its chairman is normally
a senior judge,
and it has all the powers of the High Court concerning the
summoning and
examination of witnesses and the production of documents.
trier of fact A member of a court who has the duty to decide
questions of fact. In
criminal trials on indictment and civil trials with a jury, the
jury is the trier of fact;
in civil trials by judge alone and in summary trials, the judge and
magistrates,
respectively, decide all issues both of law and fact.
TRIPS The Agreement on Trade Related Aspects of Intellectual
Property Rights
1994: the international agreement on *intellectual property rights
that arose from
the Uruguay Round of the *General Agreement on Tariffs and Trade
(see WORLD
TRADE ORGANIZATION). It is designed to reduce distortions and
impediments to
international trade while taking account of the need to promote
effective
protection of intellectual property rights. It also aims to ensure
that measures
to enforce these rights do not themselves become barriers to
legitimate trade.
TRIPS sets out how participating nations will protect intellectual
property rights:
for copyright they should comply with some provisions of the *Berne
Convention;
computer programs and databases will also be protected by
copyright. Trade
marks and patents should be protected in accordance with the Paris
Convention
for the Protection of Intellectual Property (1971), with additional
protection for
designs and the layout of integrated circuits. Developed countries
were given until
1 January 1996 to bring their legislation into conformity with
TRIPS. Developing
countries were given until 2000, and the least developed countries
an additional six
years.
trover n. The original form of the modern action in tort for
*conversion of goods.
Trover was based on a fictitious allegation that the claimant had
lost the goods and
the defendant found them and converted them to his own use. The old
form of
action has disappeared, but its name is still sometimes used as a
synonym for
conversion.
trust n. 1. An arrangement in which a *settlor transfers property
to one or more
*trustees, who will hold it for the benefit of one or more
persons (the beneficiaries
or cestuis que trust, who may include the trustee(s) or the
settlor) who are entitled
to enforce the trust, if necessary by action in COurt. The trust,
recognized originally
in Chancery, is based on confidence and develop~d from the *use; it
has been
described as the most important contribution of English *equity to
jurisprudence.
The beneficiary has rights against the trustee aftd may also have
rights over the
property in the hands of others (see TRACING TRUST PROPERTY). When
a sole beneficiary
is 18 or over, sane, and entitled to all the trust Property, he may
require the trustees
to transfer that property to him; this applies equally when all the
beneficiaries are
18 or over, sane, and likewise entitled. For a trust to exist, the
three certainties
must be present: certainty of intention (i.e. to Cteate a trust),
certainty of subject
matter (the property in the trust), and certainty of objects (those
who will or may
benefit under the trust).
There are few formal technical requirements necessary for the
creation of a trust,
except where land is concerned, though express trusts are usually
found in
professionally drafted documents. Trusts are also commonly used to
protect an
individual's (or company's) ownership of property, when it is
feared that the
possessor of the property may become insolvent. See ACTIVE TRUST;
CHARITABLE TRUST;
DISCRETIONARY TRUST; EXECUTED TRUST; EXPRESS TRUST; IMPLIED TRUST;
PROTECTIVE TRUST;
SECRET TRUST; STATUTORY TRUST.
2. (in the National Health Service) See NBS TRUST; PRIMARY CARE
TRUST.
trust corporation The *Public Trustee or a corporation either
appointed by the
court to act as trustee or automatically entitled to do so because
it is incorporated
in the UKand has issued capital of at least £250,000 of which at
least £100,000 has
been paid up in cash. A trust corporation may exercise all the
powers that would
otherwise require two trustees (e.g. selling land). The clearing
banks and others have
subsidiary companies that are trust corporations.
trustee n. A person having a nominal title to Droperty that he
holds for the
benefit of one or more others, the beneficiaries (see TRUST).
Trustees may be
individuals or corporate bodies (see TRUST CORPORATION) and can
include such
specialists as *judicial trustees, *custodian trustees, and the
*Public Trustee. A
trustee must show a high standard of care towards his
beneficiaries, must not allow
his interests to conflict with those of his beneficiaries, and must
not profit from his
trust. He is not usually entitled to remuneration although he may
recover expenses
necessarily incurred (see CHARGING CLAUSE). Trust~es may refuse
their office, retire, or
resign, but they remain liable for acts carried 011t during their
trusteeship. The
power to appoint replacement trustees is usually given either to
the beneficiaries or
to the remaining trustees; in default the court will appoint
replacement trustees.
Trustees have a wide range of powers and duties, including a duty
to act equally
between the beneficiaries and a power to advance money to them (see
ADVANCEMENT).
In the exercise of their duties they are answerable to the
court.
trustee de son tort [from Latin: of his own wrongdoing] A person
unconnected
with a trust who takes upon himself to act as a trustee. He is
thereafter liable as if
he had been appointed a trustee.
trustee in bankruptcy A person in whom the property of a bankrupt
is vested
for the benefit of the bankrupt's creditors. The trustee in
bankruptcy must collect
the bankrupt's assets, sell them, and distribute the proceeds among
those with valid
claims against the bankrupt. Some claims (e.g. by the Inland
Revenue) take
preference over others.
trustee investments See AUTHORIZED INVESTMENTS.
trusteeship n. See TRUST TERRITORY.
trustees of land The trustees of a *trust of land.
trustees of the settlement See SETTLED LAND ACT TRUSTEES.
trust for sale A trust in which the trustees have an obligation to
sell the propetty
and hold the proceeds of sale in trust for the beneficiaries. Such
a trust used to b~
imposed by statute in situations in which land is owned by two or
more persons
jointly or as tenants in common. Since 1997, all such trusts,
including those already
in existence in 1997, have become *trusts of land. Under the
Administration of
Estates Act 1925, an intestate's estate is held by his
administrators on trust for sale,
If his property includes land, this will now be a trust of land.
Trusts for sale may be
expressly created, but if the property of the trust includes land,
it will be a trust of
land, and a power to postpone sale will be implied.
trust instrument A deed under which property is vested in trustees
upon trust
to apply it for the benefit of the beneficiaries specified in the
deed. In the case of
*settled land, the trust instrument appoints the trustees of the
settlement, sets 011t
the interests to which the beneficiaries are entitled and any
powers conferred in
extension of those contained in the Settled Land Act 1925,and bears
any ad valorel11
stamp duty payable in respect of the settlement. A will admitted to
probate may
also act as a trust instrument.
trust of land Any trust of property that consists of or includes
land. These trusr,
were introduced by the Trusts of Land and Appointment of Trustees
Act 1996
(TOLATA). Since 1997, where land is owned by more than one person
or by a number
of persons in succession, a trust of land will be imposed. In this
respect the trust (If
land replaces both statutory *trusts for sale and Settled Land Act
settlements (see
SETTLED LAND). Land in co-ownership must be held by trustees of
land, of which th~re
must be not more than four individuals, or a trust corporation.
Often, the trustees
and the beneficiaries are the same people; for example, a husband
and wife who OWn
their home jointly will usually be both trustees and beneficiaries
of the trust of
land. The point of imposing such a trust is to allow *overreaching
to take place Oft a
sale or other disposition of the property. The trustees of land
have all the powers of
a beneficial (outright) owner, but have duties to consult the
beneficiaries and
manage the land for their benefit. The beneficiaries have the right
to occupy the
land if it is suitable for that purpose. See alsoJOINT TENANCY;
TENANCY IN COMMON.
trust power (power in the nature of a trust) A *power of
appointment held by
trustees. The trustees are bound to consider whether or not to
exercise the power,
which donees of a mere power are not obliged to do, and to that
extent objects of a
trust power have rights similar to, but perhaps weaker than, those
of beneficiaries
under a trust.
trust property Property subject to a *trust, normally held by
trustees (it may
include trust documents, which affect the trust). If trust property
is wrongfully
disposed of, it may be recovered by the beneficiaries (see TRACING
TRUST PROPERTY).
trust territory Any of the territories formerly under a League of
Nations
"mandate, which after 1945were placed under the trusteeship of the
United
Nations until ready for independence. All trust territories are now
independent
states.
tSO See STATIONERY OFFICE, THE.
TUPE Transfer of Undertakings (Protection of Employment)
Regulations 1981. See
RELEVANT TRANSFER.
turbary n. A *profit Ii prendreor *common conferring the right to
take peat or
turf from another's land, for use as fuel.
turning Queen's evidence See QUEEN'S EVlDENCE.
turpis causa [Latin] A disreputable cause. SeeEX TURPI CAUSA NON
ORITUR ACTIO;
ILLEGAL CONTRACT.
twin-track planning See CONCURRENT PLANNING.
two-counsel rule A rule of etiquette of the Bar that required
junior counsel to
be instructed to assist Queen's Counsel when the latter appeared in
court or in
chambers. This rule has now been abolished, but two counsel are
often instructed
when the weight of the case justifies it.
U
uberrimae fidei [l.atin: of the utmost good faith] Describing a
class of contracts in
which one party has a preliminary duty to disclose material facts
relevant to the
subject matter to the other party. *Nondisclosure makes the
contract voidable (see
VOIDABLE CONTRACT). Examples of this class are *insurance
contracts, in which
knowledge of many material facts is confined to the party seeking
insurance.
UBR Uniform Business Rate. See RATES.
ulterior intent An element of the *mens rea for certain crimes that
requires an
intention to bring about a consequence beyond the criminal act (see
ACTUS REUS)
itself. Crimes of ulterior consent include burglary with intent
(see BURGLARY) and
*wounding with intent. In the former, the ulterior intent is the
intention to
commit one of four crimes (theft, causing grievous bodily harm,
rape, or causing
criminal damage) having entered the building as a trespasser (the
actus reus).
ultra vires [Latin: beyond the powers] Describing an act by a
public authority,
company, or other body that goes beyond the limits of the powers
conferred on it.
Ultra vires acts are invalid (compare INTRA VlRES). The ultra vires
doctrine applies to all
powers, whether created by statute or by a private document or
agreement (such as
a trust deed or contract of agency). In the field of public
(especially administrative)
law it governs the validity of all *delegated and *subdelegated
legislation. This is
ultra vires not only if it contains provisions not authorized by
the enabling power
but also if it does not comply with any procedural requirements
regulating the
exercise of the power. Subdelegated legislation that is within the
terms of the
delegated legislation authorizing it may still be invalid if the
power to make that
legislation did not include the power to subdelegate (see DELEGATUS
NON POTEST
DELEGARE). The individual can normally establish the invalidity of
delegated or
subdelegated legislation by raising the point as a defence in
proceedings against him
for contravening it. The doctrine also governs the validity of
decisions made by
inferior courts or administrative or domestic tribunals and the
validity of the
exercise of any *administrative power. The decision of a court or
tribunal is ultra
vires if it exceeds jurisdiction, contravenes procedural
requirements, or disregards
the rules of natural justice (the power conferring jurisdiction
being construed as
requiring the observance of these). The exercise of an
administrative power is ultra
vires not only if unauthorized in substance, but equally if (for
example) it is
procedurally irregular, improperly motivated, or in breach of the
rules of natural
justice. The remedies available for this second aspect of the
doctrine are *quashing
orders, *prohibition orders, *declaration, and *injunction (the
first two of these are
public remedies, not available against decisions of domestic
tribunals whose
jurisdiction is based solely on contract).
Acts by a registered company are ultra vires if they exceed the
objects clause of
the *memorandum of association. A company member can restrain such
acts prior
to performance; thereafter they are treated as valid (though they
may be a breach of
directors' duties). Section 35 of the Companies Act 1985(as amended
in 1989) made it
much harder to challenge ultra vires acts of a company.
umpire n. See ARBIrRATION.
UN See UNITED NATIONS.
unascertained goods Goods that are not specifically identified
at the time a
contract of sale is made. For example, in a contract for the sale
of 1000 tonnes of
soya bean meal, the seller may deliver any 1000 tonnes that answer
the contract
description. When the correct quantity has been set aside for
delivery to the buyer,
the goods are described as ascertained. Ownership does not pass to
the buyer until
the goods have been ascertained. Compare SPECIFIC GOODS.
unauthorized camping The summary offence of camping in vehicles on
land
without the consent of the occupier, or on land forming part of a
highway, or on
any other unoccupied land and failing to comply with a direction to
leave by the
local authority. It is also an offence to re-enter the land within
three months. The
local authority may direct the removal of vehicles or any other
property; it may also
apply to a magistrates' court for an order authorizing removal. A
vehicle does not
have to be fit for use on the roads and includes any body or
chassis, with or without
wheels, and any caravan. Both the offences are punishable by a
*fine on level 3.
Defences of illness, mechanical breakdown, or immediate emergency
may be
available. l.ocal authorities may establish caravan sites for
*gipsies but are no longer
under a duty to do so. See also TRESPASS.
unchastity n. See IMPUTATION OF UNCHASTITY.
UNCID Uniform Rules of Conduct for Interchange of Trade Data
by
Teletransmission: a set of rules for *electronic data interchange
that were drawn up
by the International Chamber of Commerce in 1988.These rules can be
incorporated.
into contracts if the parties wish to do so.
uncollected goods See DISPOSAL OF UNCOLLECTED GOODS.
unconditional surrender See CAPITULATION.
unconscionable bargain See CATCHING BARGAIN.
undefended cause 1. A court action in which the defendant: (1)
fails to
acknowledge service of the claim form; (2)fails to enter a defence;
or (3) fails to
appear, or be represented, at the hearing of the case despite the
fact that he has
received notice of it. If the defendant fails to defend the action,
the claimant may
obtain early judgment against him by filing with the court a
request for judgment.
In cases where the defendant has failed to file either an
acknowledgment of service
or a defence within the 14 days permitted to do so from the date of
service of the
claim form and the particulars of claim on the defendant, a request
for judgment in
*default can be made. If an acknowledgment of service was filed but
a defence was
not, judgment cannot be requested until the expiry of 28 days from
the date of the
service of the particulars of claim. Given that there has been no
investigation into
the merits of the case when a court enters judgment in default (it
being a purely
administrative process), the courts have wide powers, at the
request of the
defendant, to cancel any judgment entered in default (see SETTING
ASIDE). 2. An
application for divorce, nullity, or separation not contested by
the respondent. This
may be because: (1) the respondent declares he does not intend to
contest the
divorce; (2)he gives notice of his intention to defend but fails to
file an answer
within the time allowed; (3)he files no answer at all; or (4) the
answer filed has been
struck out.
underlease n. See SUBLEASE.
undertaking n. 1. A promise, especially in legal proceedings, that
creates an
obligation. A solicitor who breaks such a promise will be in breach
of disciplinary
rules. 2. A business, such as a company, partnership, or sole
trader. *Article 81 of the
Treaty of Rome applies to agreements between undertakings. EU case
law has
established that some state bodies of a trading nature, as well as
charities and trade
associations, may under certain circumstances be classed as
undertakings.
underwriter n. 1. A member of an insurance company or a *L!oyd's
syndicate who
decides whether or not to accept a particular risk for a specified
premium. In
general, the public only deal with underwriters through a broker.
2. An individual,
finance company, or issuing house who undertakes for a commission
to acquire a
specified number of shares in a company if those shares are not
taken up by the
public during a *flotation.
In both cases the underwriter may relieve himself of part of his
liability by
effecting similar arrangements with subunderwriters.
undischarged bankrupt A person who has been made bankrupt and who
has
not yet received an order of discharge from the court. Such a
person is disqualified
from holding certain offices, which include justice of the peace,
councillor, and
Member of Parliament. He must not obtain credit for more than £250
without
informing the creditor that he is an undischarged bankrupt, and he
must not carry
on a business without disclosing the name under which he was made
bankrupt to
those who deal with him. See also BANKRUPTCY.
undisclosed principal See AGENT.
undivided shares The equitable interests in land owned by tenants
in common.
Each co-owner has a specified (but not necessarily equal) share in
the property,
which he may dispose of separately from the others. Such shares are
held under a
*trust of land. See alsoTENANCY IN COMMON.
undue influence Influence that prevents someone from exercising
an
independent judgment with respect to any transaction. A contract or
gift procured
by the exercise of undue influence is liable to be set aside by the
courts. The
exercise of undue influence must normally be proved affirmatively -
it must be
shown that there is a dealing or transaction in which an unfair
advantage has been
taken of another person. In the case of certain relationships (for
example, between
parent and child, husband and wife, doctor and patient, solicitor
and client) undue
influence is presumed to be exercised in the absence of evidence to
the contrary,
and banks should advise spouses to seek independent legal advice
before mortgaging
the family home at the behest of the other spouse for business
loans.
unemployment benefit A former benefit paid under the Social
Security Act
1975as amended by the Social Security Act 1986 to an unemployed
person satisfying
certain conditions. From 7 October 1996 it was replaced by the
*jobseeker's
allowance.
unenforceable contract A contract that, although valid, cannot be
enforced by
action because it is neither evidenced in writing nor (when this is
a permissible
alternative) supported by a sufficient act of *part performance.
Two classes of
contracts are involved - guarantees, and contracts for the sale of
land entered into
before 21 September 1989. By the Statute of Frauds 1677 (in the
case of guarantees)
and the Law of Property Act 1925 (for land contracts), no contract
of either class is
enforceable unless its existence and its terms are evidenced by
some written note or
memorandum signed by the defendant or his agent. By the equitable
doctrine of
part performance, a land contract entered into before 21 September
1989(but not a
guarantee) can be enforced if, alternatively, the claimant has
carried out some act
that can be taken as evidencing the existence of the contract.
Note that land
contracts entered into on or after 21 September 1989 will not even
be valid unless
they are in writing; the requirement of writing is no longer merely
an evidential
one.
unenforceable trust A trust that is valid but cannot be directly
enforced by a
beneficiary. See PURPOSE TRUST.
unfair consumer practices See CONSUMER PROTECTION.
unfair contract terms Contractual terms relating to the exclusion
or restriction
of a person's liability that, under the Unfair Contract Terms Act
1977 and Unfair
Terms in Consumer Contracts Regulations 1999, are either
ineffective or effective
only so far as is reasonable. See EXCLUSION AND RESTRICTION OF
NEGLIGENCE LIABILITY;
EXEMPTION CLAUSE; INTERNATIONAL SUPPLY CONTRACT.
unfair dismissal The dismissal of an employee that an employment
tribunal
finds is unfair. Under the Employment Rights Act 1996 employees
have the right not
to be unfairly dismissed, provided they have served the required
period of
*continuous employment and are not over 65 or the normal retirement
age for an
employee in that particular job. However, employees dismissed for
an *inadmissible
reason have this right whatever their age or length of service. An
employee who
considers he has been unfairly dismissed can apply within three
months after the
*effective date of termination of his employment contract to an
employment
tribunal for *reinstatement, *re-engagement, or *compensation. The
tribunal will
make an award unless the employer can show that the principal
reason for the
dismissal was the employee's incapability, lack of qualifications,
or conduct;
redundancy; the fact that it would be illegal to continue employing
him; or some
other substantial reason. The tribunal must also decide that the
employer acted
unreasonably in dismissing the employee.
The statutory protection does not apply to the following: (1)
employees ordinarily
working outside Great Britain; (2)a person employed by his spouse;
(3)members of
the police and armed forces; (4) the crews of fishing vessels in
certain circumstances;
and (5) workers who, at the time of their dismissal, are taking
industrial action that
has lasted more than eight weeks.
unfair prejudice Unfair conduct on the part of those entrusted to
run and
control a company in respect of (usually minority) *company
members. Any
member affected may apply to the court under the Companies Act
1985, and the
court is empowered under the Act to make such order as it thinks
fit. Commonly,
the unfair conduct consists of actions having the effect of
seriously diminishing the
value of the complainant's shareholding. In this instance the usual
remedy sought is
for the purchase of the complainant's shares at a fair price. See
also MINORITY
PROTECTION.
unfavourable witness An *adverse witness who is not *hostile
towards the
party who called him to testify. An unfavourable witness may not be
cross-examined
by that party.
unfitness or incompetence See IMPUTATION OF UNFITNESS OR
INCOMPETENCE.
unfit to plead Describing an accused person who is under a
disability (e.g.mental
incapacity) that would constitute a bar to his being tried. When
the question of
fitness to plead arises (e.g.when the defendant is *standing mute
by visitation of
God),a jury is empanelled to determine the question of the
accused's fitness; if they
find him under disability the court must order that the accused be
admitted to a
hospital specified by the Secretary of State. The court may
postpone consideration of
the question of the accused's fitness to plead until the defence
case is opened so that
(for example) the strength of the prosecution case may be tested.
The procedure is
governed by the Criminal Procedure (Insanity) Act 1964.
Uniform Business Rate (UBR) See RATES.
unilateral contract A contract in which one party (the promisor)
undertakes to
do or refrain from doing something if the other party (the
promisee) does or
refrains from doing something, but the promisee does not undertake
to do or
refrain from doing that thing. An example of a unilateral contract
is one in which
the promisor offers a reward for the giving of information. Compare
BILATERAL
CONTRACT.
unilateral discharge See ACCORD AND SATISFACTION.
unilateral mistake See MISTAKE.
unincorporated body An association that has no legal personality
distinct from
those of its members (compare CORPORATION). Examples of
unincorporated bodies are
*partnerships and *clubs.
union membership agreement See CLOSED-SHOP AGREEMENT.
unitary authority An all-purpose *local authority created under the
Local
Government Act 1992 and subsequent legislation to replace the
two-tier system of
local government by *county and *district councils. Unitary
authorities were
established in Wales (and Scotland) in April 1996 and in certain
nonmetropolitan
counties in England between 1996 and 1998; single-tier authorities
also administer
*Greater London and the former metropolitan county areas (since
1986) and the Isle
of Wight (since 1995). See also LOCAL GOVERNMENT COMMISSION FOR
ENGLAND.
United Nations (UN) An international organization, based in New
York and
Geneva, set up by the United Nations Charter in 1945 to replace the
League of
Nations. The main aims of the UN are: (1) to maintain international
peace and
security and to bring about settlement of international disputes by
peaceful means;
(2) to develop friendly relations among nations; and (3) to achieve
international
cooperation in solving international problems of an economic or
cultural nature and
in promoting respect for human rights. The Charter sets out certain
fundamental
principles, which include the undertaking to refrain from using or
threatening
force against the territory or political independence of any
state.
The Charter established six principal organs, of which the most
important are the
General Assembly, the Security Council, the Economic and Social
Council, and the
*International Court of Justice. The General Assembly is the
debating forum of
the UN, consisting of all the member states; it can pass
resolutions, but these are not
legally binding upon member states. The Security Council has five
permanent
members (China, France, Russia, the UK,and the USA), and ten
temporary members
elected for two-year periods. Its resolutions are binding on member
states, but each
permanent member has the right to veto a resolution. It is
empowered, under
certain conditions, to make recommendations and take measures to
maintain the
peace, including the establishment of peacekeeping military forces
in sensitive areas.
The United Nations has lost credibility as an international legal
organization
because it has often been divided upon issues on the basis of
political (rather than
legal) factors or has passed resolutions of a political nature.
Nevertheless it remains
important as the only world organization (almost all independent
states are
members of the UN)and as a forum for discussion and development
of international
law.
In certain policy areas the United Nations operates through
subsidiary organs; for
example, the United Nations High Commissioner for Refugees (UNHCR)
and the
United Nations Children's Fund (UNICEF).
Uniting for Peace Resolution A resolution passed by the General
Assembly (GA)
of the *United Nations in 1950in which the GAassumed the authority
to determine
what constituted a threat to the peace, a breach of the peace, or
an act of aggression.
In the event of any of these occurring, the GA resolved to invite
member states to
take collective action, including the use of armed force. It is
highly doubtful that
this attempt by the General Assembly to usurp the role of the
Security Council has
any legal authority to allow it to act in this way. It has been
seen more as a
declaration of the frustration of the nonaligned countries at the
superpower
stalemate that previously existed in the Security Council.
unit trust A *trust enabling small investors to buy interests in a
diversity of
companies and other investments. These investments are held by
trustees
(responsible for holding the investments and collecting and
distributing income),
who enter into a trust deed with the managers of the fund (who
select, buy, and sell
the investments). The managers sell units to investors, who thus
acquire an interest
in the fund proportionate to their investment. There is a service
charge that
provides the remuneration of the managers. Unit trusts are subject
to regulation
and supervision by the Department of Trade and Industry.
unity of personality Formerly, the common-law doctrine that husband
and wife
were one person in the eyes of the law. This doctrine has now been
almost entirely
abolished. However, the court still has jurisdiction to stay
proceedings in tort
brought by one spouse against another if there will be no
substantial benefit from
it; a husband and wife may not be convicted of criminal conspiracy
together with
each other (unless a third person is involved); and there are
certain limitations on
criminal proceedings in relation to theft of property belonging to
one's spouse.
unity of seisin The ownership of two plots of land by the same
person.
Easements and other rights over a *servient tenement for the
benefit of a
*dominant tenement are extinguished if both tenements come into the
same
ownership.
unjust enrichment See QUASI-CONTRACT.
unlawful assembly See VIOLENT DISORDER.
unlawful possession of drugs See CONTROLLED DRUGS.
unlawful sexual intercourse Sexual intercourse that occurs in any
of the
*sexual offences involving intercourse, including intercourse with
a girl under the
age of 16 or a mentally defective woman. In this context "unlawful"
implies
extramarital intercourse.
unlawful trust See VOID TRUST.
unlawful wounding *Wounding or *wounding with intent that is not
justified
by, for example, self-defence or by statutory powers given to the
police to arrest
criminals.
unless order An order of the court instructing a party to comply
with directions
specified in the order and also stating the consequences of
noncompliance with the
order within a specified time. Any sanction for noncompliance
attaching to such an
order must be proportionate to the request being ordered.
unlimited company A type of *registered company whose members have
an
unlimited liability. Thus on winding-up, the company can make
demands upon its
members until it has sufficient funds to meet the creditors'
claims. The risk that
members of unlimited companies assume is balanced by certain
advantages: an
unlimited company (unless it is a parent or subsidiary of a limited
company) does
not have to deliver its *accounts to the Companies Registry and it
has more freedom
to deal with its capital than a limited company. Unlimited
companies may be
formed with an *authorized capital, thus enabling them to issue
shares and raise
working capital, but members' liability is not limited to the
nominal value of these
shares.
unliquidated damages See DAMAGES.
unnatural offence *Buggery. Other "unnatural" forms of intercourse,
however,
are not included in the term.
unopposed proceedings Proceedings in which any person entitled to
oppose
fails to take any step (or any further step) in the proceedings,
having been given an
opportunity to do so. Unopposed proceedings often end in a judgment
in *default
but may not do so in proceedings in which the remedy claimed can
only be obtained
by some judicial determination, e.g. in *undefended causes in
divorce proceedings.
unpaid seller A seller of goods who has not been paid in full for
them or who has
received a cheque or other *negotiable instrument that has not been
honoured.
Although ownership of the goods may have passed to the buyer, an
unpaid seller has
certain rights against the goods themselves. Under the Sale of
Goods Act 1979, these
rights are: (1) a possessory *lien (particular, not general); (2)a
right of *stoppage in
transitu; and (3) a *right of resale.
unpaid vendor's lien An equitable right arising in favour of a
vendor of land
against the purchaser (and those taking title through him as
*volunteers) if the
vendor has given *possession of the land to the purchaser before
receiving the
whole of the purchase price. This form of *Iien gives the vendor no
right to
possession of the land but entitles him to seek a court order for
the sale of the
property to ensure that he is paid the money owing by the
purchaser.
unreasonable behaviour Behaviour of a respondent that may be
evidence that a
marriage has broken down irretrievably, entitling the petitioner to
a *divOfce. Such
conduct need not be unreasonable in itself - the real test is
whether it is reasonable
to expect the petitioner to continue living with the respondent,
taking into account
the behaviour of both parties and their particular personalities
and characteristics.
The behaviour may be "positive" (for example, persistent
drunkenness, violence, or
obsessive conduct) or "negative" (for example, neglect or
indifference); a petition
may succeed even if the respondent is not responsible for the
behaviour, due (for
example) to an illness.
unregistered company A *company that is incorporated otherwise than
by
registration under the Companies Acts. Unregistered companies,
which include
*statutory companies and *foreign companies, are subject to some
provisions of the
Companies Act 1985.
unregistered land Land to which the title in question is not
registered at HM
Land Registry. The majority of land has already become registered
as the system of
land registration now demands the compulsory registration of all
land on transfer.
Compare REGISTERED LAND. See also REGISTRATION OF
ENCUMBRANCES.
unsecured creditor A person who has lent money without obtaining
any
security. Compare SECURED CREDITOR.
unsolicited goods Goods sent to someone (other than a trader) who
has not asked
for them to be sent. It is not in itself an offence to send
unsolicited goods (except
for matter describing human sexual techniques or advertisements for
such matter),
but it is a criminal offence to demand payment for them. A person
who receives
unsolicited goods is an involuntary bailee of them (see BAILMENT)
and may not destroy
or damage them. If he disposes of them, he might be guilty of
theft. Statute,
however, permits him to treat them as his own property after six
months (or 30
days if he has asked the sender to take them back).
unsworn evidence Evidence given by a child under the age of 14 in a
criminal
case in accordance with the provisions of the Youth Justice and
Criminal Evidence
Act 1999. The child must be sufficiently intelligent to justify the
reception of his
evidence and understand the duty of speaking the truth. Formerly,
the child's
evidence had to be supported by some *corroboration, but this
requirement has now
been abolished.
unsworn statement A statement made from the dock by an accused
person
while not on oath. The evidentiary effect of such a statement was
much disputed,
but the right to make one, which had been preserved when the
accused was made a
competent witness by the Criminal Evidence Act 1898,was abolished
by the Criminal
Justice Act 1982.
uplift n. The amount by which a solicitor is allowed to increase a
claim for *costs
above the basic charge for the work involved. See also CONDITIONAL
FEE AGREEMENT.
urine specimen See SPECIMEN OF URINE.
usage n. A long-established and well-known practice in a particular
market or
trade. It may affect the interpretation of, and the nature of
*implied terms in, a
contract made in that market or trade.
use n. [possibly from Latin: opus, benefit] Formerly, a right,
recognized only in
Chancery, of a beneficiary (the cestui que use) against the legal
owner of land. The
medieval common law recognized only legal rights, which were often
restricted in
nature, but the Chancery protected those to whose use or benefit
land was given,
although they were not the legal owners. If A held property to the
use of B,A was
the legal owner (feoffee to uses) and Bwas the beneficiary (cestui
que use). Uses gave
flexibility and helped the evasion of feudal incidents (the
medieval equivalent of tax
liability). In 1535 the Statute of Uses executed the use, i.e,
converted the rights of a
cestuique use to legal rights, but the statute proved ineffective
(see USE UPON A USE); it
was repealed and uses were abolished in 1925.
use and occupation Possession and/or use of land by a person in
unlawful
occupation of it. A person claiming to recover possession of the
land by proceedings
in court can also claim a money sum to compensate him for the
defendant's
unlawful use and occupation.
use classes See DEVELOPMENT.
use of force The use of offensive military action, whether
amounting to war or
not, is prohibited under Article 2(4)of the United Nations Charter.
The only
exceptions to this strict rule are as follows: (1) when the use of
force is by way of an
*enforcement action (Article 39 within *Chapter VII of the UN
Charter); (2)when
force is used for the purposes of *self-defence under Chapter VII
(Article 51); and (3)
controversially, when a state uses force for the purposes of
self-defence under
customary international law (arguably preserved by Article 51).
Resort to force upon
any other basis is illegal under international law.
user n. The use or enjoyment of property.
use upon a use Formerly, a right recognized by the Chancery after
the Statute of
Uses 1535(see USE). In a situation in which A held property to the
use of (i.e. for the
benefit of) B,who held to the use of C, the Statute made B the
legal owner but did
not affect the second use to C (the use upon a use), who remained
entitled to the
benefit. The second use eventually developed into the *trust.
usual covenants The covenants that a good conveyancing practitioner
would
insert in a *lease. When an *agreement for a lease does not specify
the terms of the
lease, there is a term implied in the agreement that the lease will
contain the usual
covenants. The following are generally accepted as usual: by the
landlord, a covenant
for *quiet enjoyment; by the tenant, to pay rent, to pay tenants'
rates and taxes, to
keep the premises in repair, and to allow the landlord to enter to
see the state of
repair. There is also a condition for *re-entry for nonpayment of
rent. Whether or
not any other covenant is usual is a matter of evidence.
uti possidetis [Latin: as you possess] A principle usually applied
in international
law to the delineation of borders. When a colony gains
independence, the colonial
boundaries are accepted as the boundaries of the newly independent
state. This
practice, first adopted for the sake of expediency by the Spanish
American colonies
when they declared independence, has since been employed elsewhere
in the world
following the withdrawal of empire.
The principle of uti possidetis is also applied to the status of
movable public
property of belligerent states. Unless a peace treaty provides to
the contrary, each
party will retain such property as was in its possession on the day
the hostilities
ceased.
utter Bar See OUTER BAR.
V
vacantia bona See BONA VACANTIA.
vacant possession The exclusive use of land, to which a purchaser
is entitled on
completion of the transaction unless he has contracted to buy
subject to another's
right of occupation.
vacations pl. n. The periods between the end of any of the
*sittings of the
Supreme Court and the beginning of the next sitting, i.e. the *Long
Vacation,
Christmas Vacation, Easter Vacation, and Whitsun Vacation.
vaccine damage payment A tax-free lump-sum payment made, under
the
Vaccine Damage Payments Act 1979, in compensation for severe
disablement caused
by a vaccine administered under the British government's
vaccination programme.
vagrant n. A person classified under the Vagrancy Act 1824 as an
"idle and
disorderly person", a "rogue and vagabond", or an "incorrigible
rogue". The first of
these groups includes pedlars who trade without a licence,
prostitutes who behave
indecently in a public place, and those who beg in a public place.
Rogues and
vagabonds include those with a second conviction for being idle and
disorderly,
those who collect charity under false pretences, and tramps who do
not make use of
available places of shelter. Incorrigible rogues include those with
a second conviction
for being rogues and vagabonds. Vagrants are usually liable to
imprisonment for
between one month and one year, depending on which class they fall
under,
although beggars and tramps sleeping rough are liable only to
fines. The Act also
provides for various powers to search them or their property.
valuable consideration See CONSIDERATION.
value n. Valuable *consideration.
value-added tax (VAT) A tax payable on a wide range of supplies of
goods and
services by way of business. As well as straightforward sales,
taxable supplies
include hirings, rentals, the granting of rights, and the
distribution of promotional
gifts. VATis also payable on imports. The amount of tax payable is
a percentage of
the value of the supply (at present 17.5% except for domestic fuel,
which is charged
at 8%)and the liability for the tax arises at the time of the
supply (see TAX POINT).
Any person, firm, or organization that makes regular taxable
supplies above a
certain annual value (£54,000 since 1 April 2001)must register with
the Customs and
Excise, who administer the tax. A registered person (known as a
taxable person)
must collect from his customers the tax due on the supplies that he
makes. This is
known as his output tax. He pays the tax to the Customs and Excise
on a periodic
basis (usually quarterly), but in doing so he may reclaim any VAT
that he has
himself paid in the course of his business (his input tax). The
entire tax is therefore
borne by the ultimate consumer. VAT came into force on 1 April
1973, replacing
purchase tax and selective employment tax. See also EXEMPT SUPPLY;
ZERO-RATED SUPPLY.
valued policy An insurance policy that specifies the value of the
property insured
as agreed between the parties. A policy is not valued merely
because it specifies an
amount as the sum insured, for that is no more than an estimate of
value by the
person insured. The essence of a valued policy is that it is based
on an agreed
valuation, which is conclusive; the insured will recover its
full amount even if this
exceeds the actual value of the property at the time of loss.
value received Words that may appear on a *bill of exchange
indicating either
that value has been received by the drawer from the payee or by the
acceptor from
the drawer. Such words are not necessary; every party whose
signature appears on a
bill is presumed, unless the contrary is proved, to have become a
party for value.
vandalism n. Defacing or damaging property. There is no offence of
vandalism as
such, but it will usually constitute an offence of *criminal
damage.
variance n. A discrepancy between a statement in the statements of
case or
between a statement in these documents and the evidence adduced in
support of it
at trial. In modern practice, it can be rectified by
*amendment.
variation of trust A trustee is normally obliged to carry out a
trust according to
its precise terms; if he fails to do so, he is liable to be sued by
his beneficiaries.
There are, however, circumstances (both under the court's own
jurisdiction and by
statute) in which a trust may be varied, and a wide discretion is
given to the court,
under the Variation of Trusts Act 1958,to vary a trust, provided
(usually) that the
variation is for the benefit of those on whose behalf the court is
acting.
VAT See VALUE-ADDED TAX.
VC See VICE CHANCELLOR.
VCT See VENTURE CAPITAL TRUST.
VDU See VISUAL DISPLAY UNIT.
vehicle n. See MOTOR VEHICLE.
vehicle construction and maintenance There are detailed rules
governing the
manufacture and subsequent maintenance of motor vehicles, failure
to comply with
which may constitute a criminal offence. The main rules deal with
such matters as
the brakes and steering system, mirrors, windscreen wipers and
washers, petrol
tanks, door hinges and latches, silencers, pollution prevention,
indicators,
speedometers, lights, and tyres. There are also regulations
governing the use of a
motor vehicle. Breach of the regulations relating to brakes,
steering system, or tyres
or breach of any of the regulations relating to construction.
maintenance, or use in
a manner that causes or is likely to cause danger is an offence
punishable by
*endorsement (and carrying 3 penalty points under the
<totting-up system) and
discretionary disqualification. Other breaches are subject to fines
but not to
endorsement. There are also special offences relating to the sale
or attempted sale of
vehicles whose use on the roads would be a breach of the
regulations. to the fitting
of parts to a vehicle in such a way that its subsequent use would
be in breach of the
regulations, and to selling or supplying parts whose fitting would
cause the vehicle's
subsequent use to be in breach of the regulations. These offences
do not apply,
however, if the defendant proves that the vehicle was sold for
export or that he
reasonably believed that it would not be used in Britain in an
unlawful condition.
See alsoMOT TEST.
vehicle insurance See THIRD-PARTY INSURANCE; DRIVING WITHOUT
INSURANCE.
vehicle interference See INTERFERING WITH VEHICLES.
vendor n. A seller, particularly one who sells land.
vendor and purchaser summons A procedure enabling parties to a
contract
for the sale of land, who disagree on a matter that prevents
completion of the
contract, to apply to a judge in chambers for a ruling. It is often
employed to
resolve questions of interpretation of terms of the contract.
venereal disease Any infectious disease transmitted through sexual
contact
(such as HIV infection, syphilis, or gonorrhoea). If a spouse at
the time of marriage
was, unknown to his (or her) partner, suffering from a venereal
disease this
constitutes a ground for annulment of the marriage. Evidence of a
venereal disease
contracted since the marriage, when neither partner was previously
suffering from
it, may be prima facie evidence of adultery.
venire de novo [Latin: to come anew] An order made by the Court of
Appeal
(Criminal Division) annulling a trial on indictment and ordering a
*new trial on the
ground of some fundamental flaw in the proceedings (e.g.failure to
obtain a
necessary consent to the institution of proceedings). Originally,
it was a writ (venire
facias de novo juratores) addressed to the sheriff, ordering him to
cause new
jurors to try the case afresh.
venture capital trust (VeT) An *investment company listed on the
London Stock
Exchange that specializes in investing in companies of the same
kind as those that
can qualify under the *Enterprise Investment Scheme. This enables
individuals to
spread the risk over a number of qualifying companies. The investor
buys shares in
the VCT, and fund managers invest the money raised in trading
companies; the
profits are paid out as dividends. The investor is entitled to
relief from income tax
and capital gains tax.
verbals pl. n. Any remarks that an accused person has made in the
presence of the
police. These are written down by the police and may be read out as
evidence at the
trial. See also CAUTION.
verdict n. 1. A *jury's finding on the matters referred to it in a
criminal or civil
trial. The jury is asked to give its decision to the court
separately for each of the
questions it was asked to consider (for example, when there are
several charges on
the *indictment). The reply is usually given by the foreman. A jury
reaches its
verdict in secret and no subsequent inquiry can be made as to how
it was reached.
The jury must try to reach a unanimous verdict but a *majority
verdict is accepted
in certain circumstances. If the jury cannot agree a verdict at all
they are discharged
and there is a new trial. Verdicts are either *general or *special.
The usual form of
verdict is general (such as a finding of *guilty or *not guilty)',
special verdicts are
exceptional. A jury may decide that the accused is not guilty of
the offence charged
but guilty of some lesser offence (see ALTERNATIVE VERDICT). See
also PERVERSE
VERDICT. 2. The finding of a coroner's inquest. See
INQUISITION.
vertical agreements Agreements between businesses at different
levels of trade'
for example, agreements between suppliers and distributors or
between wholesaler;"
and retailers (compare HORIZONTAL AGREEMENTS). Both EU regulation
2790/99and the
UK Competition Act 1998 (Land and Vertical Agreements Exclusion)
Order 2000
exempt certain vertical agreements from the competition rules. The
EU exemption
applies provided that clauses from a list of banned clauses are not
included in the
agreement concerned and a 30%market share threshold is not
exceeded. Many
vertical agreements benefit from "block exemption protection.
vest vb. 1. To confer legal ownership of land on someone. 2. To
confer legal rights
on someone.
vested in interest Indicating a present right to a future interest
in property. For
example, if property is left by will "to A for life, remainder to
A's first son", A being
childless at the testator's death, A's first son's right to the
property is vested in
interest as soon as he is born and his interest is a vested
remainder. Compare VESTED
IN POSSESSION.
vested in possession Indicating an immediate right to the enjoyment
of an
interest in property. Compare VESTED IN INTEREST.
vested remainder See VESTED IN INTEREST.
vested rights Rights that have accrued to a person, as opposed to
rights that he
mayor may not acquire. There is a presumption that Acts of
Parliament are not
intended to interfere with vested rights, particularly without
payment of
compensation. See INTERPRETATION OF STATUTES.
vesting assent A document that transfers ownership of *settled land
from
personal representatives of a deceased tenant for life or statutory
owner to the
beneficiary entitled to it under the settlement. The assent must be
signed by the
personal representatives but need not be executed as a deed and it
should contain
the same information required to be included in a vesting deed by
the Settled Land
Act 1925.
vesting declaration A statement in a deed appointing new trustees
that the
trust property is to vest in them, i.e. be in their
possession.
vesting deed See SETTLED LAND.
vesting order An order of the High Court creating or transferring a
legal estate
in land. Such an order may be made, for example, when an equitable
mortgagee
exercises his power of sale: the court may make an order vesting
the land in the
purchaser.
veto n. 1. (in international law) The power given to any permanent
member of the
Security Council of the *United Nations to refuse to agree to any
nonprocedural
proposal (there is no such power in relation to procedural matters)
and thereby
defeat it. An abstention is not equivalent to a veto. The President
of the Security
Council has power to determine which questions are nonprocedural.
The General
Assembly of the UN passed a *Uniting for Peace Resolution in
1950,providing for
the Assembly to take over some of the functions of the Security
Council when the
Council's work has been paralysed by use of the veto. This
resolution, however, was
only a political gesture and failed to overcome the veto power. 2.
(in EU law) a. The
power of a member state in the *Council of the European Union to
block legislation
when a unanimous decision in favour of a measure is required.
Although much EU
legislation only requires a qualified majority decision of the
Council, unanimity
votes are required in such areas as taxation, budgets, foreign
policy, and the
admission of new member states. b. The power of the *European
Parliament to
reject legislation proposed by the Commission by means of the
*codecision
procedure.
vexatious action An action brought for the purpose of annoying the
opponent
and with no reasonable prospect of success. A vexatious litigant is
a person who
regularly brings such actions. The actions may be struck out and
the court may
order, on an application made by the Attorney General, that no
legal proceedings
may be begun or continued by the vexatious litigant without the
leave of the court.
vicarious liability (vicarious responsibility) Legal liability
imposed on one
person for torts or crimes committed by another (usually an
employee but
sometimes an *independent contractor or agent), although the
person made
vicariously liable is not personally at fault. An employer is
vicariously liable for
torts committed by his employees when he has authorized or ratified
them or when
the tort was committed in the course of the employees' work. Thus
negligent
driving by someone employed as a driver is a tort committed in the
course of his
employment, but if the driver were to assault a passing pedestrian
for motives of
private revenge, the assault would not be connected with his job
and his employer
would not be liable. The purpose of the doctrine of vicarious
liability is to ensure
that an employer pays the costs of damage caused by his business
operations. His
vicarious liability, however, is in addition to the liability of
the employee, who
remains personally liable for his own torts. The person injured by
the tort may sue
either or both of them, but will generally prefer to sue the
employer.
Vicarious criminal liability may effectively be imposed by statute
on an employer
for certain offences committed by an employee in relation to his
employment. Thus
it has been held that an employer is guilty of selling unfit food
under the Food Act
1984 when his employee does the physical act of selling (the
employee is also guilty,
though in practice is rarely prosecuted). Likewise, an employer may
be guilty of
supplying goods under a false trade description when it is his
employee who
actually delivers them. For an offence that normally requires mens
rea,an employer
will only be vicariously liable if the offence relates to licensing
laws. For example, if
a licensee has delegated the entire management of his licensed
premises to another
j:letson, and that j:letson has committed the offence with the
nec~ssatymens YeQ, th~
licensee will be vicariously liable.
Vicarious liability for crimes may be imposed in certain other
circumstances. The
registered owner of a vehicle, for example, is expressly made
liable by statute for
fixed-penalty and excess parking charges, even if the fault for the
offence was not
his. If the offence is a regulatory offence of *strict liability,
the courts often also
impose vicarious liability if the offence is defined in the statute
in a way that makes
this possible.
vicarious performance See PERFORMANCE OF CONTRACT.
vicarious responsibility See VICARIOUS LIABILITY.
Vice Chancellor (Ve) 1. A judge who is vice president of the
*Chancery Division
of the High Court (the *Lord Chancellor is the president but in
practice rarely, if
ever, sits in the Division). The Vice Chancellor is by statute
responsible to the Lord
Chancellor for the organization and management of the business of
the Division and
is ex officio a member of the *Court of Appeal. 2. Formerly, a
judge of the
*palatine courts. The title is still held by the judge assigned to
exercise Chancery
jurisdiction in Lancashire.
victim n. (in human rights law) A person who is actually and
directly affected by
an act or omission that is incompatible with the European
Convention on Human
Rights, or a person who is at risk of being directly affected. Only
victims have a
right to take proceedings. See HUMAN RIGHTS ACT.
video evidence Evidence from witnesses provided on video, either
through live
video link or prerecorded. For civil cases, a Video-conferencing
Protocol issued by the
Bar Council sets out the requirements for the use of
video-conferencing equipment
in the High Court. Oral evidence of an overseas witness, for
example, may be
recorded on video tape or provided through a live link, although
its acceptance is at
the discretion of the court. For example, if cross-examination is
needed, a video
recording would not suffice, whereas a live link might. The Video
Recordings Act
1993 and the Criminal Justice Act 1988 (as amended by the Criminal
Justice Act 1991)
set out the law on the use of videos in evidence. There are special
rules for children
giving video evidence. A child of under 14 may give evidence by
video link in cases
involving sex offences or assault against children, but the judge
has a discretion to
determine whether a child may be too young to give good evidence.
When
prerecorded child statements are used in evidence, the interview
from which the
recording is made must last no longer than one hour and no leading
questions may
be asked. However, evidence in the form of a video recording cannot
be subject to
cross-examination and does not carry the weight of live
testimony.
video recordings (in evidence) See VIDEO EVIDENCE.
vi et armis [Latin: by force and arms] The allegation in medieval
pleading that a
trespass had been committed with force and therefore was a matter
for the King's
Courts because it involved a breach of the peace. The term survived
as a formal
requirement of pleading until 1852.See TRESPASS.
view n. (in court proceedings) The inspection by a judge, or judge
and jury, of any
place or thing with respect to which any question arises in the
course of litigation,
including if necessary places or things outside the jurisdiction of
the court. A view
is part of the evidence in the case and the judge should not hold a
private view of a
public place in the absence of the parties. The judge has
discretion to decide
whether or not to hold a view; he may decide to do so even if the
parties are
opposed.
vinculo matrimonii SeeA VINCULO MATRIMONIL
vindictive damages See EXEMPLARY DAMAGES.
violence for securing entry See FORCIBLE ENTRY.
violent disorder An offence committed when three or more persons,
present
together, use or threaten unlawful violence. The collective conduct
must be such as
would have caused a reasonable person to fear for his safety,
though no-one else
need be present. "Violence" includes violent conduct towards
property as well as
persons and extends to conduct causing or intended to cause injury
or damage. It
therefore includes throwing a missile at someone though it does not
hit him or falls
short. The offence is found in the Public Order Act 1986,though it
can be committed
in private as well as in public places. It replaces the common-law
offence of
unlawful assembly and is punishable with up to five years'
imprisonment and/or a
fine. Violent disorder differs from *riot in the smaller minimum
number of
participants, the absence of need to prove community of purpose,
and a lesser
maximum punishment. However, both are *arrestable offences. As with
*affray, a
person is only guilty if he intended to use or threaten violence or
was aware that his
conduct might be violent or threaten violence. For this purpose, an
intoxicated
person is taken to be aware of what a sober person would have been
aware. If the
police fear that a violent event may take place they may now
exercise stop-andsearch
powers (see POWER OF SEARCH).
It is also an offence, punishable with six months' imprisonment
and/or a fine, to
do any of the following, without legal authority, in order to
compel a person to do
(or not to do) something he has a right to do (or not to do): use
violence towards or
intimidate that person, his wife, or children or injure his
property; persistently
follow him; hide his property or hinder his use of it; watch or
beset him or his place
of residence, work, or business; or follow him with two or more
others in a
disorderly manner in a street or road. This offence is aimed mainly
at disorderly
*picketing. However, it is lawful to watch or beset a place
(other than a residence)
for the sole purpose of peacefully obtaining or communicating
information or
peacefully persuading any person to work or not to work.
visiting forces Commonwealth forces stationed in the UKand any
other forces
from abroad designated by Order in Council, including their
civilian components.
The Visiting Forces Act 1952 empowers the service courts of such
forces to exercise
jurisdiction over their members according to their national law
(but not to carry
out the death penalty). It exempts their members from trial by UK
criminal courts
in the case of offences committed on duty, against other members,
or against the
property of the force or other members. The Income and Corporation
Taxes Act
1988confers certain exemptions from UKtaxation on members of
visiting forces.
visitor ri. 1. A person appointed to visit and inspect an
institution and, in
particular, to inquire into internal irregularities. Many
universities have a visitor
(frequently the Crown), and judges are visitors of the Inns of
Court. Boards of
Visitors, appointed for prisons by the Home Secretary, act as
disciplinary tribunals
for breaches of the Prison Rules. A Lord Chancellor's Visitor is
appointed under the
Mental Health Act 1983 to visit patients and inquire into their
ability to manage
their affairs. 2. A person who enters land or premises at the
invitation or with the
permission of the occupier. See OCCUPIER'S LIABILITY.
visual display unit (VDU) A computer screen. The EU's visual
display screen
directive on health and safety and the visual display units
(computer screens)
directive 90/270 protects employees by setting out requirements for
such matters as
risk assessments of computers used at work and by providing for
free sight tests
and footstools for staff and regular breaks from VDUwork.
void adj. Having no legal effect.
voidable adj. Capable of being avoided (set aside).
voidable contract A contract that, though valid when made, is
liable to be
subsequently set aside (compare VOID CONTRACT). Voidable contracts
may arise through
*misrepresentation, some instances of *mistake, *nondisclosure, and
duress (see
ECONOMIC DURESS; UNDUE INFLUENCE). Certain proprietary contracts
entered into by
minors are also voidable (see CAPACITY TO CONTRACT). The setting
aside of a voidable
contract is effected by *rescission.
voidable marriage See NULLITY OF MARRIAGE.
voidable trust A trust that can be set aside, e.g. a trust created
by an *infant. It
may be repudiated by the infant on his attaining majority (18) or
shortly thereafter;
if the trust is not repudiated, it becomes valid and binding. A
trust may also be set
aside if it is made as a result of fraud, duress, or undue
influence.
void contract A contract that has no legal force from the moment of
its making
(compare VOIDABLE CONTRACT). Void contracts occur when there is
lack of *capacity to
contract and by the operation in some instances of the doctrine of
*mistake. An
*illegal contract is void. In addition, certain contracts
(e.g.*gaming and wagering
contracts) are declared void but not illegal by statute, and
certain contracts that are
at common law contrary to *public policy are merely void but not
illegal. Under UK
and EU *competition law on restrictive trade practices, clauses
infringing those laws
are void but usually the rest of the contract continues. Contracts
that are void or, in
certain cases, illegal may be saved by *severance.
void marriage See NULLITY OF MARRIAGE.
void trust (unlawful trust) A trust that it is against the policy
of the law to
enforce. Such trusts include those that offend the *rule against
perpetuities or the
*rule against inalienability or that are contrary to public policy.
If a trust is void,
the property in the trust will normally be held on *resulting trust
for the settlor or
his estate.
voir dire (voire dire) [Norman French: to speak the truth] 1. The
preliminary
examination by a judge of a witness to determine his competence or
of a juror to
determine his qualification for jury service. 2. An inquiry
conducted by the judge in
the absence of the jury into the admissibility of an item of
evidence (e.g. a
*confession). It is sometimes called a trial within a trial. 3.
Formerly, a special oath
taken by witnesses called to testify on the voir dire.
volenti non fit injuria [Latin: no wrong is done to one who
consents] The defence
that the claimant consented to the injury or (more usually) to the
risk of being
injured. Knowledge of the risk of injury is not sufficient; there
must also be (even if
only by implication) full and free consent to bear the risk. A
claimant who has
assumed the risk of injury has no action if the injury occurs. The
scope of the
defence is limited by statute in cases involving business liability
and public and
private transport.
voluntaryadj. Without valuable *consideration.
voluntary accommodation Accommodation provided by a local authority
for
children whose parents are temporarily unable to look after them or
for children
who have been abandoned. (It is important to distinguish between a
child who is
being accommodated by a local authority and a child who is the
subject of a *care
order.) The purpose of a local authority in supplying accommodation
is to support
*children in need and their families; it is not a means for the
local authority to gain
control of the child against the parents' wishes. The local
authority does not acquire
*parental responsibility for a child who is accommodated; parents
with parental
responsibility must consent to their child being accommodated and
may remove the
child without notice and without the consent of the local authority
(before 1989it
was necessary to give 28 days' notice before removing the child
from voluntary
care). If a child is the subject of a care order the local
authority acquires parental
responsibility for that child and may act against the parents'
wishes.
voluntary arrangement 1. An agreement between a debtor and his
creditors
concerning the payment of his debts under the provisions of the
Insolvency Act
1986.It takes the form of either a *scheme of arrangement or a
*composition. It can
be made either before bankruptcy proceedings are initiated or
between an
*undischarged bankrupt and his creditors. The court makes an order,
called an
interim order, to protect the debtor from bankruptcy and other
court proceedings
while an agreement is worked out. The debtor presents his proposals
to a creditors'
meeting to which all his creditors must be invited. If the meeting
agrees with the
debtor's proposals, the approved voluntary arrangement becomes
binding on all
the debtor's creditors, whether or not they attended the meeting.
The approved
voluntary arrangement does not have to be registered as a *deed of
arrangement.
The meeting's decision is reported to the court, which may
discharge the interim
order if no agreement has been reached. An *insolvency practitioner
(the
supervisor) is appointed to supervise the carrying out of an
approved voluntary
arrangement. He may petition for a *bankruptcy order if the debtor
fails to comply
with the terms of the arrangement. 2. A similar agreement between a
company in
financial difficulties and its creditors. Under the Insolvency Act
1986 it must be
approved by meetings of both the company and the creditors; if
it affects the
priority of *preferential debts, the consent of the preferential
creditors is required.
If the arrangement is approved it becomes binding from the date of
the creditors'
meeting; there is no interim order. It is supervised by a nominee,
who must be a
qualified *insoIvency practitioner. An *administration order may be
granted to
assist the conclusion of a voluntary arrangement.
voluntary bill procedure A procedure enabling the prosecution to
apply to a
judge of the High Court to obtain consent for preferring a *bill of
indictment
against a defendant. This procedure is usually used when a
magistrates' court has
held committal proceedings but has refused to commit the defendant
for trial on
indictment.
voluntary confession See CONFESSION.
voluntary conveyance See VOLUNTARY DISPOSITION.
voluntary disposition A conveyance or other transfer of ownership
of land,
made otherwise than for valuable *consideration. Under the Law of
Property Act
1925, a voluntary disposition made with intent to defraud a
purchaser can be set
aside at the instigation of the purchaser.
voluntary liquidation See VOLUNTARY WINDING-UP.
voluntary settlement A *settlement made without valuable
*consideration. For
any voluntary settlement to be enforced, a trust must be executed,
i.e. completed;
hence the maxim "equity will not assist a volunteer".
voluntary waste A kind of *waste that occurs when a tenant takes
positive
action that damages the land he leases.
voluntary winding-up (voluntary liquidation) A *winding-up
procedure
initiated by a special or extraordinary resolution of the company.
In a members'
voluntary winding-up, the directors must make a statutory
declaration of
solvencywithin the five weeks preceding the resolution. This
declaration states
that the directors have investigated the affairs of the company and
are of the
opinion that the company will be able to pay its debts in full
within a specified
period, not exceeding 12 months from the date of the resolution.
The liquidator is
appointed by the company members. A creditors' voluntary winding-up
arises
when no declaration of solvency has been made or when the
liquidator in a
members' voluntary winding-up disagrees with the forecast made by
the directors.
In these circumstances the company must hold a meeting of its
creditors and lay
before it a statement of affairs disclosing its assets and
liabilities. A *liquidator
may be nominated by the company and by the creditors; the
creditors' nominee is
preferred unless the court orders otherwise. If the company nominee
acts as
liquidator prior to the creditors' meeting he can only exercise his
powers with the
consent of the court. The creditors can also appoint a *liquidation
committee.
In both types of voluntary winding-up the powers of the directors
are restricted
after the resolution for voluntary winding-up has been passed and
they cease when
a liquidator has been appointed.
volunteer n. A person who, in relation to any transaction, has not
given valuable
*consideration.
voting n. 1. (in a registered company) The process of casting a
vote on a motion
proposed at a company meeting. Initially the vote is taken upon a
show of hands, i.e,
each company member present in person has one vote. If the result
is disputed, it is
usually possible for the chairman or members (present in person or
by *proxy) to
demand a poll, in which votes are cast (in person or by proxy) in
accordance with
the r.umber and class of *shares held. Particulars of these voting
rights are usually
state" in the memorandum or articles of association. The chairman
usually has a
casting vote in the event of an equality of votes. Members may
agree among
themselves how they will cast their votes in relation to particular
types of
resolution (voting agreement). 2. (in a parliamentary or
local-government election)
See ELECTION.
voyage charter See CHARTERPARTY.
voyage policy See TIME POLICY.
W
wagering contract See GAMING CONTRACT.
wages council A statutory body empowered by the Wages Act 1986 to
prescribe
minimum rates of pay in a particular industry. The wages orders
made by wages
councils did not apply to employees under the age of 21.Each
council consisted of
representatives of employers and employees in the industry
concerned and
independent members. Councils were usually established for
industries in which
employees' collective bargaining power was comparatively
weak.
The Wages Act 1986 abolished the power to create new wages
councils, and the
Trade Union Reform and Employment Rights Act 1993 repealed Part 11
of the Wages
Act 1986,thereby abolishing the remaining 26 wages councils and
also the
requirement to pay statutory minimum remuneration in certain
sectors of industry.
See alsoMINIMUM WAGE.
wait and see principle See RULE AGAINST PERPETUITIES.
waiver n. 1. The act of abandoning or refraining from asserting a
legal right.
2. The instrument that declares the act of waiving. 3. Variation of
a contract.
waiver of privilege See ABSOLUTE PRIVILEGE.
waiver of tort Giving up the right to sue for damages for a tort in
favour of
some other remedy, e.g. a restitution action for money that the
tortfeasor has made
from the tort.
war n. The legal state of affairs that exists when states use force
to vindicate rights
or settle disputes between themselves. States can engage in
hostilities (e.g. reprisals}
without being in a technical state of war, and they can be in a
state of war without
much fighting taking place. At common law a state of war could not
exist until
there had been a formal declaration of war or commencement of
hostilities by the
Crown. The legal condition of war automatically terminates
diplomatic relations and
certain types of treaties between the participants. Normal
intercourse and
commerce between British subjects and those of a power with which
the Crown is
at war are prohibited.
In the Kellogg-Briand Pact (also known as the Pact of Paris) of
1928,the
contracting parties renounced war as an instrument of national
policy and
undertook to settle their disputes by peaceful means. The United
Nations Charter
declares that all parties to it "shall refrain...from the threat or
use of force against
the territorial integrity or political independence of any state"
or in a manner
inconsistent with the Charter, and this is commonly accepted as an
accurate
statement of customary international law. Nonetheless it appears
that states still
retain a right of *self-defence, at least if they have been the
victims of armed attack
and until the Security Council can act. The Security Council is
also authorized to use
force (or to call upon states to do so) under certain circumstances
in order to protect
the peace, although in practice this power has not been invoked
(see USE OF FORCE).
The right of self-defence includes a collective right to assist
other states acting in
self-defence.
The Hague Conventions and Geneva Conventions provide rules
governing the
conduct of wars and stating the rights and duties of both
combatants and
noncombatants during war. However, they do not deal with all
aspects of warfare or
all types of war. There have also been various specific conventions
governing
particular issues, including a 1972 convention on the use or
possession of
bacteriological and toxic weapons, a 1976 convention on the
military use of
environmental modification techniques, and a 1981 convention and
three protocols
on cruel or indiscriminate non-nuclear weapons. Civil wars are not
usually illegal
from the point of view of international law, but it is uncertain
whether or not
other states may legally help either the insurgents or the
established authorities (see
BELLIGERENT COMMUNITIES, RECOGNITION OF; INSURGENCY). The 1977First
and Second
Protocols to the Geneva Conventions of 1949,respectively, extend
some of the laws of
war to civil wars and wars of national liberation (see
SELF-DETERMINATION).
See also AGGRESSION; HUMANITARIAN INTERVENTION; MARTENS CLAUSE;
OCCUPATION;
OFFENCES AGAINST INTERNATIONAL LAW AND ORDER; WAR CRIMES.
war crimes Any violation of the laws or customs of war amounting to
a criminal
act. According to the Charter of the Nuremberg International
Military Tribunal of
1946,war crimes include murder, ill-treatment, or deportation of
civilian
populations, murder or ill-treatment of prisoners of war, killing
hostages,
plundering property, and wanton destruction of population centres
or devastation
that is not justified by military necessity. The Nuremberg Tribunal
also defined a
new category of crimes against humanity, consisting essentially of
murder,
extermination, enslavement, deportation, and other inhumane acts
committed
against any civilian population before or during World War 11 and
persecution on
political, racial, or religious grounds (but only if the
persecution is connected with
war crimes or crimes against peace); these acts are crimes against
humanity whether
or not they violate the domestic law of the country where the crime
was committed.
lt is now arguable that this definition is of general application
and is wider than
that of war crimes. In consequence, the prohibition of crimes
against humanity
denies the right of any state to treat its citizens as it pleases.
This has had major
implications for the relationship between state *sovereigntyand
*humanitarian
intervention.
The Tribunal also created a third category of crimes against peace,
i.e. planning,
preparing, or waging a war of aggression or a war in violation of
international
treaties. It is generally considered that these definitions now
form part of
customary international law.
War crimes tribunals were established at the end of World War II
with
jurisdiction to try and punish those who allegedly committed war
crimes while
acting in the interests of the European Axis countries or Japan.
More recently,
under *Chapter VII of the UN Charter, the UN Security Council has
set up ad hoc
war crimes tribunals in relation to the conflicts in the former
Yugoslavia (1993) and
Rwanda (1994). See also INTERNATIONAL CRIMINAL COURT.
The War Crimes Act 1991 gives jurisdiction to UK courts to try
those charged with
war crimes committed in German-held territory during World War II,
irrespective
of the accused's nationality at the time. Prosecutions may be
brought with the
consent of the Attorney General for *homicide offences.
ward of court 1. A minor under the care of a *guardian (appointed
by the
parents or the court), who exercises rights and duties over the
child subject to the
general control and discretion of the court. 2. A minor in respect
of whom a
*wardship order has been made and over whom the court exercises
parental rights
and duties. A child becomes a ward of court when a wardship order
is made and
remains a ward until he reaches the age of 18 or the court orders
that he should
cease to be a ward. Any child who is actually in England or
Wales (or ordinarily
resident in England or Wales) may be made a ward of court, even
though he is
neither domiciled there nor a British subject. Marriage of a ward
does not
necessarily terminate the wardship.
wardship n. The jurisdiction of the High Court to make a child a
*ward of court
and assume responsibility for its welfare. The jurisdiction is
almost unlimited,
although subject to consideration of the child's welfare and, to
some extent, the
rights of other persons and the public interest. The court
exercises detailed control
of the ward: it may appoint the Official Solicitor to act as his
children's guardian
and may order either parent to make periodical payments for his
maintenance.
Wardship proceedings are heard in private and the usual rules of
evidence may be
relaxed (e.g.in respect of hearsay evidence). The court may enforce
its orders by
injunction; breach of this or tampering with the ward may
constitute contempt of
court.
Wardship proceedings are usually used (1) when there is a dispute
between
estranged parents but no divorce proceedings have been started; (2)
when a foster
parent or potential adopter wishes to prevent relatives interfering
with the child or
when a third party wishes to remove the child from parents who are
considered
unfit to have parental responsibility; (3)when a child has been
"kidnapped" by a
parent; (4) to exercise control over a wayward child; and (5) to
control medical
treatment, such as sterilization, even when this is contrary to the
wishes of the
child. Any person who can establish a proper interest in the child
may apply for
wardship (including the child himself), but the Children Act 1989
restricts the right
of local authorities to use wardship proceedings. It also repeals
the court's power to
commit a ward to the care or supervision of a local authority.
Since the Children Act
came into force use of wardship may be limited as the court may
prefer to make a
*section 8 order instead.
war injuries It is normal in the UK on the outbreak of war to enact
provisions
(e.g. the Personal Injuries (Emergency Powers) Act 1939) excluding
civil liability for
injuries caused by the discharge of missiles, the use of weapons,
explosives, etc.
warned list See CAUSE LIST.
warning of caveat A notice given to a person who has entered a
*caveat
warning him to appear and state what his interest is.
warrant ri. 1. A document authorizing some action, especially the
payment of
money. A warehouse (or wharfinger's) warrant is issued when goods
are taken
into a public warehouse and must be produced when they are removed.
This
document is negotiable and transferable by endorsement. See
alsoENFORCEMENT OF
JUDGMENT; SHARE WARRANT. 2. A written document issued by a
magistrate for the
*arrest of a person or the search of his property (see POWER OF
SEARCH). When a
suspect has fled abroad and there is an extradition treaty covering
the offence he is
suspected of, the magistrate who has jurisdiction over the place in
which the
offence was allegedly committed may issue an arrest warrant to
enable the Director
of Public Prosecutions and the Home Secretary to extradite the
suspect. See also
GENERAL WARRANT.
warrant backed for bail See BACKED FOR BAIL.
warranty n. 1. (in contract law) A term or promise in a contract,
breach of which
will entitle the innocent party to damages but not to treat the
contract as
discharged by breach. Compare CONDITION. See also INNOMINATE TERMS.
2. (in insurance
law) A promise by the insured, breach of which will entitle the
insurer to treat the
contract as discharged by breach. The word therefore has the same
meaning as
*condition in the general law of contract. 3. Loosely, a
manufacturer's written
promise as to the extent he will repair, replace, or otherwise
compensate for
defective goods; a *guarantee.
war risks Under the Marine and Aviation Insurance (War Risks) Act
1952,risks
arising from hostilities, rebellion, revolution, and civil war or
from civil strife
resulting from such events.
waste n. 1. Any alteration of tenanted property that is caused by
the tenant's
action or neglect. It includes damage, deterioration, and
improvement (see
AMELIORATING WASTE; EQUITABLE WASTE; PERMISSNE WASTE; VOLUNTARY
WASTE). Landlords
can take action against tenants who cause waste (see IMPEACHABLE
WASTE). The extent
of a tenant's liability varies according to the kind of tenancy.
Most tenants are
liable for equitable and voluntary waste. *Fixed-term tenants are
also liable for
permissive waste, as are yearly *periodic tenants (but only to the
extent that they
must keep the premises wind- and water-tight). A *tenant for life
under a
*settlement is prima facie liable for ameliorating waste, rarely
liable for
permissive waste, and usually liable for voluntary and equitable
waste (unless
exempted or made "unimpeachable of waste" by the terms of the
settlement).
2. See POLLUTION.
wasted costs order An order for *costs made against the legal or
other
representative of a party on the ground that they were incurred by
any improper,
unreasonable, or negligent act or omission of the representative or
his employee.
wasting assets Property forming part of a deceased's estate and
having a
reducing value (e.g.a leasehold interest in land). Unless the will
directs otherwise,
the personal representatives have a duty to sell such assets.
wasting police time An offence committed by someone who causes
wasteful
employment of the police by making a false report about an offence
or by implying
that a person or property is in danger or that he has information
relevant to a
police inquiry. The consent of the Director of Public Prosecutions
is required for
prosecutions for this offence, which is punishable by a fine and/or
imprisonment.
water n. See RIGHT OF WATER.
water pollution See POLLUTION.
waybill n. See SEA WAYBILL.
weapon of offence Any *offensive weapon or any article made,
adapted, or
intended for incapacitating someone (e.g. a rope to tie someone
with or pepper to
make him sneeze). There are special offences of aggravated
*burglary and of
*trespass with a weapon of offence. See also FIREARM.
wear and tear See FAIR WEAR AND TEAR.
weekly tenancy A weekly *periodic tenancy.
welfare law Law enacted to give effect to society's responsibility
for the wellbeing
of individuals. It relates to such matters as social security (see
NATIONAL
INSURANCE) and income support, employment protection, health and
safety at work,
and housing. Most of the services available to individuals under
welfare law are
covered by the Department for Work and Pensions (formerly Social
Security).
welfare of the child The wellbeing of a child must be the
paramount
consideration of the court in all proceedings concerning the
child's upbringing.
Under the Children Act 1989, any delay in determining the question
of upbringing is
deemed likely to prejudice the welfare of the child. However, a
court will only make
an order concerning a child if it considers that this is the only
means of ensuring
the child's welfare. In adoption proceedings the welfare of the
child is the first, but
not necessarily the paramount, consideration of the court, although
this is currently
under review (see ADOPTION).
Welsh Assembly The National Assembly for Wales, a body established
by the
Government of Wales Act 1998. The Assembly has 60 elected salaried
members. It
does not have legislative or taxing powers, exercising instead a
diverse range of
functions, such as housing, education, economic development, and
flood defence. In
operation from 1999,the Assembly has taken over many of the powers
and
responsibilities of the Secretary of State for Wales. See
DEVOLUTION.
Welsh company A *registered company whose memorandum of
association
states that its registered office is situated in Wales. Welsh
companies may lodge
documents at the Companies Registry in Welsh and may adopt in their
name the
Welsh equivalents for "limited" (cyfyngedig) and "public limited
company" (cwrnni
cyfyngedig cyhoeddus, or c.c.c.). An English translation must be
provided.
wharf n. Under the Merchant Shipping Act 1894,any premises
(including quays and
docks) in or upon which goods landed from ships may be lawfully
placed.
whistle-blowing n. The disclosure by an employee of information
regarding his
employer's business. In certain circumstances (with respect to
disclosures of
wrongdoing by the employer) employees are given legal protection
from retaliation
by the employer. The Public Interest Disclosure Act 1998 protects
employees from
dismissal, or subjection to any detriment, with respect to certain
types of
disclosures. Contractual provisions attempting to oust the
operation of the Act (e.g.
the use of 'gagging clauses' in an employment contract) are
rendered void by the
Act.
Qualifying disclosures must be made in good faith and must pertain
to any of the
following: (1) criminal offences; (2) the breach of a legal
obligation; (3)a miscarriage
of justice; (4) a danger to the health or safety of any individual;
(5) damage to the
environment; (6)deliberate covering up of information tending to
show any of the
above matters. Qualifying disclosures may be made to the employer
or (by means of
internal procedures) to a legal adviser, a minister of the Crown,
or a prescribed
regulator. If an employee is unable to make disclosures to any of
these named
persons, or fears retaliation in making such disclosures, then
wider disclosure may
be made (as long as this is not for personal gain). Wider
disclosure could be, for
example, to the police, the media, a Member of Parliament, or a
non-prescribed
regulator. Workers and employees who are dismissed or subjected to
a detriment as
a result of making a qualifying disclosure to an appropriate
recipient can, within
three months of such action, make a complaint to an employment
tribunal.
white paper See COMMAND PAPERS.
whole blood See CONSANGUINITY.
widow's benefit A benefit formerly payable to. widows. In
.A,pri12001 it was
renamed *bereavement benefit and now applies.equally to Iil.elJ.
and w:omen.
wife's services See CONSORTIUM.
wild animals See CLASSIFICATION OF ANIMALS; DANGEROUS ANIMALS;
POACHING.
wilful adj. Deliberate; intended: usually used of wrongful actions
in which the
conduct is intended and executed by a free agent.
wilful default The failure of a person to do what he should do,
either
intentionally or through recklessness; for example, nonappearance
at court.
wilful misconduct Intentionally doing something that is wrong, or
wrongfully
omitting to do something, or doing something or omitting to do
something that
shows reckless indifference as to what the consequences may
be.
wilful neglect Deliberate or intentional failure to perform a
duty.
wilful neglect to maintain See FAILURE TO MAINTAIN.
wilful refusal to consummate The unjustified decision not to
consummate a
marriage, which may be grounds for annulment of the marriage. There
will be no
wilful refusal if the unwillingness to consummate is temporary, due
to shyness, or
due to some physical abnormality that cannot be safely corrected by
surgical means.
See also CONSUMMATION OF A MARRIAGE.
will n. A document by which a person (called the testator) appoints
*executors to
administer his estate after his death, and directs the manner in
which it is to be
distributed to the beneficiaries he specifies. To be valid, the
will must comply with
the formal requirements of the Wills Act 1837(see EXECUTION OF
WILL) and the
testator must have *testamentary capacity when the will is made. A
will can be
amended by the execution of a *codicil or a duly executed
alteration. It can be
revoked by the testator destroying it with that intention, or
making another will. It
may be revoked in part through partial destruction (with the
necessary intent),
*obliteration of words (rendering them indecipherable) or through
signed and
attested alterations (such as scoring out words). It is
automatically revoked if the
testator marries except where at the time it was made the testator
was expecting to
marry a particular person and he intended his will to survive the
act of marriage.
See alsoINTERPRETATION OF WILLS; JOINT WILL; MUTUAL WILLS;
NUNCUPATIVE WILL; PRIVILEGED
WILL; REVOCATION OF WILL.
winding-up (liquidation) A procedure by which a company can be
dissolved. It
may be instigated by members or creditors of the company (see
VOLUNTARY WINDINGUP)
or by order of the court (see COMPULSORY WINDING-UP). In both cases
the process
involves the appointment of a *liquidator to assume control of the
company from
its directors. He collects the assets, pays debts, and distributes
any surplus to
company members in accordance with their rights.
with costs A phrase appended to the order of a court that has the
effect of
awarding the *costs of the proceedings to the successful
party.
withdrawal of defence A procedure enabling a defendant in an action
in the
High Court to serve a notice on the claimant indicating that he is
not proceeding
with his defence or with part of it. The defendant is then in
*default of defence and
the claimant may proceed to judgment by application.
withdrawal of issue from jury A procedure enabling a judge, who is
not
satisfied that there is sufficient evidence to discharge the
evidential *burden of
proof borne by a party, to discharge the jury and enter judgment
for the opponent
if the issue is decisive of the litigation. If the issue is not
decisive of the litigation as
a whole, he may direct the jury to find against that party in
respect of that issue.
without notice application A procedure in civil litigation by
which one party
may apply for an order of court to be made without the other party
being aware of
it. An example may occur when one party wishes to freeze the assets
of the other
party. Secrecy is essential to avoid the other party having the
opportunity to dispose
of the assets. In cases of this sort it is possible for a without
notice application to be
made for a *search order or a *freezing injunction.
without prejudice A phrase used to enable parties to negotiate
settlement of a
claim without implying any admission of liability. Letters and
other documents
headed "without prejudice" cannot be adduced as evidence in any
court action
without the consent of both parties. However, they may be relevant
when costs are
discussed in courts - thus the phrase "without prejudice save as to
costs" is often
added on settlement correspondence. Whether or not a discussion or
letter is
"without prejudice" and therefore cannot be disclosed to the court
depends on
whether it was a genuine attempt to settle a dispute, not whether
the words
"without prejudice" were written on a letter or said in a meeting.
The reason such
discussions are kept secret from the court is that the courts are
keen to encourage
settlement of disputes without recourse to the courts, and if
settlement discussions
could be disclosed it may deter people from settling
disputes.
without recourse to me See SANS RECOURS.
witness n. 1. A person who observes the signing of a legal document
in case it is
subsequently necessary to verify the authenticity of the signature.
He adds his own
signature to the document as a witness. Many legal documents are
only valid if
properly witnessed (see DEED; WILL). 2. A person who gives
*evidence. In court,
witnesses are required either to give evidence on *oath or to
*affirm that their
evidence is true. Most people are qualified to give evidence in any
case (see
COMPETENCE) but there are certain exceptions; for example, when the
judge considers
the witness mentally unfit to give evidence. In civil cases a child
who is too young to
understand the nature of an oath is not a competent witness,
although in criminal
cases a young child may be allowed to give *unsworn evidence. There
is no
minimum age below which a child cannot give evidence, but the judge
has a
discretion to determine whether or not a child is too young to be a
competent
witness. Most competent witnesses can be compelled to give evidence
(a witness who
refuses to answer is in *contempt of court) but again there are
exceptions. For
example, a witness cannot be compelled to answer a question that
may *incriminate
him. A witness's evidence is usually given orally in open court.
However in certain
circumstances evidence is allowed by *affidavit (see COMMISSION) or
by video link (see
VIDEO EVIDENCE). The evidence of certain witnesses is considered to
be unreliable and
requires *corroboration. The Criminal Procedure and Investigations
Act 1996 set out
new procedures for the issue of *witness summonses in summary cases
and new
rules on formalities in witness statements (effective from 1 April
1997). See also
ADVERSE WITNESS; HOSTILE WITNESS; ZEALOUS WITNESS; INTERFERING WITH
WITNESSES;
PERJURY; QUEEN'S EVIDENCE.
witnessing part See DEED.
witness's oath See OATH.
witness summons An order to a person to appear in court on a
certain day to
give evidence. Before the introduction of the Civil Procedure Rules
in 1999, this order
was known as a subpoena. The party calling the witness must pay his
reasonable
expenses. A witness who fails to comply with the order is in
*contempt of court.
The order is made under penalty of fine or imprisonment for
default. There are two
kinds of witness summons: a summons requiring a person to give
evidence
(formerly called a subpoena ad testificandum); and a summons
requiring him to
produce particular documents that are required as evidence
(formerly called a
subpoena duces tecum).
women employees See EQUALITY CLAUSE; EQUAL PAY; MATERNITY RIGHTS;
SAFETY AT
WORK; SEX DISCRIMINATION.
words of art Words whose legal interpretation has been fixed so
that the legal
effect of their use is known.
words of limitation Words in a conveyance of land that define the
interest
transferred; for example, "in fee simple".
words of procreation The words in a settlement of land that created
an
*entailed interest. Unless the land was expressly settled on the
beneficiary "and the
heirs of his body" or "in tail", an entailed interest would not
result.
words of purchase The words in a conveyance of land that identify
the person
to whom the property is transferred.
words of severance See SEVERANCE.
work done and materials supplied, contract for A contract the
substance of
which is that skill and labour must be exercised in carrying out
the contract, in
addition to supplying the materials used in the work. Examples are
contracts by an
artist to paint a portrait and by a builder to fit double glazing.
Such a contract is
distinct from a contract of sale of goods, in which the substance
of the contract is a
product to be sold.
worker n. An *employee.
work-in n. Industrial action in which employees occupy their
workplace against
the will of their employer and continue working. Generally such
action constitutes
*trespass, and the employer can apply to the court for an order
that the employees
restore possession of the premises to him.
working day 1. For banking and financial purposes, any day other
than Saturday,
Sunday, and *bank holidays. See alsoSUNDAY TRADING. 2. (of a court)
Any day other
than Sunday or holidays, called a dies juridicus. A day on which no
legal business
can be carried on is called a dies non.
working families tax credit An income-related benefit payable under
the Tax
Credits Act 1999 to persons responsible for children, whose income
and savings are
below a prescribed amount, but who are in remunerative work
Administered by the
Inland Revenue rather than the Benefits Agency, it replaced family
credit from 5
October 1999.
working hours The EUWorking Time Directive (93/104) of 1993
required all
member states to limit the working week of employees to 48 hours
(except when
employees have agreed otherwise). The provisions of this Directive
were enacted by
the British government in the Working Time Regulations 1998.Key
elements of the
Regulations require a maximum working week of 48 hours, daily rest
breaks, weekly
rest periods, and annual paid leave of four weeks in each holiday
year. The
Regulations also contain protections with respect to night working.
They are
enforced by the Health and Safety Executive.
World Bank See INTERNATIONAL BANK FOR RECONSTRUCTION AND
DEVELOPMENT.
World Trade Organization (WTO) An international trade
organization formed
under the *General Agreement on Tariffs and Trade (GATT) to replace
GATTand
implement measures agreed at the Uruguay Round (1994) by 2002. It
began operating
on 1 January 1995. The WTO's aims are to continue the work of
GATTin agreeing
international trading rules and furthering the liberalization of
international trade.
The WTO extends its jurisdiction into such aspects of trading as
intellectual
property rights (see TRIPS). WTO rules are very important in
international trade
contracts. The highest authority of the WTO is the Ministerial
Conference, held at
least every two years. By 30 November 2000 the WTO had 140 member
states and a
further 29 governments had applied to join.
wounding n. Breaking the continuity of the skin or of a membrane
(such as that
lining the cheeks or lips). Scratching, bruising, burning, or
breaking a bone without
tearing the skin do not constitute wounding. Malicious wounding is
an offence
punishable by up to five years' imprisonment. It requires an
intention to cause some
physical harm (not necessarily a wound) or foresight of the risk of
causing physical
harm. A person is not guilty of this offence if he intended only to
frighten his
victim but in fact accidentally wounded him, although he would be
guilty of
*assault or *battery.
wounding with intent The aggravated *assault of a person with the
intention
of causing *grievous bodily harm (even if grievous harm does not in
fact result) or
*wounding with the intention of resisting a lawful arrest. Wounding
with intent
carries a maximum sentence of life imprisonment; a second
conviction for
wounding with intent to do grievous bodily harm carries a mandatory
life sentence
(see REPEAT OFFENDER). See also ULTERIOR INTENT.
wreck n. 1. (shipwreck) The destruction of a ship at sea, as by
foundering in a
storm or being driven onto rocks. 2. The remains of a wrecked ship.
3. Goods cast
up by the sea from a wrecked ship.
writ n. An order issued by a court in the sovereign's name that
directs some act or
forebearance. Originally, a writ was an instrument under seal
bearing some
command of the sovereign.
writ of delivery A *writ of execution to enforce a judgment for
delivery of
goods. It directs the *sheriff to seize the goods and deliver them
to the claimant or
to recover their assessed value. If the writ does not offer the
defendant the option
of retaining the goods by paying their assessed value, it is known
as a writ of
specific delivery.
writ of execution A writ used in the *enforcement of a judgment. It
may be a
writ of *fieri facias, a *writ of possession, a *writ of delivery,
a writ of
*sequestration, or any further writ in aid of any of these
writs.
writ of possession A writ directing the *sheriff to enter upon land
to give
vacant possession to the claimant. It is used to enforce judgments
for the possession
of land.
writ of summons Formerly, a writ by which an action was commenced
in the
High Court. Civil proceedings in the High Court are now initiated
through a *claim
form.
written resolution A *resolution signed by all company members and
treated as
effective even though it is not passed at a properly convened
company meeting.
Under the Companies Act 1985 *private companies can, in some
circumstances, pass
resolutions in this way; other companies may have power to do so
under their
*articles of association.
written statement of terms of employment A statement in writing
that an
employer must give to certain employees under the terms of the
Employment
Rights Act 1996,which aims to comply with the EU Proof of
Employment
Relationship Directive. Not later than two months after the
beginning of
employment, the employer must give to every employee who works for
eight or
more hours a week a written statement (known as an SI Statement)
setting out the
following information: (1) the names of employer and employee; (2)
the date
employment began; (3) the date when the employee's continuous
employment began;
(4) the scale or rate of remuneration or method of calculating
remuneration; (5) the
intervals at which remuneration is paid; (6) the hours of work; (7)
the holiday
entitlement (which must be sufficiently specific to allow the
employee's holiday
entitlement to be precisely calculated); (8) the procedure to be
adopted in the event
of incapacity for work as a result of sickness or injury (including
sick pay
provisions, if any); (9) pensions and pension schemes; (10) the
length of notice the
employee is obliged to give and entitled to receive to terminate
the contract; (11) the
title of the job the employee is employed to do or, as an
alternative to the job title, a
brief description of the work; (12) if the employment is not
intended to be
permanent, the period for which it is expected to continue or, if
it is for a fixed
term, the date it is intended to end; (13) either the place of work
or, if the employee
is required to work at various places, an indication that this is
the case; (14) any
collective bargaining agreements that directly affect the terms and
conditions of
employment. If the employee is required to work outside the UKfor
more than one
month there is a requirement for additional information to be given
relating to the
length of the period of this employment, the currency in which
remuneration is to
be paid in that period, details of additional remuneration or
benefits connected with
working outside the UK, and the repatriation arrangements.
If any amendment is made to these terms after the statement has
been (or should
have been) issued, the employer must give the employee a written
statement setting
out the details of the change not later than one month after the
change has been
made. Failure to comply with the requirements set out above gives
the employee the
right to complain to an *employment tribunal at any time during the
currency of
the employment, or within three months of the employment coming to
an end. The
written statement, although providing evidence of the terms of
employment, is not
itself the *contract of employment.
wrong n. An illegal or immoral act. A distinction must be drawn
between moral
wrongs and legal wrongs. Some moral wrongs, such as murder or
theft, are also
crimes punishable by law. But many moral offences are not legal
wrongs and some
technical legal offences, such as par king offences, are not
generally regarded as
morally blameworthy. Legal wrongs may be criminal or civil. *Crimes
are offences
against society as a whole, not merely against the victim of the
crime. Civil wrongs,
such as *torts, *breaches of contract, and interferences with
property rights, are
wrongs to the individuals affected.
wrongful dismissal The termination of an employee's contract of
employment
in a manner that is not in accordance with that contract. Thus when
an employee is
dismissed without the notice to which he is entitled (in
circumstances that do not
justify summary dismissal) or when the employer prematurely
terminates the
employee's fixed-term contract, the employee is entitled to claim
damages in the
courts or an employment tribunal at common law for wrongful
dismissal. The
court's jurisdiction concerns only the parties' contractual
rights and not their
statutory rights under the employment protection legislation
(compare UNFAIR
DISMISSAL). If a breach of statutory rights arises, an employee may
also bring a claim
for unfair dismissal. However, this must be done before an
employment tribunal.
wrongful interference with goods Under the Torts (Interference with
Goods)
Act 1977, any of various torts to goods. It includes *conversion,
*trespass to goods,
negligence so far as it results in damage to goods or to an
interest in goods, and any
other tort (except *detinue, which is abolished by the Act) that
results in damage to
goods or an interest in goods.
wrongful trading Carrying on business knowing that the company has
no
reasonable prospect of avoiding an insolvent *winding-up. Such
knowledge may be
implied if a reasonably diligent person would have realized the
position. Directors
responsible may be ordered to contribute to the assets of the
company when the
winding-up occurs unless they can prove that, after acquiring the
relevant
knowledge, they endeavoured to minimize loss to the company's
creditors, e.g. by
initiating a winding-up or *administration order. See also
FRAUDULENT TRADING.
WTO See WORLD TRADE ORGANIZATION.
Y
year and thereafter from year to year Words sometimes used in a
tenancy
agreement, the effect of which is that the tenant has a *fixed-term
tenancy for the
first year. followed by a yearly *periodic tenancy.
Year Books See LAW REPORTS.
yearly tenancy A yearly *periodic tenancy.
Yellow Book See STOCK EXCHANGE.
yielding and paying Words that usually introduce the clause in a
*lease that
specifies the rent. See also REDDENDUM.
York-Antwerp rules See AVERAGE.
young offender See JUVENILE OFFENDER.
young offender institution See DETENTION IN A YOUNG OFFENDER
INSTITUTION.
young workers See CHILD EMPLOYEE.
youth court A *magistrates' court exercising jurisdiction over
crimes committed
by *juvenile offenders and other matters relating to children under
18. It was
formerly called a juvenile court. The court consists of either
three lay *magistrates
(at least one of whom should normally be a man and one a woman) or
a single
*district judge (magistrates' court) (normally accompanied by a lay
magistrate of the
opposite sex). All these magistrates are selected from the youth
court panel, whose
members are thought to be specially qualified to deal with
juveniles and who have
received additional training for this purpose. The proceedings of
the court are not
open to the general public, access being very restricted and
determined by the
Children and Young Persons Act 1933,section 42 (as amended) and by
the Home
Office and Lord Chancellor's Department Joint Circular on access to
youth courts in
June 1998. The press may not publish the identity of any juvenile
concerned in the
court's proceedings unless the court or the Home Secretary so
orders, although
reporting restrictions are lifted on conviction. Court proceedings
are generally more
informal than in the magistrates' court for adult offenders, and
hearings can be
heard in locations other than other court buildings, although
generally they will be
in existing magistrates' courts. There is a restriction in the
timing of a youth court
sitting in that it is not permitted within one hour either side of
another court
sitting. The Narey Report (Home Office 1997) recommended that this
restriction be
abolished in favour of separate waiting areas for youths and adults
accused, to
prevent the mixing of the two types of offender.
youth custody See DETENTION IN A YOUNG OFFENDER INSTITUTION.
Z
zealous witness A *witness who displays undue favouritism towards
one party
in the case.
zebra crossing A road crossing for pedestrians, identified by studs
and
alternating black and white stripes on the carriageway and lighted
yellow globes
(normally flashing) at each end. Pedestrians take precedence over
vehicles on
crossings uncontrolled by police or traffic wardens, and it is an
offence for vehicles
to wait or overtake within their limits.
zero-rated supply A supply that is within the scope of *value-added
tax but is
charged at a nil rate. Examples are food (excluding restaurant and
take-away meals),
books and journals, and children's clothes; all exports are also
zero-rated. Unlike
*exempt supplies, zero-rated supplies count towards the turnover
limit above which
registration for VATis compulsory, and any input tax relating to
them may be
reclaimed by the registered trader.