Legal English, Apuntes de Derecho

¡Descarga Legal English y más Apuntes en PDF de Derecho solo en Docsity! LEGAL ENGLISH PRESENTACIÓN DE LA ASIGNATURA • Marianoffice 40108 mangels.gili@upf.edu • Joan Solana • 5 credits • Introduce students to common law system US and UK systems • Introductory sessions 7 sessions public law 4 session private law • Materials will be available at Aula Global • No manual or book, readings and explanations • Evaluation system final mark seminar sessions 4 participations, representations and written exercises to prepare during the classes in groups. Groups of 7 or 8 students. • Exam 60% 2 parts. 1rst h 30multiple choice questions. Incorrect answers will not reduce points, not required minimum mark (no eliminatory) • 2nd hour of exam 4 brief questions on public and private law. Answer in English, only bilingual dictionary is the only material you can use (encyclopedias not permitted) • If you fail the exam you will be able to take the exam, if you attend at least 50% of seminar session, and if you take the final exam. The recuperation exam will have the same timing. • Methodology Magisterial classes’ 40-50 min brief lecture on specific topic and in the other 40-50 minutes you’ll have to resolve exercises. These exercises will have a value in the mark. • Instrumental tools to use during the course. INTRODUCTION TO LEGAL TERMS *advisory opinion: an opinion or interpretation of law on abstract or hypothetical question, which does not have binding effect *allegation: statement of fact the party intends to prove *bail: money or property put up with the court by the defendant to ensure that he will appear at the time of the trial *brief: written summary of a case *claim: (demanda) legal demand, complaint *class action: a lawsuit brought by one person or group of behalf of all persons similarly situated *declaratory judgment: (STC declarativa) a court pronouncement declaring a legal right or interpretation but not ordering a special action *dissenting opinion: an opinion by a justice that disagrees with the result reached by the Court in a case FACULTAT DE DRET [Nom alumne] 1 *hearing: (audiencia) formal proceeding held before judge *injuction: (acción de cesación/ mandamiento judicial) a court order prohibiting a person from performing a particular act *motion: a written or oral application to a court or judge to obtain a rule or order *obiter dictum: a statement by a judge or justices expressing an opinion and included with, but not essential to, an opinion resolving a case before the court *standing: (legitimación) having the appropriate characteristics to bring or participate in a case; in particular, having a personal interest and stake in the outcome *stare decisis: the doctrine that principles of law established in early cases should be accepted as authoritative in similar subsequent cases *subpoena: an order to present oneself before a jury, court or legislative hearing *acquit: to decide as innocent, let free *appeal: to take a case to a higher court for review *dismiss: (desestimar) an order of disposing a case or a complaint without hearing or trial *reverse: in an appellate court, to reach a decision that disagrees with the result reached in a case by a lower court *writ: an order commanding someone to perform or not to perform acts specified in the order *answer= contestación a la demanda *appearance= comparecencia *bankruptcy= declaración de concurso *burden of proof= carga de la prueba *case law= jurisprudencia *counsel= abogado *counterclaim= demanda reconvencional *damages= indemnización de daños y perjuicios *declaratoryjudgment= sentencia declarativa *defaultjudgment= fallo por falta de comparecencia *docket= orden del día *evidence= prueba *ground= fundamento o razón *hearing= audiencia FACULTAT DE DRET [Nom alumne] 2 We identify the plaintiff as Christine’s MacDonald’s daughter who interposed an action in tort against her, so the mother claims to be the defendant. The said action is configured as a claim of negligence, as the plaintiff seeks to recover damages based on the alleged negligence of her mother, due to a car accident that took place while the plaintiff was a fetus in the womb. The type of legal action proceeding in this case is of a personal injuries nature. The case was appealed as the Superior Court appreciated a lack of liability on the part of the defendant and allowed her motion for summary judgment. The Superior Court of Massachusetts now affirms the judgment. In 1999, Christine MacDonald, which was 32 weeks pregnant, had an automobile accident. As a result, her daughter was born prematurely and she suffered physical harm. MacDonald’s daughter brought an action in tort against her mother in order to recover damages. The Superior Court of Massachusetts ruled in the mother’s favor. 3. ISSUES -Did Christine MacDonald owe a legal duty of care towards her fetus? -Can a fetus claim of negligence against her mother? -Is there any difference between a fetus in uterus and a child already born in order to claim of negligence or duty of care? -Is a child entitled to recover damages because of harm suffered before birth as the result of a mother’s negligence? -Does a pregnant woman owe a legal duty of care to her unborn child that prevents her from engaging in negligent behaviors that may result in harm to that child? 4. HOLDINGS -Christine MacDonald did not owe a legal duty of care towards her fetus, because in this supposition a judicial contemplation of this situation would carry to multitude of problematic issues. -The rejection of the previous issue leads to dismiss the claimant of negligence against her mother. -There are many substantial differences in between a fetus in uterus and an already born child in terms of liability and duty of care. -No, a child is not entitled to recover damages because of harm suffered before birth as the result of a mother’s negligence -No, a pregnant woman does not owe a legal duty of care to her unborn child that prevents her from engaging in negligent behaviors that may result in harm to that child 5. REASONING OR RULE OF LAW FACULTAT DE DRET [Nom alumne] 5 Regarding the first question, the judge ruled that the defendant did not owe a duty of care to the unborn plaintiff. The judge noted that no Massachusetts appellate court has ever recognized the existence of such a duty, there is no case law in its favor. The judge also opted not to acknowledge such a duty because in the case of its judicial creation it could raise a multitude of problematic issues, and would probably involve invading the personal choice of pregnant women. Recognizing a pregnant’s woman’s legal duty of care in negligence to her unborn child would present an almost unlimited number of circumstances that would likely give rise to litigation, which would thereby lead that courts would be challenged to refine the scope of such a duty, pinpointing each variable. From the previous question we deduced that there is no legal duty of care owed between a mother and her fetus or unborn child, which disables him in any case to claim for negligence. The present court has recognized the right of a plaintiff to take action for prenatal injuries sustained as the result of the negligence of another (as it happens in Payton v. Abbott Labs) though the plaintiff would have been able to recover in the case for the damages against the operator of the vehicle (Anna Ellis). From the general principle expressed in Restatement (Second) of Torts 869 (1979) “one who tortuously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive” follows solely that only the child or fetus can go against a third person claiming for negligence in duty of care by prenatal injuries but not her mother, as the recognition of a legal duty on the part of the mother towards her fetus would create a new tort, implying a cause of action assertable by a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries. The final conclusion leads to considering an inherent and important difference between a fetus and a child already born when it comes to terms of liability. According to precedents in Stallman and Chenault decisions, the Supreme Court of Massachusetts concluded that a pregnant woman does not have a duty of care to her unborn child due to the special relationship between them, which is different, form that existing between a mother and a child already born. The judicial creation of such a duty would amount to an almost unlimited number of circumstances in which children would be able to bring judicial actions against their mothers for harm suffered when they were fetuses. 6. CONCURRING AND DISSENTING OPINONS There is nothing to appreciate in this category. PART I. GENERAL TOPIC 1. AN INTRODUCTION TO THE UNITED STATES AND THE UK LEGAL SYSTEMS (I) The classification of legal systems into legal families. Criteria used to classify legal systems.Common Law, Civil Law and mixed or hybrid legal systems CLASSIFICATION OF LEGAL SYSTEMS IN LEGAL FAMILIES • There have been many attempts in the past to classify legal systems into legal families. Legal family: group of national legal systems that are close to each other. FACULTAT DE DRET [Nom alumne] 6 • Various criteria have been used to classify national legal systems into legal families: -race -language -culture -substantive content of laws -ideology, philosophy, conceptions of justice and legal technique -historical origins -juristic style:historical background and development, mode of legal thinking, distinctive institutions, types of legal sources ideology. Authors reached similar results despite the fact that they used different criteria 1. Civil law family 2. Common law family 3. Socialist family 4. Religious family 5. Family of the far eastern TOPIC 2. AN INTRODUCTION TO THE UNITED STATES AND THE UK LEGAL SYSTEMS (II) Origins of the Common Law. Common law vs. civil law legal systems: sources of law, principle of precedents and doctrine of stare decisis, method of legal thinking and finding ofjustice, inquisitorial versus adversarial proceedings. Overview of the Unites States and theUK Court systems. HISTORY OF COMMON LAW • Common law tradition emerges in England during the Middle Ages (11 century). Common law coexisted with canon law, local customary law and Roman Law until 17th century, when common law triumphed over other laws. • After the Norman Conquest (1066), medieval kings began to centralize power and establish new institutions of both royal authority and justice FACULTAT DE DRET [Nom alumne] 7 -Appellate and original jurisdiction. It only has appellate jurisdiction, they only deal with jurisdictions in a trial court (it’s a 2nd instance; it’s not an original jurisdiction). -Three Divisions and Divisional Courts within each Division, which exercise most of the High Court’s appellate jurisdiction. *Chancery Division: -Composition: Chancellor of the High Court and 18 judges -Jurisdiction: equity and trusts, partnership, bankruptcy, companies, patents, among others -Divisional Court hears appeals in certain bankruptcy and land registration cases *Family Division: -Composition: President and 19 judges -Jurisdiction (at first instance or appeals from County Courts): matrimonial proceedings, proceedings relating to children… -Divisional Court hears appeals from Magistrates’ Courts *Queen’s Bench Division: -Composition: Lord Chief of Justice and 68 judges -Jurisdiction: contracts, torts, commercial affairs, naval affairs, judicial review -Small civil appellate jurisdiction • Depending on the type of case, appeals are heard by the Court of Appeal or the Supreme Court. *Court of Appeal: -Superior Court whose decisions are frequently reported -Appellate court -It is bound by its own previous decisions -Two Divisions: Criminal Division and Civil Division -Civil Division: ■ General jurisdiction ■ Appeals from the High Court and certain cases from county courts -Appeals are heard by the Supreme Court *Supreme Court: -Composition: 12 Justices -Superior court whose decisions are frequently reported -Final appellate court -It is not bound by its own previous decisions (see supra Practice Statement of 1966) -Jurisdiction: ■ General jurisdiction ■ Appeals from the Court of Appeal and, in exceptional circumstances, from the High Court *European Court of Justice: -In 1973, UK entered into the European Community (today European Union) -UK is bound by judgments of ECJ: judgments of ECJ overrule those of UK national courts -Jurisdiction: ■ Actions brought by EU institutions, national governments or individuals to determine whether any measures adopted, or rights adopts, by the EU Commission, EU Council or any national government are compatible with EC Treaty FACULTAT DE DRET [Nom alumne] 10 ■ Requests of the national courts to interpret points of EU law US COURT SYSTEMS • Federal (national) court system established by art. III of the US Constitution (1789) • State court systems of each of the 50 States established by their State Constitutions. US COURT SYSTEM: FEDERAL COURT SYSTEM ▲ Three levels of courts: 1. US District Courts -94 trial courts ■ Original jurisdiction (they can hear both civil and criminal cases) -94 US Bankruptcy Courts: insolvency cases, except criminal issues -Special trial courts: ■ Court of International Trade: cases involving international trade and custom issues ■ Court of Federal Claims: cases involving federal contracts, the taking of private property by the federal government and other monetary claims against the US -Trial Court proceedings are conducted by a single judge 2. US Circuit Courts of Appeals • 12 regional Courts of Appeal -Appellate jurisdiction ■ They affirm or reverse the lower court decisions ■ They do not review the facts, but mistakes of law • Court of Appeals for the Federal Circuit: -Appeals in specialized cases: ■ Cases involving patent laws ■ Cases decided by the Court of International Trade and the Court of Federal Claims • As a general rule, panels of three judges FACULTAT DE DRET [Nom alumne] 11 3. US Supreme Court • Highest court in the federal court system • 9 justices -Chief Justice (president) and 8 associate justices • Parties or State Supreme Courts can petition the US Supreme Court to hear their case by means of a Petition for a writ of Certiorari • Discretionary jurisdiction (it decides whether to hear a case or not). It usually hears the following cases: -Cases where a split of opinion among the courts of appeals exists -Cases where an important constitutional question exists -Cases where an issue of federal law needs to be clarified US COURT SYSTEM: STATE COURT SYSTEM • Most State Court Systems are made up of: -Trial Courts: ■ Trial Courts of Limited Jurisdiction (specific types of cases: family court, traffic court, small claims court, etc.) ■ Trial Courts of General Jurisdiction (civil and criminal cases) -Intermediate Appellate Courts (in some States) ■Different names: Circuit Courts, Superior Courts, Courts of Common Pleas, Supreme Courts, etc. -Highest State Courts ■Different names: Supreme Courts, Courts of Appeal, etc. • State Courts are the final arbiters of State laws and State Constitutions • Their interpretation of federal laws or US Constitution may be appealed to the US Supreme Court US COURT SYSTEM: JURISDICTION OF FEDERAL AND STATE COURTS ▲ Federal Courts: FACULTAT DE DRET [Nom alumne] 12 • Institutional arrangements under the checks and balances/ separation of powers doctrine -Presidentialism: U.S.A -Parliamentarism: main of continental Europe -Hybrid systems: France FOUNDATIONS OF U.S. CONSTITUTIONAL LAW: JUDICIAL REVIEW • A new judicial prerogative: judicial review -Power to review legislative acts under the Constitutional and annul / no apply them in case of unconstitutionality *judicial review: power gift to the judges in US to ordinary judges or Constitutional Court in Europe to review or control the compatibility of laws and acts taken by the legislative and executive power under the Constitution. • The prerequisites for the existence of judicial review: a normative Constitution (supreme and rigid) and a positive conception of judges • Two models of judicial review -U.S. Model: decentralized judicial review -European continental model: centralized judicial review • The big problem of judicial review: the democratic objection. FOUNDATIONS OF U.S. CONSTITUTIONAL LAW: FUNDAMENTAL RIGHTS • The States level: Bill of Rights from the beginning • The Federal level: gradual incorporation -The philosophy of American Revolution was very sensitive to fundamental rights ■ Declaration of Independence (1776) and the Virginia Declaration of Rights (1776) • U.S. Constitution (1787): no recognition of fundamental rights -Recognized in the States’ Constitutions -Only recognized and protected against the federal powers or also against the States? • Bill of Rights (1789-1791): ten fist amendments to the Constitution • Other fundamental rights incorporated by amendment: -13th Amendment (1865): prohibition of slavery -14th Amendment (1866-1868): due process clause, equal protection clause -15th Amendment (1869-1870): suffrage for African Americans -19th Amendment (1919-1920): suffrage for women • Currently -Nationally: federal and state courts review legislative and executive acts under the bills of rights recognized in federal and states constitutions -Internationally: U.S. does not participate in the Inter-American system of human rights FOUNDATIONS OF U.S. CONSTITUTIONAL LAW: FEDERALISM • Three dimensions of federalism 1. Federalism as a territorial organization of power: historical circumstances, integration of national minorities, multicultural states FACULTAT DE DRET [Nom alumne] 15 2. Federalism as a complement of the separation of powers / checks and balances doctrine: the vertical division of power (U.S actual dimension) 3. Federalism an efficient system of allocation of powers and competences: subsidiary principle and economies of scale • Multiple impact of federalism in the institutional design of U.S.A -Ratification and amendment of the U.S. Constitutionalism -Election and articulation of the federal legislative and executive powers -Relationship between federal and state courts -Relationship between federal and state law THE NEW DEAL (= nuevo pacto) • The Progressive Era (1890-1930) and the New Deal (1993-1938) -New conception of the role of the State in economy and society: the regulatory state -New institutional design: the growth of the administration (the executive, agencies and independent agencies) -New concept of public law: new constitutionalism (“constitutionalism mutation”) and administrative law • Transformations of the foundations of constitutional law -Checks and balances doctrine: less power for the Congress, more power for the executive (administrative apparatus) -Federalism: more power for the federal level, less protagonism for the states -Judicial review: end of the Lochner era, the start of the era of deference = respetar tu posición, decisión (rational basis test for the economic and social legislation) -Fundamental Rights: the only field where judicial review is strong (strict and intermediate scrutiny) TOPIC 4. THE BRITISH CONSTITUTIONAL ORDER The particularities of the Constitution of the United Kingdom: an unwritten Constitution. Constitutional sources. The principles of the constitutional system of the United Kingdom: democracy, parliamentary sovereignty, the rule of law and the separation of powers doctrine.The implications of the access to the European Union for the constitutional system of theUnited Kingdom. AN UNWRITTEN CONSTITUTION • UK does not have written Constitution: absence of a document (supreme and rigid) that lays down the fundamental rules of the State • However, there exists a constitutional system that could be defined as follows: “a body of rules, conventions and practices which describe, regulate or qualify the organization, powers and operation of government and the relations between persons and public authorities” (Colin Turpin and Adam Tomkins) • The features of the unwritten Constitution: a political constitution subject to the political process and to the commitment of the political actors and citizens -Contains different sources: legal rules (statues and common law), conventions and practices -Undetermined: there is not a list of concrete sources -Fluid: sources can be amended easily (no rigidity) -Fundamental and material: constitutional sources could be identified for their material content and its fundamental value FACULTAT DE DRET [Nom alumne] 16 CONSTITUTIONAL SOURCES: LEGAL RULES • Statues: written Acts of Parliament which regulate the system of the government or the exercise of public power -Historical statues: Magna Carta 1215, Habeas Corpus Act 1679, Bill of Rights 1689, Act of Settlement 1701, Act of the Union with Scotland 1707 -European Communities Act 1972 -Human Rights Act 1998 • Subordinate legislation: legislation made by the executive -Delegated -Primary (not delegated): Orders in Council • Common law: rules created by judges -Legal powers of the Crown -Rules related to the safety of the State public order, prevention of crime, moral welfare of society. CONSTITUTIONAL SOURCES: CONVENTIONS • Two possible definitions -“Main political principles which regulate relations between the different parts of our constitution and the exercise of power but which do not have legal force” (Lord Wilson of Dinton) -“Social rules of a constitutional character which govern the relations between political parties or the institutions of government, regulating the manner in which government is to be conducted” (Jaconelli) • Nature of conventions -Rules that are part of the constitutional order -Not-legal rules: not enforced by courts, political enforcement relies on political bodies as the Parliament • Examples of conventions -Relations between the Crown and the Parliament: Parliament is summoned to meet every year -Government accountability to Parliament: functioning of committees, ministerial responsibility, etc. -Other examples: access by ministers to the papers of a previous administration, restrictions on public spending on political campaigns of the government, etc. PRINCIPLES: DEMOCRACY • Representative democracy: well-established principle -The sovereignty resides in the people who elect representatives to rule and these representatives are accountable to the people -Elective institutions in the UK: the House of Commons and the Prime Minister and the Cabinet (indirectly through their accountability to the House) -The Institutions in the UK that are non-elected: Crown, House of Lords (the pending reform) • Participatory democracy: a modern principle -Referendum: local and national referendums -Electoral system, organization of parties: bolstering representation -Transparency and open government: access to documents, public hearings, etc. FACULTAT DE DRET [Nom alumne] 17 -Reassignment of functions of the three powers: legislature and executive gained power -Preponderance of legislation against the common law: the era of statues and regulations U.S SOURCES OF LAW TODAY: CONSTITUTIONAL LAW • Constitutional law: the major departure of U.S. legal system from the old common law • Foundations (and innovations) -Written and normative Constitution: supreme and rigid -Checks and balances -Judicial review -Fundamental rights -Federalism • The crucial role of the U.S. Supreme Court -Balance wheel of the federal system -Guardian of fundamental rights -Arbiter of the allocation of powers among the branches of the federal government U.S SOURCES OF LAW TODAY: LEGISLATION • “Legislation”: legislative and executive powers’ rules in opposition to common law (case law) that comprises rules created by judges • Types of legislation: federal and state levels -Statutory law: rules enacted by Congress ■ Bill---Act (Statue) -Secondary legislation: administrative rules and regulations ■ Executive Orders: President’s rules ■ Regulations: executive and independent agencies’ rules ■ Ordinances, rules, authoritative rules: local entities -Court rules: rules managing civil and criminal procedures made by judges • The aim of legislation in common law system: remedies for particular mischiefs, not comprehensive, systematic and analytical “codes” like in the civil law systems U.S SOURCES OF LAW TODAY: JUDICIAL DECISIONS • Case law: body of rules created by judges in resolving cases • Old influence of common law as a primary source: there is no doubt that case law is a source of law and after legal realism there exists the belief that the judge makes law • The judicial decision (judgment): elements -Explicit and complete explanation of the court’s reasoning -Holding and Dicta (Dictum) -Majority opinion of the Court -Concurrent or dissenting opinions • Precedent/ stare decisis: previous decisions (only the holding) bind judges in subsequent cases regarding the same issue or issues • Vertical effect: lower courts are bound by precedents of superior courts FACULTAT DE DRET [Nom alumne] 20 • Horizontal effect: a court is bound by its previous decisions • Overruling of precedent -Congress can overrules a precedent by passing new legislation -Own court when social, economic and cultural conditions change • The “distinguishing” method: whether the distinctions of fact between the precedent and the case at bar are of such significance as a matter of policy that some or all the considerations supporting the prior decision do not support the same decision in the present case. U.S SOURCES OF LAW TODAY: SECONDARY SOURCES • Restatements of the Law: unofficial form of codifications sponsored by the American Law Institute (ALI) • American legal scholarship: treatises, monographs, law review articles, course/ case books • Custom: importance in corporate law and law of contracts CIVIL LAW AND COMMON LAW TODAY: CONVERGENCE? TOPIC 6: JUDICIAL REVIEW IN A COMPARATIVE PERSPECTIVE The origins of U.S. judicial review: Marbury vs. Madison. The features of the U.S. judicial review: a model of decentralization. The European continental judicial review: theconcentrated counterpart model. THE ORIGINS OF THE U.S. JUDICIAL REVIEW: THE FOUNDERS THOUGHT • The U.S. Constitution -The prerequisites of judicial review: a normative, supreme and rigid Constitution -Are these prerequisites in the U.S. Constitution itself? • The Federalist Paper nº78: founders’ thought -The roots of judicial review: constituent vs. constituted powers/ Constitution as a fundamental law/ Constitution as the will of people -The conception of the judiciary department: the less dangerous branch/ the interpretation of the laws belongs to judges -The power of the judiciary: declare a legislative act void • The European legal thought about judicial review in the earliest days -British constitutionalism: an unwritten constitution -French constitutionalism: far away from judicial review THE ORIGINS OF THE U.S. JUDICIAL REVIEW: MARBYRY V. MADISON • Facts • The establishment of judicial review (1803): three arguments -A written Constitution: a normative Constitution -The nature of judicial function: solving conflict of laws -Judge’s oath of office to support the Constitution • The denial of a writ of mandamus: the U.S. Supreme Court searching his role among powers. FACULTAT DE DRET [Nom alumne] 21 U.S. JUDICIAL REVIEW: A DECENTRALIZED MODEL • Concept of judicial review -Power to review legislative acts under the Constitution and annul or set them aside in case of unconstitutionality • Who is in charge of judicial review? All judges -U.S. Constitution: federal judges -States Constitutions: state judges -Conflict between U.S. Constitution and state law: federal judges • Kind of analysis: a case-based analysis (facts and parties) • Effects of the judicial review -Declaration of unconstitutionality: setting aside the legislation, no general/ erga omnes effect -The precedent/ stare decisis: an indirect way to achieve erga omnes effect EVOLUTION OF U.S. JUDICIAL REVIEW: 1789-1930 (pre-New Deal era) • The fist years: emergence -Jay-Rutledge-Ellsworth courts (1789-1801): few cases -John Marshall Court (1801-1835) ■ Establishment of judicial review (Marbury vs. Madison) ■ Framing federalism: balancing federal and state powers (McCulloch v. Maryland/ Gibbons v. Ogden) • The pre-civil war period: Taney Court (1836-1864) -Dred Scott v. Sandford (1857) • The Lochner era: Chase-Waite-Fuller-White-Taft (1864-1930) -New Civil Law Amendments -Substantive due process: Lochner v. New York (1905) EVOLUTION OF U.S. JUDICIAL REVIEW: 1930-present (post-New Deal era) • U.S. Supreme Court accommodates to New Deal -Hughes-Stone-Vinson Courts (1930-1953) -Deference to economic and social legislation and the enhancement of federal powers • Warren Court (1953-1986) -Following the path of strong judicial review in some cases: Roe v. Wade (1973) -Les judicial activism in others: death penalty, affirmative action, campaign- financing regulations • Rehnquist (2986-2005) and Roberts Courts (2005-present) -Fights between conservatives and liberals: the abortion debate THE EUROPEAN CONTINETNAL JUDICIAL REVIEW: ORIGINS • Pre-Second World War: old constitutionalism -British constitutionalism: no written Constitution -French constitutionalism: political constitution, bad conception of judges • Post- Second World War period: new constitutionalism FACULTAT DE DRET [Nom alumne] 22 • Misunderstanding Montesquieu: distinct and strict separated powers without connections (when, in fact, they should be interrelationated) • Rousseau (The Social Contract) and his influences: the Assembly (legislative power) above all the other power. Rousseau talked about real, real democracy (of the time: women no voting, etc) the most important power is going to be the most powerful, so the interrelationship of Montesquieu was going to be a bit broken, they are not in the same range. Rousseau thought that because then the judges was very bad, they were chosen by the King, so all the judges were chosen by the Old Regime, so the revolutionaries didn’t want to give them lot of power. • The judicial power: the weakest power ■ The Old Regime and its heritage: the bad conception of judges ■ Réferé Legislatif: no power to interpret the law every time, a judge had a problem or a doubt to interpret the law, it was forbidden to interpret for them, so they should ask parliament every time. This has no pragmatic sense. ■ Lack of judicial control of the legislative: no judicial review ■ Lack of judicial control of the executive power: the administrative courts (special courts inside the executive, we still have them). Judges cannot control the legislative, either the executive! The executive should be controlled by itself, not by judges. For this reason, now we have recursos administratives even now, you should go first to the executive itself, and once you finish the administrative way, you can go to judicial courts. • The old French constitutionalism (and European constitutionalism): a political constitution, a formalistic separation of powers doctrine, the superiority of the legislative power, the judicial power in its weakest position superiority. RESHAPING THE SEPARATION OF POWERS DOCTRINE IN EUROPE: POST-II WORLD WAR CONSTITUTIONALISM • Stress points that change the old views: • Weakening the superiority of the legislative power ■ Normative Constitution ■ Taking seriously fundamental rights • Enhancing the executive power ■ The welfare-State and the Regulatory State • The rejuvenated judicial power ■ Judicial review. After the IIWW, the weakest power was the legislative. The executive was very strong, and the judges rejuvenated, new generation. • European integration: weakening the old national powers. Creating new organisms and new powers, so the old declined. CHECK AND BALANCES: US CONSTITUTIONALISM FACULTAT DE DRET [Nom alumne] 25 • Locke and Montesquieu influenced the Founders’ thought: the dynamic version of the separation of powers doctrine • The horizontal division of power: • No strict and formal separation of the three powers: interrelation between them (the veto power of the executive to the legislative, judicial review for the executive and legislative, etc) • Checks and balances: equilibrium of powers • The special role of the judiciary: good conception and judicial review • The vertical division of powers: federalism. You create a new level. (3 levels: federative – state – municipals/locals) => it divides more the power, as many levels, less power concentrated. • US constitutionalism from the beginning: a normative Constitution, a dynamic separation of powers doctrine, equilibrium of powers (not more power to the legislative, as in original French system (after IIWW, it will change a bit to make it closer to the US system)), strong judicial power (not as in original French system). PRESIDENTALISM: US AS A MODEL • Electoral separation between the legislative and executive powers: different source of legitimacy • Direct democratic legitimacy of both powers • Different temporal mandates: different majorities • No powers of removal ■ The President cannot dissolve the Parliament ■ The Parliament cannot dismiss the President: the impeachment exception (impugnación) the parliament can initiate a procedure against him. It’s a criminal prosecution, only if the president commits a crime. Clinton was impeached because of the Lewinsky case (simple majority in the parliament, and 2/3 in the senate) • Functional interrelationship • President’s prerogatives in the legislative process: initiative and veto power. But he cannot dissolve the parliament, so he is no that strong. • Congress’s prerogative in the executive process: appointments, hearing, oversight committees, agencies’ regulations veto, budget approval PARLAMENTARISM: SPAIN AS A MODEL FACULTAT DE DRET [Nom alumne] 26 • (The president doesn’t have to be part of the parliament. In the investidura process the presidents asks the parliament for confident to do his program and he need absolute majority, and during the 4 years, the president should keep this confidence) • The election of the legislative and executive powers: confusion, same source of legitimacy • Investiture and gaining parliamentary confidence ■ The legislative power is the only one that has direct democracy legitimacy; the executive is appointment by the legislative. • The parliament majority supports the executive appointed: less oversight • The close tights between the two powers: keeping the parliamentary confidence • President / Prime Minister / Government prerogatives ■ Dissolution of the Parliament and call for elections ■ Vote of confidence (cuestión de confianza) ■ Legislative initiative ■ Budget privileges • Parliament’s prerogatives ■ Dismissal of the President / Prime Minister: non-confidence vote (moción de censura) ■ Hearings, committees, questions, request of information TOPIC 8. INSTITUTIONS OF THE UNITED STATES The United States Congress: House of Representatives and Senate. The President of the United States and the Administration. The federal judiciary: the Supreme Court and lowerfederal courts. The States: legislative, executive and judicial state powers. OVERVIEW ▲ Federal level • Legislative power: The Congress • Senate • House of Representatives • The executive power -President, Vice-President, executive departments -Agencies: executive and independent agencies • The judicial power: federal law -Supreme Court of the United States -Federal Courts: district courts, courts of appeals ▲ State level: depending on the States FACULTAT DE DRET [Nom alumne] 27 • The state level is very similar to the federal level, there are differences among States • 50 States • Special status: District of Columbia, Puerto Rico and other territories • Legislative power • Bicameral structure: Senate and House of Representatives/ State Assembly/ House of Delegates • Unicameral structure: Nebraska • Executive power • Governor • “Plural executive”: some officials elected directly from the people (Attorney General, Sheriff, etc) • Judicial power: supreme interpret of state law, subject to federal law and federal courts • Original jurisdiction: district courts or superior courts • Appellate jurisdiction: courts of appeals and supreme courts THE DISTRIBUTION OF POWERS BETWEEN THE FEDERAL GOVERNMENT AND THE STATES • Classical federation • U.S. Constitution establishes the powers of the federal government (enumerated powers): the remain powers are left to the States • The issue of the implied powers • The Commerce Clause (Article I, Section 8, Clause 3) • Conflict between federal and state law • Article VI: supremacy clause • Federal courts and the Supreme Court: the final arbiters TOPIC 9. INSTITUTIONS OF THE UNITED KINGDOM The Parliament. The Crown: its prerogatives and powers. The Government. UK as a parliamentary system: relations between the Parliament and the Government. The judicialpower in the UK. OVERVIEW • The Parliament • House of Commons • House of Lords • The Crown • The Government • Prime Minister, Ministers, Cabinet • Administration • The judicial power • Devolution: institutions of Scotland, Wales and Northern Ireland THE PARLIAMENT (I): STRUCTURE • House of Commons: the elected chamber • 650 Members of Parliament (MPs) • Electoral system: first-past-the-post voting (majoritarian method) • Mandate: five years term FACULTAT DE DRET [Nom alumne] 30 • House of Lords: a non-elected chamber • Lord Spiritual: by virtue of the ecclesiastic role • Lord Temporal: appointed by the Sovereign • Its role has been diminished over the years: a pending reform ■ Restricted legislative power: the House of Commons is dominant ■ Former judicial powers ■ Restricted oversight of the Government THE PARLIAMENT (II): POWERS • Legislative power • Bill- Act: statues (statutory law) • A kind of parliamentary system: keeping the confidence of Parliament (the House of Commons) • Power to dismiss the Government: vote of confidence • Minister responsibility before the Parliament: both individual and collective • Ordinary control: debates, questions committees THE CROWN • UK as a constitutional monarchy: the Sovereign is the head of state and symbolically represents the nation, but he or she is not the head of government • The Crown is a symbolic head of state of the Commonwealth countries: Antigua Barbuda, Australia, Bahamas, Barbados, Belice, Canada, Grenada, Jamaica, New Zeland, Papua New Guinea, Saint Kitt and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Solomon Islands,Tuvalu • Conventions limit the discretion of the Sovereign so that his or her public acts are in reality those of ministers • Formal but not real powers of the Sovereign • Appointment of the Prime Minister • Dismissal of ministers • Royal Assent to legislation • Dissolution of Parliament • The “Crown immunity”: the Crown is not bound by statues THE GOVERNMENT (I): STRUCTURE • Government’s structure: framed by conventions • The Prime Minister: primus inter pares • Ministers: Secretaries of State and other denominations • The Cabinet and Ministerial committees of the Cabinet THE GOVERNMENT (II): POWERS • Legislative powers • Prerogative legislation: Prerogative Orders in Council • Legislative imitative: governmental bills • Delegated legislation: statutory instruments and Order in Council • Administrative rule-making (quasi-legislation): rules and regulations FACULTAT DE DRET [Nom alumne] 31 • Executive powers • Foreign affairs relations: treaties and diplomacy • Army • Pardons • Civil service THE DEVOLUTION IN THE UK • Devolution: transfer of powers from the central government to the regions without the relinquishment of sovereignty • Reasons in favor of devolution: subsidiarity principle, weakening of public confidence in democratic process, overloaded central government • Federalism v. Devolution. What is the difference? • Conclusion about devolution: asymmetric and non permanent territorial organization of powers • Scotland: Scotland Act 1998 • Scottish Parliament: legislative limited powers and devolved matters • Devolved matters: Scots private and criminal law, police and prisons, the judicial system, agriculture, forestry, tourism, infrastructures, educations, sport, housing, arts • Wales • Government of Wales Act 1998: only executive devolution • Government of Wales Act 2006: legislative power can be conferred to Wales on a case by case basis • Northern Ireland • Government of Ireland Act 1920 (1921-1972): significance legislative devolution • Direct rule (1972-1998): looking for an agreement with the two communities • Northern Ireland Act 1998: again legislative executive devolution PART III. PRIVATE LAW FACULTAT DE DRET [Nom alumne] 32 started, the occupancy of property was reduced. In order to promote it, the rent was reduced by half. In 1945, the flats were full and Central claimed for the full rent to be paid. The High Court ruled that the full rent was payable from the time that the flats became fully occupied. It was not possible to claim the full rent between 1940 and 1945 since High Tries had relied on the promise made by Central not to claim the full rent THE CONTENTS OF A CONTRACT ▲ Agreements consist of various terms or clauses. ▲ Express / Implied terms • Express terms: terms which have been agreed by the parties • Implied terms: terms which are not expressly stated, but which are implied, either: • Because the parties so intended (terms implied in fact), • By operation of law (terms implied at law), or • By custom or usage (terms implied through custom) • Statutory implied terms (i.e. in contracts for the sale of goods, the supply of services, etc.) ▲ Conditions / Warranties • Conditions: major terms of a contract whose breach amounts to a breach of contract. The injured party is entitled to terminate the contract and to claim damages • Poussard v Spiers and Pond [(1876) 1 QBD 410]: Madame Poussard entered a contract to perform as an opera singer. She became ill and was not able to perform the first four nights. Spiers and Pond replaced her. The Court held that Spiers and Pond could terminate the contract and they were not liable in damages. The obligation to perform from the first night was a condition of the contract, since the opening night was the most important performance • Warranties: minor terms of a contract whose breach does not amount to a breach of contract. The injured party is not entitled to terminate the contract, but to claim damages • Bettini v. Gye [(1876) QBD 183]: Bettini entered into a contract to perform as an opera singer. He became ill and missed 6 days of rehearsals. The employer replaced him. The Court held that Gye was not entitled to terminate the contract, but to claim damages. Since Bettini had been engaged to perform for 15 weeks, the failure to attend rehearsals could only affect a small part of this period BREACH OF CONTRACT AND REMEDIES FOR BREACH OF CONTRACT FACULTAT DE DRET [Nom alumne] 35 • Where a party to a contract fails or refuse to perform, or performs defectively, his/her contractual obligations, the non-breaching party may ask the court for different remedies: • Damages • Liquidated damages • Injunction • Specific Performance • Termination • We will focus on some distinguishing features of the Common Law REMEDIES FOR BREACH OF CONTRACT: PUNITIVE OR EXEMPLARY DAMAGES • Punitive or exemplary damages are not awarded to compensate the plaintiff, but to punish the defendant, to deter the defendant from acting again in the same way and to deter third persons from repeating the defendant’s behaviour • The traditional view is that punitive damages are not available in a claim for breach of contract actions. However, where the claimant has an action both in tort and for breach of contract, he may recover punitive damages by framing the claim in tort REMEDIES FOR BREACH OF CONTRACT: LIQUIDATED DAMAGES CLAUSES • Liquidated damages clauses are clauses specifying the amount which is payable in the event of breach of contract. These clauses are valid and enforceable where the sum specified is a genuine pre-estimate of loss which will result from the breach of contract • Distinction from unenforceable penalty clauses: they act as a penalty, id est, as a deterrent against breach ■ In Dunlop Pneumatic Tyre Co. Ltd. v. New Garage & Motor Co. Ltd. ([1915] AC 79), some rules to distinguish liquidated damages and penalty clauses were formulated • Dunlop Pneumatic Tyre Co. Ltd. v. New Garage & Motor Co. Ltd. ([1915] AC 79): Dunlop entered into a contract with New Garage. New Garage bound themselves not to sell to any customer at prices less than the current price list issued by Dunlop. Clause 5 of the contract stated 'we agree to pay to the Dunlop the sum of £5 for each and every tyre or tube sold or offered in breach of this agreement, as and by way of liquidated damages and not as a penalty”. Dunlop discovered that New Garage had sold tyres and tubes at under the current list price and sued New Garage for damages. The House of Lords held that the clause was not a penalty but an enforceable liquidated damages clauses. FACULTAT DE DRET [Nom alumne] 36 • Though the parties to a contract use the words ‘penalty’ or ‘liquidated damages’, the expression used is not conclusive. The court must find out whether the payment stipulated is in truth a penalty or liquidated damages • The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine pre- estimate of damage • The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of at the time of the making of the contract, not as at the time of the breach • To assist this task of construction various tests have been suggested. Such are: • Rule 1: If the sum is extravagant or unconscionable in comparison to the greatest loss conceivable from the breach, it is a penalty • Example: Building work is worth £50 and the builder will have to pay £5 million if he fails to do the work = penalty • Rule 2: If the breach is the failure to pay money, and the sum is greater than the sum that out to have been paid, it is a penalty • Example: A debtors is liable to pay £1000 if he fails to pay £50 on the due day = penalty • Rule 3: If it is a single lump sum which is payable in the occurrence of one or multiple events, some of which only warranting trifling damages, there is a presumption that it is a penalty • Rule 4: Just because the consequences of the breach are very hard or maybe impossible to estimate, it doesn't mean it is a penalty. There is a presumption that it is a liquidated damages clause TOWARDS UNIFICATION AND HARMONIZATION OF CONTRACT LAW ▲ Unification of law can be achieved through: • Active programs for the unification of law: • Use of international institutions specifically intended to promote the unification of law. Examples: ■ International Institute for the Unification of Private Law (Rome) ■ United Nations Commission on International Trade Law (UNCITRAL) • Use of supranational legislation and binding judicial decisions. Examples: ■ Regulations of the EU FACULTAT DE DRET [Nom alumne] 37 • They were published by the International Institute for the Unification of Private Law • 3 editions: 1994, 2004 and 2010. The new edition of the UNIDROIT Principles consists of 211 Articles (as opposed to the 120 Articles of the 1994 edition and the 185 Articles of the 2004 edition) structured as follows: • Preamble • Chapter 1: General provisions • Chapter 2: Section 1 (Formation), Section 2 (Authority of agents) • Chapter 3: Section 1 (General provisions), Section 2 (Ground for avoidance), Section 3 (Illegality) • Chapter 4: Interpretation • Chapter 5: Section 1 (Content), Section 2 (Third Party Rights), Section 3 (Conditions) • Chapter 6: Section 1 (Performance in general), Section 2 (Hardship) • Chapter 7: Section 1 (Non-performance in general), Section 2 (Right to performance), Section 3 (Termination), Section 4 (Damages) • Chapter 8: Set-off • Chapter 9: Section 1 (Assignment of rights), Section 2 (Transfer of obligations), Section 3 (Assignment of contracts) • Chapter 10: Limitation periods • Chapter 11: Section 1 (Plurality of obligors), Section 2 (Plurality of obligees) • Soft law rules UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS (2010) ▲ Preamble: • These Principles set forth general rules for international commercial contracts. • They shall be applied when the parties have agreed that their contract be governed by them. • They may be applied when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria or the like. FACULTAT DE DRET [Nom alumne] 40 • They may be applied when the parties have not chosen any law to govern their contract. • They may be used to interpret or supplement international uniform law instruments. • They may be used to interpret or supplement domestic law. • They may serve as a model for national and international legislators. DEVELOPMENT OF EUROPEAN CONTRACT LAW • The ECC Treaty (1957) empowered the competent European authorities to harmonize, approximate or unify the law of the Member States when necessary for the establishment and functioning of the common market • In 1982, the “Commission on European Contract Law” produced the PECL, a set of model rules (soft law rules) which identified the basic rules of contract that EU Member States share • In 2002, the Research Group on the Existing Contract Law was formed. It produced in 2008 the DCFR, a set of principles, definitions and model rules (soft law rules) with a wider coverage than PECL. They were based on (1) European Directives and case law on consumer protection, (2) PECL and (3) CISG ▲ In 2010, the European Commission published the Green Paper on policy options for progress towards a European Contract Law for consumers and businesses. This Green Paper tried to improve the coherence of European Contract Law by adopting a new European instrument. • Proposals on its legal nature: • A publication by an Expert Group; • A toolbox for legislators; • A Commission Recommendation; • A Directive on harmonising national laws; • A Regulation setting up an optional instrument; • A Regulation establishing European Contract Law, replacing national legislations; • A Regulation establishing a European Civil Code, which would replace not only national contract laws, but also the rules applicable to other related fields • Scope of application of the instrument: • Businesses-to-consumers contracts (B2C), business-to-business contracts (B2B), or both FACULTAT DE DRET [Nom alumne] 41 • Domestic contracts, cross-border contracts or both. • Content of the instrument: • General rules on contract law, rules specific to certain types of contracts or both • In 2011, the European Commission published the Proposal for a Regulation on a Common European Sales Law (CELS) ▲ CELS: • It adopts the form of a Regulation that will coexist with the national legislations • Optional nature: it harmonizes the national contract laws of the Member States by creating a second contract law regime for contracts. It will apply on a voluntary basis, upon an explicit agreement by the parties. • Scope of application: • B2C contracts and B2B contracts where at least one party is a small or medium-sized enterprise (SME) • Cross-border contracts • Contracts for sale of goods and related services TOPIC 11. PROPERTY Creation, allocation and transfer of property rights.Division of property rights. The meaningof ownership and entitlements associated with ownership of land. An overview of the BookVIII (Acquisition and loss of the ownership of goods) of the Draft Common Frame ofReference. REAL PROPERTY ▲ Real property: rights in land • Buildings on the land • Things attached to land • Incorporeal rights (easements…) • Ground and underground • Bocardo SA v. Star Energy UK ([2009] EWCA Civ 579): the claimant is entitles to damages by the extraction of oil below his land without permission • Airspace • Bernstein of Leigh (Baron) v Skyviews & General Limited [(1978) QB 479]: aerial photographs were taken of Bernstein’s property. The owner has a FACULTAT DE DRET [Nom alumne] 42 • Joint tenancy: ■ Estate in land is acquired by two or more persons at the same time and by the same instrument ■ Joint tenants have identical rights and they cannot dispose of them ■ Joint tenants are regarded as a single legal entity ■ There is a right of survivorship (ius accrecendi): if any of the joint tenants dies, his right in land passes automatically to the survivors • Tenancy by the entirety (abolished in the UK and many US States): • Joint tenancy arising between husband and wife. • Tenancy in common: • Tenants in common have individual shares in the land and they can dispose of them • There is no right of survivorship (the provisions of the will or the rules on intestacy applies) PRESENT NON FREEHOLD STATES • They arises in landlord-tenant relationships (tenancies or leases) • Basic categories: • Term of years tenancy: ■ Definite duration fixed in advance: “to A for 99 years” • Periodic tenancy: ■ Definite term that is extends for additional equal periods automatically until termination by giving advance notice: “to A from year to year” • Tenancy at will: ■ No fixed duration since either party may terminate the relationship at any time • Tenancy at sufferance: tenant retains possession without the landlord’s consent. The landlord can evict the “tenant” at any time FUTURE ESTATES • Non possessory rights that will become or may become possessory or present estates in the future. Some examples: • Reversion: I hold a fee simple absolute and I only conveys a life estate to A. I hold an estate in reversion because when A die, the possession will return to me. FACULTAT DE DRET [Nom alumne] 45 • Remainder: I grant to A for life and then to the heirs of A. The heirs of A hold a estate in remainder because their right to possession is postponed to the moment of A’s death. TRUST: HISTORICAL OVERVIEW ▲ Trust was developed during Crusades (s. XI-XIII). • Knights transferred their lands into the hands of a relative or friend, who could manage them until their return • According to the common law, there was no legal solution for the knight to protect his family from an unscrupulous friend or family member • In 13th century, equity established the “use” of land, the ancestor of the trust. It created two rights in one property, which could exist at the same time: • One person owned the land under the common law (legal title) • Other person had a right to use the land under the law of equity (equitable or beneficial title) • S. XVI: • Use of land was used as a method of tax avoidance. • In order to avoid this practice, the Statute of Uses 1535 was enacted. However, it was not successful • S. XVII: • Modern trust doctrine is developed and established • S. XX-XXI: • Statutory regulation of trusts ■ US: Uniform Trust Code (2000)… ■ UK: Trustee Act (2000)… • In a trust, a person (settlor) transfers the legal ownership of property to another (trustee) to hold that property on trust for the benefit of somebody else (beneficiary) • The trustee holds the legal title to the property and can use and dispose of it as the settlor could do • The beneficiary holds the equitable title to the property since he is entitled to the benefit of that property FACULTAT DE DRET [Nom alumne] 46 TRUST: PARTIES ▲ Settlor: • The person that creates the trust by transferring their property (id est, the trust property or trust fund) for the benefit of a third party • It is referred to as testator or testatrix where trusts are created in a will ▲ Trustee: • The person to whom the settlor entrusts their property • It is referred to as executor or executrix where trusts are created in a will • He holds the legal title to the property • One or more individuals or legal persons • He is appointed by the settlor in the trust instrument (or trust deed) or the will • Fiduciary relationship: it must act in the best interests of the beneficiaries ▲ Beneficiary / class of beneficiaries: • The person to whom the settlor intends to benefit • He holds the equitable title to the property • Individual or group of persons (class of beneficiaries) • Trusts must be created for the benefit of identifiable human beneficiaries • Morice v Bishop of Durham ([1805] EWHC Ch J80): “every [non-charitable] trust must have a definite object. There must be someone in whose favour the court can decree performance” • Trusts for the benefit of abstract purposes are prima facie void. Exception: charitable trusts are considered valid trusts TRUST: TYPES ▲ Express trusts: trusts created by a deliberate act of the settlor, either by way of a verbal declaration or by some form of writing. Types: • Private trusts: trusts created by the settlor for the benefit of a private individual or individuals (for example, close family members, friends, etc.) • The settlor transfers 10.000 Euro to the trustee to hold on trust for the education of A and B • Public trusts: trusts created by the settlor for some public benefit or use (for example, charitable trusts) FACULTAT DE DRET [Nom alumne] 47 • When a public purpose exists, any public officer or body having that function or any other person having sufficient interest in the performance of the obligations • In common law, individuals cannot enforce performance, but only the State • More formal requirements for constitution (X. – 2:101 and 2:203) • In common law, no requirements are foreseen as to the form of trust TOPIC 12. TORTS Basis of liability: negligence, strict liability, vicarious liability. Defences.Remedies.Perspectives for the unification and harmonization of Tort Law in Europe: the Principles ofEuropean Tort Law. TORT LAW • In the UK and US, tort law was created by case law (common law, equity), although some areas are covered by statute • Tort law regulates the circumstances in which people can: • Recover compensation for infringement of rights • Prevent infringement of rights • Tort law covers a wide variety of situations: • Victims of road or factory accidents • Owners of land invaded by trespassers • Victims of inaccurate newspaper articles • Residents irritated by excessive noise from neighbors... • Basis of liability: • Intention • Negligence • Strict liability is rare ORIGINS OF TORT LAW ▲ It must be found on writs that allowed to bring actions before the royal courts. • Writ for trespass on the case: indirect injury • Writ for trespass: direct injury • Initially, the action on trespass to the person only required that the plaintiff showed a direct injury FACULTAT DE DRET [Nom alumne] 50 • In the 1960s, the plaintiff had to evidence that the injury had been caused intentionally. This is the origin of the tort of negligence • Since then, torts to the person may be: ■ Non-intentional torts: tort of negligence ■ Intentional torts: tort of trespass • Battery • Assault • Malicious prosecution • False imprisonment • Defamation CURRENT TORT LAW SYSTEM • Torts to persons • Intentional torts (intentional injuries): trespass to person • Before 1960s, trespass referred to both intentional and non-intentional injuries • Non-intentional torts (non-intentional injuries): negligence • Torts to goods • Intentional torts: trespass to goods... • Torts to land • Intentional torts: trespass to land, nuisance... NON-INTENTIONAL TORTS TO PERSONS: TORT OF NEGLIGENCE • Elements: • Duty of care • Breach of the duty of care • Consequential damage • Duty of care: • It implies some type of previous relationship between the victim and the wrongdoer • Initially, the courts only recognized a few relationships giving rise to a duty of care. In the 19th and 20th centuries judges attempted to formulate a general principle • Donoghue v. Stevenson (1932): FACULTAT DE DRET [Nom alumne] 51 • Product liability case: damage derived from drinking a bottle of ginger beer which contained the remains of a snail. The House of Lords ruled in favor of the plaintiff • The House of Lords stated that a person owed a duty of care: • To everyone who can suffer foreseeable damage by negligent conduct • Provided that there was sufficient proximity between the wrongdoer and the victim • The principle of Donoghue v. Stevenson was used restrictively in product liability cases • Dorset Yacht Co Ltd. V. Home Office (1970): • Damage suffered as a consequence of a collision of yachts. The House of Lords ruled in favor of the plaintiff. • The House of Lords extended this restricted view by stating that a general duty of care had to be applied unless there was some justification or valid explanation for its exclusion • Anns v. Merton London Borough Council (1978): • Damage because of defects in a building process. • The House of Lord stated a two-stage test (Anns test): ■ There was a sufficient relationship of proximity between the plaintiff and the defendant ■ There were reasons that led to the exclusion of the duty of care • Caparo Industries plc v Dickman (1990): • Negligent preparation of accounts for a company. • The House of Lords formulated a three-fold test (Caparo test) : ■ Harm was reasonably foreseeable as a result of the defendant's conduct ■ The parties were in a relationship of proximity ■ It was fair, just and reasonable to impose liability • In the Anns test, a duty of care existed unless there was a good reason not to do so and since Caparo a duty of care was only accepted if there is a good reason to do so • Today, no general duty of care exists INTENTIONAL TORTS TO PERSONS: TRESPASS • Most of these torts are actionable per se: plaintiff does not have to show damage, but only the intentional interference with a person’s body or liberty • Battery: intentional use of force against other person FACULTAT DE DRET [Nom alumne] 52 MATRIMONIAL PROPERTY REGIME IN THE UK ▲ Separation of property with distribution by the competent authority: • The property of spouses remains separate • Matrimonial Causes Act 1973: it gave judges powers to reallocate spousal assets by means of property adjustment orders in divorce cases. Circumstances to be considered: • Present and future income, earning capacity, property and other resources of each spouse • Present and future financial needs, obligations and responsibilities of each spouse • Standard of living enjoyed before the breakdown of the marriage • Age of each spouse • Duration of marriage • Any physical or mental disability of each spouse • Present and future contributions of each spouse to the well-being of the family, including any contribution by looking after the home or caring for the family • F 0A 2Conduct of each spouse • Value to each spouse of any benefit which, by reason of the divorce, the spouse will lose the chance of acquiring • Initially, redistribution consisted of putting the spouse in need of maintenance in a position which enabled her to continue her matrimonial standard of living • This line of case law was changed by White v. White (2000): • Mr. And Mrs. White were a farming partnership that both work physically hard and make an equal contribution to both work and domestic activities with total assets of approximately £4 million. The House of Lords held: ■ “If (…) each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favor of the money-earner and the child-carer". ■ It guaranteed equal treatment of spouses when both spouses had contributed to the family’s welfare in equal shares. ■ However, it was possible to depart from an equal division where there was good reasons to do so ▲ Miller v. Miller (2006) and McFarlane v. McFarlane (2006): • Miller v. Miller: childless marriage lasting less than 3 years, the husband was a very high earner FACULTAT DE DRET [Nom alumne] 55 • McFarlane v. McFarlane: marriage lasting more than 16 years, three children. Both had successful careers. Prior to the birth of their second child it was agreed that the wife would look after the home and the children • According to the House of Lords, when dividing assets on divorce, judges should consider: • The needs generated by the relationship between the parties; • The compensation for any financial disadvantage generated by the relationship; • Equal sharing, unless there is good reason to the contrary MARITAL OR PRENUPTIAL AGREEMENTS • Under the common law, parties can agree marital or prenuptial agreements • Marital or prenuptial agreements are agreements made before marriage that regulate what is to happen to the parties’ assets in the event of a divorce or separation • Marital or prenuptial agreements have been considered contrary to public policy and therefore not binding ▲ However, since they must be considered according to Matrimonial Causes Act 1973, in practice judges usually respect their terms • Radmacher v. Granatino (2010): • French husband and German wife. They entered into a German ante-nuptial agreement before the marriage. The parties separated after 8 years of marriage. By this time the husband had left banking and had embarked on research studies at Oxford • The House of Lords held that: ■ No agreement between a husband and a wife, whether signed before or after the marriage, can oust the jurisdiction of the court to make orders concerning the allocation of assets ■ In principle marital agreements will be given effect “unless in the circumstances prevailing it would not be fair to hold the parties to their agreement” HARMONIZATION AND UNIFICATION OF FAMILY LAW • On 2001, the Commission on European Family Law (CEFL) was established. It consists of approximately 26 experts in the field of family and comparative law from all EU Member States and other European countries • Its goal consists of creating a set of Principles of European Family Law for the harmonization of family law within Europe • Since 2001, it has published the following Principles: • Principles on Divorce and Maintenance Between Former Spouses • Principles on Parental Responsibilities FACULTAT DE DRET [Nom alumne] 56 • Principles on Property Relations between Spouses (forthcoming, 2013) FACULTAT DE DRET [Nom alumne] 57