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Summary Business law
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9780198766261 chapters 1, 3, 4, 7, 8, 15
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CHAPTER 1: THE NATURE OF ENGLISH LAWEXPLAIN WHAT IS MEANT BY LAW
Laws are rules and regulations which govern the activities of persons within a
country.
Some laws prohibit actions, other laws state conditions that must be fulfilled or
complied with.
OUTLINE THE HISTORICAL DEVELOPMENT AND CHARACTERISTICS OF
ENGLISH LAW
In England and Wales, laws are composed of three main elements: legislation
which is created through Parliament, common law, and directly enforceable EU law.
Since the 11th century, English common law has developed partly through the
decisions of judges and it is accepted that judges do make and change the law.
English law is uncodified, which means that unlike other European countries, the
laws have not been systemised into a code.
The usual type of procedure in English courts is described as adversarial (hoor en
wederhoor).
The doctrine of binding precedent means that, in deciding a case, a judge is bound
to apply the law decided by earlier cases heard in courts of superior status (and
sometimes one of equal status).
UNDERSTAND THE DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW AND
THE DIFFERENCE BETWEEN CIVIL AND CRIMINAL LAW
Public Law concerns the relationship between individuals and the state, and is
concerned with the decisions by, and control of, government bodies.
Private Law is concerned with the rights and duties between individuals.
In Civil Law an aggrieved person, the claimant, commences court action against
the defendant and must prove his case on the balance of probabilities.
In Criminal Law, action is usually taken by the state (CPS). A prosecutor must
prove the defendant is guilty beyond reasonable doubt. The defendant does not
have to prove his innocence.
The purpose of a civil action is to provide a remedy for a civil wrong.
The purpose of a criminal case is to punish the offender.
CHAPTER 3 SOURCES OF ENGLISH LAW
IDENTIFY THE SOURCES OF ENGLISH LAW
A source of law means the process by which law comes into existence.
English law is mainly gained from legislation (both Acts of Parliament and
delegated legislation), case law (made by judges), and EU law. Custom is a minor
source of law.
EXPLAIN HOW ACTS OF PARLIAMENT AND DELEGATED LEGISLATION ARE
CREATED
Delegated legislation = laws made by a body other than Parliament, under powers
given by Parliament.
, Laws are made directly by Parliament are Acts of Parliament (also known as
statutes). Laws made under the authority of Parliament by other bodies such as
ministers are referred as delegated legislation. The courts have no power to cancel
Acts of Parliament but may under certain circumstances destroy delegated
legislation.
An Act of Parliament is created by a bill being passed through various stages in the
House of Commons and the House of Lords and receiving Royal Assent.
Parliament may pass an enabling Act giving powers to ministers, local authorities,
and other bodies to make delegated legislation.
If bodies pass delegated legislation outside their authority the courts have power to
destroy the legislation.
Courts have no power to cancel Acts of Parliament. An Act must generally be
repealed by another Act.
IDENTIFY THE RULES AND PRESUMPTIONS JUDGES USE TO INTERPRET
STATUTES
Judges interpret statutes made by Parliament and, as a general principle, judges
aim to give the disputed term the meaning that Parliament is thought to have
intended.
To ascertain Parliament’s intention, judges take the literal approach looking
primarily at the words in the legislation, or the purposive approach where the judge
establishes why the statute was enacted and interprets it in the light of that purpose.
In order to assist judges in statutory interpretation, some rules and presumptions
have been developed by the courts. The main rules are the literal rule, the golden
rule, and the mischief rule.
In a dispute it is up to a judge to interpret the meaning of legislation and the judge
may use the literal or purposive approach. When using the literal approach, the
actual words of the legislation are examined. When using the purposive approach,
the reason why the legislation was passed are examined.
BE FAMILIAR WITH THE DOCTRINE OF JUDICIAL PRECEDENCE
Judicial precedence is part of English law and means that, where a case has
established a principle of law, that principle must be followed by courts of lower
authority (and sometimes of the same authority) in deciding subsequent cases with
similar issues.
The doctrine of judicial precedence provides certainty, flexibility, and detail to laws,
but it can mean the law becomes rigid (stiff), complex, and cumbersome.
EXPLAIN THE SOURCES OF EU LAW AND IMPACT OF MEMBERSHIP OF THE
EU ON THE ENGLISH LEGAL SYSTEM
The UK became a member of the EU from 1 January 1973. The majority vote in the
UK referendum in June 2016 was to leave the EU. Negotiations to withdraw are
expected to commence in 2017.
Treaties = agreements between countries.
Treaties signed and ratified by Member States are the primary source of EU law.
EU regulations, directives, and decisions are secondary sources of EU law.
Some EU laws are directly effective in the UK (directive application: you have to
follow EU law); other EU laws have to be implemented by the UK (indirective
application).
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