Introduction to Business law, all the basics for understanding the world of business law in England. Contents: Introduction to Business law, The English legal system, Hierarchy of courts, Contract law, Tort Law, Occupier's Liability, Employer's Liability, Legal personalities + Relevant cases for ea...
Theme 1: introduction to law
What is law?
Body of rules created by the state binding within its jurisdiction and enforced with the
authority of the state through the use of sanctions
judicial appointments committee
Main law: No one is above the law
1. Rules: Rules are commands aimed at regulating behaviour. Rules tell people
what they can and cannot do. Sometimes they may permit behaviour only under
certain conditions
2. Created by the state: parliament is responsible for creating most of the uk law
3. The jurisdiction of the state: the law of any country is only binding within its
territory - law in uk is only applicable in england and wales
4. State enforcement: this refers to the police and court system - enforcing the law
and sanctioning people who don't comply
Law in england
● Origin: the english legal system can be traced to 1066 - development has been
gradual
● Lack of roman law influence which dominates other european countries
● Judges have creative powers: judges used to make laws until the parliament took
over, now senior judges have power to develop principles of case law
● The doctrine of binding precedent: english judges are bound to apply any
relevant precedent (previous judicial decision influential and possible binding in
later cases) of a senior court
● Adversarial nature: a case in court is essentially a contest before a judge whose
task is to see the rules of evidence are obeyed and decide who the winner is
● Inquisitorial function: this gives the judge power to call witnesses and question
them during the hearing of the case.
● Inquisitorial procedure: the judge helps to establish the evidence by actively
questioning witnesses.
Why do we need the law:
Everything is legal until made illegal
1. To provide a governmental structure and legislative procedures - constitutional
law
2. To provide public services and to raise taxes to pay for them - administrative and
revenue law
3. To regulate and promote the economy - administrative, civil and criminal law are
all involved
4. To promote public order and preserve national security - criminal law
5. To give individual members personal rights and duties in relation to others and to
enable personal enforcement of these rights- the civil law.
6. To give legal validity to approved relationships and transactions between
members of the society - this involves the law of contract, the law of property and
succession, company and partnership law, and family law.
,Difference between criminal & civil law
Criminal law:
● Regulates behaviour perceived as being antisocial and dangerous to the public
● Provides machinery by which the state may take action against offenders
● Generally started by the police, but some legislation is enforced by other
agencies like local authorities or Revenue & Customs.
● The prosecution must prove that the accused is guilty beyond all reasonable
doubt.
● The focus is on the accused and the need to protect society against criminal
conduct
● The ultimate aim is to control the criminal, while protecting society from future
anti-social conduct.
● A penalty may be used to contain criminals by depriving them of their freedom, or
to rehabilitate them.
Civil law:
● Gives legal rights to individuals to govern their formal and informal relationships
with each other.
● Focuses on claimant
● The case may not go to trial even if proceedings are started. Most civil law claims
are settled out of court,
● The claimant must prove that the defendant is liable on the balance of probability.
● The focus is on the needs of the victim and generally requires the wrongdoer to
pay damages
● Sometimes the sanctions may require some practical correction of the wrong.
This may be used in domestic violence cases or to prevent a nuisance.
Therefore: the English legal system is a common law system aka common law is
case-based, which means judges in courts can create laws based on facts in front of
them. For this reason ‘common law’ is sometimes referred to as ‘judge-made law’. In the
UK, common law goes further because there is no codified constitution. No central
document detailing rights of citizens that you can hold in hand. “Partly written, wholly
uncodified” partly written statutes
Changing the law: It is important to realise that the law is subject to frequent change.
Very few principles actually remain constant. These changes reflect social, political,
economic and technological developments taking place within society.
Social change; Changes in moral values have influenced a number of legal
developments in the last 50 years, including reform of the divorce law, decriminalisation
of abortion, as well as the introduction of legislation to prevent discrimination
Political change: Every parliament is sovereign and consequently after the referendum
in 2016 the UK will be withdrawing from the European Union and repealing the
European Communities Act 1972.
, Economic and technological change: Much of the law governing commerce and
industry, including the regulation of data protection, is subject to such influence. As
society and business practice develop, new challenges arise. For example, the General
Data Protection Regulation (GDPR)
Why some cases don't go to court
● Settlement agreements between parties
● Some penalties might be imposed if a party acts unreasonably and decided to
go to court
● Claimant cannot afford to go to court
● Companies gone into liquidation
Alternative dispute resolution (ADR) allows individuals to enforce their legal rights
without going to court. There are several methods of ADR:
● Arbitration: A third party considers a dispute and decides how it should be
resolved – this decision is then binding on the people in dispute. This is often a
term of a business contract – businesses, suppliers, contractors etc must seek
arbitration before going to court
● Ombudsman schemes: Ombudsman investigate and consider complaints against
businesses and organisations
● Mediation: A third party assists people in dispute to communicate and find a
resolution (useful in property and family disputes). Recommended by courts
before litigation
● Conciliation: Similar to mediation, but the third party is active in suggesting how
to resolve a dispute
Tribunals: Tribunals determine the rights of individuals against organisations, such as
the government and employers, in areas of tax, employment, immigration, education.
Tribunals operate alongside courts, they have less powers than courts but can impose
fines and award compensations.
Employment tribunals resolve disputes between employers and employees, which
include unfair dismissal, redundancy, and discrimination
READ
Terms
● Claimant: the party who brings a civil action.
● Defendant: the person against whom criminal or civil proceedings are brought.
● Defence: the person being prosecuted in a criminal trial/ their legal
representatives.
● Accused: the person being prosecuted in a criminal trial.
● The prosecution/ the Crown: the prosecutor in criminal proceedings.
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