bluuebunny/crossref_metadata_2025 huggingface dataset:
1. The UK Constitution
Authors: Stanton John , Prescott Craig
Published: August 2018

This chapter provides an introduction to the UK Constitution and sets out a foundation upon which discussions in later chapters further develop. It starts by exploring definitions of constitutions, placing the unique UK system within commonly accepted themes and characteristics. It then moves to explain the nature and form of the UK Constitution and some of the sources of which it is constructed, as well as exploring some of the more theoretical considerations as regards its character, including the way in which it is legitimised. The final section entertains academic questions concerning whether or not the UK can be said to have a constitution, including discussion of the case for and against a codified system.
3. The rule of law
Authors: Stanton John , Prescott Craig
Published: August 2018

This chapter starts by defining the rule of law, explaining its importance and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the consideration provided by Dicey who, writing his seminal text An Introduction to the Study of the Law of the Constitution — (1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern day authorities.
4. Parliamentary sovereignty: an overview
Authors: Stanton John , Prescott Craig
Published: August 2018

This chapter explores the principle of parliamentary sovereignty. It defines the theory in orthodox terms set out by Dicey and explains the manner in which it has developed out of the Bill of Rights and on the back of the unsettled constitutional times that prevailed during the seventeenth century. It then sets out the legal basis for sovereignty, calling on the authority of Wade, Jennings, and Goldsworthy to explain the importance of the courts' role in determining and providing the foundation for Parliament's authority. Next, it explores the fundamental aspects of the orthodox theory, explaining how that operates in practice and discussing the various challenges and limitations that have arisen since the late nineteenth century. The chapter concludes by considering the position of parliamentary sovereignty today, analysing the extent to which orthodox Diceyan theory can be said still to be relevant.
6. The royal prerogative and constitutional conventions
Authors: Stanton John , Prescott Craig
Published: August 2018

This chapter explores the historical, legal, and political nature of the Crown and the royal prerogative. The rule of law requires that the government act according to the law, which means that the powers of the government must be derived from the law. However, within the UK Constitution, some powers of the government are part of the royal prerogative, as recognised by the common law. The concepts of the Crown and the royal prerogative mean that although the Queen is Head of State, it is generally the ministers who form the government that exercise the prerogative powers of the Crown. For this reason, many prerogative powers are often referred to as the ‘ministerial prerogatives’, and the few prerogative powers still exercised personally by the monarch, are referred to as the ‘personal prerogatives’.
8. Parliament
Authors: Stanton John , Prescott Craig
Published: August 2018

This chapter discusses the functions, structure, and procedures of Parliament. Parliament's main functions are to be the forum for debate on the main issues of the day; to represent citizens; to enact legislation; and to hold the government to account. Parliament has three elements: the House of Commons, the House of Lords, and the monarch. The chapter focuses on the two Houses, often referred to as ‘chambers’. The main output of Parliament is legislation. There are two forms of legislation. Primary legislation, referred to as Acts of Parliament, which are the exercise of Parliament's legal supremacy to change the law, either by making new law or amending or abolishing existing law. Parliament also has the power to delegate its law-making power to others, usually to the government, allowing them to make delegated legislation according to the terms set out by Parliament.
10. Judicial review: access to review and remedies
Authors: Stanton John , Prescott Craig
Published: August 2018

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.
2. Equitable obligations
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter discusses trust and powers, which are two of the main elements in equity’s toolkit for managing property. Their utility has been enhanced by the approach flagged by the landmark decision in McPhail v Doulton, of seeking to facilitate the wishes of a settlor rather than trying to shoehorn arrangements into preconceived categories. The result has been the recognition of a range of intermediate obligations, including the discretionary trust and fiduciary powers. Alongside this, equity developed the concept of the fund, which has helped in the separation of beneficial ownership from asset management. Combined with all of this, equity has recognized the possibility that a settlement can include directions to trustees which are binding or discretionary, and the power to make variations by adding or removing beneficiaries. The result has been that settlements can contain quite a range of flexibility.
3. Equity and the management of property
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter provides some examples of the use of trust in everyday life. The way in which trusts underpin much of the modern law of property is often unnoticed or under-appreciated. For instance, the family home is, in most cases, held on trust. While trusts first emerged in an entirely different social environment, they have proved extremely adaptable to modern family and commercial contexts, and they play a key role in the modern law of charities. Those who invest in a pension or a unit trust are likely to find that the underlying assets behind their investment are held under a trust. Persons with considerable wealth may utilize trusts to help in tax planning.
4. Certainty
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter discusses the role of certainty in questions of trust and power in property management. For an obligation to be legally enforceable, it must be defined with sufficient certainty to allow the courts to control it, and a power conferring authority can only be exercised within the limits subject to which it is created. This range of different types of obligation has implications for the applicable tests for certainty. The court must know who is under an obligation, what the obligation is, to what property the obligation relates, and who can enforce the obligation. In the case of a power, the court needs to know who can exercise the power, how it can be exercised, and whether the power has been validly exercised.
6. Formalities
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter looks at situations where the creation of a valid trust requires special formalities. Firstly, it considers inter vivos declarations of trust, such as trusts of land and personal property, as well as sub-trusts. The chapter then discusses dispositions of subsisting equitable interests. Unlike the declaration of sub-trusts, a different formality requirement applies to dispositions of existing equitable interests, which emphasizes that it must be made in writing. There are, however, some exceptions to this rule, particularly in the context of taxation. In addition, this chapter turns to resulting and constructive trusts and declarations of trusts by will.
7. Policy limits
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter describes some policy limits in the law of equity. The rule against perpetuities prevents owners tying their property up outside of the market for too long a period, otherwise known as the ‘perpetuity period’. The rules of perpetuity also account for accumulations and inalienability. Meanwhile, conditional and determinable interests, where the conditions are designed to influence the beneficiaries’ behaviour in a way that is contrary to public policy, are also restricted. Legislation also provides that trusts may be set aside if they are established with the object of defrauding the creditors of the settlor.
8. Resulting trusts
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter examines resulting trusts, which are one of the two main categories of informal trusts in English law. In general, resulting trusts arise to fill gaps in beneficial ownership or to give effect to the implied intention of the owner of property that someone else should not enjoy the benefit of it. Under existing law, a resulting trust arises in two sets of circumstances. One is where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, with a presumption that A did not intend to make a gift to B. The other is where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest.
17. Cy-près: redistributing funds and changing purposes
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter discusses ‘cy-près’, which is an application to alternative charitable purposes should a charity cease to operate but still possess assets. One possibility is that the assets should be returned to those who donated them on the basis of a resulting trust, in much the same way as a surplus on the failure of a private trust will return to the original contributors. However, charitable trusts are treated differently from private trusts because they have a public character. The law regards property given for any specific charitable purpose as given not merely to that particular purpose but dedicated to charity in the general sense. It follows that if the particular purpose for which the property was given fails, it will be applied, under a scheme drawn up by the Charity Commission, to other similar charitable purposes and will not return to the donor under a resulting trust.
18. Control and regulation of charitable trusts
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter discusses the regulatory system of charitable trusts. In the case of private trusts, the primary task of supervising the trustees and ensuring that they do not abuse their position falls to the beneficiaries. Charitable trusts do not have beneficiaries as such since, by their very nature, they are purpose trusts and an exception to the beneficiary principle, although there may obviously be persons, for example, donors, who are interested in seeing that assets held on trust for charity are properly applied. Historically, charities were supervised and controlled by the Attorney-General, acting on behalf of the Crown. However, this function has largely been replaced by a regulatory system with a statutory footing. The law was revised by the Charities Acts 1993 and 2006, and is further revised by the consolidating Charities Act 2011.
19. Choosing who benefits
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter sketches some of the recurrent themes that run through the equitable mechanisms of fixed and discretionary trusts and powers of appointment. It considers the matter of beneficial entitlement and ownership, which raises questions regarding the nature of the rights in the fund enjoyed by the potential objects of allocation. Next, the chapter shows how trusts must be for the benefit of legal persons and not merely for the object of carrying out purposes. Although purpose trusts are not, as a general rule, valid, it is often the case that owners wish to allocate their property to purposes rather than to specific individuals. The law provides that certain purposes are charitable and gifts and trusts for these purposes are valid, even though there are no beneficiaries as such. The chapter also discusses certainty and the duty to act even-handedly.
22. Discretionary trusts
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter considers the key features of a discretionary trust. Unlike a fixed trust, which gives defined shares to the beneficiaries, a discretionary trust gives the trustees a discretion as to how to allocate the beneficial interests. They are mechanisms by which an owner of property can grant to others the power to allocate a fund among a defined class or group. As in a power of appointment, the allocator has complete discretion how the fund should be allocated, either, or both, in terms of the persons who should receive shares of the fund and the size of the shares they should receive. However, unlike mere powers of appointment, the allocator is under a mandatory duty to make allocations in accordance with the terms of the trust. The court will intervene to ensure that this duty is discharged.
24. Variation of beneficial interests
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter considers the variation of beneficial interests. One route is for a trust to include provisions which allow the terms of the trust to be varied by the settlor, or by the trustees, or by a protector, in each case, with or without a requirement of consent by someone else. Variation by the beneficiaries is also explored, as is the surrender of a beneficial interest, the release of a power, the statutory powers of variation, and inherent court powers. The chapter next turns to consensual variation and variation under the inherent jurisdiction of the court. Miscellaneous statutory powers are also discussed. Finally, the chapter gives an overview of the Variation of Trusts Act 1958.
25. Management and delegation
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter explores trustees’ management powers. The management powers of trustees are concerned with looking after property or funds. They do not allow the trustees to choose who benefits. In addition, the powers of management conferred upon a trustee are not the same in every case. Quite obviously, the powers of express trustees are likely to differ significantly from those of constructive trustees upon whom a trust has been imposed because of their improper conduct. In the latter case, the question of the trustees’ powers rarely arises. They are wrongdoers, who are, by definition, acting in breach of duty. How far they are authorized to act is, therefore, unlikely to be an issue.
27. Appointing and changing trustees
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter discusses the role of trustees, which is central to the operation of trusts. In most cases, trustees have extensive powers conferred upon them by the trust instrument or by the general law. The way in which they exercise those powers can have a huge impact upon whether or not the objectives of the trust are achieved, and upon the beneficiaries. Choosing the right trustees is, therefore, essential. This chapter thus looks at how the original trustees are appointed and what steps can be taken should the trustees need to be changed through resignation or retirement, or because the settlor or the beneficiaries are no longer content that a trustee should continue in office.
29. Remedies against the trustee for breach of trust
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter examines the nature of liability for breach of trust. Trusts impose obligations on the trustees, and the trustees can be held liable for breach of trust if their failure to meet the obligations imposed upon them causes a loss. The liability of a trustee for a breach of trust is a personal liability, and any remedy is available only against the trustee as an individual, and not against any specific assets. If the trustee in breach has died, their personal liability continues against their estate. There may be separate remedies in relation to any assets retained by the trustee or in the hands of a third party, and different remedies are also available for breach of fiduciary duty.
30. Fiduciary duties
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter looks at the duty of the trustee to show loyalty to their beneficiaries. The duty of loyalty is owed by most trustees, but a similar duty is also imposed upon others who hold certain positions of trust and confidence, such as agents and company directors. The duty requires the fiduciary to put the interests of the principal above their own, not to put themselves in a position of a potential conflict, nor to receive any secret payment, profit, or commission. There is a degree of circularity in identifying when fiduciary duties are owed. A fiduciary is a person who owes fiduciary duties to another, but whether they can be characterized as a fiduciary depends upon whether they owe fiduciary duties. The essence of fiduciary duties is that they are duties of loyalty.
34. Specific performance
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter concerns the remedy of specific performance. The remedy of specific performance is a remedy which applies only where someone has already engaged to do something, but has then failed to do so. An equitable remedy of specific performance is a personal remedy against the defendant, as equity acts in personam, and disobedience is classified as a contempt of court which can lead to imprisonment or other action. The remedy provides an alternative to an award of damages, and it may sometimes be awarded alongside damages. The remedy of specific performance evolved to allow the courts to compel a defendant to perform a contractual obligation. At common law, if a contracting party failed to do what was promised, the injured party had a remedy only in damages.
35. Injunctions
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter focuses on injunctions. Injunctions normally operate to prevent a person acting in a particular way (although they can also be used to require a person to act positively to put right a wrong). Injunctions can be used for a wide variety of purposes, and their scope has evolved considerably over the years. The late twentieth century saw the development of freezing and search orders. This century has seen the emergence of privacy orders, superinjunctions, and notification orders. More traditionally, injunctions have been used to prevent breaches of contract or breaches of restrictive covenants affecting land or to restrain the continuation of a public or private nuisance.
3. Seeking a Divorce
Authors: Higgins Edwina , Newton Kathryn
Published: August 2018

This chapter considers the law and process for seeking a divorce in England and Wales. It examines the current legal framework and the gap between the ‘law in books’ and the practical reality. It looks at the current legal provisions, the criticisms that have been made of them, and whether there are any strengths to the current law. The discussion is placed in the context of divorce statistics in order to determine the link between the divorce law and the divorce rate, and whether this matters. In so doing, the chapter considers how much of a role the state should play in regulating divorce and the place of ‘fault’ in a modern divorce law. It also considers matters of process and procedure, and whether reform of process rather than substantive law is the right focus.
6. Child Support
Authors: Walker Lara
Published: August 2018

Child support in England and Wales is predominantly dealt with by the Child Support Act 1991. Many people believe that that parents should provide support for their children, that separated parents should continue to provide support, and that single parents are entitled to support for the child from the non-resident parent (usually, but not always, the father). However, the difficult factor is finding a theoretical underpinning for this duty which is believed, by many, to exist. This chapter begins by looking at some of the theories on child support and problems associated with these theories. It then looks at the government policy on child support in order to establish whether the policy is built on any of these theories and, if so, how closely it actually relates to the theory.
12. Adoption
Authors: Doughty Julie
Published: August 2018

This chapter explains the law of adoption. When an adoption order is made by a court in England and Wales, the legal connection between a child and her birth family is completely and permanently ended and she is transferred in to a new family. Changes in society during the second half of the twentieth century created a new model of adoption, reflected in the legislative framework of the Adoption and Children Act 2002. However, there are ongoing complex questions about what the purpose of adoption should be. The idea that a court order can overcome biological and social relationships can seem artificial, imposing a fictitious narrative that might be difficult to sustain throughout a lifetime. The chapter also discusses special guardianship in the context of alternatives to adoption.
1. Introduction to the study of contract law
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter introduces some of the key ideas that will be encountered in the rest of the book, such as what is required for a contract. It touches upon the everyday role of contract, and that, although the book is heavily concerned with case law, contract disputes are often resolved without resort to the courts. It also introduces the idea of the evolution of contract law with the changing nature of society: the limitations placed on the use of an idea, such as ‘freedom of contract’, through recognition of the impact of inequality of bargaining power. Additionally, it alerts the reader to the impact of the EU.
3. Certainty and formalities
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter looks at the need for certainty and formalities in contracting. It explores case law which illustrates, on the one hand, that a willingness of the parties to make a contract does not necessarily amount to a legally binding agreement, whilst on the other hand, there is potential for the court to fill in any gaps to give effect to agreements. The issues surrounding an agreement which is expressed to be ‘subject to contract’ are explored in light of the recent Supreme Court case of RTS Flexible Systems Ltd. The reasons for when contract formalities may be required are also noted. There is also discussion of electronic contracting, in relation to the introduction of the Electronic Identification and Trust Services for Electronic Transactions Regulations (2016/696).
4. Consideration
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter looks at the requirement of consideration; the basic idea, how it works, that it will usually not be a problem because supplying the consideration is generally the whole purpose of the contract (the ‘bargain’), but that the courts will sometimes ‘find’ consideration when none is readily apparent, and will not require it to be of adequate value. It goes on to consider performance of an existing duty by one party as consideration for a new promise by the other party, particularly in the light of the approach taken in Williams v Roffey Bros. It also looks at the related problem (and emphasizes the relationship) of a promise to forego part of a debt in return for payment of part of what is owed in the light of the traditional approach taken in Foakes v Beer, and the recognition of promissory estoppel in High Trees. The significant case of MWB Business Exchange Centres Ltd v Rock Advertising Ltd (2016) is explored in detail in this chapter.
7. Express and implied terms
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter looks at the creation of express and implied terms. In particular, it deals with spoken statements becoming express terms and the different types of implied terms. Terms implied in fact, in law, and by custom are addressed. The traditional ‘business efficacy test’, and ‘officious bystander test’ are looked at in relation to terms implied in fact, and the developments in Belize Telecom. Consideration is given to the requirements for terms to be implied in law, at common law, and the growing recognition that, despite references to ‘necessity’, the implication of such terms is concerned with issues of fairness, reasonableness, and social policy.
8. Classification of terms
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter distinguishes conditions, warranties and innominate terms in relation to the different consequences of their breach; the availability, or not, of the right to terminate for breach. It identifies the test for determining which classification applies to a particular term, relating it to the benefits and drawbacks of the condition and the innominate term categorizations: certainty/inflexibility in relation to conditions and flexibility/certainty in relation to innominate terms. Significant cases, such as Hong Kong Fir and Bunge v Tradax are looked at in detail.
10. Exemption clauses and legislation
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter deals with the statutory policing of exemption clauses under the Unfair Contract Terms Act 1977 (UCTA) and addresses the changes to the law made by the Consumer Rights Act 2015. It explains the structure of UCTA and how to use it. It considers the different types of situations in which exemption clauses fall within it, under different sections (eg s2 negligence, s3 written standard terms of business, s6 and s7 goods contracts), and the need to consider whether a section renders a clause automatically ineffective or subjects it to the requirement of reasonableness. It looks at the application of the requirement of reasonableness and factors which have been identified as significant, such as the potential for insurance, the availability of alternatives, and reasons for a level of limitation. It considers the meaning of the UCTA’s definition of ‘deals as consumer’.
11. Unfair terms in consumer contracts
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter addresses the Directive on Unfair Terms in Consumer Contracts and its implementing legislation: the Unfair Terms in Consumer Contracts Regulations 1999 and the Consumer Rights Act 2015. The legislation is of broad application to unfair terms in consumer contracts. The fairness test, with its reference to good faith, and significant imbalance in the rights and obligations of the parties, is considered. The ‘core exemption’, from the fairness test, of price terms and those dealing with the main subject matter of the contract is looked at. The tensions in the different approaches to ‘core exemption’ in the Court of Appeal and the Supreme Court in Abbey National, and the different emphases on freedom of contract, and protection of the weaker party, are highlighted.
13. Misrepresentation
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter looks at misrepresentation. It first identifies the requirements for a misrepresentation, and highlights the situations in which the courts are willing to find misrepresentations although prima facie there are only statements of opinion which are stated not to suffice in themselves. It considers the remedy of rescission, and when it will be barred. It looks at the different ways in which damages may be provided for misrepresentation: for fraudulent misrepresentation under the tort of deceit; for negligent misrepresentation under the tort of negligent misrepresentation; and for negligent misrepresentation under s2(1) of the Misrepresentation Act 1967. It looks at the different requirements for each type, which it will be advisable to use, and what will be covered by a damages remedy for misrepresentation. Consideration is also given to remedies for aggressive and misleading trade practices under the amended Consumer Protection from Unfair Trading Regulations. The chapter also now looks at the Consumer Rights Act 2015 and its impact on the law.
19. The doctrine of frustration
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter investigates the scope of the doctrine of frustration which was developed to deal with cases where events occur after a contract is made which render the agreement illegal, or impossible to perform, or which fundamentally change the nature of the obligations undertaken by the parties. The doctrine operates within strict limits and its use is restricted in cases where, although the commercial purpose of the contract has been drastically affected by unforeseen events, the performance of the contract is still possible. The position under the Law Reform (Frustrated Contracts) Act 1943 and under the common law, including for example, the recent cases of Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association (Bermuda) Ltd and Olympic Airlines SA (in Special Liquidation) v ACG Acquisition XX LLC, are examined, collectively demonstrating how the doctrine currently operates.
20. Damages
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter deals with the primary remedy for breach of contract: damages. It looks at the basic test, which allows for the recovery of expectation loss, and also considers recovery of reliance loss and a restitutionary sum. The further limitations on recovery such as remoteness and the ‘duty’ to mitigate are considered, as is the distinction between liquidated damages and penalty clauses. The problem of recovering for non-financial losses—mental distress and the consumer surplus—is also addressed. Finally, the chapter looks at how the rules on penalties have been relaxed with the landmark judgments in Cavendish and ParkingEye (2015).
21. Specific enforcement
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter looks at specific performance and injunctions. Specific enforcement is only available in limited circumstances. The adequacy of damages as a remedy must be addressed. Its availability is limited by issues of supervision and its general undesirability in relation to contracts for personal services. Its nature as an equitable remedy means that the courts have discretion and consideration is given to such matters as hardship, behaviour of the claimant, adequacy of consideration and mutuality.
1. Studying Law
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter begins by identifying the reasons that make the study of business law an important aspect in the wider context of business. It identifies strategies and good practice that will help a student with their studies, a sample problem-type question and how to prepare a law-based answer. Business law is a distinct topic from other modules on accountancy, business, and management courses. A knowledge of the law cannot be bluffed—it is necessary to be aware of the relevant laws and think about business problems from a legal standpoint. This approach will ensure that legal questions are answered with reference to the law, which is crucial to being successful in the business law module.
2. Law, the Constitution, EU Membership, and Human Rights
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter, in discussing the English legal system and its features, begins by outlining what the law is and some important constitutional principles. The discussion is primarily based on the institutions and personnel involved in the practice and administration of justice. It therefore involves a description and evaluation of the courts, tribunals, and the judiciary, including their powers and the rationale for such authority, as well as the mechanisms of control and accountability. The aim of this chapter is to demonstrate how the mechanisms of the justice system work. The English legal system exists to determine the institutions and bodies that create and administer a just system of law. It should be noted here that the UK does, in fact, possess a written constitution, it is merely uncodified.
7. Contracts, Contractual Capacity, Mistake, Misrepresentation, and Duress
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter discusses how the manner in which a contract is concluded can potentially affect its validity. Before discussing the terms and details of a contract, it is important to note that a contract may fail due to one or both parties not possessing the capacity to establish a contract. Some of the common reasons includes a mistake by one or both parties, a provision that has been misrepresented in the negotiations, or the use of undue influence or placing the other party under duress in the process of concluding the contract. Some of the reasons listed in this chapter may be common, but the emphasis here is to identify where problems may occur that could prevent the successful operation of the contract despite fulfilling the essential features discussed in the previous chapters.
10. Discharge of Contract and Remedies for Breach
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter discusses other ways in which a valid contract may be discharged, aside from the successful completion of established rights and duties. It also discusses possible remedies where a party breaches the contract. Under the normal rules of contract, a party is only discharged from a contract when that party has completed obligations under it. Having completed the contract each party is free of further obligations. A failure to complete the contract may lead to a breach of contract claim, although situations exist where the parties may release each other from further obligation—referred to as discharge by agreement—or the contract may have been partially or substantially performed. This chapter examines discharge through performance and agreement, how contracts may become frustrated, and the consequences and remedies following a breach of contract.
11. Negligence and Nuisance
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter first discusses one of the most important torts—negligence—which may be commonly seen in instances of personal injury. This is followed by a discussion on acts of private and public nuisance. Torts law is particularly relevant to businesses as they need to be aware of the extent of their potential liabilities to workers, visitors to business premises, other businesses, and to the general public. This extends to ensuring that safe systems of work exist and appropriate insurance is maintained. Contrary to civil law, torts law imposes obligations on parties who wish to undertake duties freely and agree to be legally bound via contracts without, necessarily, prior agreement. The duty is to take reasonable care and not intentionally or negligently cause harm or damage.
12. Economic Loss, the Liability of Professional Advisors, and Psychiatric Injury
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter continues on from the previous chapter in discussing liability in negligence for physical damage and considers the potential liability that businesses and individuals may face when they provide advice in the nature of their business, when they cause economic losses not associated with physical damage, and where the claimant suffers a psychiatric injury or nervous shock due to the acts of the tortfeasor. Recently, there has been an increase in instances of imposing liability on employers for the stress and associated health problems suffered by their employees. In the absence of physical damage, restrictions are placed on the imposition of liability for pure economic loss, although such loss has been widened to include damages for negligent misstatements. Of crucial importance is that businesses are aware of the implications of providing information in the course of their professional activities that may cause an investor or client loss through negligence.
13. Vicarious Liability and Statutory Duties
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter identifies the doctrine of vicarious liability and its potential impact on employers. An employer faces vicarious liability when an individual engaged by it to perform some function for the business commits a tort; if this occurs within the course of employment and the individual engaged has the employment status of an employee, the employer may be jointly liable with the tortfeasor. The doctrine was developed, through the courts, to ensure that injured persons are compensated for losses sustained as a result of a negligent or wrongful act, with the obligation being placed on the employer to compensate and further to prevent any future torts being committed. The chapter considers the liability of those producing, supplying, marketing, and importing goods that contain defects which cause damage or loss.
15. Corporate Administration
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter identifies the administrative requirements of a company, from the regulation of the company’s meetings, and the interaction of the members with the company, and how the various resolutions may be moved. These requirements are due to the regulation that is placed on companies through legislation, including the Companies Act (CA) 2006. It is necessary for companies to register with Companies House in order to obtain a trading certificate, regulation exists with regard to the activities of a company’s directors, members of the company have the right to participate in meetings and vote on resolutions that are to be moved, procedures must be followed when moving resolutions, and board meetings have to be conducted in accordance with rules and procedures required by statute.
19. Employment Status and the Terms Forming the Contract
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter discusses how employment relations affect all business organizations and why it is especially important to identify the status of individuals engaged in employment. It begins by considering the regulation of the employment relationship and identifies the tests to establish the employment status of individuals, as well as the reasons behind the significance of the distinction between an employee and independent contractor. The three common law tests that have been used to determine employee status—control, integration, and mixed or economic reality—are identified, and how it is most appropriate in applying the tests to begin with those established in Montgomery v Johnson Underwood, and then proceed to the final question in Ready Mixed Concrete. The chapter also identifies the terms implied into contracts of employment and the obligations these place on the involved parties.
1. History
Authors: Bates Ed
Published: August 2018

This chapter traces the historical development of the concept of human rights and their status in international law. It first discusses human rights on the domestic plane, focusing on the key developments since the late eighteenth century, and then examines international law from the perspective of human rights over the period up to the Second World War. Finally, the chapter considers the efforts to create a universal system of human rights protection in the 1940s, culminating with the proclamation of the Universal Declaration of Human Rights in 1948.
3. Critiques
Authors: Dembour Marie-Bénédicte
Published: August 2018

This chapter reviews six critiques of human rights, deriving from realist, utilitarian, Marxist, particularist (cultural relativist), feminist, and post-colonial theoretical perspectives. The first three critiques emerged in reaction to the (successive) French Declarations of the Rights of Man of the late eighteenth century; the last three were fully developed in reaction to the International Bill of Rights enacted after the Second World War. Each of these critiques reveals a gap between what human rights claim to be or achieve, on the one hand, and what human rights are or do in practice, on the other.
6. Scope of application
Authors: Joseph Sarah , Dipnall Sam
Published: August 2018

This chapter first defines the key concepts of ‘state responsibility’ and ‘jurisdiction’. It then identifies the duty-bearers and beneficiaries of human rights law, explains the instances in which a state is held responsible for the actions or omissions of particular persons or entities, and, finally, addresses the extra-territorial scope of application of human rights law.
8. Equality and non-discrimination
Authors: Moeckli Daniel
Published: August 2018

The principle of equality and non-discrimination has gained a prominent status in virtually every liberal democratic state as well as in international law. However, what this fundamental rule entails in practice is difficult to establish. The challenge is to give substance to the abstract notion of equality by translating it into concrete legal formulations that clarify which forms of unequal treatment are legitimate because they are based on morally acceptable criteria and which ones are wrongful. This chapter explains how this challenge has been addressed in international human rights law. It is organized as follows. Section 2 discusses the meaning of equality and non-discrimination. Section 3 gives an overview of the different norms guaranteeing equality and non-discrimination in international human rights law. Section 4 explains the concepts of direct and indirect discrimination. Section 5 considers the requirements for a difference in treatment to be justified under international human rights law, and Section 6 sets out the various obligations that the right to equality imposes on states, in particular their duty to take positive action to ensure everyone can enjoy this right.
10. Adequate standard of living
Authors: Eide Asbjørn
Published: August 2018

This chapter examines the right to an adequate standard of living and its components, namely, the rights to food, housing, and health. It is organized as follows. Section 2 analyses the meaning and key features of the right to an adequate standard of living. Section 3 examines the normative content of this right and its components, namely, the rights to food, housing, and health. Section 4 explores the difficulties and special obligations in ensuring the right to an adequate standard of living for particular groups of people. Section 5 addresses the relationship between the right to an adequate standard of living and other human rights. Section 6 examines the question of progressive implementation of this right. Section 7 addresses the justiciability of the right to an adequate standard of living and the need for international action in its implementation.
11. Thought, expression, association, and assembly
Authors: McGoldrick Dominic
Published: August 2018

This chapter discusses the sources, scope, and limitations of the four fundamental freedoms: thought, expression, association, and assembly. Freedom of thought includes freedom of conscience, religion, and belief. Freedom of expression includes freedom of opinion and freedom of information. Freedom of association concerns the right to establish autonomous organizations through which individuals pursue common interests together. The right of assembly protects non-violent, organized, temporary gatherings in public and private, both indoors and outdoors.
13. Detention and trial
Authors: Shah Sangeeta
Published: August 2018

This chapter discusses the protections afforded by international human rights law to the right to liberty and security of the person and the right to a fair trial. The right to liberty regulates powers of detention and provides safeguards against ill-treatment of detainees. An extreme form of arbitrary detention is enforced disappearance. The right to a fair trial sets out how court proceedings should be conducted and court systems organized. In addition, there are specific protections for those who are suspected of having committed a criminal offence.
21. The Americas
Authors: Antkowiak Thomas M
Published: August 2018

This chapter considers human rights protection across the Americas, and focuses in particular on the Organization of American States (OAS). The chapter begins with a historical overview of the OAS. The OAS has drafted and promulgated several human rights documents and treaties, including the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights, as well as others. Having introduced the main instruments for the protection the chapter then considers the two main OAS institutions that are mandated to promote and protect human rights: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Finally, challenges to the Inter-American system are discussed.
22. Europe
Authors: Steven Greer
Published: August 2018

This chapter examines the origins, historical development, and key characteristics of the various inter-state organizations engaged in human rights activities in Europe. Having briefly described the Organization for Security and Cooperation in Europe, it examines the Council of Europe and the European Union, including the European Convention on Human Rights, the European Court of Human Rights and the EU Charter of Fundamental Rights.
23. Africa
Authors: Heyns Christof , Killander Magnus
Published: August 2018

This chapter examines the role of the African Union in the realization of human rights. It focuses on the principal human rights treaty adopted by the African Union—the African Charter on Human and Peoples’ Rights—and the main organs—the African Commission and the African Court on Human and Peoples’ Rights—that have been established to ensure its implementation. The chapter also considers the complementary African Peer Review Mechanism.
27. International refugee law
Authors: Edwards Alice
Published: August 2018

This chapter first explains the purpose and scope of international refugee law. It then identifies the five fundamental elements of the Refugee Convention, and discusses other important parameters of international refugee law more broadly. The chapter explores the relationship between international refugee law and human rights law at the macro-level. It analyses specific aspects of refugee law—namely, the definition of a refugee, the prohibition of refoulement, refugee rights, and the ending of refugee status and solutions—and analyses how international human rights law informs them.