Elements of a Contract

9. 'To force' or 'to enforce'?

a) Sometimes the meanings of these verbs overlap; for example, 'It is unlikely that a record company would enforce/force its views on an established artist'. But in legal English they are usually distinguished. Study the synonyms for each verb and work out the difference in meaning. Then complete the gaps in the exercise and say which synonym from the list could be used instead.

To force – make, compel, drive, coerce/ pressurise sb into doing smth, put pressure on someone.

To enforce – apply, implement, uphold smth.

1. If you don't comply I'm afraid we'll have to_______________ you.

2. Governments make laws and the police________________ them.

3. She claimed she was_______________ to take part in the robbery by her husband.

4. Women's organisations are trying to________________ the government to appoint more

women to senior positions.

5. If the seller breaches the contract at this stage, the buyer can have his property rights_______________ in court.

6. Parking restrictions will be strictly_______________.

7. It is obvious that where one party is_______________ to consent by threats or undue

persuasion by the other, that consent should be invalid.

8. He tried to keep the dispute out of court by________________ an arbitration agreement

in the franchise contract.

b) Make (or write out of an English-English dictionary) six sentences set in a legal context, illustrating the correct use of these verbs.

10. 'Offeror - offeree'

a) Match the names of parties to a contract in the box to their definitions below and write the names in the spaces provided. The first one has been done for you. Translate the terms into your

own language.

1) vendor___ a person who sells things, esp. on the street; 2) smb who sells a house or

land (legal English)

2)__________ a person who sells goods directly to the customer

3)__________ a person who provides goods or equipment

4)__________ a person who owns something

5)__________ a person who conveys property by lease

6)__________ a person to whom property is mortgaged (the lender, usually a bank)

7)__________ a person who contracts to perform work or services

8)__________ a person or company that people work for

9)__________ a person who buys things or uses services

10)__________ a person who buys smth, esp. from a shop

11)__________ a person who buys things (formal)

12)__________ a person who mortgages property (the borrower)

13)__________ a person who is paid to work for a person or company

14)_________ a person who receives advice or a service from a professional person

or organization in return for payment

15)_________ a person who pays money to be allowed to use smth for a period of time

16)_________ a person who holds property under a lease

b)Sort out the words into two columns so that they form pairs. E.g.: ‘vendor’-‘purchaser’.

Text 2: Civil Procedure

Pre-reading tasks

11. Before you read the text, look at the following statements and mark what you think the answers are. Then scan the first section of the text and check your initial hypotheses.

a. The majority of civil cases are settled privately, without going to court. True/False

b. Most civil cases are heard before a jury. True/False

c. Parties have an obligation to disclose all relevant True/False

documents to each other before the trial.

2. What does the expression 'to enforce a court judgment' mean? Read the rest of the text and answer the questions: a) which court remedies were created by the common law and which by the law of equity; b) what is the purpose of all orders mentioned in Section 3; c) how is arbitration different from mediation?

3. Now read the text and answer the questions that follow.

Civil Procedure

Civil law concerns disputes between private individuals and organisations. It also provides a means of challenging the actions of public bodies, such as a local authority or a government ministry that has acted illegally. The purpose of civil proceedings is not to punish but to allow the wronged party to obtain compensation or some other appropriate remedy. However, most civil disputes do not go to court at all, with parties preferring to settle privately, or amicably. Those cases that do come to court are tried either in the county courts (some 90 per cent of all cases) or in the High Court. Proceedings in civil cases are governed by the Civil Procedure Rules (CPR), which came into force in 1999. The new Rules were called for to fight exorbitant costs and delays that had plagued civil litigation. Now it is no longer for the parties themselves to decide at what pace the case should progress or what issues to have heard or what evidence to call. Judges now actively manage cases: they set strict timetables, they control and simplify the issues to be decided and put strict limits on the evidence to be called.

Before issuing proceedings in court, it is common for the claimant to write a 'letter of claim' to the other party notifying it of his intention to initiate legal proceedings. The letter will outline the nature of the claim and offer terms of settlement. If no reply is received within a stated time, the claimant will commence legal proceedings. To bring a claim, it is necessary to draft two legal documents: a Claim Form (formerly called a 'writ') and Particulars of Claim (details of a claim). The Claim Form will be written on the court's headed notepaper and will contain: the name of the court, the names of parties, brief details of the claim in under 100 words, expected compensation or other remedy that is being sought, the defendant's addr!3ss and reference to costs. The Particulars of Claim will contain a much more detailed account of the claim, particulars of loss and the remedy that is being sought, as well as a statement of truth confirming that the facts stated are true. Both these documents are now called Statements of Case but were previously known as 'pleadings'.

The Claim Form functions as a summons: a copy of it is served on the defendant. He can either admit the claim or, if he wishes to defend it, he must file his Statement of Case with the court setting out his answer to the claim. If he also wishes to claim against the claimant, he may do this by filing a document called a Counterclaim. If a defendant does not respond to the claim within 14 days, the claimant may obtain a default judgment, e.g. judgement in his favour without going to trial. If it appears that the defendant has no real defence to the claim or the claimant's claim has no reasonable prospect of succeeding, the court may give summary judgment against either of them without a trial. If a defendant files a defence, the case is allocated to one of the following three tracks: the small claims track for claims of up to £5,000 in value; the fast track for claims of up to £15,000 and the multi-track for the most complicated and valuable claims, usually tried in the High Court.

Many rules of pre-trial procedure are designed to prevent 'surprise', that is, any matter or event that might take the other party by surprise and put them at some disadvantage in litigation. Therefore the next stage in the procedure is disclosure, which enables the parties to find out more details about the claim or the defence from each other. This is followed by inspection of all relevant documents in the possession of the other party and an exchange of witness statements and experts' reports. If parties decide to settle their differences, they may ask the court for a stay (a temporary halt) in proceedings. In fast track cases, the hearing normally takes place 30 weeks from the issue of a claim form. The normal length of a trial is one day.

The trial procedure is essentially the same as for criminal trials. The opening speeches, however, are usually dispensed with 'and the hearing begins with the claimant's counsel conducting examination-in-chief of the claimant in order to set out the claimant's case. The claimant is then cross-examined by the defendant's counsel, and so on. The rules about leading and non-leading questions apply in a civil trial too. Expert evidence is restricted to one expert per party in any field of expertise and limited to two fields of expertise. Almost all civil cases are tried by a judge alone. Juries are used mainly when the action concerns the liberty of the subject, for example, an action against the police for assault and wrongful imprisonment, or his reputation, when the claimant claims damages for defamation of character. (In the United States, on the contrary, nearly all civil trials are held with a jury). The judgment is given either immediately or at a later time (a 'reserved judgment'). Normally the successful party's costs are paid by the other party, but the court has discretionary powers in the matter.

Date: 2016-03-03; view: 837