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╬xford_dictionary_of_law 3 page

adoptive relatives

See adoptive relationship.

adoptive relationship

A legal relationship created as a result of an adoption order (See adoption). A male adopter is known as the adoptive father, a female adopter as the adoptive mother, and other relatives as adoptive relatives. The laws of *affinity are, however, not altered by the new adoptive relationship.

ad referendum

(Latin: to be further considered)

Denoting a contract that has been signed although minor points remain to be decided.

adulteration

n.

The mixing of other substances with food. It is an offence of *strict liability under the Food Act 1984 to sell any food containing a substance that would endanger health. It is also an offence to mix dangerous substances into food with the intention of selling the mixture.

adultery

n.

An act of sexual intercourse between a male and female not married to each other, when at least one of them is married to someone else. Intercourse for this purpose means penetration of the vagina by the penis; any degree of penetration will suffice (full penetration is not necessary). Adultery is one of the five facts that a petitioner may rely on under the Matrimonial Causes Act 1973 as evidence to show that the marriage has irretrievably broken down. However, in addition to the adultery, the petitioner must show that she or he finds it intolerable to live with the respondent.

See divorce.

advance corporation tax

ACT

(advance corporation tax, ACT)

A form of *corporation tax payable by a company on its qualifying distributions from April 1973 until April 1999, when it was abolished.

advancement

n.

1. The power, in a trust, to provide capital sums for the benefit of a person who is an infant or who may (but is not certain to) receive the property under a settlement. The term is a shortened form of advancement in the world and has the connotation of providing a single or lump sum from the trust fund for a specific purpose of a permanent nature; examples include sums payable on marriage, to buy a house for the beneficiary, or to establish the beneficiary in a trade or profession. Before 1926, a power of advancement had to be specifically included in any settlement; since 1925 a statutory power exists, subject to contrary intention. No person may receive by way of advancement more than half that to which he could ever become entitled.

2. A presumption, arising in certain circumstances, that if one person purchases property in the name of another, the property is intended for the advancement of that other person and will be held beneficially by that person and not on *resulting trust for the person who purchases it. The presumption of advancement arises when a father or other person in the position of a parent purchases property for a child. The presumption does not automatically arise in the case of a mother because until 1882 a married woman could not, during marriage, own property; her automatic exclusion from the presumption now seems nonsensical (especially as a mother now has a statutory duty to maintain her children), although she will in many cases be found to be "in the position of a parent". A similar presumption has been held to exist when a husband purchases property for his wife (though not vice versa), and occasionally a man for his mistress, but the strength (and perhaps even the existence) of this presumption is doubtful. The presumption may be rebutted by evidence that advancement was not intended. This evidence may be parol evidence (i.e., given orally).



adverse occupation

Occupation of premises by a trespasser to the exclusion of the owner or lawful occupier. Trespass (*trespass) in itself is not usually a criminal offence, but if the premises are residential and were being occupied, the trespasser (whether or not he used force in order to enter) is guilty of an offence under the Criminal Law Act 1977 if he refuses to leave when asked to do so by the displaced *residential occupier or a protected intending occupier (or by someone acting on behalf of them). A protected intending occupier includes a purchaser, someone let in by the local authority, Housing Corporation, or a housing association with written evidence of his claim to the premises, or someone holding a lease, tenancy, or licence with two years to run. Under the Criminal Justice and Public Order Act 1994, such a person may obtain an interim possession order. This differs from an ordinary possession order in that it is much quicker, may be heard in the absence of those on the property, and involves the police in enforcement. It is only available for buildings and ancillary land and not against those, such as gypsies and New Age Travellers, who occupy open land. Once the proper procedure has been followed and the applicant has shown a good case for possession, an order will require those on the land to leave within 24 hours. Remaining on the premises or re-entry within 12 months is a *summary offence, punishable by a *fine on level 5 and/or six months' imprisonment. A uniformed constable has a power of *arrest, It is also an offence to make false or misleading statements in making or resisting such an order. Similar penalties apply on summary conviction, but on *indictment a maximum of two years' imprisonment and/or a fine may be imposed.

Usually it is a summary offence for a stranger or the landlord to use violence to gain entry to premises when it is known that there is someone on those premises opposed to such an entry. However, a displaced residential occupier or a protected intending occupier who has asked the person to leave may call on the police for assistance. A police constable may arrest anyone who refuses to leave for the *summary offence of adverse occupation of residential premises. Furthermore, it is not an offence if a constable, a displaced residential occupier, or a protected intending occupier (or their agents) uses force to secure entry.

See forcible entry.

adverse possession

The occupation of land to which another person has title with the intention of possessing it as one's own. The adverse possessor must occupy the land as if he were entitled to it to the exclusion of all others, and must intend to occupy it as his own. Both these factors must be evidenced by the use made of the land; for example, cultivation, fencing, etc. Equivocal acts, such as use of the land for grazing animals from time to time or allowing children to play on the land, will not be sufficient. After 12 years' adverse possession, the original owner's title becomes statute-barred by the Limitation Act 1980, and he cannot recover his land from the adverse possessor. The adverse possessor becomes the lawful owner (a squatter's title), and is entitled to be registered as such. The law on adverse possession is frequently used to cure small discrepancies in the plan attached to a transfer of land, and the actual position of boundaries on the ground, but it can also be used to obtain ownership of large areas of land.

See also possessory title.

adverse witness

A witness who gives evidence unfavourable to the party who called him. If the witness's evidence is merely unfavourable he may not be impeached (i.e. his credibility may not be attacked) by the party calling him, but contradictory evidence may be called. If, however, the witness is *hostile he may be impeached by introducing evidence that shows his untruthfulness.

advice on evidence

The written opinion of counsel, usually prepared after disclosure and inspection of documents (*disclosure of documents; *inspection of documents), identifying the issues raised in the statements of case and advising counsel's instructing solicitor what evidence it will be necessary to call at the trial.

advisory jurisdiction

The jurisdiction of the International Court of Justice under which it can render legal opinions, similar in kind to declaration (See declaratory judgment) under English municipal law. In contrast to the contentious jurisdiction of the Court, states are not parties to the proceedings and there is no claimant or defendant to the action. The Court proceeds by inviting states or international organizations to provide information to assist the Court in its determination of point of law at issue. The authority of the International Court of Justice to give advisory opinions is found under Article 96 of the UN Charter. Under this Article the Court is empowered to give such opinions on legal questions at the request of the UN Security Councillor the General Assembly. Moreover, the power to request advisory opinions on legal questions arising within the scope of their activities also resides in other organs of the United Nations and its specialized agencies if they have been authorized by the General Assembly to do so.

advocacy qualification

A qualification authorizing a person to act as an *advocate under the provisions of the Courts and Legal Services Act 1990. There are separate qualifications for different levels of the court system, but the rights of those already entitled to appear as advocates at any level of the system at the time when the Act came into force are preserved.

advocate

n.

1. One who exercises a *right of audience and argues a case for a client in legal proceedings. In magistrates' courts and the county courts both *barristers and *solicitors have the right to appear as advocates. In most Crown Court centres, the High Court, the Court of Appeal, and the House of Lords barristers have exclusive rights of audience. However, the provisions of the Courts and Legal Services Act 1990 allows solicitors with appropriate experience to qualify for rights of audience similar to those of barristers and acquire *advocacy qualifications for the Crown Court, High Court, and Supreme Court. In many tribunals there are no rules concerning representation, and laymen may appear as advocates. Advocates no longer enjoy immunity from law suits for negligence in relation to civil or criminal litigation.

2. In Scotland, a member of the Faculty of Advocates, the professional organization of the Scots Bar.

Advocate General

An assistant to the judge of the *European Court of Justice whose function is to assist the court by presenting opinions upon every case brought before it. The Advocate General acts as an *amicus curiae in putting forward arguments based upon his own view of the interests of the European Union, although it is not open to any of the parties to the legal action to submit observations on his opinion.

advowson

n.

A right of presenting a clergyman to an ecclesiastical living. The advowson is an incorporeal *hereditament that gives the owner (or patron) the right to nominate the next holder of a living that has fallen vacant. It may exist in gross (i.e. independently of any ownership of land by the person entitled) or may be appendent (i.e. annexed to land so that it may be enjoyed by each owner for the time being). The right is usually associated with the lordship of a manor.

aequitas est quasi aequalitas

See equality is equity.

affidavit

n.

A sworn written statement used mainly to support certain applications and, in some circumstances, as evidence in court proceedings. The person who makes the affidavit must swear or *affirm that the contents are true before a person authorized to take oaths in respect of the particular kind of affidavit.

See also argumentative affidavit.

affiliation order

Formerly, an order of a magistrates' court against a man alleged to be the father of an illegitimate child, obliging him to make payments towards the upkeep of the child. Affiliation proceedings have been abolished by the Family Law Reform Act 1987 and financial provision for illegitimate and legitimate children is now the same (See child support maintenance).

affinity

n.

The relationship created by marriage between a husband and his wife's blood relatives or between a wife and her husband's blood relatives. Some categories of people related by affinity are forbidden to marry each other (See prohibited degrees of relationships). The relationship of blood relatives is known as *consanguinity.

See also incest.

affirm

v.

1. To confirm a legal decision, particularly (of an appeal court) to confirm a judgment made in a lower court.

2. To promise in solemn form to tell the truth while giving evidence or when making an *affidavit. Under the Oaths Act 1978, any person who objects to being sworn on *oath, or in respect of whom it is not reasonably practicable to administer an oath, may instead affirm. Affirmation has the same legal effects as the taking of an oath.

3. To treat a contract as continuing in existence, instead of exercising a right to rescind it for *misrepresentation or other cause (See voidable contract) or to treat it as discharged by reason of repudiation or breach (See breach of contract). Affirmation is effective only if it takes place with full knowledge of the facts. It may take the form of an express declaration of intention to proceed with the contract; alternatively, that intention may be inferred from conduct (if, for example, the party attempts to sell goods that have been delivered under a contract voidable for misrepresentation). Lapse of time without seeking a remedy may be treated as evidence of affirmation.

affirmative pregnant

An allegation in a statement of case implying or not denying some negative.

Compare negative pregnant.

affirmative resolution

See delegated legislation.

affray

n.

The offence of intentionally using or threatening, other than by words alone, unlawful violence. The conduct must be such as would have caused a reasonable person to fear for his safety, though no such person need be present. The offence is found in the Public Order Act 1986, though it can be committed in private as well as in public places. It replaces the common-law offence of affray and is punishable on indictment with up to three years' imprisonment and/or a fine or, on summary conviction, by imprisonment for a term not exceeding six months or by a fine. A constable may arrest without warrant anyone he reasonable suspects is committing affray.

See also assault; riot; violent disorder.

affreightment

n.

A contract for the carriage of goods by sea (the consideration being called freight and the carrier the freighter). It can be either a *charterparty or a contract whose terms are set out in the *bill of lading.

agency

n.

1. The relationship between an *agent and his principal.

2. The business carried on by an agent.

agent

n.

1. A person appointed by another (the principal) to act on his behalf, often to negotiate a contract between the principal and a third party. If an agent discloses his principal's name (or at least the existence of a principal) to the third party with whom he is dealing, the agent himself is not normally entitled to the benefit of, or be liable on, the contract. An undisclosed principal is one whose existence is not revealed by the agent to a third party; he may still be entitled to the benefit of, and be liable on, the contract, but in such cases the agent is also entitled and liable. However, an undisclosed principal may not be entitled to the benefit of a contract if the agency is inconsistent with the terms of the contract or if the third party shows that he wished to contract with the agent personally.

A general agent is one who has authority to act for his principal in all his business of a particular kind, or who acts for the principal in the course of his (the agent's) usual business or profession. A special agent is authorized to act only for a special purpose that is not in the ordinary course of the agent's business or profession. The principal of a general agent is bound by acts of the agent that are incidental to the ordinary conduct of the agent's business or the effective performance of his duties, even if the principal has imposed limitations on the agent's authority. But in the case of a special agent, the principal is not bound by acts that are not within the authority conferred. In either case, the principal may ratify an unauthorized contract. An agent for the sale of goods sometimes agrees to protect his principal against the risk of the buyer's insolvency. He does this by undertaking liability for the unjustifiable failure of the third-party buyer to pay the price of the goods. Such an agent is called a del credere agent.

See also commercial agent; mercantile agent.

2. (in criminal law)

See buggery.

agent provocateur

A person who actively entices, encourages, or persuades someone to commit a crime that would not otherwise have been committed for the purpose of securing his conviction (See entrapment). In such a case the agent provocateur will be regarded as an accomplice in any offence that the accused commits as a result of this intervention.

age of consent

The age at which a girl can legally consent to sexual intercourse, or to an act that would otherwise constitute an indecent assault. This age is 16. This minimum age limit does not apply to girls married under a foreign law that is recognized in English law.

See also buggery.

aggravated assault

See assault.

aggravated burglary

See burglary.

aggravated damages

Damages (*damages) that are awarded when the conduct of the defendant or the surrounding circumstances increase the injury to the claimant by subjecting him to humiliation, distress, or embarrassment, particularly in such torts as assault, false imprisonment, and defamation.

aggravated trespass

See trespass.

aggravated vehicle-taking

An offence concerning joyriding, which was enacted in 1992. The offence arises when the accused has unlawfully taken a motor vehicle, driven it in a dangerous manner on a public road, and caused an accident resulting in injury to another person or to property. Any passenger in the vehicle who knows that it has been taken without the owner's consent is also guilty of the offence.

aggression

n.

(in international law)

According to the General Assembly Resolution (3314) on the Definition of Aggression 1975, the use of armed force by one state against the sovereignty, territorial integrity, or political independence of another state or in any way inconsistent with the Charter of the United Nations. The Resolution lists examples of aggression, which include the following:

(1) Invasion, attack, military occupation, or annexation of the territory of any state by the armed forces of another state.

(2) Bombardment or the use of any weapons by a state against another state's territory.

(3) Armed blockade by a state of another state's ports or coasts.

(4) The use of a state's armed forces in another state in breach of the terms of the agreement on which they were allowed into that state.

(5) Allowing one's territory to be placed at the disposal of another state, to be used by that state for committing an act of aggression against a third state.

(6) Sending armed bands or guerrillas to carry out armed raids on another state that are grave enough to amount to any of the above acts.

The first use of armed force by a state in contravention of the UN Charter is prima facie evidence of aggression, although the final decision in such cases is left to the Security Council, who may also classify other acts as aggression. The Resolution declares that no consideration whatsoever can justify aggression, that territory cannot be acquired by acts of aggression, and that wars of aggression constitute a crime against international peace.

See also humanitarian intervention; martens clause; occupation; offences against international law and order; use of force; war; war crimes.

agreement

n.

(in international law)

See treaty.

agreement for a lease

A contract to enter into a *lease. Special rules govern the creation of such a contract. Before 27 September 1989, a contract to grant a lease was unenforceable unless it was evidenced in writing, or evidenced by a sufficient act of *part performance (such as entering onto the property and paying rent). Since 27 September 1989, a contract to grant a lease for not more than three years may be made orally or by any kind of written agreement. A contract to grant a longer lease must be in writing, incorporating all the terms of the agreement, and signed by the parties. A contract that does not comply with these requirements is wholly void and can no longer be evidenced by part performance.

agrement

n.

The formal diplomatic notification by a state that the diplomatic agent selected to be sent to it by another state has been accepted, i.e. is persona grata and can consequently become accredited to it. The agrement is the reply to a query by the sending state, which precedes the sent diplomat's formal nomination and accreditation. This type of mutual exchange by two states over their diplomatic representation is called agreation.

See also persona non grata.

Agricultural Dwelling-House Advisory Committee

ADHAC

(Agricultural Dwelling-House Advisory Committee, ADHAC)

A committee that advises the local authority in its area on the agricultural need for *tied cottages. An owner of a tied cottage can apply to a local authority to rehouse a former worker who is occupying the cottage. The local authority has a duty to do this if the committee advises that possession is needed in the interests of efficient agriculture.

See also assured agricultural occupancy.

agricultural holding

A tenancy of agricultural land. Tenants have special statutory protection and there is a procedure to fix rent by arbitration if the parties cannot agree. The landlord normally has to give at least one year's notice to quit. The tenant can usually appeal to an *agricultural land tribunal to decide whether the notice to quit should operate. The landlord is entitled to compensation at the end of the tenancy if the holding has deteriorated and the tenant is at fault; the tenant can claim compensation at the end of the tenancy for disturbance and for improvements he has made. The Agricultural Holdings Act 1986 gives the security of tenure. Tenancies and licences to those working the land may give security of tenure under the Housing Act 1988 if the tenants are qualifying workers (working on the land as defined in the Act) and otherwise qualify.

See assured agricultural occupancy.

agricultural land tribunal

A tribunal having statutory functions in relation to tenancies of agricultural holdings. It normally consists of a legally qualified chairman, a representative farmer, and a representative landowner. Notice to quit a holding is in certain circumstances inoperative without a tribunal's consent, and on the death of a tenant the tribunal has power to direct that a qualifying member of his family is entitled to a new tenancy. Application may also be made to the tribunal for a certificate of bad husbandry.

aid and abet

To assist in the performance of a crime either before or during (but not after) its commission. Aiding usually refers to material assistance (e.g. providing the tools for the crime), and abetting to lesser assistance (e.g. acting as a look-out or driving a car to the scene of the crime). Aiders and abettors are liable to be tried as *accessories. Mere presence at the scene of a crime is not regarded as aiding and abetting. It is unnecessary to have a criminal motive to be guilty of aiding and abetting: knowledge that one is assisting the criminal is sufficient.

See also impeding apprehension or prosecution.

Air Defence Identification Zone

ADIZ

(Air Defence Identification Zone, ADIZ)

A zone, which can extend in some cases up to 300 miles beyond the territorial sea, established for security reasons by some states off their coasts. When entering the ADIZ all aircraft are required to identify themselves, report flight plans, and inform ground control of their exact position.

See also airspace.

air-force law

See service law.

air pollution

See pollution.

airspace

n.

In English law and international law, the ownership of land includes ownership of the airspace above it, by application of the maxim cujus est solum ejus est usque ad coelum (whose is the soil, his it is even to heaven); outer space, however, is not considered to be subject to ownership.

In English law an owner has rights in as much of the airspace above his land as is necessary for the ordinary use of his land and the structures on it. Within these limits a projection over one's land (such as a signboard) can be a trespass and pollution of air by one's neighbour can be a nuisance. Pollution of air is also controlled by various statutes. There is no natural right to the free flow of air from neighbouring land, but *easements for the flow of air through a defined opening (such as a window or a ventilator) can be acquired. Civil aircraft flying at a reasonable height over land do not commit trespass, but damages can be obtained if material loss or damage is caused to people or property.

In international law, national airspace, including airspace above the internal waters and the territorial sea, is under complete and exclusive sovereignty of the subjacent state. As a result, apart from aircraft in distress, any use of national airspace by non-national aircraft requires the official consent of the state concerned. This can be granted unilaterally or more commonly (in respect of commercial flights) through a bilateral treaty, usually on conditions of reciprocity.

See territorial waters.

alderman

n.

A senior member of a local authority, elected by its directly elected members. Active aldermanic rank now exists only in the *City of London, having been phased out elsewhere by the Local Government Act 1972. County, district, and London borough councils can, however, appoint past members to honorary rank in recognition of eminent service. The term was originally synonymous with 'elder' and is of Anglo-Saxon derivation.

alibi

n.

(from Latin: elsewhere)

A defence to a criminal charge alleging that the defendant was not at the place at which the crime was committed and so could not have been responsible for it. If the defendant claims to have been at a particular place at the time of the crime, evidence in support of an alibi may only be given if the defendant has supplied particulars of it to the prosecution not later than seven days after committal, unless the Crown Court considers that there was a valid reason for not supplying them.

alien

n.

A person who, under the law of a particular state, is not a citizen of that state. Aliens are usually classified as resident aliens (domiciled in the host country) or transient aliens (temporarily in the host country on business, study, etc.). They are normally subject to certain civil disabilities, such as being ineligible to vote. For the purposes of UK statute law an alien is defined by the British Nationality Act 1981 (in force from 1 January 1983) as a person who is neither a Commonwealth citizen, nor a British protected person, nor a citizen of the Republic of Ireland. At common law, a distinction is drawn between friendly and enemy aliens. The latter comprise not only citizens of hostile states but also all others voluntarily living in enemy territory or carrying on business there; they are subject to additional disabilities.

See also allegiance; due diligence; jus sanguinis.

alienable

adj.

Capable of being transferred: used particularly in relation to real property.

See also rule against inalienability.

alienation

n.

The transfer of property (particularly real property) from one person to another.

See also restraint on alienation.

alieni juris

(Latin: of another's right)

Describing the status of a person who is not of full age and capacity.

Compare sui juris.

alimentary trust

See protective trust.

alimony

n.

Formerly, financial provision made by a husband to his wife when they are living apart. Alimony is now known as *maintenance or *financial provision.

allegation

n.

Any statement of fact in a statement of case, *affidavit, or *indictment. In civil cases it is the duty of the party who makes an allegation to adduce evidence in support of it at trial, under the principle of "he who asserts must prove".

allegiance

n.

The duty of obedience owed to a head of state in return for his protection. It is due from all citizens of that state and its dependencies and also from any *alien present in the state (including enemy aliens under licence; for example, internees). A person who is declared by the British Nationality Act 1981 not to be an alien but who has a primary citizenship conferred by a state other than the UK is probably governed by the same principles as aliens so far as allegiance is concerned.


Date: 2015-01-29; view: 66


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