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╬xford_dictionary_of_law 6 page

See also nemo debet bis vexari.

autrefois convict

(French: previously convicted)

A *special plea in bar of arraignment claiming that the defendant has previously been convicted by a court of competent jurisdiction of the same (or substantially the same) offence as that with which he is now charged or that he could have been convicted on an earlier indictment of the same (or substantially the same) offence. When this plea is entered the judge determines the issue. If the plea is successful it bars further proceedings on the indictment. The plea may be combined with one of *not guilty.

See also nemo debet bis vexari.

autre vie

See estate pur autre vie.

auxiliary jurisdiction

The jurisdiction exercised by the *Court of Chancery to aid a claimant at common law; for example, by forcing a defendant to reveal documents and thus provide necessary evidence for his case. Auxiliary jurisdiction was rendered obsolete by the Judicature Acts 1873-75.

average

n.

1. (in marine insurance) A loss or damage arising from an event at sea.

2. A reduction in the amount payable under an insurance policy in respect of a partial loss of property. All marine insurance policies are subject to average under the Marine Insurance Act 1906; other policies may be subject to average if they contain express provision to that effect (an average clause).

In maritime law, the expression general (or gross) average is used in relation to certain acts, to the losses they cause, and to the rights of contribution to which they give rise. A general-average act consists of any sacrifice or expenditure made intentionally and reasonably to preserve property involved in a sea voyage. For example, the jettisoning of some of a ship's cargo to keep it afloat during a storm is a general-average act. The loss directly resulting from a general-average act is called general-average loss and is borne proportionately by all whose property has been saved. The owner of jettisoned cargo, for example, is entitled to a contribution from other cargo owners as well as the shipowners; such a contribution is called a general-average contribution. The principle of general average is common to the laws of all maritime nations, but the detailed rules are not uniform. To overcome conflict of law, a standard set of rules was agreed in the 19th century at international conferences of shipowners and others held at York and Antwerp. These, known as the York-Antwerp rules, do not have the force of law, but it is common practice to incorporate them (as subsequently amended) in contracts of *affreightment, thereby displacing national laws. The basic principle is that an insured who has suffered a general-average loss may recover the whole of it from his underwriters without enforcing his rights to contribution; these become enforceable by the underwriters instead.

By contrast, particular average (also called simple or petty average) relates purely to marine insurance. It consists of any partial loss that is not a general-average loss (for example, the damage of cargo by seawater). It is therefore borne purely by the person suffering it and is frequently covered by a policy only in limited circumstances. A ship sold free from average is free from any claims whatsoever.



a vinculo matrimonii

(Latin)

From the bond of marriage. A decree of divorce a vinculo matrimonii allowed a spouse to remarry and was the forerunner of the modern divorce decree.

See also a mensa et thoro.

avoid

v.

To set aside a *voidable contract.

avoidance of disposition order

An order by the High Court preventing or setting aside a transaction by a husband or wife that was made to defeat his (or her) spouse's claim to financial provision. A transaction, such as a gift, made within three years before the application is presumed to have been made in order to defeat the spouse's claim if its effect would be to defeat her claim. But a sale of property to a purchaser in good faith will not be set aside.

avulsion

n.

A sudden and violent shift in the course of a river that leaves the old riverbed dry. This could be caused by such natural forces as floods, tidal waves, or hurricanes. The alteration of territory by this means does not affect the title to territory; thus new claims by a state that would appear to benefit from the rapid geological change would be disbarred.

Compare accretion.

award

n.

See arbitration.

backed for bail

Describing a warrant for arrest issued by a magistrate or by the Crown Court to a police officer, directing him to release the accused, upon arrest, on bail under specified conditions. The police officer is bound to release the arrested person if his sureties are approved.

bail

n.

The release by the police, magistrates' court, or Crown Court of a person held in legal custody while awaiting trial or appealing against a criminal conviction. Conditions may be imposed on a person released on bail by the police. A person granted bail undertakes to pay a specified sum to the court if he fails to appear on the date set by the court (See also justifying bail). This is known as bail in one's own recognizance. Often the court also requires guarantors (known as sureties) to undertake to produce the accused or to forfeit the sum fixed by the court if they fail to do so. In these circumstances the bailed person is, in theory, released into the custody of the sureties. Judges have wide discretionary powers as to whether or not bail should be granted, and for what sum. Normally an accused is granted bail unless it is likely that he will abscond, or interfere with witnesses, or unless he is accused of murder, attempted murder, manslaughter, rape, or attempted rape and has a previous conviction for such an offence. The accused, and the prosecution in limited circumstances, may appeal.

bailee

n.

See bailment.

bail hostel

Accommodation for persons of no fixed address who have been released on bail.

bailiff

n.

1. All officer of a court (usually a county court) concerned with the service of the court's processes and the enforcement of its orders, especially warrants of *execution authorizing the seizure of the goods of a debtor. The term is often loosely applied to a sheriff's officer.

2. A judicial official in Guernsey (Royal Court Bailiff).

bailiwick

n.

The area within which a *bailiff or *sheriff exercises jurisdiction.

bailment

n.

The transfer of the possession of goods by the owner (the bailor) to another (the bailee) for a particular purpose. Examples of bailments are the hiring of goods, the loan of goods, the pledge of goods, and the delivery of goods for carriage, safe custody, or repair. Ownership of the goods remains in the bailor, who has the right to demand their return or direct their disposal at the end of the period (if any) fixed for the bailment or (if no period is fixed) at will. This right will, however, be qualified by any *lien the bailee may have over the goods. Bailment exists independently of contract. But if the bailor receives payment for the bailment (a bailment for reward) there is often an express contract setting out the rights and obligations of the parties. A bailment for which the bailor receives no reward (e.g. the loan of a book to a friend) is called a gratuitous bailment.

bailor

n.

See bailment.

balance sheet

A document presenting in summary form a true and fair view of a company's financial position at a particular time (e.g. at the end of its financial year). It must show the items listed in either of the two formats set out in the Companies Act 1985. Its purpose is to disclose the amount that would be available for the benefit of members if the company were immediately wound up and liabilities were discharged out of the proceeds of selling its assets.

See accounts; statements of standard accounting practice.

bank holidays

Days that are declared holidays for the clearing banks and are kept as public holidays under the Banking and Financial Dealing Act 1971 or by royal proclamation under this Act. In England and Wales there are currently eight bank holidays a year: New Year's Day (or, if that is a Saturday or Sunday, the following Monday), Good Friday, Easter Monday, May Holiday (the first Monday in May), Spring Bank Holiday (the last Monday in May), Summer Bank Holiday (the last Monday in August), and Christmas Day and the following day (or, if Christmas Day is a Saturday or Sunday, the following Monday and Tuesday).

bankruptcy

n.

The state of a person who has been adjudged by a court to be insolvent (Compare winding-up). The court orders the compulsory administration of a bankrupt's affairs so that his assets can be fairly distributed among his creditors. To declare a debtor to be bankrupt a creditor or the debtor himself must make an application (known as a bankruptcy petition) either to the High Court or to a county court. If a creditor petitions, he must show that the debtor owes him at least £750 and that the debtor appears unable to pay it. The debtor's inability to pay can be shown either by: (1) the creditor making a formal demand in a special statutory form, and the debtor failing to pay within three weeks; or (2) the creditor of a *judgment debtor being unsuccessful in enforcing payment of a judgment debt through the courts. If the petition is accepted the court makes a *bankruptcy order. Within three weeks of the bankruptcy order, the debtor must usually submit a *statement of affairs, which the creditors may inspect. This may be followed by a *public examination of the debtor. After the bankruptcy order, the bankrupt's property is placed in the hands of the *official receiver. The official receiver must either call a creditors' meeting to appoint a *trustee in bankruptcy to manage the bankrupt's affairs, or he becomes trustee himself. The trustee must be a qualified *insolvency practitioner. He takes possession of the bankrupt's property and, subject to certain rules, distributes it among the creditors.

A bankrupt is subject to certain disabilities (See undischarged bankrupt). Bankruptcy is terminated when the court makes an order of *discharge, but a bankrupt who has not previously been bankrupt within the preceding 15 years is automatically discharged after three years.

See also voluntary arrangement.

bankruptcy order

A court order that makes a debtor bankrupt. When the order is made, ownership of all the debtor's property is transferred either to a court officer known as the *official receiver or to a trustee appointed by the creditors. It replaced both the former *receiving order and *adjudication order in bankruptcy proceedings.

See also bankruptcy.

bankruptcy petition

An application to the High Court or a county court for a *bankruptcy order to be made against an insolvent debtor.

See bankruptcy.

banning order

See football hooliganism.

banns

pl. n.

The public announcement in church of an intended marriage. Banns must be published for three successive Sundays if a marriage is to take place in the Church of England other than by religious licence or a superintendent registrar's certificate.

See also marriage by certificate; marriage by religious licence.

bar

n.

1. A legal impediment.

2. An imaginary barrier in a court of law. Only Queen's Counsel, officers of the court, and litigants in person are allowed between the bar and the *bench when the court is in session.

3. A rail near the entrance to each House of Parliament beyond which nonmembers may not pass but to which they may be summoned (e.g. for reprimand).

Bar

n.

*barristers, collectively. To be called to the Bar is to be admitted to the profession by one of the Inns of Court.

Bar Council

General Council of the Bar of England and Wales

(Bar Council, General Council of the Bar of England and Wales)

The governing body of the barristers' branch of the legal profession. It regulates the activities of all barristers, maintains standards within the Bar, and considers complaints against barristers.

See also Council of the Inns of Court.

bare licensee

A person who uses or occupies land by permission of the owner but has no legal or equitable interest in it. Such permission is personal to him; thus he cannot transfer it. He cannot enforce it against a third party who acquires the land from the owner. His permission can be brought to an end at any time and he must leave the property with "all reasonable speed". If he does not do so he becomes a trespasser (See trespass).

See also licence.

bare trust

naked trust

simple trust

(bare trust, naked trust, simple trust)

A trust in which the trustee has no obligation except to hand over the trust property to a person entitled to it, at the latter's request. This will occur when the beneficiary is of full age and under no disability and the trustee has no duties in respect of the property.

Compare active trust.

barratry

n.

1. Any act committed wilfully by the master or crew of a ship to the detriment of its owner or charterer. Examples include scuttling the ship and embezzling the cargo. Illegal activities (e.g. carrying prohibited persons) leading to the forfeiture of the ship also constitute barratry. Barratry is one of the risks covered by policies of marine insurance.

2. The former common-law offence (abolished by the Criminal Law Act 1967) of habitually raising or inciting disputes in the courts.

barring of entailed interest

See entailed interest.

barrister

n.

A legal practitioner admitted to plead at the Bar. A barrister must be a member of one of the four *Inns of Court, by whom he is called to the Bar when admitted to the profession. Barristers normally take a three-year law degree at university, followed by a one-year course at Bar school after which they are called to the Bar. Thereafter they take a pupillage in chambers and then seek a permanent place as a "tenant". The primary function of barristers is to act as *advocates for parties in courts or tribunals, but they also undertake the writing of opinions and some of the work preparatory to a trial. Their general immunity from law suits in negligence for criminal and civil litigation has been abolished. With certain exceptions a barrister may only act upon the instructions of a *solicitor, who is also responsible for the payment of the barrister's fee. Barristers have the right of audience in all courts: they are either *Queen's Counsel (often referred to as leaders or leading counsel or *junior barristers.

See also advocacy qualification.

baseline

n.

The line forming the boundary between the internal waters of a state on its landward side and the territorial sea on its seaward side (See territorial waters). Other coastal state zones (the contiguous zone, *exclusive economic zone, and exclusive fishing zone) are measured from the baseline.

basic award

See compensation.

basic intent

See intention; intoxication.

battered child

A child subjected to physical violence or abuse by a parent, step- parent, or any other person with whom he is living. A battered child may be protected if the other parent (or person who is looking after him) applies for an injunction under the Family Law Act 1996, but only if the child is living, or might reasonably be expected to live, with the applicant. The Act applies to children under 18. When a child is suffering, or likely to suffer, significant harm, a local authority may apply for a *supervision order or *care order under the Children Act 1989.

See also emergency protection order.

battered spouse or cohabitant

A person subjected to physical violence by their husband, wife, or cohabitant (subsequently referred to as "partner" in this entry). Battered partners (or those afraid of future violence) may seek protection in a number of ways. Under the Family Law Act 1996 they can apply to the court for a *nonmolestation order, directing the other partner not to molest, annoy, or use violence against them, or for an *occupation order, entitling the applicant to remain in occupation of the matrimonial home and prohibiting, suspending, or restricting the abusive partner's right to occupy the house. Battered partners can apply for these orders if they are also applying for some other matrimonial relief (e.g. a divorce). The court must attach a power of arrest to a nonmolestation order or an occupation order if the abuser has used or threatened violence against his or her partner. This gives a constable the power to arrest without warrant the abuser if he or she is in breach of the order. In cases of emergency an injunction without notice may be granted. In theory, a criminal prosecution for "assault or for harassment under the Protection from Harassment Act 1997 could be brought, but in practice this is seldom used by victims of domestic violence. Under the Housing Act 1985, local authorities have a duty to supply emergency accommodation to those made homeless when they have left their homes because of domestic violence.

Those who have been subjected to continued beatings by their partners over a period of time may plead *provocation or *diminished responsibility if charged with the murder of their partner.

battery

n.

The intentional or reckless application of physical force to someone without his consent. Battery is a form of *trespass to the person and is a *summary offence (punishable with a *fine at level 5 on the standard scale and/or six months' imprisonment) as well as a tort, even if no actual harm results. If actual harm does result, however, the *consent of the victim may not prevent the act from being criminal, except when the injury is inflicted in the course of properly conducted sports or games (e.g. rugby or boxing) or as a result of reasonable surgical intervention.

Compare assault; grievous bodily harm.

bay

n.

A well-marked roughly semicircular indentation on a coastline. What does or does not constitute a bay can be of relevance in determining a state's control of its coastal waters. The test is a geographical one, taking into account relative dimensions and configuration. The following three considerations have been taken into account when making this determination:

(1) the depth of the indentation relative to the width of its mouth;

(2) the economic and strategic importance of the indentation to the coastal state; and

(3) the seclusion of the indentation from the highway of nations on the open sea.

See also territorial waters.

bearer

n.

The person in possession of a bill of exchange or promissory note that is payable to the bearer.

beauty competition

A method used by an employer contemplating entering a *single-union agreement, in which a number of unions are invited to present proposals for collective bargaining arrangements within an establishment. After reviewing the proposals the company decides to recognize the union that best meets its criteria.

Beddoe order

(from the case re Beddoe (1892))

An order made by the court granting trustees permission to bring or defend an action. The order protects the trustees against claims by the beneficiaries that the action should not have been brought and enables them to recover their costs from the trust property. If an order has not been obtained, these consequences may not follow, and the trustees may therefore have to compensate the beneficiaries for any loss and also may themselves have to pay any costs arising from the action.

belligerent communities, recognition of

recognition of belligerent communities

The formal acknowledgment by a state of the existence of a civil war between another state's central government and the peoples of an area within its territorial boundaries. Such recognition brings about the conventional operation of the rules of war, in particular those humanitarian restraints upon the combatants introduced by the international law of armed force. Another result of recognition of belligerency is that both the rebels and the parent central government are entitled to exercise belligerent rights and are subject to the obligations imposed on belligerents. Following recognition, third states have the rights and obligations of *neutrality.

Compare insurgency.

bench

n.

1. Literally, the seat of a judge in court. The bench is usually in an elevated position at one side of the court room facing the seats of counsel and solicitors.

2. A group of judges or magistrates sitting together in a court, or all judges, collectively. Thus a lawyer who has been appointed a judge is said to have been raised to the bench.

Benchers

Masters of the Bench

(Benchers, Masters of the Bench)

pl. n.

Judges and senior practitioners who form a governing body for each of the Inns of Court. They are recruited by co-option and elect one of their number annually to be the Treasurer. Benchers are responsible for admission of students and calls to the Bar and exercise disciplinary powers over the members of the Inn. Appeal from their decisions is to the Lord Chancellor and 'visitors' (i.e. High Court Judges sitting for the appeal).

bench warrant

A warrant for the arrest of a person who has failed to attend court when summoned or subpoenaed to do so or against whom an order of committal for contempt of court has been made and who cannot be found. The warrant is issued during a sitting of the court.

beneficial interest

The rights of a beneficiary in respect of the property held in trust for him.

See also equitable interests.

beneficial owner

An owner who is entitled to the possession and use of land or its income for his own benefit. Under the Law of Property Act 1925 a person who for valuable *consideration conveys land as beneficial owner gives implied covenants (1) that he has the right to convey it; (2) for quiet enjoyment (i.e., that the transferee takes possession free from adverse claims to the land); (3) that the land is free from encumbrances other than any specified in the conveyance; (4) for further assurance (i.e. that the transferor will do anything necessary to cure any defect in the conveyance); and (5) when the land is leasehold (a) that the lease is valid and subsisting and (b) that the covenants in the lease have been performed and the rent paid. When the owner of a legal estate is not the beneficial owner (e.g. a mortgagee, trustee, or personal representative) his only implied covenant in a conveyance of the land is that he has not himself created any encumbrance.

beneficiary

n.

1. A person entitled to benefit from a *trust. The beneficiary holds a *beneficial interest in the property of which a *trustee holds the legal *interest. A beneficiary was formerly known as the cestui que trust.

2. One who benefits from a will.

benevolent purposes

Purposes that are for the public good but not necessarily charitable. They are wider than *philanthropic purposes.

See charitable trust.

Benjamin order

(from the case re Benjamin (1902))

An order made by the court for the distribution of assets on death when it is uncertain whether or not a beneficiary is alive. The order authorizes the personal representatives of the deceased (who will be administering the estate) to distribute the property on the basis that the beneficiary is dead (or on some other basis); the personal representatives are therefore protected from being sued if the beneficiary is in fact alive and entitled. The beneficiary may, however, trace the trust property (See tracing trust property).

bequeath

v.

To dispose by will of property other than land.

Compare devise.

bequest

n.

A gift by will of property other than land.

Compare devise.

See legacy.

bereavement. damages for

See fatal accidents.

bereavement benefit

A benefit payable to widows and widowers, under the Welfare Reform and Pensions Act 1999, subject to certain conditions. It consists of a bereavement payment (made as a lump sum), a widowed parent allowance (where applicable), and a bereavement allowance.

Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works: an international convention of September 1886 that sets out ground rules for protection of *copyright at national level; it has since been amended several times. Many nations are signatories to the Convention, including the UK and, more recently, the United States.

See also trips.

best-evidence rule

A rule requiring that a party must call the best evidence that the nature of the case will allow. Formerly of central importance, in modern law it is largely confined to a rule of practice, not a requirement of law, that the original of a private document must be produced in order to prove its contents; if it cannot be produced its absence must be explained.

bestiality

n.

Anal or vaginal intercourse by a man or a woman with an animal. Bestiality is a crime if penetration is proved.

See also buggery.

best value

A requirement under the Local Government Act 1999 that *local authorities must have regard to economy, efficiency, and effectiveness when exercising their functions and must make arrangements to secure continuous improvement.

bias

n.

See natural justice.

bid

n.

See auction.

bigamy

n.

The act of going through a marriage ceremony with someone when one is already lawfully married to someone else. Bigamy is a crime, punishable by up to seven years' imprisonment; however, there is a defence if the accused honestly and reasonably believed that his or her first spouse was dead or that their previous marriage had been dissolved or annulled or was void. There is also a special defence if the accused's spouse has been absent for at least seven years, and is therefore presumed by the accused to be dead, even if he does not have positive proof of the death. Even though a person is found not guilty of the crime of bigamy, the bigamous marriage will still be void if that person had a spouse living at the time that the second marriage was celebrated.

bilateral contract

synallagmatic contract

(bilateral contract, synallagmatic contract)

A contract that creates mutual obligations, i.e. both parties undertake to do, or refrain from doing, something in exchange for the other party's undertaking. The majority of contracts are bilateral in nature.

Compare unilateral contract.

bilateral discharge

The ending of a contract by agreement, when neither party has yet performed his obligations under it (an executory contract). Each party supplies consideration for the agreement to discharge by releasing the other from his existing obligations.

Compare unilateral discharge (See accord and satisfaction).

bill

n.

1. Any of various written instruments; for example, a *bill of exchange, a *bill of indictment, or a *bill of lading.

2. A written account of money owed; for example, a *bill of costs.

Bill

n.

A draft of a proposed *Act of Parliament, which must (normally) be passed by both Houses before becoming an Act. Bills are either public or private, and the procedure governing their passing by Parliament depends basically on this distinction. In general, a public Bill is one relating to matters of general concern; it is introduced by the government or by a private member (private member's Bill). In the House of Commons the government sets aside certain Fridays for debate on private member's Bills, and a ballot at the beginning of each session of Parliament determines the members whose Bills are to have priority on those days. A private member's Bill that is not supported by the government stands little chance of successfully completing all stages and becoming an Act. The government sometimes prefers a private member to sponsor a particularly controversial Bill that they themselves support; for example, the Abortion Act 1967 was introduced by a private member (David Steel) and was successful because it had the support of the government of the day. A public Bill, unless predominantly financial, can be introduced in either House (less controversial Bills are introduced in the Lords first). The Bill is presented by the minister or other member in charge, passed by being read three times, and then sent to the other House. Its first reading is a formality, but it is debated on second and third readings, between which it goes through a Committee stage and a Report stage during which amendments may be made. A Bill that has not become an Act by the end of the session lapses; if reintroduced in a subsequent session, it must go through all stages again.


Date: 2015-01-29; view: 159


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