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╬xford_dictionary_of_law 9 page

capital redemption reserve

A fund established to protect creditors by ensuring that the assets representing a company's *capital are not reduced. In limited circumstances a company is permitted to buy back its own shares. If this is provided for by a term in the original share contract the company redeems its own shares. If no such term exists the company makes a purchase of its own shares. In either case the value of the capital sum will be reduced by the amount of the purchase or redemption unless an equal amount is transferred to a reserve that is subject to the same restrictions as the capital.

capital transfer tax

CTT

(capital transfer tax, CTT)

A tax formerly levied on property passing on death and on transfers of wealth during a person's lifetime.

See inheritance tax.

capitulation

n.

1. An agreement under which a body of troops or a naval force surrenders upon conditions. The arrangement is a bargain made in the common interest of the contracting parties, one of which avoids the useless loss that is incurred in a hopeless struggle, while the other, besides also avoiding loss, is spared all further sacrifice of time and trouble. A capitulation must be distinguished from an unconditional surrender, which need not be effected on the basis of an instrument signed by both parties and is not an agreement.

2. A system of extraterritorial jurisdiction, based partly upon custom and partly upon treaties of unilateral obligation, in which cases relating to foreign citizens were tried before diplomatic or consular courts operating in accordance with the laws of the states concerned. The practice is now obsolete, being a clear breach of the right of sovereign equality between states.

caravan

n.

For the purpose of collective *trespass and *powers of search in anticipation of violent disorder, any structure adapted for human habitation and capable of being moved from one place to another, either by being towed or being transported on a motor vehicle or trailer.

See also unauthorized camping.

care and control

Formerly, the right to the physical possession and control of the day-to-day activities of a minor.

See parental responsibility; section 8 orders.

care contact order

An order of the court allowing a local authority to restrict *contact with a child in care (See care order). Under the Children Act 1989 there is a presumption that children in care will have reasonable contact with their parents (including unmarried parents) or those who have had care of them and a local authority must now seek a court order if it wishes to limit such contact.

careless and inconsiderate driving

The offence of driving a motor vehicle on a road or other public place without due care and attention or without reasonable consideration for other road users. This is a *summary offence for which the maximum penalty is a *fine at level 4 on the standard scale and it carries 3-9 penalty points under the totting-up system (*totting up); *disqualification is discretionary. This offence, defined by the Road Traffic Act 1988 (in a section inserted by the Road Traffic Act 1991), replaces the former offences of careless driving and inconsiderate driving.



See also causing death by careless driving.

careless statement

See negligent misstatement.

care or control

Protection and guidance of a minor or the discipline of such a child. A court has authority to make orders in care proceedings only if it is satisfied that (in addition to other specified conditions) the child is in need of care or is beyond control. In this context it is not necessary to show that all his day-to-day needs are being neglected.

See care order.

care order

A court order placing a child under the care of a local authority. Under the Children Act 1989 an application for a care order can only be made by a local authority, the NSPCC, or a person authorized by the Secretary of State. The court has the power to make a care order only when it is satisfied that a child is suffering or likely to suffer significant harm either caused by the care (or lack of care) given to it by its parents, or because the child is beyond parental control (the so-called threshold criteria). The phrase "significant harm", as defined in the Children Act, means ill treatment (including sexual abuse and forms of treatment that are not physical) or the impairment of health (either physical or mental) or development (whether physical, intellectual, emotional. social, or behavioural). Once the court is satisfied that the threshold criteria have been satisfied, it must decide whether a care order would be in the best interests of the child. In so doing, it should scrutinize the *care plan drawn up in respect of the child. The court may, instead of making a care order, make a *supervision order or a *section 8 order. Since the coming into force of the Human Rights Act 1998, the court must ensure that the granting of a care order will not be in breach of Article 8 (which guarantees a right to *family life); the court must be satisfied that any intervention by the state between parents and children is proportionate to the legitimate aim of protecting family life. A care order gives the local authority *parental responsibility for the child who is the subject of the order. Although parents retain their parental responsibility, in practice all major decisions relating to the child are made by the local authority. While the child is in care, the local authority cannot change the child's religion or surname or consent to an adoption order or appoint a guardian. There is a presumption that parents will have reasonable contact with their children while in care; if the local authority wishes to prevent this, it must apply for a court order to limit such contact. A parent with parental responsibility, the child itself, or the local authority may apply to discharge a care order. No care order can be made with respect to a child who is over the age of 16. A local authority can no longer use *wardship proceedings as an alternative means of obtaining a care order, nor may it take a child into care through administrative means. Before the Crime and Disorder Act 1998 came into force a care order could only be made if the threshold criteria were met. Now, however, the family proceedings court has the power to make a care order if a child is in breach of a *child safety order.

care plan

A plan drawn up by a local authority in respect of a child it is looking after. The purpose of a care plan is to safeguard and promote the welfare of the child in accordance with the local authority's duties under the Children Act 1989. The plan will address such matters as where the child is be placed and the likely duration of such a placement, arrangements for contact between the child and its family, and what the needs of the child are and how these might be met. When a court is deciding whether or not to make a *care order or a *supervision order in respect of a child, the care plan is of crucial importance and must be scrutinized carefully.

care proceedings

See care order.

cargo

n.

Goods, other than the personal luggage of passengers, carried by a ship or aircraft, Normally (but not necessarily in relation to insurance) "cargo" denotes the whole of a ship s loading. Under a ship's charterparty, the freight payable to the shipowner is normally calculated at a rate per tonne of cargo. Unless otherwise agreed, the duty of the charterer is to provide a full and complete cargo: if he fails to do this, he is liable for damages known as dead freight.

carriage of goods by air

The act of carrying goods by air, which is normally under a contract between the consignor and a *carrier. International carriage has been the subject of several international conventions: Warsaw (1929), The Hague (1955), Guadalajara (1961), Guatemala (1971), and Montreal (1975). The UK is party to a number of these Conventions, which have been given effect by the Carriage by Air Acts 1932, 1961, and 1962 and the Carriage by Air and Road Act 1979 (in part not yet in force). They deal with such matters as the nature and limit of the carrier's liability, who can sue and be sued, the right to stop in transit, the documentation of air carriage, and time limits for complaint.

carrier

n.

One who transports persons or goods from one place to another. Carriage is normally under a contract that may affect or limit the duties otherwise imposed bylaw, but such contracts may be subject to statutory control. Carriers of goods are bailees of the goods consigned.

A common carrier is one who publicly undertakes to carry any goods or persons for payment on the routes he covers. A common carrier is subject to three common-law duties:

(1) he must, if he has space, accept any goods of the type he carries or any person;

(2) he must charge only a reasonable rate; and

(3) he is strictly liable for all loss or damage to goods in the course of transit (but see inherent vice). All other carriers are private carriers, and they owe only a duty of reasonable care.

carrier's lien

The right of a common *carrier to retain possession of goods he has carried until he has been paid his freight or charge.

cartel

n.

1. An agreement between belligerent states for certain types of nonhostile transactions, especially the treatment and exchange of prisoners.

2. A national or international association of independent enterprises formed to create a *monopoly in a given industry.

case

n.

1. A court *action.

2. A legal dispute.

3. The arguments, collectively, put forward by either side in a court action,

4. (action on the case) A form of action abolished by the Judicature Acts 1873-75.

case law

The body of law set out in judicial decisions, as distinct from *statute law.

See also precedent.

case management

Under the *Civil Procedure Rules (CPR), the new procedure for managing civil cases, as proposed in Lord Woolf s Access to Justice (Final Report) 1996. Under the new regime, the judge becomes the case manager. A case is allocated to one of three tracks, depending on the value of the dispute and the complexity of the case: the *small claims track, *fast track, or *multi-track. Each case is actively managed by the judge on a court-controlled timetable with the aims of encouraging and facilitating cooperation between the parties, identifying the areas in dispute, and encouraging settlement. The court can control progress and even 'strike out' an action. In considering the benefits of a particular way of hearing it can use a range of procedural devices to enforce discipline against lawyers not complying with CPR *pre-action protocols and/or *Practice Directions, including costs sanctions and refusing an extension of time.

case management conference

Under the *Civil Procedure Rules, a central feature of *case management at which the judge reviews the progress of the case preparation, including the degree of compliance with *Practice Directions and *pre-action protocols. Legal representatives will attend, and the judge is able to make further directions as are considered necessary.

case stated

A written statement of the facts found by a magistrates' court or tribunal (or by the Crown Court in respect of an appeal from a magistrates' court) submitted for the opinion of the High Court (Queen's Bench Divisional Court) on any question of law or jurisdiction involved. Any person who was a party to the proceedings or is aggrieved by the decision can request the court or tribunal to state a case; if it wrongly refuses, it can be compelled to do so by a *mandatory order.

casus belli

(Latin: occasion for war)

An event giving rise to war or used to justify war. The only legitimate casus belli now is an unprovoked attack necessitating self-defence on the part of the victim.

casus omissus

(Latin: an omitted case)

A case inadvertently not provided for in a defective statute.

catching bargain

unconscionable bargain

(catching bargain, unconscionable bargain)

A contract on very unfair terms. An example is the sale of a future interest in property at a gross undervalue, made by someone with expectations to succeed to the property who is in immediate need of money. Such a contract may be set aside or modified by a court of equitable jurisdiction.

cattle trespass

An early form of strict liability for damage done by trespassing cattle or other livestock (but not dogs or cats), replaced in England by the Animals Act 1971. Under the 1971 Act, the owner of livestock that strays on another's land and does damage to the land or any property on it is liable for the damage and any expenses incurred in keeping the livestock or ascertaining to whom it belongs.

See classification of animals.

causa causans

(Latin)

The effective cause.

See causation.

causation

n.

The relationship between an act and the consequences it produces. It is one of the elements that must be proved before an accused can be convicted of a crime in which the effect of the act is part of the definition of the crime (e.g. murder). Usually it is sufficient to prove that the accused had *mens rea (intention or recklessness) in relation to the consequences; the *burden of proof is on the prosecution. In tort it must be established that the defendant's tortious conduct caused or contributed to the damage to the claimant before the defendant can be found liable for that damage. Sometimes a distinction is made between the effective or immediate cause (causa causans) of the damage and any other cause in the sequence of events leading up to it (causa sine qua non). Simple causation problems are solved by the "but for" test (would the damage have occurred but for the defendant's tort?), but this test is inadequate for cases of concurrent or cumulative causes (e.g. if the acts of two independent tortfeasors would each have been sufficient to produce the damage).

Sometimes anew act or event (novus actus (or nova causa) interveniens) may break the legal chain of causation and relieve the defendant of responsibility. Thus if a house, which was empty because of a nuisance committed by the local authority, is occupied by squatters and damaged, the local authority is not responsible for the damage caused by the squatters. Similarly, if X stabs Y, who almost recovers from the wound but dies because of faulty medical treatment, X will not have "caused" the death. It has been held, however, that if a patient is dying from a wound and doctors switch off a life-support machine because he is clinically dead, the attacker, and not the doctors, "caused" the death. If death results because the victim has some unusual characteristic (e.g. a thin skull) or particular belief (e.g. he refuses a blood transfusion on religious grounds) there is no break in causation and the attacker is still guilty.

cause

n.

1. A court *action.

2. See causation.

Cause Book

The book recording the issue of claim forms in the *Central Office of the Supreme Court and certain later stages of the court proceedings.

Cause List

A list of cases to be heard, displayed in the precincts of a court. The Daily Cause List lists all cases for trial in the Royal Courts of Justice and its outlying buildings. It also contains the warned list of cases about to be listed for hearing.

cause of action

The facts that entitle a person to sue. The cause of action may be a wrongful act, such as *trespass; or the harm resulting from a wrongful act, as in the tort of *negligence.

causing death by careless driving

The offence committed by someone whose driving while unfit through drink or drugs or driving over the prescribed limit (See drunken driving) results in the death of another person. For this offence, which was created by the Road Traffic Act 1991, the driving must be judged careless (See careless and inconsiderate driving) rather than dangerous (Compare causing death by dangerous driving); the maximum punishment is five years' imprisonment and compulsory *disqualification.

causing death by dangerous driving

The offence committed by someone guilty of *dangerous driving that results in the death of another person. The offence is defined by the Road Traffic Act 1991 and replaces the former offence of causing death by reckless driving (defined in the Road Traffic Act 1988). If the danger is such that there is an obvious and serious risk of injury to another person or significant damage to property - and the driver either recognizes the risk or fails to give any thought to the possibility that such a risk exists - this will constitute reckless *manslaughter in addition to causing death by dangerous driving. The maximum penalty for causing death by dangerous driving is ten years' imprisonment and compulsory *disqualification for not less than two years.

caution

n.

1. (in criminal law)

a. A warning that should normally be given by a police officer, in accordance with a code of practice issued under the Police and Criminal Evidence Act 1984, when he has grounds for believing that a person has committed an offence and when arresting him. The caution is in the following terms: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." The caution must be given before any questions are put. If a person is not under arrest when a caution is given, the officer must say so; if he is at a police station the officer must also tell him that he is free to leave and remind him that he may obtain legal advice. The officer must record the caution in his pocket book or the interview record, as appropriate.

See right of silence.

b. A warning by a police officer, on releasing a suspect when it has been decided not to bring a prosecution against him, that if he is subsequently reported for any other offence, the circumstances relating to his first alleged offence may be taken into account. It is common practice for the police to give this type of caution, although the procedure has no statutory basis and there are no legal consequences if it is not followed.

2. (in land law) A document lodged at the Land Registry by a person having an interest in registered land, requiring that no dealing with that land be registered until the cautioner has been notified, so that he may lodge an objection. For example, a caution might be lodged by someone who was induced by fraud to convey his land, in order to prevent the fraudulent transferee from registering his title. If a caution is lodged unreasonably the cautioner may be ordered to compensate anyone to whom it causes loss. The Land Registrar may order the caution to be vacated if he considers it to be unjust.

caveat

n.

(from Latin: let him beware)

A notice, usually in the form of an entry in a register, to the effect that no action of a certain kind may be taken without first informing the person who gave the notice (the caveator). For example, a caveat may be filed in the Probate Registry by someone claiming an interest in a deceased person's estate. The caveat prevents anyone else from obtaining a *grant of representation without reference to the caveator, who may thus ensure that his claim is dealt with in the distribution of the estate.

caveat actor

(Latin)

Let the doer be on his guard.

caveat emptor

(Latin: let the buyer beware)

A common-law maxim warning a purchaser that he could not claim that his purchases were defective unless he protected himself by obtaining express guarantees from the vendor. The maxim has been modified by statute: under the Sale of Goods Act 1979 (a consolidating statute), contracts for the sale of goods have implied terms requiring the goods to correspond with their description and any sample and, if they are sold in the course of a business, to be of satisfactory quality and fit for any purpose made known to the seller. Each of these implied terms is a condition of the contract. However, in most commercial contracts the implied terms are excluded. This will usually be valid unless the exclusion is unreasonable or unfair under the law relating to unfair contract terms. These statutory conditions do not apply to sales of land, to which the maxim caveat emptor still applies as far as the condition of the property is concerned. However, a term is normally implied that the vendor must convey a good *title to the land, free from encumbrances that were not disclosed to the purchaser before the contract was made.

caveat subscriptor

(Latin)

Let the person signing (e.g. a contract) be on his guard.

caveat venditor

(Latin)

Let the seller be on his guard.

Cd

See command papers.

CE

(French: Communaute européenne: European Community)

A marking applied to certain products, such as toys and machinery, to indicate that they have complied with certain EU directives that apply to them, including *electromagnetic compatibility. A CE marking is not a quality mark, but it indicates that health and safety and other legislation has been complied with. The manufacturer or first importer into the EU must apply the CE marking; fines can be levied for breach of the rules.

CELEX

(Latin: Communitatis Europae Lex: European Community Law)

A database of EU material of a legislative nature, such as directives, regulations, and treaties, including national legislation. It is possible to access this electronically through the on-line data service EURIS.

Central Arbitration Committee

(Central Arbitration Committee, CAC)

A statutory body, established under the Employment Protection Act 1975 (consolidated into the Trade Union and Labour Relations (Consolidation) Act 1992), that consists of a chairman and members appointed by the Secretary of State for Work and Pensions from persons nominated by *ACAS. The Committee determines disputes relating to:

(1) arbitration in *trade disputes referred by ACAS with the consent of both parties;

(2) *disclosure of information to trade unions;

(3) the application of the Equal Pay Act 1970 (See equal pay) to collective agreements (See collective bargaining);

(4) recognition of trade unions for the purpose of *collective bargaining (See recognition procedure); and (5) specified issues in relation to the introduction and operation of *European Works Councils.

When the Committee makes an award of pay and/or conditions of employment these generally become incorporated in the contracts of employment of individual employees and are enforceable in the courts.

CAC

(Central Arbitration Committee, CAC)

A statutory body, established under the Employment Protection Act 1975 (consolidated into the Trade Union and Labour Relations (Consolidation) Act 1992), that consists of a chairman and members appointed by the Secretary of State for Work and Pensions from persons nominated by *ACAS. The Committee determines disputes relating to:

(1) arbitration in *trade disputes referred by ACAS with the consent of both parties;

(2) *disclosure of information to trade unions;

(3) the application of the Equal Pay Act 1970 (See equal pay) to collective agreements (See collective bargaining);

(4) recognition of trade unions for the purpose of *collective bargaining (See recognition procedure); and (5) specified issues in relation to the introduction and operation of *European Works Councils.

When the Committee makes an award of pay and/or conditions of employment these generally become incorporated in the contracts of employment of individual employees and are enforceable in the courts.

Central Criminal Court

The principal *Crown Court for Central London, usually known from its address as the Old Bailey. The Lord Mayor of London and any City aldermen may sit as judges with High Court or circuit judges or recorders.

See also common serjeant.

Central Office

The administrative organization of the *Supreme Court of Judicature in London, from which claim forms are issued. Its business is superintended by the Queen's Bench Masters (See Masters of the Supreme Court), one of whom sits each day as practice master to give any directions that may be required on questions of practice and procedure.

certificate of incorporation

A document issued by the Registrar of Companies after the *registration of a company, certifying that the company is incorporated (See incorporation). For a *limited company, the certificate also certifies that the company members have limited liability, and for a *public company the fact that it is a public company. The validity of the incorporation cannot thereafter be challenged.

Certification Officer

CO

(Certification Officer, CO)

An official appointed by the Secretary of State for Work and Pensions (formerly Employment) under the Trade Union and Labour Relations (Consolidation) Act 1992, whose main duties concern the supervision of trade unions' and employers' associations' obligations as bodies corporate to keep accounting records and submit audited reports and accounts to him. He is also responsible for the certification of trade unions as independent in appropriate cases (See independent trade union). The powers of the CO were greatly increased by the Employment Relations Act 1999; in particular, the CO substantially took over the duties of both the Commissioner for the Rights of Trade Union Members and the Commissioner for the Protection Against Unlawful Industrial Action, which were abolished by that Act.

See strike; trade union.

certiorari

n.

(Latin: to be informed)

See quashing order.

certum est quodcertum reddipotest

(Latin)

If something is capable of being made certain, it should be treated as certain. For example, a landlord can only distrain for rent (See distress) if the amount of rent is certain. However, if the amount of the rent is capable of being ascertained, it is treated as certain.

cessate grant

A grant (e.g. of a lease) renewing a previous grant that has lapsed.

cesser

n.

The premature termination of some right or interest. For example, if land is held in trust for A for life so long as he does not marry and then for B, there is a cesser of A's life interest if he marries. A mortgage under which the mortgagor attorns tenant of the mortgagee (See attornment) provides for cesser on redemption: thus the tenancy ends whenever the debt is repaid.

cesser clause

A clause inserted in a charterparty when the charterer intends to transfer to a shipper his right to have goods carried. It provides that the shipowner is to have a lien over the shipper's goods for the freight payable under the charterparty, and that the charterer's liability for that freight will cease accordingly on shipment of a full cargo.

cession

n.

The transfer of sovereignty over a territory by means of a treaty. This may either be a peace treaty (e.g. the peace treaty between France and Germany in 1871 that made Alsace-Lorraine part of the German empire), a treaty to exchange territory (e.g. the treaty of 1890 whereby the UK ceded Heligoland to Germany in exchange for Zanzibar), or more rarely a treaty bestowing a gift.

See also derivative title.

cestui que trust

(Norman French, from cestuia que trust, he for whom is the trust)

Formerly, a beneficiary under a trust.

cestui que use

(Norman French, from cestui a que use, he to whose use)

A person to whose use (i.e. for whose benefit) property was held by another. The modern equivalent is the *beneficiary.

See use.

cestui que vie

(Norman French, from cestuia que vie, he for whose life)

A person for whose life an interest in property is held by another person.

See estate pur autre vie.

CET

See common external tariff.

CFP

See common fisheries policy.

CFSP

Common Foreign And Security Policy

(Common Foreign and Security Policy, CFSP)

See European Union; Maastricht Treaty.

chain of executorship

chain of representation

(chain of executorship, chain of representation)

A rule under the Administration of Estates Act 1925 by which the executor of someone who was himself a sole or surviving executor stands, on the latter's death, in his place as executor of the testator who appointed him. Thus, if A appoints Bas his only executor and Bin turn appoints C as his own executor, on the death of A and B, C becomes the executor of both. The rule does not apply on intestacy or to an administrator, and the chain is broken by the failure of a testator to appoint an executor or a failure to obtain probate.


Date: 2015-01-29; view: 199


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