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╬xford_dictionary_of_law 12 page

collateral contract

A subsidiary contract that induces a person to enter into a main contract. For example, if X agrees to buy from Y goods made by Z, and does so on the strength of Z's assurance as to the high quality of the goods, X and Z may be held to have made a collateral contract consisting of Z's promise as to quality given in consideration of X's promise to enter into the main contract with y.

collective agreement

See collective bargaining.

collective bargaining

Negotiations between trade unions (acting for their members) and employers about terms and conditions of employment. Under the Trade Union and Labour Relations (Consolidation) Act 1992, a collective agreement (an agreement between trade union and employer resulting from collective bargaining) is not legally binding unless it is in writing and specifically states the parties' intention to be bound. Unenforceable collective agreements frequently include terms (relating to pay, discipline, etc.) that will become incorporated in individual employees' binding contracts of employment. In these respects the written particulars of employees' contracts, which the employer must give under the Employment Rights Act 1996, must refer the employee to the collective agreement, which must be reasonably accessible to him. Terms of a collective agreement that discriminate on grounds of sex may be challenged by individuals in a court or employment tribunal on the ground that they contravene the principle of equal treatment. When a collective agreement provides that individual employees' contracts will circumscribe their right to strike, the employees will only be bound if their contracts contain that provision and the collective agreement was negotiated by an *independent trade union, is in writing, and is readily accessible to employees during working hours. The parties to a collective agreement containing procedures for determining complaints of unfair dismissal may apply to the Secretary of State for an order that those procedures be substituted for the statutory jurisdiction of employment tribunals. An order will only be made if the agreement was negotiated by an independent trade union, sufficiently identifies the employees affected, and gives them remedies as beneficial as the statutory scheme and a right to independent arbitration or adjudication.

See also disclosure of information; recognition procedure.

collective redundancy

The proposed dismissal as redundant by an employer of 20 or more employees. In such a situation the employer is required, under the Trade Union and Labour Relations (Consolidation) Act 1992, to disclose information (See disclosure of information) and to consult with elected workers' representatives or representatives of a recognized trade union with a view to reaching agreement about ways of avoiding the dismissals, reducing the numbers of employees to be dismissed, and mitigating the consequences of the dismissals. If the employer fails to comply with these requirements the union may complain to an employment tribunal who may, if the complaint is upheld, issue a *protective award. Employment tribunals have held that notification of impending redundancies must take place at the earliest opportunity in order that representations by the union may be taken into account.



collective responsibility

See cabinet.

collective security

The centralized system of international rules, now embodied in the Charter of the United Nations, that governs the collective resort to force under the authority of the United Nations for the purpose of maintaining or restoring international peace and security. An example is the action by the international community during the Gulf War of 1991. It should be noted that the precise legal justification of this conflict is uncertain, the UN Security Council Resolution 678 stating only that its legal basis was under *Chapter VII of the UN Charter.

See also enforcement action.

collective trespass

See trespass.

collision clause

running-down clause

(collision clause, running-down clause)

A clause in a marine insurance policy binding the underwriters to indemnify the insured in respect of any damages in tort he may be liable for as a result of his ship colliding with another. At common law, such a policy covers only the insured's physical losses. The clause is customarily restricted to three quarters of the damages in question. When two vessels collide, the damage done to each is added together and treated as a common loss. It is divided between insurers according to the proportion of blame attributable to each ship or, if this cannot be determined, equally.

collusion

n.

An improper agreement or bargain between parties that one of them should bring proceedings against the other. Collusion is no longer a bar to divorce or nullity proceedings, but it may affect the validity of a declaration of legitimacy.

colony

n.

A territory that forms part of the Crown's dominions outside the UK. Although it may enjoy internal self-government, its external affairs are controlled by the UK government.

colourable

adj.

Describing that which is one thing in appearance but another in substance; for example, a symbolic residence in a parish for the purpose of qualifying for marriage there.

comfort letter

administrative letter

(comfort letter, administrative letter)

A letter sent by the Competition Directorate of the European Commission following a notification for exemption or *negative clearance of a commercial agreement that may infringe EU *competition law. It is very rare for the Commission to issue a binding decision following such a notification. However, although a comfort letter does not have the force of a formal decision, it would be unusual for the Commission to fine a business in relation to an agreement that was notified and in relation to which a comfort letter was then issued.

comity

comitas gentium

(comity, comitas gentium)

n.

Neighbourly gestures or courtesies extended from one state to another, or others, without accepting a legal obligation to behave in that manner. Comity is founded upon the concept of sovereign equality among states and is expected to be reciprocal. It is possible for such practices, over a period of time and with common usage, to develop into rules of customary international law, although this requires such behaviour to acquire a binding or compelling quality.

See custom; opinio juris.

Command Papers

Documents that the government, by royal command, presents to Parliament for consideration. They include white papers and green papers. The former contain statements of policy or explanations of proposed legislation; the latter are essentially discussion documents. For reference purposes they have serial numbers, with (since 1869) prefixes. The prefixes are C (1870-99), Cd (1900-18), Cmd (1919-56), and Cmnd (1957- ).

commercial agent

An *agent who solicits business from potential customers on behalf of a principal. In the EU the contracts of many commercial agents are governed by directive 86/653, which gives them substantial rights to claim compensation or an indemnity on termination of their agency agreement and implies other terms into their contracts; for example, in relation to payment of commission and notice periods for termination of the agreement. In the UK this directive is implemented by the Commercial Agents (Council Directive) Regulations 1993 as amended.

Commercial Court

A court forming part of the *Queen's Bench Division of the High Court and specializing in the trial of commercial cases, mostly relating to shipping and commodity trading. Many of the court's cases arise from the awards of arbitrators (See arbitration). The judges of the court are nominated by the Lord Chancellor from among the Queen's Bench *puisne judges who have special experience of commercial matters.

commission

n.

1. Authority to exercise a power or a direction to perform a duty; for example, a commission of a *justice of the peace.

2. A body directed to perform a particular duty. Examples are the *Charity Commissioners and the *Law Commission.

3. A sum payable to an *agent in return for his performing a particular service. This may, for example, be a percentage of the sum for which he has secured a contract of sale of his principal's property. The circumstances in which a commission is payable depend on the terms of the contract between principal and agent. The terms on which commission is paid to a *commercial agent are set down in the EU directive 86/653.

4. Authorization by a court or a judge for a witness to be examined on oath by a court, judge, or other authorized person, to provide evidence for use in court proceedings. The procedure is used when the witness is unlikely to be able to attend the hearing (e.g. because of illness). If the witness is still unable to attend when the court hearing takes place the written evidence is read by the court.

Commissioner

n.

(in the EU)

See European Commission.

commissioner for oaths

A person appointed by the Lord Chancellor to administer oaths or take affidavits. By statute, every solicitor who holds a *practising certificate has the powers of a commissioner for oaths, but he may not exercise these powers in a proceeding in which he is acting for any of the parties or in which he is interested. Thus when an affidavit must be sworn, the client cannot use his own solicitor but must go to another solicitor to witness the swearing.

Commissioner for the Protection Against Unlawful Industrial Action

See certification officer.

Commissioner for the Rights of Trade Union Members

See certification officer.

Commission for Health Improvement

A body established under the Health Act 1999. Its remit includes providing advice to *Primary Care Trusts or *NHS Trusts for the purpose of monitoring and improving the quality of health care and reporting on the provision or quality of health care.

Commission for Racial Equality

A body appointed by the Home Secretary under the Race Relations Act 1976 with the general function of working towards the elimination of *racial discrimination by promoting equality of opportunity and good relations between different racial groups. It keeps the working of the Act under review, investigates alleged contraventions and, when necessary, issues and applies for injunctions to enforce nondiscrimination notices.

Commissions for Local Administration

Two commissions, one each for England and Wales, that were established by the Local Government Act 1974 to investigate complaints by the public of injustice suffered through maladministration by local authorities, police authorities, the National Rivers Authority, and housing action trusts. The *Parliamentary Commissioner for Administration is a member of both commissions and there are three Local Government Commissioners (or Ombudsmen) for England and one for Wales. Certain matters (e.g. decisions affecting the public generally and the conduct of criminal investigations) are outside their competence. Complaints to a Commissioner must normally be made in writing through a member of the authority concerned, within one year of the date on which the matter first came to the complainant's notice, but if a complaint is not duly passed on it can be accepted directly by the Commissioner. Commissioners' reports are sent to the complainant and the authority concerned and are also made public.

committal for sentence

The referring of a case from a magistrates' court to the Crown Court, which occurs when the magistrates have found the accused guilty and consider that their powers of sentencing are insufficient for the case.

committal for trial

The referring of a case from a magistrates' court for trial at the Crown Court following a *preliminary investigation by the magistrates. The committal proceedings may consist of taking *depositions from all the witnesses in the form of oral evidence. Alternatively the committal may take a short form under section 6 of the Magistrates' Courts Act 1980. This occurs when the accused agrees that the prosecution should put all its evidence in writing; the justices may then commit for trial without considering the evidence. The accused does not have to disclose any defence that he intends to put forward at the trial, but must, not later than seven days after committal, give notice of any intended *alibi and details of the witnesses he is going to call in support of it. A committal without consideration of the evidence may only take place if the accused is legally represented. The press may normally only report certain limited facts about committal proceedings, such as the name of the accused and the charges. However, if the accused asks that reporting restrictions be lifted, the magistrates may allow publication of full details of the proceedings. Concern as to the effectiveness of committal proceedings in preventing weak cases going to trial led to provisions in the Criminal Justice and Public Order Act 1994, which have now created a new transfer for trial procedure, based upon consideration of case documents. The Criminal Procedure and Investigations Act 1996 lays down new committal procedures.

committal in civil proceedings

A method of enforcing judgment by obtaining an order that a person be committed to prison. It is most commonly sought when the person has committed a *contempt of the court (e.g. by disobedience of an order of the court). In modern practice it is very occasionally available to enforce an order for the payment of a debt.

Committee of the whole House

A committee of which all members of the House of Commons or the House of Lords are members. In the Lords it sits for the committee stage of all public Bills. In the Commons the committee stage is normally taken by a *standing committee, but major Bills (particularly if controversial) are sometimes referred instead to a whole House committee. Certain matters concerning expenditure and taxation were formerly considered by the whole House sitting as the Committee of Supply or the Committee of Ways and Means, but since 1967 they have been dealt with by the House sitting as such.

common

n.

A *profit à prendre enjoyed by a number of landowners over *common land. A right of common may be *appurtenant, in gross (i.e. independent of any *dominant tenement), or pur cause de vicinage ("by reason of neighbourhood": the right to allow animals grazing common land to stray onto adjoining common land). They generally comprise rights of pasture (grazing), piscary (fishing), turbary (rare; a right to take turf), ferae naturae (A right to take animals), *estovers, etc., and unless they exist in gross are usually limited to the reasonable needs of the dominant tenements.

Common Agricultural Policy

CAP

(Common Agricultural Policy, CAP)

The agricultural policy of the EU as set out in Articles 32-38 of the Treaty of Rome. The overall aims of the CAP are to increase agricultural productivity, ensure a fair standard of living for the agricultural community, stabilize markets, assure the availability of supplies, and ensure that supplies reach consumers at a reasonable price. The Treaty is supplemented by a wide range of EU directives in this field.

See also intervention.

common assault

ordinary assault

See assault.

Common Budget

See common external tariff.

common carrier

See carrier.

common design

The intention assumed to be shared by those engaged in a joint illegal enterprise: each party is liable for anything done during the pursuance of that enterprise, including any unexpected consequences that arise. If, however, one of the parties does something that was not agreed beforehand, the others may not be held responsible for the consequences of this act.

See also accessory.

common duty of care

The duty of an occupier of land or premises to take reasonable care to see that visitors will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there.

See occupier's liability.

Common External Tariff

(CEl)

The tariff of import duties payable on certain goods entering any member state of the European Union from non-EU countries. The CET prevents the distortion of trade that would occur if member states set their own import duties on products coming into their state from outside the EU. The Tariff contributes to the Common Budget of the EU, from which subsidies due under the *Common Agricultural Policy are paid.

Common Fisheries Policy

(CFP)

A fishing policy agreed between members of the European Community in 1983. It lays down annual catch limits (*quotas) for each state for major species of fish, a 12-mile exclusive fishing zone for each state, and an equal-access zone of 200 nautical miles from its coast, within which any member state is allowed to fish. There are some exceptions to these regulations. The CFP is handled by the European Commission's Fisheries Directorate General. It was reviewed in 1992 and is subject to a further review in 2002.

See also fishery limits.

common heritage of mankind principle

The principle that areas of Antarctica, the sea bed, and outer space should not be monopolized for the benefit of one state or group of states alone, but should be treated as if they are to be used to the benefit of all mankind. For example, Article 4 of the Moon Treaty 1979 states that exploration "shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development".

commonhold

n.

A third way of owning land, in addition to *freehold and *leasehold, that is expected to be introduced into England and Wales in accordance with the Commonhold and Leasehold Reform Bill. It is intended for developments in which individual properties, such as flats, houses, or shops, are owned and occupied by separate persons, but there are common parts, such as stairways and walkways, that need to remain in central ownership and to be maintained. Previously, such properties were usually held under long leases, but this had proved unsatisfactory. Each separate property in a commonhold development will be a unit; the owner will be a unit-holder. The body owning the common parts will be the commonhold association, a private company limited by guarantee. Each unit-holder will be a member of that company. The company membership will be limited to the unit-holders, and the memorandum and articles of the company will be prescribed by the Lord Chancellor. The commonhold association will also need to create a Commonhold Community Statement (CCS) setting out the rules and regulations of the particular community. The commonhold association with its common parts and all the associated units will be registered at the Land Registry. It will be possible for leasehold developments to convert to commonhold, but only by the consent of all parties.

common land

Land subject to rights of *common. The Commons Registration Act 1965 provides for the registration with local authorities of all common land in England and Wales, its owners, and claims to rights of common over it. Subject to the investigation by Commons Commissioners of disputed cases, and to exceptions for land becoming or ceasing to be common land, registration provides conclusive evidence that land is common land and also of the rights of common over it. Rights could be lost by failure to register.

common law

1. The part of English law based on rules developed by the royal courts during the first three centuries after the Norman Conquest (1066) as a system applicable to the whole country, as opposed to local customs. The Normans did not attempt to make new law for the country or to impose French law on it; they were mainly concerned with establishing a strong central administration and safeguarding the royal revenues, and it was through machinery devised for these purposes that the common law developed. Royal representatives were sent on tours of the shires to check on the conduct of local affairs generally, and this involved their participating in the work of local courts. At the same time there split off from the body of advisers surrounding the king (the curia regis) the first permanent royal court - the *Court of Exchequer, sitting at Westminster to hear disputes concerning the revenues. Under Henry II (reigned 1154-89), to whom the development of the common law is principally due, the royal representatives were sent out on a regular basis (their tours being known as circuits) and their functions began to be exclusively judicial. Known as justiciae errantes (wandering justices), they took over the work of the local courts. In the same period there appeared at Westminster a second permanent royal court, the *Court of Common Pleas. These two steps mark the real origins of the common law. The judges of the Court of Common Pleas so successfully superimposed a single system on the multiplicity of local customs that, as early as the end of the 12th century, reference is found in court records to the custom of the kingdom. In this process they were joined by the judges of the Court of Exchequer, which began to exercise jurisdiction in many cases involving disputes between subjects rather than the royal revenues, and by those of a third royal court that gradually emerged - the Court of King's Bench (See Court of Queen's Bench). The common law was subsequently supplemented by *equity, but it remained separately administered by the three courts of common law until they and the Court of Chancery (all of them sitting in Westminster Hall until rehoused in the Strand in 1872) were replaced by the *High Court of Justice under the Judicature Acts 1873-75.

2. Rules of law developed by the courts as opposed to those created by statute.

3. A general system of law deriving exclusively from court decisions.

common-law marriage

1. A marriage recognized as valid at common law although not complying with the usual requirements for marriage. Such marriages are only recognized today if (1) they are celebrated outside England and there is no local form of marriage reasonably available to the parties or (2) they are celebrated by military chaplains in a foreign territory (or on a ship in foreign waters), and one of the parties to the marriage is serving in the Forces in that territory. The form of marriage is a declaration that the parties take each other as husband and wife.

2. Loosely, the situation of two unmarried people living together as husband and wife (See cohabitation). In law such people are treated as unmarried, although recently they have been recognized as equivalent to married persons for purposes of protection against battering and for some provisions of the Rent Acts (such as succession to *statutory tenancies).

Common Market

See European Community.

common mistake

See mistake.

common money bond

See bond.

Common Serjeant

The title held by one of the *circuit judges at the *Central Criminal Court. It was formerly an ancient office of the City of London, first mentioned in its records in 1291. Serjeants-at-law were the highest order at the English Bar from the 13th or 14th centuries until the King's Counsel took priority in the 17th century. Until 1873 the judges of the common law courts were appointed from the serjeants; the order of serjeants was dissolved in 1877. The title remains, however, for a circuit judge who has a ten-year Crown Court qualification and who has been appointed a Common Serjeant by the Crown.

Commonwealth

British Commonwealth

(Commonwealth, British Commonwealth)

n.

A voluntary association consisting of the UK and many of its former colonies or dependencies (e.g. protectorates) that have attained full independence and are recognized by international law as separate countries. The earliest to obtain independence (e.g. Canada and Australia) did so by virtue of the Statute of Westminster 1931, but the majority have been granted it individually by subsequent Independence Acts. Some (such as Canada and Australia) are still technically part of the Crown's dominions; others (e.g. India) have become republics. All accept the Crown as the symbol of their free association and the head of the Commonwealth.

commonwealth citizen

Under the British Nationality Act 1948, a status synonymous with that of *British subject. By the British Nationality Act 1981 (which replaced the 1948 Act as from 1 January 1983 and gave the expression British subject a very limited meaning), it was redefined as a wide secondary status. It now includes every person who is either a British citizen, a British Dependent Territories citizen, a British National (Overseas), a British Overseas citizen, a British subject (in its current sense), or a citizen of one of the independent Commonwealth countries listed in a schedule to the 1981 Act.

commorientes

pl. n.

(Latin)

Persons who die at the same time. Under the Law of Property Act 1925, when the order of death is uncertain commorientes are presumed (so far as the devolution of their property is concerned) to have died in order of seniority. Thus a bequest by the younger to the elder is treated as having lapsed. However, this rule may be displaced by a contrary intention expressed in a will, and under the Intestates' Estates Act 1952 the rule does not apply when intestate spouses die at the same time: it is assumed that neither spouse left the other surviving.

community

n.

A *local government area in Wales, as set out in the Local Government (Wales) Act 1994, consisting of a division of a *county or a county borough and equivalent to an English civil parish. All communities have meetings and many have an elected community council. which is a *local authority with a number of minor functions (e.g. the provision of allotments, bus shelters, and recreation grounds). A community council may by resolution call its area a town, itself a town council, and its chairman the town mayor, either in Welsh or in English.

community charge

poll tax

(community charge, poll tax)

A former form of local tax levied on all adults (with some exceptions) to contribute to the cost of local government. It was introduced by the Local Government Finance Act 1988 to replace domestic *rates (i.e. rates paid by private householders) from April 1990 in England and Wales (it was introduced in Scotland in 1989). The tax proved unpopular and difficult to collect. It was abolished and replaced by the *council tax with effect from April 1993.

Community dimension

(in EU mergers law)

See merger.

community home

An institution for the accommodation and maintenance of children and young persons in care. Community homes are provided by local authorities and voluntary organizations under the Children Act 1989. A local authority may be liable for the acts of children in community homes.

community land

See development land.

Community law

EU law

(Community law, EU law)

The law of the European Union (as opposed to the national laws of the member states). It consists of the treaties establishing the EU (together with subsequent amending treaties), *Community legislation, and decisions of the *European Court of Justice. Any provision of the treaties or of Community legislation that is directly applicable or directly effective in a member state forms part of the law of that state and prevails over its national law in the event of any inconsistency between the two.

Community Legal Service

The service that replaced the *legal aid scheme on 1 April 2000. The new service has many features similar to the legal aid scheme but has been redesigned to ensure that public funds are directed to those most in need. It does this by excluding more categories of potential applicant and also in prescribing new and stricter criteria for eligibility. The service is administered by the Legal Services Commission (which replaced the Legal Aid Board of the old scheme). There are various levels of service. They are:

(1) legal help, which broadly replaces the *green form scheme;

(2) help at court, which is similar to the previous *ABWOR;

(3) investigative help, which provides the funding of investigation before assessment as to whether or not to proceed;

(4) full representation, which is equivalent to the former full legal aid;

(5) support funding, which provides partial funds to support high-cost claims but not the majority of the costs, which are met elsewhere; and

(6) specific directions, by which the Lord Chancellor may authorize specific support for particular claims, e.g. test cases or class actions. Strict financial criteria are laid down for eligibility for each of these six levels of service, which reflect the requirements of the different levels of service. However, at the centre of such criteria is the cost-benefit criterion, under which funding will be refused if the benefit to be gained is considered not to justify the level of costs likely to be incurred.


Date: 2015-01-29; view: 281


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