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╬xford_dictionary_of_law 13 page

Community legislation

Laws made by the *Council of the European Union or the *European Commission. Each body has legislative powers, but most legislation is made by the Council, based on proposals by the Commission, and usually after consultation with the *European Parliament. The role of the Parliament in the legislative process was strengthened under the Single European Act 1986 and the Maastricht Treaty. Community legislation is in the form of regulations, directives, and decisions.

Regulations are of general application, binding in their entirety, and directly applicable in all member states without the need for individual member states to enact these domestically (See community law).

Directives are addressed to one or more member states and require them to achieve (by amending national law if necessary) specified results. They are not directly applicable - they do not create enforceable Community rights in member states until the state has legislated in accordance with the directive: the domestic statute then creates the rights for the citizens of that country. A directive cannot therefore impose legal obligations on individuals or private bodies, but by its direct effect it confers rights on individuals against the state and state bodies, even before it has been implemented by changes to national law, by decisions of the European court.

Decisions may be addressed either to states or to persons and are binding on them in their entirety. Both the Council and the Commission may also make recommendations, give opinions, and issue *notices, but these are not legally binding.

community of assets

community of property

(community of assets, community of property)

The sharing of ownership of matrimonial property, such as the home and furniture, as an automatic consequence of marriage. This is not a feature of English law.

See family assets.

community punishment order

An order that requires an offender (who must consent and be aged at least 16) to perform unpaid work for between 40 and 240 hours under the supervision of a probation officer. Formerly known as a community service order, it has been renamed under the Criminal Justice and Court Services Act 2000. Such an order replaces any other form of punishment (e.g. imprisonment); it is usually based on a probation officer's report and is carried out within 12 months (unless extended). Breach of the order may be dealt with by fine or by revocation of the order and the imposition of any punishment that could originally have been imposed for the offence.

community rehabilitation order

A court order, formerly known as a probation order, placing an offender under the supervision of a *probation officer for a period of between six months and three years, imposed (only with the consent of the offender) instead of a sentence of imprisonment. Such orders may be imposed on any offenders over the age of 16; they are most commonly imposed on first offenders, young offenders, elderly offenders in need of support, and offenders whose crimes are not serious. The order contains conditions for the supervision and behaviour of the offender during the rehabilitation period, including where he should live, when and how often he should report to his local probation officer, and a requirement that he should notify the probation officer of any change of address. The order may also require him to live in an approved probation hostel (for those offenders employed outside the hostel) or an approved probation home (for offenders not employed outside). An order may also be made that the offender should attend a specified day-training centre, designed to train him to cope with the strains of modern life, for a period of up to 60 days.



A community rehabilitation order has the same legal effect as a *discharge. If the offender is convicted of a further offence while undergoing community rehabilitation, he may be punished in the normal way for the original offence (for which the order was made) as though he had just been convicted of that offence. If he does not comply with the conditions specified in the community rehabilitation order, he may be fined or the court may make a *community punishment order or order for attendance at a day centre or it may punish him for the original offence as though he had just been convicted of it.

Community rehabilitation orders may also be imposed on offenders who, though not insane, are suffering from some mental problem. A medical practitioner or chartered psychologist may be specified in such orders.

Community Trade Mark

CTM

(Community Trade Mark, CTM)

A *trade mark that is registered for the whole of the European Union. It can be obtained by application to national trade mark offices or the Community Trade Mark Office at Alicante, Spain. The European Commission adopted the Regulation for the Community Trade Mark, Regulation 40/94, on 20 December 1993; UK legislation was included in the Trade Marks Act 1994. Marks are registered for a period of ten years and may be renewed on payment of fees.

commutative contract

See contract of exchange.

Companies Court

The collective name given to those judges forming part of the *Chancery Division of the High Court who deal with matters arising out of the Companies Acts, principally the formation, management, and winding-up of limited liability companies (See limited company).

companies register

The official list of companies registered at the Companies Registry (See registration of a company).

Companies Registry

Companies House

(Companies Registry, Companies House)

The office of the Registrar of Companies (See registration of a company). Companies with a registered office in England or Wales are served by the registry at Cardiff; those in Scotland by the registry in Edinburgh. Certain documents lodged there are open to inspection. These documents include the *accounts of limited companies, the *annual return, any *prospectus, the memorandum (*memorandum of association) and *articles of association, and particulars of the directors, the secretary, the *registered office, some types of company *charge, and notices of liquidation.

company

n.

An association formed to conduct business or other activities in the name of the association. Most companies are incorporated (See incorporation) and therefore have a legal personality distinct from those of their members. Incorporation is usually by registration under the Companies Act 1985 (See registration of a company) but may be by private Act of Parliament (See statutory company) or by royal charter (chartered company). Shareholders and directors are generally protected when the company goes out of business.

See foreign company; limited company; private company; public company; unlimited company; welsh company.

company meeting

See general meeting.

company member

A person who holds *shares in a company or, in the case of a company that does not issue shares (such as a company limited by guarantee), any of those who have signed the *memorandum of association or have been admitted to membership by the directors.

See limited company.

company name

The title of a registered company, as stated in its *memorandum of association and in the companies register. The names with which companies can be registered are restricted (See also business name). The name must appear clearly in full outside the *registered office and other business premises, upon the company seal, and upon certain documents issuing from the company, including notepaper and invoices. Noncompliance is an offence and fines can be levied. Under the Insolvency Act 1986, it may be an offence for a director of a company that has gone into insolvent liquidation to re-use the company name.

See also change of name; limited company.

company secretary

An officer of a company whose role will vary according to the nature of the company but will generally be concerned with the administrative duties imposed upon the company by the Companies Act (e.g. delivering documents to the *Companies Registry). Under the Companies Act 1985 every company is required to have a company secretary. A sole *director cannot also be the company secretary, and in the case of a *public company the company secretary must be qualified to act as such.

compellable witness

A person who may lawfully be required to give evidence. In principle every person who is competent to be a witness is compellable (See competence). In criminal prosecutions the spouse of the accused is generally competent and, under the 1999 amendments to the Police and Criminal Evidence Act 1984, may in some circumstances be compellable; for example, when the offence charged is an assault upon the spouse or someone under the age of 16, the spouse is compellable as well as competent.

compensation

n.

Monetary payment to compensate for loss or damage. When someone has committed a criminal offence that caused personal injury, loss, or damage, and he has been convicted for this offence or it was taken into account when sentencing for another offence, the court may make a compensation order requiring the offender to pay compensation to the person suffering the loss (with interest, if need be). Magistrates' courts may make orders in respect of compensation. The court must take into account the offender's means and should avoid making excessively high orders or orders to be paid in long-term instalments. If the offender cannot afford to pay both a fine and compensation, priority should be given to payment of compensation. A compensation order may be made for funeral expenses or bereavement in respect of death resulting from an offence other than a death due to a motor-vehicle accident. Potential claimants and maximum compensation for bereavement are the same as those under the Fatal Accidents Act 1976 (See fatal accidents). An order may only be made in respect of injury, loss, or damage (other than loss suffered by a person's dependants in consequence of his death) due to a motor-vehicle accident if (1) it is for damage to property occurring while it was outside the owner's possession in the case of offences under the Theft Act 1968, or (2) the offender was uninsured to use the vehicle and compensation is not payable under the *Motor Insurers' Bureau agreement. A court that does not award compensation must give reasons. Victims of *criminal injury may apply for compensation under the *Criminal Injuries Compensation Scheme. Under the Theft Act 1968, a *restitution order in monetary terms may be made when the stolen goods are no longer in existence; this kind of order is equivalent to a compensation order. Compensation orders may be made in addition to, or instead of, other sentences. A court must order a parent or guardian of an offender under the age of 17 to pay a compensation order on behalf of the offender unless the parent or guardian cannot be found or it would be unreasonable to order him to pay it.

A person who has been wrongfully convicted of a criminal offence may apply to the Home Secretary for compensation, which is awarded upon the assessment of an independent assessor.

An *employment tribunal may order an employer to pay compensation to an employee who has been unfairly dismissed (See unfair dismissal). The compensation comprises a basic award of a sum equivalent to the *redundancy payment to which a redundant employee would be entitled (with a minimum of £3300 when dismissal is for trade union activity), and a compensatory award representing the loss that the employee suffers because of the dismissal (the compensatory award is subject to an upper limit of £51,700). This will include compensation for the loss of his earnings and other benefits of the former employment, and for the loss of his statutory rights in respect of unfair dismissal and redundancy in the initial period of any new employment he obtains (See continuous employment). Additional compensation may be awarded if the employer does not comply with an order by the tribunal to reşemploy the employee; the additional award will be between 26 and 52 weeks' pay. Limits on the amount of weekly pay that can be used in these calculations are set by regulations made by the Secretary of State for Work and Pensions and reviewed annually. The tribunal may reduce any compensation by an appropriate proportion when the employee's conduct has contributed to his dismissal. The employee is under the same duty to mitigate his loss as someone claiming damages in the courts. Thus if he unreasonably refuses an offer of a new job he will not be compensated for his continued unemployment thereafter. If the employee was dismissed for his failure to enter into a *closed-shop agreement, following pressure by a trade union for his dismissal, the employer can pass on to the trade union the liability to pay compensation. Compensation may also be awarded by an employment tribunal when there is a finding of sexual or racial discrimination. In such cases the upper limit or financial cap on unfair dismissal damages has been removed, as the European Court of Justice has ruled that the cap is discriminatory and contrary to *equal treatment laws. This award can also include an amount for hurt feelings.

competence

n.

(of witnesses)

The legal capacity of a person to be a *witness. Since the abolition in the 19th century of certain ancient grounds of incompetence, every person of sound mind and sufficient understanding has been competent, subject to certain exceptions. For example, a child may be sworn as a witness only if he understands the solemnity of the occasion and that the taking of an oath involves an obligation to tell the truth over and above the ordinary duty of doing so. However, under the Youth Justice and Criminal Evidence Act 1999, a child below the age of 14 years may only give *unsworn evidence. Since the Police and Criminal Evidence Act 1984 and the subsequent 1999 amendments, the spouse of an accused is generally a competent witness for the prosecution (subject to some exceptions) and compellable for the accused (subject to some exceptions).

competition law

The branch of law concerned with the regulation of *anticompetitive practices, *restrictive trade practices, and abuses of a dominant position (*abuse of a dominant position) or market power. Such laws prohibit *cartels and other commercial restrictive agreements. In the UK the Competition Act 1998 and the Fair Trading Act 1973 contain the legislative provisions. Throughout the EU, Articles 81 and 82 (See *Articles 81; *Article 82) of the Treaty of Rome and regulations made under those provisions contain the legal rules in this area, which constitute EU competition law. Under the de minimis principle, the European Commission has issued a notice that competition rules will be unlikely to apply to agreements affecting trade between member states when the parties to the agreement have a joint market share of 5% or less (10% for *vertical agreements, such as distribution contracts). In the USA competition law is known as antitrust law.

competitive tendering

The introduction of competition into the provision of public services with the aim of improving the cost-effectiveness and quality of these services. It affected a wide range of public bodies, from local authorities to the prison service: public services were supplied by the body (usually a private-sector company) that submitted the most competitive tender for the service in question. Examples of services most commonly provided by this means were refuse collection, the provision of school meals, and residential care for the elderly. These rules were principally contained in the Local Government Acts 1988 and 1992. The Local Government Act 1999 abolished compulsory competitive tendering and replaced it with a duty to provide *best value, whereby authorities must have regard to economy, efficiency, and effectiveness when exercising their functions.

complainant

n.

A person who alleges that a crime has been committed. A complainant alleging rape, attempted rape, incitement to rape, or being an accessory to rape is allowed by statute to remain anonymous; evidence relating to her previous sexual experience cannot be given (unless the court especially rules otherwise).

complaint

n.

1. The initiating step in civil proceedings in the *magistrates' court, consisting of a statement of the complainant's allegations. The complaint is made before a *justice of the peace or, if the complaint is not required to be on oath, before a *clerk to the justices, who may then issue an originating *process directed to the defendant.

2. An allegation of a crime. A complaint made by the victim of a sexual offence directly after the commission of the offence is admissible as evidence of the consistency of the complainant's story.

completely constituted trust

See executed trust.

completion

n.

(in land law)

The point at which ownership of land that is the subject of a contract for its sale changes hands. The purchaser hands over any unpaid balance of the price in exchange for the title deeds and a valid conveyance of the land to him if the land is unregistered. If the land is registered, the purchaser receives a simple form of transfer that must be lodged at the appropriate District *Land Registry with the *land certificate.

composition

n.

An agreement between a debtor and his creditors discharging the debts in exchange for payment of a proportion of what is due. The debtor may have to register the agreement as a *deed of arrangement.

See also scheme of arrangement; voluntary arrangement.

compound

v.

1. To make a *composition with creditors.

2. See compounding an offence.

compounding an offence

The offence of accepting or agreeing to accept consideration for not disclosing information that might assist in convicting or prosecuting someone who has committed an *arrestable offence (consideration here does not include reasonable compensation for loss or injury caused by the offence). There is also a special statutory offence of advertising a reward for stolen goods on the basis that "no questions will be asked" or that the person producing the goods "will be safe from inquiry".

compound settlement

A settlement of land arising from a series of trust instruments, e.g. a resettlement following the barring of an *entailed interest. Under the Settled Land Act 1925 the trustees of the original settlement (or if there are none, those of the resettlement) are treated as the trustees of the compound settlement. Thus the tenant for life is always able to overreach the interests of all other beneficiaries (See overreaching).

compromis d'arbifrage

(French)

Agreements between states to submit disputes between them to an arbitration tribunal.

See also arbitration.

compromise

n.

The settlement of a disputed claim by agreement between the parties. Any court proceedings already started are terminated. The terms of the settlement can be incorporated in a judgment by the court (called a consent judgment) or the terms can form a contract between the parties.

compulsory purchase

The enforced acquisition of land for public purposes, by statutory authority and on payment of compensation. Authority may be given for a specific acquisition, but public and local authorities have wide powers to acquire any land required for particular functions, such as education. These powers are normally exercised under the Acquisition of Land Act 1981, and compensation is assessed under the Land Compensation Acts 1961 and 1973. A compulsory purchase order is submitted for confirmation to the appropriate government minister, whose decision is preceded by an inquiry into public objections. In most cases the procedure includes the service of a *notice to treat on the landowner, who then negotiates compensation. Any dispute about compensation is decided by the *Lands Tribunal.

See also special procedure orders.

compulsory winding-up

A procedure for winding up a company by the court based on a petition made under circumstances listed in the Insolvency Act 1986. The main grounds for this type of petition are that the company is unable to pay its debts or that the court is of the opinion that it is in the interests of the company that a *just and equitable winding-up should be made. Any director, *contributory, or creditor of the company, the supervisor of a *voluntary arrangement, or the Secretary of State may make such a petition. The winding-up is conducted by a *liquidator, who is supervised by the court, a *liquidation committee, and the Department of Trade and Industry.

See also winding-up.

computer documents

(in the law of evidence) In civil cases a document produced by a computer is admissible under the general rules of evidence of any fact recorded in it of which direct oral evidence would be admissible. In criminal cases computer printouts are admissible as evidence by virtue of the amendments introduced by the Youth Justice and Criminal Evidence Act 1999.

computer misuse

See hacking.

concealment

n.

See nondisclosure.

concealment of securities

The offence (punishable by up to seven years' imprisonment) of dishonestly concealing, destroying, or defacing any valuable security, will, or any document issuing from a court or government department for the purpose of gain for oneself or causing loss to another. Valuable securities include any documents concerning rights over property, authorizing payment of money or the delivery of property, or evidencing such rights or the satisfying of any obligation.

concentration

n.

(in EU law)

The technical term for a *merger.

concert party

(consortium)

An agreement (which mayor may not be legally binding) between a number of people to acquire shares in a company in order to accumulate a significant holding of its voting shares. Under the Companies Act 1985 and rules administered by the Panel on Takeovers and Mergers anyone becoming interested in 3% or more of the voting shares of a public company must disclose this to the company; a member of a concert party is deemed to be interested not only in his own shares but also in those of other consortium members. Such disclosure may enable a company to counter a *takeover; it may also trigger rules relating to partial offers, which may make it necessary for the consortium to offer to buy the remaining shares.

See also sars.

Compare dawn raid.

conciliation

n.

1. (in civil disputes)

See ACAS; alternative dispute resolution.

2. A procedure of peaceful settlement of international disputes. The matter of dispute is referred to a standing or ad hoc commission of conciliation, appointed with the parties' agreement, whose function is to elucidate the facts objectively and impartially and then to issue a report. The eventual report is expected to contain concrete proposals for a settlement, which, however, the parties are under no legal obligation to accept.

See also good offices; mediation.

conciliation officer

See ACAS.

conclusive evidence

Evidence that must, as a matter of law, be taken to establish some fact in issue and that cannot be disputed. For example, the certificate of incorporation of a company is conclusive evidence of its incorporation.

concurrent interests

Ownership of land by two or more persons at the same time; for example, *joint tenancy and *tenancy in common.

concurrent jurisdiction

That part of the jurisdiction of the *Court of Chancery before the Judicature Acts 1873-75 that was enforced equally in the common law courts; equity usually took jurisdiction because the common law remedies were inadequate. Since the Judicature Acts the jurisdiction of all divisions of the High Court has been concurrent in name, but certain remedies (for example, specific performance and injunction) are more commonly sought in the Chancery Division.

Compare exclusive jurisdiction.

concurrent lease

A lease granted by a landlord to run at the same time as another lease of the same premises. The effect is that the lessee of the concurrent lease acquires the rights and duties of the landlord in relation to the other lease.

concurrent planning

twin-track planning

(concurrent planning, twin-track planning)

The planning involved in placing certain children who are in local-authority care with carers who are approved to both foster and adopt. Initially, the plan requires that the carers should work constructively to return the child to its parents. If it becomes apparent that this will not happen within a reasonable time, the carers will continue to look after the child and apply to adopt him. The aim of concurrent planning is to reduce the number of moves experienced by a child in care.

concurrent sentence

A *sentence to be served at the same time as one or more other sentences, when the accused has been convicted of more than one offence. Concurrent sentences are usually terms of imprisonment, and in effect the accused serves the term of the longest sentence. Alternatively the court may impose consecutive sentences, which follow on from each other.

concurrent tortfeasors

See joint tortfeasors.

condition

n.

1. A major term of a contract. It is frequently described as a term that goes to the root of a contract or is of the essence of a contract (See also time provisions in contracts); it is contrasted with a warranty, which is a term of minor importance. Breach of a condition constitutes a fundamental breach of the contract and entitles the injured party to treat it as discharged, whereas breach of warranty is remediable only by an action for damages, subject to any contrary provision in a contract (See breach of contract). A condition or a warranty may be either an *express term or an *implied term. In the case of an express term, the fact that the contract labels it a condition or a warranty is not regarded by the courts as conclusive of its status.

See also innominate terms.

2. A provision that does not form part of a contractual obligation but operates either to suspend the contract until a specified event has happened (a condition precedent) or to bring it to an end in certain specified circumstances (a condition subsequent). When X agrees to buy Y's car if it passes its MOT test, this is a condition precedent; a condition in a contract for the sale of goods that entitles the purchaser to return the goods if dissatisfied with them is a condition subsequent.

conditional admissibility

The *admissibility of evidence whose *relevance is conditional upon the existence of some fact that has not yet been proved. The courts permit such evidence to be given conditionally, upon proof of that fact at a later stage of the trial. Such evidence is sometimes said to have been received *de bene esse.

conditional agreement

An agreement that will take effect, if at all, upon the happening of some uncertain event.

conditional discharge

See discharge.

conditional fee agreement

An agreement, which must be in writing, between lawyer and client for legal services in litigation to be provided on the basis that payment is only due if the proceedings are successful ("no win, no fee"). In return for accepting the risk of no fee, the lawyer is entitled to charge a higher fee (by claiming a higher *uplift) if successful. If the claimant loses the case, he may have to pay the other party's costs. The litigation is therefore not entirely risk-free, although insurance, for which premiums are charged, can be taken out to accommodate this risk. The conditions on which a conditional fee agreement may be made (including the type of proceedings in which they are available and the maximum percentage increase in fees allowed) are prescribed by the Lord Chancellor under the Courts and Legal Services Act 1990 and the Access to Justice Act 1999. For most areas of law conditional fee agreements are unlawful, but they are allowed for certain limited categories of cases, including personal injury cases.

See also contingency fee; maintenance and champerty.

conditional interest

An interest that is liable to be forfeited, on the occurrence of a specified event, at the instance of the person who created it; for example, when A conveys land to B in fee simple subject to a rentcharge and reserves a right of forfeiture for nonpayment. Under the Law of Property (Amendment) Act 1926 a conditional interest in land qualifies as a *fee simple absolute in possession and can therefore exist as a legal estate.

Compare contingent interest; determinable interest.

conditional sale agreement

A contract of sale under which the price is payable by instalments and ownership is not to pass to the buyer (although he is in possession of the goods) until specified conditions relating to the payment of the price or other matters are fulfilled. The seller retains ownership of the goods as security until he is paid. A conditional sale agreement is a *consumer-credit agreement; it is regulated by the Consumer Credit Act 1974 if the buyer is an individual, the credit does not exceed £25,000, and the agreement is not otherwise exempt.


Date: 2015-01-29; view: 71


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