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╬xford_dictionary_of_law 15 page

2. (criminal contempt) Conduct that obstructs or tends to obstruct the proper administration of justice. At common law criminal contempt includes the following categories:

(1) Deliberately interfering with the outcome of particular legal proceedings (e.g. attempting improperly to pressurize a party to settle legal proceedings) or bribing or intimidating witnesses, the jury, or a judge.

(2) Contempt in the face of the court, e.g. using threatening language or creating a disturbance in court.

(3) Scandalizing the court by "scurrilous abuse" of a judge going beyond reasonable criticism or attacking the integrity of the administration of justice.

(4) Interfering with the general process of administration of justice (e.g. by disclosing the deliberations of a jury), even though no particular proceedings are pending.

Under the Contempt of Court Act 1981 it is a statutory contempt to publish to the public, by any means, any communication that creates a substantial risk that the course of justice in particular legal proceedings will be seriously impeded or prejudiced, if the proceedings are active. Such publications constitute strict-liability contempt, in which the intention to interfere with the course of justice is not required, but there are various special defences. It is also contempt under the Act to obtain or disclose any particulars of jury discussions and to bring into court or use a tape recorder without permission. The Act also protects (subject to certain exceptions) sources of information against disclosure in court. Contempt of court is a criminal offence punishable by a jail sentence and/or a fine of any amount ordered by the court.

contempt of Parliament

See parliamentary privilege.

contemptuous damages

A very small sum of *damages awarded when, although the claimant is technically entitled to succeed, the court thinks that the action should not have been brought. Contemptuous damages are sometimes awarded in "gold-digging" actions for defamation.

contentious business

Business of a solicitor when there is a contest between the parties involved, especially litigation. It is important in relation to *costs, since different rules govern contentious and noncontentious costs.

contentious probate business

Disputed applications to the court relating to the validity of wills and the administration of estates.

contiguous zone

See territorial waters.

continental shelf

The sea bed and the soil beneath it that is adjacent to the coast of a maritime state and outside the limits of the state's territorial waters. The 1958 Geneva Convention on the Continental Shelf limits the extent of the shelf to waters less than 200 metres deep or, beyond that limit, to waters that are of such a depth that exploitation of the natural resources of the sea bed is possible. The coastal state is granted exclusive sovereign rights of exploitation over mineral resources and nonmoving species in its continental shelf, provided that this causes no unreasonable interference to navigation, fishing, or scientific research. The 1982 Conference on the Law of the Sea extends the continental shelf, in some cases, to a distance of 200 nautical miles from the baselines around the coast from which the breadth of the territorial sea is measured. It also makes special provisions for delimiting the continental shelf between states with adjacent or opposite coastlines, but does not lay down rules of law for such delimitation. Rocks that cannot sustain human habitation do not have a continental shelf.



See also law of the sea.

contingency fee

Payment to a lawyer only if the case is won. Contingency fees are illegal in the UK but common in other countries, such as the United States. However, *conditional fee agreements are permitted for certain limited categories of cases.

contingent interest

An interest that can only come into being upon the occurrence of a specified event (for example when A conveys land to B provided he marries). As a contingent interest can only come into being in the future, if at all, it cannot exist as a legal estate in land. Before 1997, such a transaction created a settlement to which the Settled Land Act 1925 applied. From 1997, such a transaction gives rise to a *trust of land under the Trusts of Land and Appointment of Trustees Act 1996. Contingent interests are consequently *equitable interests only.

Compare conditional interest; determinable interest.

contingent legacy

A bequest that only takes effect if a particular condition is fulfilled, e.g. a bequest "to A if he shall marry within five years".

continuous bail

Bail granted by a magistrates' court directing the accused to appear at every time and place to which the proceedings may from time to time be adjourned, as opposed to a direction to appear at the end of a fixed period of remand.

continuous employment

The period for which a person's employment in the same business has subsisted. Under the Employment Rights Act 1996, employees have the right to claim certain statutory remedies only if they have been continuously employed for certain minimum periods. The required period of continuous employment necessary to bring an *unfair dismissal action is currently one year. The right of employees to statutory redundancy payments and to *guarantee payments arises after two years' and one month's continuous employment, respectively. The minimum period of *notice to terminate an employee's contract also depends on his period of continuous employment in the business. When a business changes ownership as a going concern, the employee's period of continuous employment under both the old and the new employer counts in calculating the total (See also relevant transfer). When an employee is dismissed without notice, the minimum notice to which he was entitled is added to the actual period of employment in calculating whether or not he has served the minimum continuous period. Part-time employees (i.e. those whose normal working week is less than 16 hours) formerly had few statutory rights until they had completed five years' continuous employment in the business. However, the Employment Protection (Part-time Employees) Regulations 1995 now provide that part-timers, no matter what hours they work, will benefit in the same way as those who are employed full time. Periods during which an employee was on strike do not break the continuity, but are excluded from his total period of continuous employment. Continuity is not broken when a woman is absent due to pregnancy or confinement, provided she takes up her right to return to work (See maternity rights).

contraband

n.

1. Goods whose import or export is forbidden.

2. (contraband of war) Goods (such as munitions) carried by a neutral vessel (ship or aircraft) during wartime and destined for the use of one belligerent power against the other (or capable of being so used). Arms and other goods of a military nature were traditionally referred to as absolute contraband, while goods having peaceful uses, but nevertheless of assistance to a belligerent, were conditional contraband. The distinction, though formally retained, has effectively been abolished. Belligerent states are expected to issue contraband lists in order to exercise the right of capture. Goods being carried to enemy territory in an enemy ship are contraband even if they belong to a neutral power. The other belligerent is entitled to seize and confiscate such goods.

See also prize court; search of ship.

contra bonos mores

(Latin)

Against good morals. It is a matter of controversy to what extent the criminal law should, or does, prohibit immoral conduct merely on the ground of its immorality. The tendency in recent years has been to limit legal intervention in matters of morals to acts that cause harm to others. However, there are still certain offences regarded as essentially immoral (e.g. *incest and *buggery). There are also offences of conspiring to corrupt public morals (although *corruption of public morals is not in itself criminal) and of outraging (or conspiring to outrage) public decency, although the scope of these offences is uncertain.

See also conspiracy; obscene publications.

contract

n.

A legally binding agreement. Agreement arises as a result of *offer and *acceptance, but a number of other requirements must be satisfied for an agreement to be legally binding. (1) There must be *consideration (unless the contract is by deed). (2) The parties must have an intention to create legal relations. This requirement usually operates to prevent a purely domestic or social agreement from constituting a contract (See also honour clause). (3) The parties must have *capacity to contract. (4) The agreement must comply with any formal legal requirements. In general, no particular formality is required for the creation of a valid contract. It may be oral, written, partly oral and partly written, or even implied from conduct. Certain transactions are, however, valid only if effected by deed (e.g. transfers of shares in British ships) or in writing (e.g. promissory notes, contracts for the sale of interests in land, and guarantees that can at law only be enforced if evidenced in writing). (5) The agreement must be legal (See illegal contract). (6) The agreement must not be rendered void either by some common-law or statutory rule or by some inherent defect, such as operative mistake (See void contract). Certain contracts, though valid, may be liable to be set aside by one of the parties on such grounds as misrepresentation or the exercise of undue influence (See voidable contract).

contract of employment

(contract of service)

A contract by which a person agrees to undertake certain duties under the direction and control of the employer in return for a specified wage or salary. The contract need not be in writing, but under the Employment Rights Act 1996 the employee must be given a *written statement of terms of employment. Implied in every contract of employment are a duty of mutual confidence and trust, the employer's duty to protect the employee from danger and risks to his health, and the employee's duty to do the work to the best of his ability. Employees who have been continuously employed in the same business for certain minimum periods (See continuous employment) have statutory rights, relating for example to *unfair dismissal and *redundancy, that do not apply to the self-employed. A self-employed person is engaged under a contract for services and owes his employer or customer no other duty than to complete the specified work in accordance with the terms of the individual contract; he is not otherwise under the direction or control of the employer as to how or when he works.

Termination of a contract of employment in breach of the terms of the contract is *wrongful dismissal and may be remedied in the county court or the High Court or by an employment tribunal In such an action the court is not concerned with "fairness" but purely with compensating for a breach of the terms of the contract.

contract of exchange

(commutative contract)

A barter contract in which property is transferred from one party to the other in return for other property. No money passes from one party to the other. A contract of exchange of goods is not governed by the Sale of Goods Act 1979.

Compare sale of goods.

contract of record

A judgment or recognizance enrolled in the record of the proceedings of a *court of record, implying a debt that arises from the entry on the record and not from any agreement between the parties.

contract of sale

See sale; sale of goods.

contract of service

See contract of employment.

contribution

n.

The payment made by each of two or more people in respect of damage or a loss for which they are jointly liable. In tort, when two or more people are jointly liable for the same damage and the person injured has recovered his losses from one of them, that person may seek contributions from the other tortfeasors (See civil liability contribution; joint tortfeasors). In the case of a general-average loss (See average), the person who has sustained the loss is entitled to contributions from others with an interest in the property.

See also part 20 claim.

contributory

n.

Any of the past or present members of a company, who are potentially liable to contribute to the company's assets in the event of a *winding-up. The maximum liability is limited, in a company limited by shares (See limited company), to the amount unpaid on shares (See call). A past member remains liable for this amount if *winding-up follows within one year.

contributory negligence

A person's carelessness for his own safety or interests, which contributes materially to damage suffered by him as a result partly of his own fault and partly of the fault of another person or persons. Thus careless driving, knowingly travelling with a drunken driver, and failure to wear a seat belt are common forms of contributory negligence in highway accidents. The effect of contributory negligence is to reduce the claimant's damages by an amount that the court thinks just and equitable. The defence is most common in actions for negligence, but can be pleaded in some other torts, e.g. *nuisance, *Rylands v Fletcher, *breach of statutory duty, or under the Animals Act 1971 (See classification of animals). Contributory negligence may also be a defence to some actions for breach of contract. It is not a defence to conversion or intentional trespass to goods.

controlled drugs

Dangerous drugs that are subject to criminal regulation. In the Misuse of Drugs Act 1971 these are grouped in three classes: A, B, and C. Class A is the most dangerous and includes opium and its natural and synthetic derivatives (e.g. morphine and heroin), cocaine, and Ecstasy. Class B includes amphetamine and (as at October 2001)*cannabis, and C Ś the least dangerous class - includes anabolic steroids and benzodiazepine antidepressants. It is an offence to possess a controlled drug or to supply or offer it to another; possession of drugs of classes A or B is an *arrestable offence. In the case of an occupier or someone concerned in the management of premises, it is an offence (1) to allow the smoking of cannabis, cannabis resin, or prepared opium on the premises (but it is not an offence to allow the premises to be used for injecting heroin or consuming any other controlled drug); (2) to prepare opium for smoking; and (3) to produce or supply a controlled drug on the premises. The defendant is liable on a charge of possession for the minutest quantity of the drug and without proof of *mens rea, unless he can prove that he did not believe or suspect that it was a controlled drug. Under the Drug Trafficking Offences Act 1986, the Crown Court must impose a *confiscation order when a person who has benefited from drug trafficking is sentenced for a related offence. The amount of the order is the proceeds of the offender's trafficking or, if less, the amount realizable from his property. Imprisonment follows any default. The Act also penalizes those assisting in the retention of drug trafficking proceeds or disclosing information likely to prejudice a drug trafficking investigation. Under the Crime (Sentences) Act 1997 there is an automatic seven-year minimum sentence on third-time dealers in Class A drugs. However, judges may give a lesser sentence if the court considers the minimum would be unjust in all the circumstances.

See also repeat offender.

controlled tenancy

A type of *protected tenancy that sometimes occurred with tenancies created before 6 July 1957. From 28 November 1980 all controlled tenancies were converted into *regulated tenancies.

controlled trust

A trust of which one or more solicitors or their employees are sole trustees. Such trusts are subject to special accounts rules made under the Solicitors Act 1974; breaches of these rules may be reported to the Solicitors' Disciplinary Tribunal.

controller

n.

(in company law)

Strictly, one who holds shares conferring a majority of the *voting power that can be exercised at a general meeting. In practice, effective control can often be exercised by a director with no voting power or a minority of it if he is able to manipulate *proxy voting.

See also subsidiary company.

convention

n.

1. A *treaty, usually of a multilateral nature. The International Law Commission prepares draft conventions on various issues for the progressive development of international law.

2. A written document adopted by international organizations for their own regulation. 3.

See constitutional conventions.

conversion

n.

1. (in tort) The tort of wrongfully dealing with a person's goods in a way that constitutes a denial of the owner's rights or an assertion of rights inconsistent with the owner's. Wrongfully taking possession of goods, disposing of them, destroying them, or refusing to give them back are acts of conversion. Mere negligence in allowing goods to be lost or destroyed was not conversion at common law, but is a ground of liability under the Torts (Interference with Goods) Act 1977. The claimant in conversion must prove that he had ownership, possession, or the right to immediate possession of the goods at the time of the defendant's wrongful act (See also jus tertii). Subject to some exceptions, it is no defence that the defendant acted innocently.

2. (in equity) The changing (either actually or fictionally) of one kind of property into another. For example, if land is sold the interest of those entitled to the property changes from an interest in the land to an interest in the money that represents it. Before 1926 (and to a lesser extent thereafter) it was important to know whether a person entitled to property had interests in land or in the proceeds of its sale: to leave the determination of these rights to be decided by the precise moment of a sale could have led to uncertainty and injustice. The doctrine of conversion stated that if there was a duty to convert the property, equity would assume the property to have been converted forthwith: "equity looks on that as done which ought to have been done" (See maxims of equity). This doctrine was abolished with effect from 1 January 1997 by the Trusts of Land and Appointment of Trustees Act 1996.

converted tenancy

A tenancy that was converted from a *controlled tenancy into a *regulated tenancy. From 28 November 1980 all controlled tenancies were converted into regulated tenancies.

conveyance

n.

1. a. A document (other than a will) that transfers an interest in land. To convey a legal estate in land, the conveyance must be by deed. b. Transfer of an interest in land by means of this document.

See also conveyancing.

2. Any vehicle, vessel, or aircraft manufactured or subsequently adapted to carry one or more people. It is a statutory offence (and also an *arrestable offence), punishable by up to six months' imprisonment and a fine, for anyone to take a conveyance for his own or someone else's use (albeit temporary) without permission or to drive or be transported in a conveyance knowing that it has been taken without authority.

See also aggravated vehicle-taking; interfering with vehicles.

conveyancing

n.

The procedures involved in validly creating, extinguishing, and transferring ownership of interests in land. Only a practising solicitor or *licensed conveyancer may charge a fee for undertaking the most essential parts of such transactions. Under the Law of Property (Miscellaneous Provisions) Act 1989 land contacts must be made in writing. Apart from preparing the deeds or other documents by which the transaction is effected, certain investigative steps are usually required. For example, the sale and purchase of a residential house in England or Wales will generally involve the following.

(1) Preparation of a contract by the vendor's solicitor defining the terms of the transaction, describing the property concerned, and disclosing *land charges and other interests in it that will affect the purchaser. In the case of registered land, this will be accompanied by office copies (*office copy) of the registered title.

(2) Written inquiries by the purchaser's solicitor seeking assurances from the vendor that matters which may not be apparent from inspection of the site will not impose any unforeseen liability on the purchaser. These questions generally cover such potential problems as disputes over boundaries, the construction or treatment of buildings, compliance with planning and rating authorities' requirements, and liability for maintenance of shared facilities (such as boundary walls). If the Law Society's "Transaction" protocol is used, the vendor supplies a Seller's Property Information Form, which gives details of the property and replaces the standard *preliminary inquiries.

(3) *official search by the purchaser's solicitor in the local land charges register to ensure there are no undisclosed charges of a local or environmental nature that could bind the purchaser. The local authority is also asked to disclose other information, such as proposals for building new roads near the property. Other searches may be carried out at this stage, for example commons registration searches. If the land appears to be unregistered, there will be an official search of the *index maps, to check that it has not, in fact, been registered.

(4) If the purchaser is raising a *mortgage loan towards the price, his solicitor or other agent will ensure that the funds will be available at the appropriate time and that any conditions imposed by the mortgagees can be satisfied.

(5) The purchaser's solicitor may then negotiate alterations to the draft contract with the vendor's solicitor, in order to ensure its compliance with the purchaser's requirements and to cover points arising from the earlier inquiries and search. For example, if an unforeseen local land charge has been discovered, a term may be inserted requiring the vendor to clear it before the transaction is completed.

(6) When there is a chain of sales and purchases dependent on one another, the solicitors for the parties involved liaise with one another through all steps of the transactions, particularly in arranging a date for completion, to ensure that the various completions coincide.

(7) The parties become legally committed to buy and sell respectively upon *exchange of contracts. It is then usual for the purchaser to pay a percentage of the price to the vendor's solicitor as stakeholder.

(8) The vendor's solicitor next prepares and delivers an epitome or *abstract of title to the purchaser's solicitor, who studies it to ensure that the vendor's title is proved in accordance with the contract. (It is increasingly common to deliver an epitome of title before exchange of contracts.) As final checks on the vendor's title, he conducts an official search in the *Land Charges Department (for unregistered land) or HM *Land Registry as appropriate, and raises *requisitions on title requiring the vendor to clear any defects or adverse interests revealed by the abstract or search. An official certificate of search from the Land Registry will reveal any entries on the vendor's title effected since the date on which the office copies were issued, and will give the purchaser priority against any further entries provided he registers his new title within the time shown on the certificate.

(9) The purchaser's solicitor prepares the deed (usually a conveyance, transfer, or assignment) by which the property is to be transferred to his client, and has its terms approved by the vendor's solicitor. He also ensures that the purchaser's mortgage deed (if any) is in order.

(10) In preparation for completion, the purchaser's solicitor arranges with the necessary parties for the funds to be available on the completion date and ensures that the necessary deeds will be executed by the time completion takes place.

(11) On completion, the purchaser's solicitor checks the vendor's original *title deeds against the epitome (or abstract) of title, and takes possession of them together with the deed of transfer. In the case of registered land, he will take the land certificate, or accept an undertaking from the vendor's solicitor to forward it when it is made available following redemption of any mortgage. He hands over the price, and the transaction is then legally completed.

(12) After completion, the transfer deed is produced to the Inland Revenue, and any stamp duty paid, by the purchaser's solicitor on his client's behalf. He also gives formal notice of the transaction when appropriate; for example, when a leasehold interest is purchased, the lessor must usually be notified. Whether or not land was registered before the transaction, it will need to be registered on completion. Therefore, the purchaser's solicitor lodges the relevant deeds with HM Land Registry for registration of his client's title, within the priority period conferred by the official search certificate.

These basic steps in respect of the sale and purchase of a house are common to many other conveyancing transactions, although the complexity of the particular requirements varies according to the nature of the transaction.

See also electronic conveyancing.

conviction

n.

1. (for the purposes of the Bail Act 1976) In criminal proceedings, a finding of *guilty, or an acquittal on the ground of insanity. In a magistrates' court, a finding that the accused carried out the act for which he was charged (See summary conviction).

2. (for the purposes of the Rehabilitation of Offenders Act 1974) Any finding (except one of insanity), either in criminal proceedings or in care proceedings, that a person has committed an offence or carried out the act for which he was charged.

See also spent conviction.

cooperation procedure

A procedure introduced by the *Single European Act 1986 that allows the *European Parliament to impede the adoption of proposed legislation by the *Council of the European Union; the *Maastricht Treaty extended the use of this procedure to cover new areas of policy. It applies when there is a second reading of a draft measure. If the Parliament takes no action for three months after receiving the proposal, it proceeds. However, if, after a second reading, Parliament votes by an absolute majority to reject the measure, this can only be overturned by a unanimous decision of the Council.

Compare assent procedure; codecision procedure.

copyhold

n.

Formerly, ownership of land enforceable only in the court of the lord of the manor and not protected by the sovereign's courts (See feudal system). The owner's title comprised a copy of an entry in the rolls of the lord's court. By the Law of Property Act 1922 copyhold tenure was abolished and existing copyholds were converted into freeholds.

copyright

n.

The exclusive right to reproduce or authorize others to reproduce artistic, dramatic, literary, or musical works. It is conferred by the Copyright, Designs and Patents Act 1988, which also extends to sound broadcasting, cinematograph films, and television broadcasts (including cable television). Copyright lasts for the author's lifetime plus 70 years from the end of the year in which he died; it can be assigned or transmitted on death EU directive 93/98 requires all EU states to ensure that the duration of copyright is the life of the author plus 70 years. Copyright protection for sound recordings lasts for 50 years from the date of their publication; for broadcasts it is 50 years from the end of the year in which the broadcast took place. Directive 91/250 requires all EU member states to protect computer *software by copyright law. The principal remedies for breach of copyright (known as piracy) are an action for *damages and *account of profits or an *injunction. It is a criminal offence knowingly to make or deal in articles that infringe a copyright.

See also Berne convention; hacking.

co-respondent

n.

In a petition of divorce under the Matrimonial Causes Act 1973 the party with whom a married person is alleged to have committed adultery and ' who, If named, is normally made a party to divorce proceedings.

coroner

n.

An officer of the Crown whose principal function is to investigate deaths suspected of being violent or unnatural. He will do this either by ordering an *autopsy or conducting an *inquest. The coroner also holds inquests on *treasure trove. Coroners are appointed by the Crown from among barristers, solicitors, and qualified medical practitioners of not less than five years' standing.

corporate personality

See incorporation.

corporate venturing scheme

(CVS)

A scheme designed to encourage established companies to invest in the full-risk ordinary shares of companies of the same kind as those qualifying under the *Enterprise Investment Scheme; the scheme encourages the investing and qualifying companies to form mutually beneficial corporate venturing relationships. Companies investing through the CVS may obtain corporation tax relief (at 20%) on the amount invested provided that the shares are held for at least three years after issue or, if later, three years after the trade for which the money was raised begins. Investing companies also obtain relief for most allowable losses on the shares and deferral of corporation tax when a chargeable gain from the disposal of CVS shares is reinvested in a new CVS investment.


Date: 2015-01-29; view: 113


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