Оxford_dictionary_of_law 18 page

dawn raid

1. An offer by a person or persons (See concert party) to buy a substantial quantity of shares in a public company at above the market value, the offer remaining open for a very short period (usually hours). Because of the speed required smaller shareholders may have little opportunity to avail themselves of the offer. Rules restrict the speed at which such acquisitions can be made.

See sars.

2. An unannounced visit by officials of the European Commission or the UK Office of Fair Trading investigating cartels or other breaches of the competition rules under Articles 81 and 82 (*Article 81; Article 82) of the Treaty of Rome or under the Competition Act 1998.

days of grace

The three days that were added to the time of payment fixed by a *bill of exchange not payable on demand before the Banking and Financial Dealings Act 1971 came into force. A bill drawn on or after 16 January 1972 is payable in all cases on the last day of the time of payment fixed by the bill or, if that is a nonbusiness day, on the succeeding business day.

day-training centre

A place that provides social education and intensive probation supervision. A court may order a person subject to a *community rehabilitation order to attend such a centre.

death

n.

See registration of death.

death duties

Taxes formerly charged on a person's property on his death. These have now been replaced by *inheritance tax.

death penalty

See capital punishment.

de bene esse

(Latin: of well-being)

Denoting a course of action that is the best that can be done in the present circumstances or in anticipation of a future event. An example is obtaining a *deposition from a witness when there is a likelihood that he will be unable to attend the court hearing.

debenture

n.

A document that acknowledges and contains the terms of a loan (usually to a company). The loan may be unsecured (a naked debenture). More usually, however, the debenture will be subject to a *charge and will contain the terms of the charge (e.g. the right to appoint a *receiver or a *crystallization event). Debentures may be issued to a single creditor or in a series to several creditors in order to raise finance for a company. In the case of the latter, a trust may be created and contained within the debenture in favour of such creditors. This enables the company to appoint a trustee for debenture holders to ensure that the financial activities of the company are managed in the interests of the group of creditors. Finance raised by the issue of debentures is known as *loan capital. This is contrasted with share *capital, the holders of which are *company members.

de bonis asportatis

(Latin: of goods carried away)

One form of trespass to goods (See trespass), not distinguished in modern law from other direct interferences with the possession of goods.

de bonis non administratis

(Latin: of unadministered goods)

A grant of *letters of administration of the estate of a deceased person when administration has previously been granted to someone who has himself died before completing the administration of the estate leaving no executor, so that the chain of executorship is broken.

debt

n.

1. A sum of money owed by one person or group to another.

2. The obligation to pay a sum of money owed.

debt adjusting

See ancillary credit business.

debt collecting

See ancillary credit business.

debtor

n.

1. One who owes a debt.

See also judgment debtor.

2. (under the Consumer Credit Act 1974) The individual receiving credit under a *consumer-credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law.

debtor-creditor agreement

A *consumer-credit agreement regulated by the Consumer Credit Act 1974. It may be (1) a *restricted-use credit agreement to finance a transaction between the debtor and a supplier in which there are no arrangements between the creditor and the supplier (e.g. when a loan is paid by the creditor direct to a dealer who is to supply the debtor); (2) a restricted-use credit agreement to refinance any existing indebtedness of the debtor's to the creditor or any other person; or (3) an unrestricted-use credit agreement (e.g. a straight loan of money) that is not made by the creditor under arrangements with a supplier in the knowledge that the credit is to be used to finance a transaction between the debtor and the supplier.

debtor-creditor-supplier agreement

A *consumer-credit agreement regulated by the Consumer Credit Act 1974. It may be (1) a *restricted-use credit agreement to finance a transaction between the debtor and the creditor, which mayor may not form part of that agreement (e.g. a purchase of goods on credit); (2) a restricted-use credit agreement to finance a transaction between the debtor and a supplier, made by the creditor and involving arrangements between himself and the supplier; or (3) an unrestricted-use credit agreement that is made by the creditor under pre-existing arrangements between himself and a supplier in the knowledge that the credit is to be used to finance a transaction between the debtor and the supplier.

deceit

n.

A tort that is committed when someone knowingly or recklessly makes a false statement of fact intending that it should be acted on by someone else and that person does act on the false statement and thereby suffers damage.

See fraud.

deception

n.

A false representation, by words or conduct, of a matter of fact (including the existence of an intention) or law that is made deliberately or recklessly to another person. Deception itself is not a crime, but there are six imprisonable crimes in which deception is involved: (1) Obtaining property. (2) Obtaining an overdraft, an insurance policy, an annuity contract, or the opportunity to earn money (or more money) in a job or to win money by betting. These two offences are punishable by up to ten years' imprisonment. (3) Obtaining any services (e.g. of a driver or typist or the hiring of a car). (4) Securing the remission of all or part of an existing liability to make payment (whether one's own or another's) with intent to make permanent default in whole or in part. (5) Causing someone to wait for or forego a debt owing to him. (6) Obtaining an exemption from or abatement of liability to pay for something (e.g. obtaining free or cheap travel by falsely pretending to be a senior citizen). It is not an offence, however, to deceive someone in any other circumstances, provided there is no element of *forgery or *false accounting.

decisions of the EU

See Community legislation.

declaration

n.

1. (in the law of evidence) An oral or written statement not made on oath. The term is often applied to certain types of out-of-court statement that are admissible as an exception to the rule against *hearsay evidence; for example, *declaration against interest, *declaration concerning pedigree, *declaration concerning public or general rights, and *declaration in course of duty.

See also statutory declaration.

2. A discretionary remedy involving a bare finding by the High Court as to a person's legal status, rights, or obligations. A declaration cannot be directly enforced, but is frequently sought both in private law (e.g. to answer a question as to nationality or rights under a will) and in public law (e.g. to test a claim that delegated legislation or the decision of some inferior court, tribunal, or administrative authority is *ultra vires). In both public and private law the applicant must show standing, i.e. that the issue affects him directly.

Compare quashing order.

See also judicial review.

declaration against interest

A *declaration by a person who has subsequently died which he knew, when he made it, would be against his pecuniary or proprietary interest. It may be tendered to the court as an exception to the rule against *hearsay evidence.

declaration concerning pedigree

A *declaration made by a person who has subsequently died, or to be inferred from family conduct, concerning a disputed pedigree of a blood relation or the spouse of a blood relation. The declaration must have been made before the dispute in which it is tendered as evidence had arisen.

declaration concerning public or general rights

A *declaration made by a person who has subsequently died concerning the reputed existence of a public or general right. Public rights affect everyone (e.g. a public *right of way) while general rights affect a class of people (e.g. a right of *common).

declaration in course of duty

A *declaration by a person who has subsequently died made while pursuing a duty to record or report his acts.

declaration of incompatibility

See human rights act.

declaration of intention

See offer.

declaration of trust

A statement indicating that property is to be held on trust. No specific words are necessary, as long as the intention to declare a trust is made clear. Once a declaration of trust is made, the person intended to be trustee still holds the property but is not entitled to hold it for his own benefit. A declaration of a trust where the trust property is land is subject to certain formalities, detailed in the Law of Property Act 1925 (s.53).

declaratory judgment

A judgment that merely states the court's opinion on a question of law or declares the rights of the parties, without normally including any provision for enforcement. A claim for declaration may, however, be combined with one for some substantive relief, such as damages.

declaratory theory

The proposition that a state has capacity (and personality) in international law as soon as it exists in fact (that is, when it becomes competent in municipal law). This capacity is generated spontaneously from the assertion by the community that it is a judicial entity. When socially organized, the new state is internally legally organized, and hence competent to act in such a way as to engage itself in international responsibility. Thus, according to this theory, *recognition does not create any state that did not already exist.

See international legal personality.

Compare constitutive theory.

decompilation

(reverse engineering)

n.

The process of taking computer *software apart. Under EU directive 91/250, computer software is protected by *copyright throughout the EU. However, a very limited right to decompilation is given in that directive for the defined purpose of writing an interoperable program, under certain very strict conditions. Any provision in a contract to exclude this limited right will be void. In the UK this directive is implemented by the Copyright (Computer Programs) Regulations 1992.

decree

n.

1. A law.

2. A court order.

See also decree absolute; decree nisi.

decree absolute

A decree of divorce, nullity, or presumption of death that brings a marriage to a legal end, enabling the parties to remarry. It is usually issued six weeks after the *decree nisi (unless there are exceptional reasons why it should be given sooner). A list of decrees absolute is kept at the Divorce Registry and access to it is open to the public.

decree nisi

A conditional decree of divorce, nullity, or presumption of death. For most purposes the parties to the marriage are still married until the decree is made absolute. During the period between decree nisi and decree absolute the Queen's Proctor or any member of the public may intervene to prevent the decree being made absolute and the decree may be rescinded if obtained by fraud.

deductions

pl.n.

(in employment law)

Sums deducted from an employee's wages. The Employment Rights Act 1996 provides strict rules on what can be deducted from wages. Permitted deductions include those for income tax, national insurance, and pension contributions (for employees who have agreed to be part of an employer's pension scheme). Deductions are also allowed when there has been an overpayment of wages or expenses in the past, when there has been a strike and wages are withheld, or when there is a court order, such as an order from the Child Support Agency or a court attachment of earnings order. There are special rules for those in retail employment. These provide, for example, that deductions of up to 10%may be made from gross wages for cash shortages or stock deficiencies.

deed

n.

A written document that must make it clear on its face that it is intended to be a deed and validly executed as a deed. Before 31 July 1990, all deeds required a seal in order to be validly executed, but this requirement was abolished by the Law of Property (Miscellaneous Provisions) Act 1989. A deed executed since that date by an individual requires only that it must be signed by its maker in the presence of a witness, or at the maker's direction and in the presence of two witnesses, and delivered. Deeds executed by companies require before delivery the signature of a director and secretary, or two directors, of the company; alternatively, if the company has a seal, the deed may be executed by affixing the company seal. If the deed is a contractual document, it is referred to as a specialty. A promise contained in a deed is called a covenant and is binding even if not supported by *consideration. Covenants may be either express or implied. A deed normally takes effect on delivery; actual delivery constitutes handing it to the other party; constructive delivery involved (in strict theory) touching the seal with the finger, and saying words such as "I deliver this as my act and deed". If a deed is delivered but is not to become operative until a future date or until some condition has been fulfilled, it is called an escrow. The recitals of a deed are those parts that merely declare facts and do not effect any of the substance of the transaction. They are usually inserted to explain the reason for the transaction. The operative part of a deed is the part that actually effects the objects of the deed, as by transferring land. The testatum (or witnessing part) constitutes the opening words of the operative part, i.e. "Now this deed witnesseth as follows". The premises are the words in the operative part that describe the parties and the transaction involved. The parcels are the words in the premises that describe the property involved. The testimonium is the concluding part, beginning "In witness whereof", and containing the signatures of the parties and witnesses. The locus sigilli is the position indicated for placing the seal. When a deed refers to itself as "these presents", "presents" means present statements. The advantage of a deed over an ordinary contract is that the limitation period is 12 rather than 6 years (See limitation of actions) and no *consideration is required for the deed to be enforceable.

See also deed poll.

deed of arrangement

A written agreement between a debtor and his creditors, when no *bankruptcy order has been made, arranging the debtor's affairs either for the benefit of the creditors generally or, when the debtor is insolvent, for the benefit of at least three of the creditors. A deed of arrangement is regulated by statute and must be registered with the Department of Trade and Industry within seven days. It may take a number of different forms: it may be a *composition, an *assignment of the debtor's property to a trustee for the benefit of his creditors, or an agreement to wind up the debtor's business in such a way as to pay his debts. The debtor usually agrees to such an arrangement in order to avoid bankruptcy. A similar arrangement can be agreed after a bankruptcy order is made, but this is regulated in a different way (See voluntary arrangement).

deed of covenant

A *deed containing an undertaking to pay an agreed amount over an agreed period. Certain tax advantages could be obtained through the use of covenants, particularly in the case of four-year covenants in favour of charities. This was superseded by *gift aid in April 2000.

deed of gift

A *deed conveying property from one person (the donor) to another (the donee) when the donee gives no *consideration in return. The donee can enforce a deed of gift against the donor. Gifts made other than by deed are not generally enforceable (but see part performance).

deed poll

A *deed to which there is only one party; for example, one declaring a *change of name.

deemed

adj.

Supposed. In the construction of some documents (particularly statutes) an artificial construction is given to a word or phrase that ordinarily would not be so construed, in order to clarify any doubt or as a convenient form of drafting shorthand.

de facto

(Latin: in fact)

Existing as a matter of fact rather than of right. The government may, for example, recognize a foreign government de facto if it is actually in control of a country even though it has no legal right to rule (See recognition).

Compare de jure.

defamation

n.

The *publication of a statement about a person that tends to lower his reputation in the opinion of right-thinking members of the community or to make them shun or avoid him. Defamation is usually in words, but pictures, gestures, and other acts can be defamatory. In English law, a distinction is made between defamation in permanent form (See libel) and defamation not in permanent form (See slander). This distinction is not made in Scotland. The remedies in tort for defamation are damages and injunction.

In English law, the basis of the tort is injury to reputation, so it must be proved that the statement was communicated to someone other than the person defamed. In Scottish law, defamation includes injury to the feelings of the person defamed as well as injury to reputation, so an action can be brought when a statement is communicated only to the person defamed. If the statement is not obviously defamatory, the claimant must show that it would be understood in a defamatory sense (See innuendo). It is not necessary to prove that the defendant intended to refer to the claimant. The test is whether reasonable people would think the statement referred to him, but the defendant may escape liability for unintentional defamation by making an offer of amends (See apology). Other defences are *justification, *fair comment, *absolute privilege, and *qualified privilege.

All those involved in the publication of a defamatory statement, such as printers, publishers, and broadcasting companies, are liable and every repetition of a defamatory statement is a fresh publication, giving rise to a new cause of action. A mere distributor of a book, newspaper, etc., is not liable if he did not know and had no reason to know of its defamatory contents. The Defamation Act 1996 put this defence on a statutory footing and generally speeded up procedures for defamation litigation, but it did not change the rule that the jury and not the judge decides on the damages in defamation cases.

default

n.

Failure to do something required by law, usually failure to comply with mandatory rules of procedure. If a defendant in civil proceedings is in default (e.g. by failing to file a defence), the claimant may obtain judgment in default. If the claimant is in default, the defendant may apply to the court to dismiss the action.

default notice

A notice that must be served on a contract breaker before taking action in consequence of his breach. Under the Consumer Credit Act 1974 a default notice must be served on a debtor or hirer in breach of a regulated agreement before the creditor or owner is entitled to terminate the agreement; to demand earlier payment of any sum; to recover possession of any goods or land; to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted, or deferred; or to enforce any security. The notice must specify the nature of the breach, what action (if any) is required to remedy it, and the date before which that action is to be taken. If the breach is not capable of remedy, the notice must specify the sum (if any) required in compensation and the date before which it is to be paid.

default summons

Formerly, a summons used to initiate all proceedings in the county courts when the only relief claimed was the payment of money. Under the *Civil Procedure Rules, such claims are now made by *claim forms.

defect

n.

1. A fault or failing in a thing. The defect may be obvious (a patent defect) or it may not be apparent at first (a latent defect). In a sale of goods, the buyer usually has a legal remedy against a professional seller if the goods have a latent defect. If there is a patent defect he usually has no such remedy if he had an opportunity to inspect the goods before purchase.

See also satisfactory quality.

2. (defect in a product) A fault in a product as defined in the Consumer Protection Act 1987. A defect exists in products under the Act when the safety of the products is not what people generally are entitled to expect. In determining what people are entitled to expect, reference should be made to the way in which the goods are marked, any warnings issued with them, and the time of supply. The Act implements EU directive 85/374 on *products liability.

defective equipment

An employer's duty to provide his employees with a safe system of work, so far as is reasonably practicable, includes the provision and maintenance of safe tools and equipment (including materials) for the job. The employer is liable to an employee injured by a defect in the equipment he provides, even if the defect was due to the fault of some third party, such as the manufacturer of the equipment.

See also safety at work.

defective premises

Liability for defects in the construction of buildings can arise both at common law, in contract and tort, and by statute. In addition to any liability they may incur for breach of contract, builders, architects, surveyors, etc., are liable in tort on ordinary principles for *negligence and may also be in breach of statutory duties; for example, the duty imposed by the Defective Premises Act 1972, in respect of work connected with the provision of a dwelling, to see that the dwelling will be fit for habitation. A landlord who is responsible for repairs, or who has reserved the right to enter and carry out repairs, may be liable for damage caused by failure to repair not only to his tenants, but also to third parties who could be expected to be affected by the defects.

For the liability of occupiers of premises.

See occupier's liability.

defective products

See products liability.

defence

n.

1. The response by a defendant to service of a claim. Once a claim form or particulars of claim have been served on the defendant, he is under an obligation to respond. If he does not file a defence, judgment in default will be entered against him. Generally, a defence must be filed within 14 days of service of the claim. The defendant may obtain an extension of a further 14 days by filing an *acknowledgment of service.

2. In civil and criminal proceedings, an issue of law or fact that, if determined in favour of the defendant, will relieve him of liability wholly or in part.

See also general defences.

defence statement

A document setting out the accused's *defence in criminal proceedings for initial hearings before trial. The Criminal Procedure and Investigations Act 1996 provides that, from 1 April 1997, the accused need not make a defence statement at all; however, an adverse inference may be drawn from a failure to give a statement in the *Crown Court. The statement should set out the nature of the defence in general terms (for example, mistaken identification, alibi), indicate the matters on which the accused takes issue with the prosecution, and set out in respect of each matter the reason why the accused takes issue. It must not contain any inconsistent defences and should not be different from the defence to be put forward at trial.

defendant

n.

A person against whom court proceedings are brought.

Compare claimant.

deferred debt

In bankruptcy proceedings, a debt that by statute is not paid until all other debts have been paid in full.

deferred sentence

A *sentence imposed by a magistrates' court or the Crown Court after a period of up to six months from conviction for the offence. The court may postpone sentencing, if the convicted person agrees, if it wishes to assess any change in the offender's conduct or circumstances during that time.

defrauding

n.

Any act that deprives someone of something that is his or to which he might be entitled or that injures someone in relation to any proprietary right. It is a crime (a form of *conspiracy at common law) to conspire to defraud someone.

See also cheat; dishonesty.

degrading treatment or punishment

Treatment that arouses in the victim a feeling or fear, anguish, and inferiority capable of humiliating and debasing the victim and possibly breaking his physical or moral resistance. The prohibition on degrading treatment or punishment as set out in Article 3 of the European Convention on Human Rights is now part of UK law as a consequence of the *Human Rights Act 1998. This right is an *absolute right; such treatment can never be justified as being in the public interest, no matter how great that public interest might be. Public authorities have a limited but positive duty to protect this right from interference by third parties.

de jure

(Latin)

As a matter of legal right.

See recognition.

Compare de facto.

del credere agent

(Italian: of trust)

See agent.

delegated legislation

(subordinate legislation)

Legislation made under powers conferred by an Act of Parliament (an enabling statute, often called the parent Act). The bulk of delegated legislation is governmental: it consists mainly of *Orders in Council and instruments of various names (e.g. orders, regulations, rules, directions, and schemes) made by ministers (See also government circulars). Its primary use is to supplement Acts of Parliament by prescribing the detailed and technical rules required for their operation; unlike an Act, it has the advantage that it can be made (and later amended if necessary) without taking up parliamentary time. Delegated legislation is also made by a variety of bodies outside central government, examples being *byelaws, the *Rules of the Supreme Court, and the codes of conduct of certain professional bodies (See also orders of council).

Most delegated legislation (byelaws are the main exception) is subject to some degree of parliamentary control, which may take any of three principal forms:

(1) a simple requirement that it be laid before Parliament after being made (thus ensuring that members become aware of its existence but affording them no special method or opportunity of questioning its substance);

(2) a provision that it be laid and, for a specified period, liable to annulment by a resolution of either House (negative resolution procedure); or (3) a provision that it be laid and either shall not take effect until approved by resolutions of both Houses or shall cease to have effect unless approved within a specified period (affirmative resolution procedure). In the case of purely financial instruments, any provision for a negative or affirmative resolution refers to the House of Commons alone. (See also statutory instrument; special procedure orders.)

All delegated legislation is subject to judicial control under the doctrine of *ultra vires. Delegated legislation is interpreted in the light of the parent Act, so particular words are presumed to be used in the same sense as in that Act. This rule apart, it is governed by the same principles as those governing the *interpretation of statutes.

See also subdelegated legislation.

delegation

n.

1. The grant of authority to a person to act on behalf of one or more others, for agreed purposes.

2.

See vicarious liability.

delegatus non potest delegare

(Latin)

A person to whom something has been delegated cannot delegate further, i.e. one to whom powers and duties have been entrusted cannot entrust them to another. The rule applies particularly when the delegate possesses some special skill in the performance of the duties delegated, or when personal trust is involved. The rule does not apply if there is express or implied authority to delegate. Trustees, for example, have always been entitled to employ agents when this was necessary (for example, they can employ solicitors to do legal work). Since 1925, a trustee may delegate any business of the trust to an agent provided that he does so in good faith. Further, since 1971, any trustee may delegate, for a period not exceeding one year, any trusts, powers, or discretions he has; this delegation may be repeated.

Date: 2015-01-29; view: 1219