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╬xford_dictionary_of_law 19 page

de lege ferenda

(Latin: of (or concerning) the law that is to come into force)

A phrase used to indicate that a proposition relates to what the law ought to be or may in the future be.

de lege lata

(Latin: of (or concerning) the law that is in force)

A phrase used to indicate that a proposition relates to the law as it is.

delivery

n.

The transfer of possession of property from one person to another. Under the Sale of Goods Act 1979, a seller delivers goods to a buyer if he delivers them physically, if he makes symbolic delivery by delivering the document of title to them (e.g. a *bill of lading) or other means of control over them (e.g. the keys of a warehouse in which they are stored), or if a third party who is holding them acknowledges that he now holds them for the buyer. In constructive delivery, the seller agrees that he holds the goods on behalf of the buyer or the buyer has possession of the goods under a hire-purchase agreement and becomes owner on making the final payment.

demanding with menaces

See blackmail.

de minimis non curat lex

(Latin)

The law does not take account of trifles. It will not, for example, award damages for a trifling nuisance. The de minimis rule applies in a number of other areas, including EU *competition law.

demise

(in land law)

1. v. To grant a lease.

2. n.

The lease itself.

demise of the Crown

The death of the sovereign. The Crown, in fact, never dies: the accession of the new sovereign takes place at the moment of the demise, and there is no interregnum.

demonstrative legacy

See legacy.

demurrage

n.

Liquidated *damages payable under a charterparty at a specified daily rate for any days (demurrage days) required for completing the loading or discharging of cargo after the *lay days have expired. The word is also commonly used to denote the unliquidated damages to which the shipowner is entitled if, when no lay days are specified, the ship is detained for loading or unloading beyond a reasonable time.

departure

n.

The introduction of a new allegation of fact or the raising of a new ground or claim inconsistent with the party's earlier claim. Departure is not permitted by the Civil Procedure Rules, but it does not prevent the *amendment of documents used in litigation provided that the amended documents do not contain any departure. The principal effect of the rule is to prevent a claimant from setting up in his *reply a new claim that is inconsistent with the cause of action alleged in the particulars of claim.

dependant

n.

A person who relies on someone else for maintenance or financial support. On the death of the latter, the courts now have wide discretionary powers to award financial provision to dependants out of the estate of the deceased. The list of dependants includes not only spouses, former spouses, children, and children of the family, but anyone (e.g. a lover, housekeeper, or servant) who was being maintained to some extent by the deceased immediately before his death.



See also reasonable financial provision.

dependent relative revocation

The doctrine that if a testator revokes his will in the mistaken belief that a particular result will ensue, or that a particular set of facts exists when it does not, then the revoked will may still hold good. For example, if a testator destroys his will, in the mistaken belief that thereby an earlier will would be revived, the destroyed will will be held not to have been revoked. Similarly, a testator may revoke his will, intending to make another; the revoked will holds good if the testator subsequently makes no new will or an invalid one.

dependent state

A member of the community of states with qualified or limited status. Such states possess no separate statehood or sovereignty: it is the parent state alone that possesses *international legal personality and has the capacity to exercise international rights and duties.

dependent territory

A territory (e.g. a colony) the government of which is to some extent the legal responsibility of the government of another territory.

deportation

n.

The removal from a state of a person whose initial entry into that state was illegal (Compare expulsion). In the UK this is authorized by the Immigration Act 1971 as amended by the Immigration and Asylum Act 1999 in the case of any person who does not have the right of abode there (See immigration). He may be ordered to leave the country in four circumstances: if he has overstayed or broken a condition attached to his permission to stay; if another person to whose family he belongs is deported; if (he being 17 or over) a court recommends deportation on his conviction of an offence punishable with imprisonment; or if the Secretary of State thinks his deportation to be for the public good. The Act enables appeals to be made against deportation orders. Normally, they are either direct to the *Immigration Appeal Tribunal or to that tribunal after a preliminary appeal to an adjudicator. The Immigration Act 1988 restricts this right of appeal in the case of those who have failed to observe a condition or limitation on their leave to enter the UK. The Immigration and Asylum Act 1999 gives additional powers to order those present in the UK without permission to leave, either when they have overstayed or obtained leave to remain by deception or when they were never granted leave to remain. It also provides for the removal of asylum claimants under standing arrangements with other EU member states.

depose

v.

To make a *deposition or other written statement on oath.

deposit

n.

1. A sum paid by one party to a contract to the other party as a guarantee that the first party will carry out the terms of the contract. The first party will forfeit the sum in question if he does not carry out the terms, even if the sum is in excess of the other party's loss. If the contract is completed without dispute the deposit becomes part payment. In land law a deposit is usually made by a purchaser when exchanging contracts (See exchange of contracts) for the purchase of land. The contract stipulates whether the recipient (usually the vendor's solicitor or estate agent) holds the deposit as agent for the vendor, in which case the vendor can use the money pending *completion of the transaction, or as stakeholder, in which case the funds must remain in the stakeholder's account until completion or (in the case of a dispute) a court has decided who should have it. If the contract is rescinded the purchaser is entitled to the return of his deposit.

2. The placing of title deeds with a mortgagee of unregistered land as security for the debt. A mortgagee not protected by deposit of title deeds (such as a second mortgagee of unregistered land) registers his mortgage (See registration of encumbrances) and is then entitled to receive the title deeds from prior mortgagees after the redemption of their security. All mortgages of registered land must be registered to be binding on purchases of the land.

deposition

n.

A statement made on oath before a magistrate or court official by a witness and usually recorded in writing. In criminal cases depositions are taken during committal proceedings before the magistrates' court (See committal for trial). The usual procedure is that the prosecution witnesses give their evidence on oath and may be cross-examined by the accused or his legal advisers. The statement is then written down by the magistrates' clerk, read out to the witness in the presence of the accused, signed by the witness, and certified by the examining magistrate. The accused must be present throughout and be allowed to cross-examine. If these conditions are not fulfilled, both the committal proceedings and the subsequent trial will be null and void. There are special arrangements for depositions to be written down out of court if a witness is dangerously ill and cannot come to court, and also for depositions by children. Depositions made in committal proceedings are accepted as evidence at the trial if the witness is dead or insane, unfit to travel because of illness, or is being kept out of the way by the accused; they are also accepted to show a discrepancy between the deposition evidence and evidence given later on orally at the trial.

In civil cases the court may order an examiner of the court to take depositions from any witnesses who are (for example) ill or likely to be abroad at the time of the hearing. At the taking of the deposition the witness is examined and cross-examined in the usual way, and the examiner notes any objection to admissibility that may be raised. The deposition is not admissible at the trial without the consent of the party against whom it is given, unless the witness is still unavailable.

See also letter of request.

deprave

v.

To make morally bad. The term is used particularly in relation to the effect of *obscene publications. A person is considered to have been depraved if his mind is influenced in an immoral way, even though this does not necessarily result in any act of depravity.

derecognition

n.

A process whereby notice is given to terminate union recognition in an establishment or company. Employees continue to have the right to belong to a trade union, but the employer no longer negotiates collectively: terms and conditions previously the subject of *collective bargaining are negotiated individually or with groups of employees unconnected with trade unions, resulting in a personal contract.

See also recognition procedure.

deregulation

n.

1. The controls imposed by governments on the operation of markets, such as is allowed for under the Deregulation and Contracting Out Act 1990.

2. A movement in the EU to reduce rules at Community level that could be better set at national level (See subsidiarity).

derivative action

Civil proceedings brought by a minority of company members in their own names seeking a remedy for the company in respect of a wrong done to it. Such proceedings are exceptional; usually an action should be brought by the company (the injured party) in its own name. A derivative action will only be permitted when a serious wrong to the company is involved, which cannot be ratified by an ordinary resolution of company members (e.g. an *ultra vires or illegal act or a case of *fraud on the minority) and the majority of members will not sanction an action in the company's name.

Compare representative action.

derivative deed

A deed that is supplemental to another, whose scope it alters, confirms, or extends. An example is a deed admitting a new partner to a firm on terms set out in a principal deed executed by the original partners.

derivative title

A claim of sovereignty over a territory, that territory having previously belonged to another sovereign state. Derivation of title to territory involves the transfer (*cession) of title from one sovereign state to another.

derogation

n.

Lessening or restriction of the authority, strength, or power of a law, right, or obligation. Specifically:

1. (in the European Convention on Human Rights) A provision that enables a signatory state to avoid the obligations of some but not all of the substantive provisions of the rest of the Convention. This procedure is provided by Article 15 of the Convention and is available in time of war or other public emergency threatening the life of the nation. Although Article 15 is not brought into domestic law by the *Human Rights Act 1998, the Act exempts public authorities from compliance from any articles (or parts of articles) where a derogation is in place.

2. (in EU law) An exemption clause that permits a member state of the EU to avoid a certain directive or regulation. Sometimes member states are allowed a longer than normal time to implement an EU directive.

desertion

n.

1. The failure by a husband or wife to cohabit with his or her spouse. Desertion usually takes the form of physically leaving the home, but this is not essential: there may be desertion although both parties live under the same roof, if all elements of a shared life (e.g. sexual intercourse, eating meals together) have ceased. Desertion must be a unilateral act carried out against the wishes of the other spouse, with the intention of bringing married life to an end (animus deserendi). If it is continuous for more than two years, it may be evidence that the marriage has irretrievably broken down and entitle the deserted spouse to a decree of *divorce.

See also constructive desertion.

2. An offence against service law committed by a member of the armed forces who leaves or fails to attend at his unit, ship, or place of duty. He must either intend at the time to remain permanently absent from duty without lawful authority or subsequently form that intention. One who absents himself without leave to avoid service overseas or service before the enemy is also guilty of desertion.

design right

Legal protection for the external appearance of an article, including its shape, configuration, pattern, or ornament. A design right is distinct from a *patent, which protects the internal workings of the article. The right entitles the owner to prevent others making articles to the same design. Design rights in the UK are either registered (See registered design) or unregistered. Registered designs must have aesthetic appeal; they are protected under the Registered Designs Act 1949 as amended and last for a maximum of 25 years provided renewal fees are paid. Unregistered designs, which came into existence in 1989, are protected under the Copyright, Designs and Patents Act 1988. Unregistered design protection is for only 15 years. Design protection is not available for parts of articles that simply provide a fit or match to another article, such as a car-body panel.

de son tort

See executor de son tort; trustee de son tort.

detention

n.

Depriving a person of his liberty against his will following *arrest. The Police and Criminal Evidence Act 1984 closely regulates police powers of detention and detained persons' rights. Detention of adults without charge is allowed only when it is necessary to secure or preserve evidence or to obtain it by questioning; it should only continue beyond 24 hours (to 36 hours) in respect of serious arrestable offences (e.g. rape, kidnapping, causing death by dangerous driving) when a superintendent or more senior officer reasonably believes it to be necessary. Magistrates' courts may then authorize a further extension without charge for up to 36 hours, which can be extended for another 36 hours, but the overall detention period cannot exceed 96 hours.

If the ground for detention ceases, or if further detention is not authorized, the detainee must either be released or be charged and either released on *bail to appear before a court or taken before the next available court. An arrested person held in custody may have one person told of this as soon as practicable, though if a serious arrestable offence is involved and a senior police officer reasonably believes that this would interfere with the investigation, this can be delayed for up to 36 hours. The detainee has a broadly similar right of access to a solicitor. Terrorism (*terrorism) suspects may be detained for up to seven days on a magistrate's authority.

detention centre

See detention in a young offender institution.

detention in a young offender institution

A custodial sentence that may be passed on a person aged 15 or over but under 21 (See juvenile offender). It combines the former detention centre orders (against male offenders aged 14 to 20) and youth custody sentences (for males and females aged 15 to 20). The offence must be so serious, by itself or with another offence, that detention is the only justifiable outcome; alternatively it must be a violent or sexual offence and detention in such an institution is the only way of protecting the public from further injury or death. The court may consider *mitigation and impose a noncustodial sentence.

The minimum detention period is 21 days and the maximum period is 24 months. Other custodial sentences include custody for life and secure training orders.

determinable interest

An interest that will automatically come to an end on the occurrence of some specified event (which, however, may never happen). For example, if A conveys land to B until he marries, B has a determinable interest that would pass back to A upon his marriage. But if B dies a bachelor the *possibility of a reverter to A is destroyed and B's heirs acquire an absolute interest. An interest that must end at some future point (e.g. a *life interest) is not classified as a determinable interest, but one that could end during a person's life (for example a *protective trust) is so classified. A determinable legal estate in land prior to 1925 was known as a determinable fee, but under the Law of Property Act 1925 it can now exist only as an equitable interest. It is exceptionally difficult to distinguish between a determinable interest and a *conditional interest.

Compare contingent interest.

deterrence

n.

See punishment.

detinue

n.

An action to recover goods, based on a wrongful refusal by the possessor of the goods to restore them to the owner. The old common law form of action was abolished by the Judicature Acts 1873-75 and detinue was abolished altogether by the Torts (Interference with Goods) Act 1977. Recovery of goods is now governed by the provisions of the 1977 Act.

devastavit

n.

(Latin: he has wasted)

The failure of a personal representative to administer a deceased person's estate promptly and in a proper manner. For example, if he pays in full a legacy subject to the possibility of *abatement he is personally liable for the loss suffered by other beneficiaries and caused by his devastavit. He may also be liable if, for example, he disposes of an asset in the estate at an undervalue, even if acting in good faith.

development

n.

(in *town and country planning) Generally, the carrying out of any building or other operation affecting land and the making of any material change in the use of any buildings or land. Development does not include alterations to buildings not materially affecting their external appearance or changes of use that fall within certain use classes prescribed by statutory instrument. For example, office use is a use class and a mere change in the type of office business is not development. All development requires planning permission, other than "permitted development" under a general development order. The demolition of houses to provide car parking and a landscaped area is not development.

development land

(community land)

Under the Community Land Act 1975, land classified by a local authority as needed for commercial development and required to be brought first into public ownership, thus effectively nationalizing its development value. This Act was repealed by the Local Government, Planning and Land Act 1980.

development land tax

A tax charged on the development value of land when the land was disposed of before 19 March 1985. It was abolished for all disposals after that date by the Finance Act 1985.

development plan

See town and country planning.

deviation

n.

(in marine insurance)

The departure of a ship from an agreed course. A ship must follow the course specified in a voyage or mixed insurance policy (See time policy); if no course is specified, the ship must follow the usual course for the voyage. Deviation discharges the underwriters from all liability for subsequent loss (even though it may not increase the risk) unless it is caused by circumstances beyond control or is justified on certain very limited grounds (e.g. to ensure the safety of the ship or to save human life, but not merely to save property). Unreasonable delay may also amount to deviation. Insurance cover does not revive when the ship rejoins the original course. Between the parties to a voyage charter, the possibility of deviation is normally the subject of an express deviation clause in the *charterparty. For goods carried under a *bill of lading, permitted deviation is dealt with by the Hague Rules.

devil

1. n. A junior member of the Bar who does work (usually settling statements of case or writing opinions) for a more senior barrister under an informal arrangement between them and without reference to the senior's instructing solicitor. The Junior Counsel to the Treasury is sometimes referred to as the Attorney General's devil.

2. vb. To act as a devil.

devise

1. n.

A gift by will of *real property (Compare bequest; legacy); the beneficiary is called the devisee. A devise may be specific (e.g. "my house, Blackacre, to A"), general (e.g. "all my real property to B"), or residuary (e.g. after a specific devise "...and the rest of my real property to C").

2. vb. To dispose of real property by will.

devolution

n.

1. The delegation by the central government to a regional authority of legislative or executive functions (or both) relating to domestic issues within the region. The word is most commonly used in the context of such functions in Scotland, Wales, and Northern Ireland. For example, the Scotland Act 1998 devolved power to the *Scottish Parliament, enabling it to make certain Acts in some areas of policy and to alter income tax. However, the UK parliament reserved power to make laws for Scotland. The Government of Wales Act 1998 gave limited administrative powers to the *Welsh Assembly with the UK parliament continuing to legislate for Wales. The Northern Ireland Act 1998 established an elected *Northern Ireland Assembly but made devolution of power to the Assembly conditional on the decommissioning of arms by paramilitary groups. The Northern Ireland Act 2000 enables power to revert to the UK parliament upon failure to decommission arms, suspending the Northern Ireland Assembly until the Secretary of State makes a restoration order.

2. The passing of property from one owner to another, which may occur on death or sale, as a gift, by operation of law, or in any other way.

dictum

n.

(Latin: a saying)

An observation by a judge with respect to a point of law arising in a case before him.

See also obiter dictum.

digital signature

Data appended to a unit of data held on a computer, or a cryptographic transformation of a data unit, that allows the recipient of the data unit to prove its source and integrity and protects against forgery. The International Standards Organization defined this means of identification and protection. An *electronic signature, as defined by the Electronic Communications Act 2000, has a similar effect in relation to a commercial agreement.

dilapidation

n.

A state of disrepair. The term is usually used in relation to repairs required at the end of a lease or tenancy.

diminished responsibility

An abnormal state of mind that does not constitute *insanity but is a special defence to a charge of murder. The abnormality of mind (which need not be a brain disease) must substantially impair the mental responsibility of the accused for his acts, i.e. it must reduce his powers of control, judgment, or reasoning to a condition that would be considered abnormal by the ordinary man. It may be caused by disease, injury, or mental subnormality, and is liberally interpreted to cover such conditions as depression or *irresistible impulse. If the defendant proves the defence, he is convicted of *manslaughter.

See also battered spouse or cohabitant.

diplomatic agent

One of a class of state officials who are entrusted with the responsibility for representing their state and its interests and welfare and that of its citizens or subjects in the jurisdiction of another state or in international organizations. Diplomatic agents can be generally classified into two groups: (1) heads of mission and (2) members of the staff of the mission having diplomatic rank.

See also diplomatic immunity; diplomatic mission.

diplomatic immunity

The freedom from legal proceedings in the UK that is granted to members of diplomatic missions of foreign states by the Diplomatic Privileges Act 1964. This Act incorporates some of the provisions of the Vienna Convention on Diplomatic Relations (1961), which governs diplomatic immunity in international law. The extent of the immunity depends upon the status of the member in question, as certified by the Secretary of State. If he is a member of the mission's diplomatic staff, he is entitled to complete criminal immunity and to civil immunity except for actions relating to certain private activities. A member of the administrative or technical staff has full criminal immunity, but his civil immunity relates only to acts performed in the course of his official duties. For domestic staff, both criminal and civil immunity are restricted to official duties.

Similar immunities are granted to members of Commonwealth missions by the Diplomatic and other Privileges Act 1971, and to members of certain international bodies under the International Organisations Acts 1968 and 1981. Under the Diplomatic and Consular Premises Act 1987, the Secretary of State may remove diplomatic status from diplomatic or consular premises that are being misused.

diplomatic mission

A body composed of government officers representing the interests and welfare of their state who have been posted abroad (by the sending state) and operate within the jurisdisdiction of another state (the receiving state). This mission will be accorded protection by the receiving state in accordance with the rules of *diplomatic immunity.

See also diplomatic agent.

direct effect

(in EU law)

See Community legislation.

direct evidence

(original evidence)

1. A statement made by a witness in court offered as proof of the truth of any fact stated by him.

Compare hearsay evidence.

2. A statement of a witness that he perceived a fact in issue with one of his five senses or that he was in a particular physical or mental state.

Compare circumstantial evidence.

direction to jury

The duty of a judge to instruct a jury on a point of law (e.g. the definition of the crime charged or the nature and scope of possible defences). Failure to carry out this instruction correctly may be grounds for an appeal if a miscarriage of justice is likely to have occurred as a result of the misdirection.

directives of the EU

See Community legislation.

Direct Labour Organization

A local government division, staffed by local government employees, that submits bids for services in competition with private-sector companies when these services are put out to compulsory *competitive tendering.

directly applicable law

Any provision of the law of the European Community that forms part of the national law of a member state.

See Community law; Community legislation.

directly effective law

See Community law; Community legislation.

director

n.

An officer of a company appointed by or under the provisions of the *articles of association. Directors may have a contract of employment with the company (service directors and *managing directors) or merely attend board meetings (nonexecutive directors). (See also shadow director). Contracts of employment can be inspected by company members; long-term contracts may require approval by ordinary resolution. Usually, general management powers are vested in the directors acting collectively, although they may delegate some or all of these powers to the managing director. Directors act as agents of their company, to which they owe *fiduciary duties (in the performance of which they must consider the interests of both company members and employees) and a *duty of care. Transactions involving a conflict between their duty and their personal interests are regulated by the Companies Acts. Directors can be dismissed by *ordinary resolution despite the terms of the articles or any contract of employment, but dismissal in these circumstances is subject to the payment of damages for breach of contract. Under the Company Directors Disqualification Act 1986, directors may be disqualified for *fraudulent trading or *wrongful trading and conduct that makes them unfit to be concerned in the management of companies.

Remuneration of directors for their services may be due under a contract of employment or determined by the general meeting. Particulars appear in the *accounts.

Director General of Fair Trading

The head of the Office of Fair Trading, who is appointed for a five-year term by the Secretary of State for Trade and Industry. He is responsible for reviewing the carrying on of commercial activities in the UK relating to the supply of goods or services supplied to consumers in the UK and for identifying situations relating to monopolies (*monopoly) and *anticompetitive practices.


Date: 2015-01-29; view: 79


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