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╬xford_dictionary_of_law 23 page

enrolment

n.

The registration of an act or document on an official record. It used to be obligatory to enrol many documents in the Enrolment Office, a department of the Chancery Division. Nearly all such obligations were abolished by the Judicature Acts 1873-75.

entailed interest

An *equitable interest in land under which ownership is limited to a person and the heirs of his body (either generally or those of a specified class). Such heirs are still those who would inherit under the law of intestacy as it applied before the Administration of Estates Act 1925. Since 1997, no new entailed interests can be created. An attempt to do so creates an absolute interest instead.

enter

v.

1. (in the law of *burglary) To make "an effective and substantial" entry as a trespasser. This does not necessarily require entry of the whole of the defendant's body.

2. (in land law)

See entry into possession.

entering judgment

A procedure in civil courts in which a judgment is formally recorded by the court after it has been given. In the Queen's Bench Division it is necessary for the party seeking to have judgment entered to draw up the judgment and present it to an officer of the court for entry together with the certificate of the associate (clerk of the court) and the statements of case. In the county court, the court itself draws up and enters the judgment.

Enterprise Investment Scheme

(EIS)

A scheme to encourage investment in unquoted companies; it replaced the similar Business Expansion Scheme on 1 January 1994. It gives income tax relief of 20% on investments to individuals who invest from £500 to £150,000 in anyone year in shares issued by UK trading companies not quoted on the Stock Exchange. Shares issued under this scheme are also exempt from capital gains tax. Investors can hold paid directorships of the companies; there is also income and capital gains tax relief on losses. Companies providing private housing on assured tenancies are excluded from the scheme.

entire contract

See performance of contract.

entrapment

n.

Deliberately trapping a person into committing a crime in order to secure his conviction, as by offering to buy drugs. English courts do not recognize a defence of entrapment as such, since the defendant is still considered to have a free choice in his acts. Under the Police and Criminal Evidence Act 1984, entrapment may be a reason for making certain evidence inadmissible on the ground that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The question of the admissibility of evidence obtained through entrapment is in some doubt as a consequence of the cases now being decided under the Human Rights Act 1998. Entrapment may also be used as a reason for mitigating a sentence.

See also agent provocateur.

entry into possession

The act of going upon land to assert some right over it. For example, a lease usually gives the landlord the right to enter and take possession if the tenant fails to pay the rent or commits a breach of covenant. A mortgagee has the right to recover possession from a defaulting mortgagor who is in possession. In general, such rights of entry cannot be enforced unless the court orders the defaulter to give up possession.



entry without warrant

Entry by a police officer onto private premises without the authority of a warrant. This is in general unlawful except with the occupier's consent (which is revocable), but it is permitted by statute for the purpose of arresting for certain offences (See arrestable offence) and in certain circumstances to search premises (See power of search); it is also allowed at common law to stop an actual or apprehended breach of the peace.

epitome of title

See abstract of title.

equality clause

A clause in a contract of employment stipulating that if a woman is employed on similar work to that of a man in the same employment, or on work rated as equivalent or of like value to his, the terms of her contract must place her in no less favourable a position than the man. A contract not containing such a clause (either directly or as a result of some collective agreement) is deemed to include one by virtue of the Equal Pay Act 1970 as amended by the Sex Discrimination Acts 1975 and 1986 and by the Equal Pay (Amendment) Regulations 1983. However, the clause does not affect certain statutory requirements concerning the employment of women (e.g. with respect to health and safety requirements) or their *maternity rights.

See also equal pay; sex discrimination.

equality is equity

(from Latin: aequitasest quasi aequalitas)

A *maxim of equity stating that if there are no reasons for any other basis of division of property, those entitled to it shall share it equally.

equality of arms

A concept that has been created by the European Court of Human Rights in the context of the right to a *fair trial (Article 6). Equality of arms requires that there be a fair balance between the opportunities afforded the parties involved in litigation (for example, each party should be able to call witnesses and cross-examine the witnesses called by the other party). In some circumstances this may require the provision of financial support to allow a person of limited means to pay for legal representation.

Equal Opportunities Commission

A body established by the Sex Discrimination Acts 1975 and 1986 to work towards eliminating discrimination on grounds of sex or marital status, to promote equality of opportunity between the sexes, and to keep the working of the Acts, and of the Equal Pay Act 1970, under review. It consists of 8-15 Commissioners.

See sex discrimination.

equal pay

The requirement of the Equal Pay Act 1970 that men and women in the same employment must be paid at the same rate for like work or work rated as equivalent or of equal value. They are in the same employment if they work at the same establishment (or if one works at an establishment that includes the other's) and they work for the same or an associated *employer. The establishments must also be those at which the terms and conditions of employment are observed generally or for employees of the relevant description. "Like work" is work that is broadly similar, where any differences between the man's work and the woman's are not of practical importance. Work is rated as equivalent when the employer has undertaken a study to evaluate his employees' jobs in terms of the skill, effort, and responsibility demanded of them and the woman's job is given the same grade as the man's. If the employer has no job-evaluation scheme, an independent expert is appointed by an employment tribunal to evaluate the two jobs to

See if they are of equal value. Thus when the employer's job-grading system or the expert's report recognizes that the woman's job is as demanding as the man's, they are entitled to equal pay even though the nature of the work they do is very different. An employer's job-evaluation system can be challenged on the basis that it is discriminatory.

See also equality clause.

The Code of Practice on Equal Pay, which was drafted by the Equal Opportunities Commission and applies to all employers, came into effect on 26 March 1997. The Code requires employers to review current pay structures and policy; introduce an equal-pay policy and ensure that pay structures and grades are transparent; change any rules of practice that are likely to result in discrimination in pay; establish a continuous monitoring procedure and on-going assessment so that bad practices do not develop; and assess whether there are any discrepancies in pay levels between male and female staff. The Code is admissible in evidence in any tribunal proceedings under the Sex Discrimination Act 1975 and the Equal Pay Act 1970.

equal treatment

The requirement, enshrined in the Treaty of Rome, that nationals of one EU state moving to work in another EU state must be treated in the same way as those workers of the state to which they have moved. There must be *free movement of workers throughout the EU and no discrimination in relation to pay, social security, and tax benefits.

See also equal pay.

equitable

adj.

1. Recognized by or in accordance with the rules of equity: applied to distinguish certain concepts used in both common or statute law and in equity. For example, assignments and mortgages can be either legal or equitable.

2. Describing a right or concept recognized by the Court of Chancery.

3. Just, fair, and reasonable. For example, a document may have two meanings, one strict and the other (the equitable construction) more benevolent.

equitable assignment

See assignment.

equitable charge

1. See equitable mortgage.

2. A *charge created by designating specific property for the discharge of some debt or other obligation. No special form of words is necessary to create an equitable charge, manifested intention being sufficient.

See general equitable charge.

equitable easement

See easement.

equitable estate

A right in property recognized by the Court of Chancery, as distinct from a *legal estate recognized in common law courts (See estate). Equitable estates reflected legal interests but could be more flexible (Compare shifting use; springing use). Before 1926, most types of estate could exist either at law or in equity; since 1925 only a limited number of legal estates can exist; all other interests m land are called *equitable interests. The term equitable estate is now technically Incorrect.

equitable estoppel

See estoppel.

equitable execution

Means of enforcing the judgment of a court when the judgment creditor cannot obtain satisfaction from the normal methods of *execution. For example, the creditor may appoint a receiver to manage the defendant's property or he may obtain an injunction to prevent the defendant from dealing with the property. These remedies are often regarded as relief granted by the court, rather than as execution.

equitable interests

Interests in property originally recognized by the Court of Chancery, as distinct from legal interests recognized in the common-law courts. They arose in cases when it was against the principles of *equity for a person to enforce a legal right. Originally equitable rights (e.g. a trust, or the equity of redemption under a mortgage) were enforceable against the person with a legal right over property in question. Later, however, those who were given the property by the holder of the legal interests took it subject to equitable interests; later still, anyone who bought property knowing of the equitable interests was bound by them. In the developed law, everyone took property subject to equitable interests except those who bought it and neither knew nor ought to have known of the equitable interests (the doctrine of notice). Since 1925, equitable interests may be protected by the doctrine of *overreaching, under the system of *land charges, or by notice.

equitable lease

An agreement for the grant of an interest in land on terms that correspond to a *legal lease but do not comply with the necessary formal requirements of a legal lease. For example, if L purports to grant T a lease for seven years but the transaction is effected by simple written contract to grant a lease rather than by deed, the court may enforce the contract to grant the lease between the parties. This follows the principle that "equity looks upon that as done which ought to be done" (See maxims of equity). Further, T's rights under the contract could be registered as an *estate contract and thus bind any third party acquiring L's interest in the land.

equitable lien

See lien.

equitable mortgage

(equitable charge)

A *mortgage under which the mortgagee does not obtain a legal estate in the land. An equitable mortgage may arise as follows:

(1) If the mortgagor has only an *equitable interest in the land, he can only grant an equitable mortgage. For example, a mortgage granted by a beneficiary under a *trust of land could only be equitable.

(2) An equitable mortgage will arise if the mortgage is made by deed (a requirement for legal mortgages). The contract for the mortgage must nevertheless be made in writing.

equitable presumptions

Presumptions (*presumptions) assumed by equity in certain cases. The main examples are the presumption of *resulting trust, the presumption of *advancement, and the presumption of equality (See equality is equity).

equitable remedies

Means granted by *equity to redress a wrong. Since the. range of legal remedies was originally very limited, equity showed great flexibility in granting remedies, which were discretionary: the conduct of the parties, particularly that of the claimant, was taken into account (See clean hands). The main equitable remedies are now *specific performance-, *rescission, cancellation, *rectification, *account, *injunction, and the appointment of a *receiver. These remedies may be sought in any division of the High Court or, in some instances, in the county courts; they are still discretionary in nature, although the discretion is often exercised on established lines.

equitable rights

Rights recognized by *equity.

See equitable interests; equitable remedies.

equitable waste

Alterations made by a tenant that cause serious damage to the leased property.

See waste.

equity

n.

1. That part of English law originally administered by the *Lord Chancellor and later by the *Court of Chancery, as distinct from that administered by the courts of *common law. The common law did not recognize certain concepts (e.g. uses and trusts) and its remedies were limited in scope and flexibility, since It relied primarily on the remedy of damages. In the Middle Ages litigants were entitled to petition the king, who relied on the advice of his Chancellor, commonly an ecclesiastic ("the keeper of the king's conscience"), to do justice In each case. By the 15th century, petitions were referred directly to the Chancellor, who dealt with cases on a flexible basis: he was more concerned with the fair result than with rigid principles of law (hence the jurist John Selden's jibe that "equity varied with the length of the Chancellor's foot"). Moreover, if a defendant refused to comply with the Chancellor's order, he would be imprisoned for contempt of the order until he chose to comply (See in personam). In the 17th century conflict arose between the common-law judges and the Chancellor as to who should prevail; James I resolved the dispute in favour of the Chancellor. General principles began to emerge, and by the early 19th century the Court of Chancery was more organized and its jurisdiction, once flexible, had ossified into a body of precedent with fixed principles. The Court of Chancery had varying types of jurisdiction (See auxiliary jurisdiction; concurrent jurisdiction; exclusive jurisdiction) and many of its general principles were stated in the form of *maxims of equity; equity had (and still has) certain doctrines (See election; conversion; reconversion; performance of contract; satisfaction). Under the Judicature Acts 1873-75, with the establishment of the High Court of Justice to administer both common law and equity, the Court of Chancery was abolished (though much of its work is still carried out by the *Chancery Division). The Judicature Acts also provided that in cases in which there was a conflict between the rules of law and equity, the rules of equity should prevail. The main areas of equitable jurisdiction now include *trusts, *equitable interests over property, relief against *forfeiture and penalties, and equitable remedies (*equitable remedy). Equity is thus a regulated scheme of legal principles, but new developments are still possible ("equity is not past the age of child-bearing"): recent examples of its creativity include the *freezing injunction and the *search order.

2. An equitable right or claim, especially an *equitable interest, or *equity of redemption, or *mere equity.

3. A share in a limited company.

equity of redemption

The rights of a mortgagor over his mortgaged property, particularly the right to redeem the property. This right of redemption allows a mortgagor to redeem the mortgaged property at any time on payment of principal. interest, and costs, even after the contractual date of redemption, as stated in the mortgage deed, has passed. Any *clogs on the equity of redemption are void, but the mortgagor's rights may be terminated under certain circumstances (See mortgage).

Before 1926 a mortgage was commonly effected by the transfer of the mortgagor's interest in the property to the mortgagee, but the mortgagor's rights were recognized by equity. Since 1925 the mortgagor retains legal ownership of the property in all cases: the term equity of redemption is still used, however, although the right to redeem is no longer strictly an equitable interest.

erga omnes obligations

(Latin: towards all)

(in international law)

Obligations in whose fulfilment all states have a legal interest because their subject matter is of importance to the international community as a whole. It follows from this that the breach of such an obligation is of concern not only to the victimized state but also to all the other members of the international community. Thus, in the event of a breach of these obligations, every state must be considered justified in invoking (probably through judicial channels) the responsibility of the guilty state committing the internationally wrongful act. It has been suggested that an example of an erga omnes obligation is that of a people's right to *self-determination.

ERM

See exchange rate mechanism.

error

n.

A mistake of law in a judgment or order of a court or in some procedural step in legal proceedings. A writ of error was formerly used to instruct an inferior court to send records of its proceedings for review by a superior court. It was abolished in civil cases by the Judicature Acts 1873-75 and in criminal cases by the Criminal Appeal Act 1907 and replaced by the modern system of *appeal.

error of law on the face of the record

A mistake of law that is made by an inferior court or tribunal in reaching a decision and is apparent from the record of its proceedings. The decision can be quashed by the High Court in *judicial review proceedings by the remedy of *quashing order except in the case of a *domestic tribunal with purely contractual powers.

See also ultra vires.

escape

n.

The common-law offence of escaping from lawful custody. The custody may be in prison or a police station, or even in the open air. The escaper need not have been charged with any offence, provided his detention is lawful (e.g. he may be detained to provide a *specimen of breath). Nor is it necessary for him to commit any act of breaking out. It is also an offence to help the escape of a prisoner and to permit a prisoner who is detained in relation to a criminal matter to escape. If someone actually breaks out of a building in which he is lawfully confined he commits a separate offence of prison breaking.

escrow

n.

See deed.

espousal of claim

The action by which a state undertakes to gain redress of a grievance on behalf of one of its subjects or citizens.

See also exhaustion of local remedies.

essence of a contract

See condition.

estate

n.

1. (in land law) The character and duration of a person's ownership of land. For example, an estate in fee simple confers effectively absolute ownership; an estate for a term of years (called leasehold) or for life are lesser estates. Under the Law of Property Act 1925 only a *fee simple absolute in possession (called freehold) and a *term of years absolute can exist as legal estates in land. All other forms of ownership, e.g. an estate for life or an estate in fee simple coming into effect only on someone's death, are equitable only.

2. (in revenue law)The aggregate of all the property to which a person is beneficially entitled. Excluded property, which includes most reversionary interests and certain foreign matters, is not taken into account for the death charge (See inheritance tax).

estate agent

A person who introduces prospective buyers and sellers of property to each other. Such a person may be a member of a professional body but must, in any event, under the Estate Agents Act 1979, take out insurance cover to protect money received as deposits from clients. The Property Misdescription Act 1991 prohibits estate agents from making false or misleading statements about property in the course of their business; making such statements is punishable by a fine of up to £5000 or possibly by imprisonment.

See also misdescription.

estate contract

A contract in which the owner of land agrees to create or convey a legal estate in the land; for example, he may contract to grant a lease or to sell or he may grant a valid option to purchase. The contract confers on the purchaser an equitable interest that is enforceable against third parties if registered.

See registration of encumbrances.

estate duty

An obsolete tax formerly levied on the value of property passing on death.

See inheritance tax.

estate for years

Ownership of land subsisting by reference to a period of time.

See term of years.

estate owner

The owner of a *legal estate in land.

estate pur autre vie

(estate per autre vie)

(from Norman French: autre vie, other life)

An interest in property for the lifetime of someone else. If A is given property for B's life, A is the tenant pur autre vie and will hold the property during the lifetime of B (the cestui que vie). If A dies before B, the persons entitled under A's will or on his intestacy will take the interest for the remainder of B's life; if B dies before A, A's interest thereupon terminates. The interest is a kind of *life interest and an estate of freehold, i.e. it could be inherited; since 1925 it has been an equitable interest only (*equitable interests).

estate rentcharge

See rentcharge.

estate subsisting at law

See legal estate.

estoppel

n.

(from Norman French estouper, to stop up)

A rule of evidence or a rule of law that prevents a person from denying the truth of a statement he has made or from denying facts that he has alleged to exist, The denial must have been acted upon (probably to his disadvantage) by the person who wishes to take advantage of the estoppel or his position must have been altered as a result.

There are several varieties of estoppel. Estoppel by conduct (or in pais) arises when the party estopped has made a statement or has led the other party to believe in a certain fact. Estoppel by deed prevents a person who has executed a deed from saying that the facts stated in the deed are not true. Estoppel by record (or per rem judicatam) prevents a person from reopening questions that are *res judicata (i.e. that have been determined against him in a previous legal proceeding).

See also issue estoppel.

There are two forms of equitable estoppel - promissory and proprietary. The doctrine of promissory estoppel applies when one party to a contract promises the other (by words or conduct) that he will not enforce his rights under the contract in whole or in part. Provided that the other party has acted in reliance on that promise, It will, though unsupported by consideration, bind the person making it: he will not be allowed subsequently to sue on the contract. When applicable, the doctrine thus modifies the common-law rules relating to *accord and satisfaction. Under the doctrine of proprietary estoppel, the courts can grant a discretionary remedy in Circumstances where an owner of land has implicitly or explicitly led another to act detrimentally in the belief that rights in or over land would be acquired. The remedy may take the form of the grant of a *fee simple in the property at one extreme or the grant of a short-term occupational *licence at the other.

estovers

pl. n.

The right to cut timber for certain purposes from land not in one's own absolute ownership. The right arises in favour of a lessee or *tenant for life under a settlement of the land and it can exist as a *profit à prendre. Estovers comprise the right to take timber as:

(1) house bote, for repairing a dwelling or for use as firewood in it;

(2) plough bote, for repairing farm implements; and

(3) hay bote, for repairing fences.

In each case the lessee or tenant may take only sufficient timber for present needs and not for future requirements. Estovers as profits à prendre are usually *appurtenant.

Estrada doctrine

The doctrine that *recognition of a government should be based on its de facto existence, rather than on its legitimacy. It is named after Don Genero Estrada, the Mexican Secretary of Foreign Affairs who in 1930 ordered that Mexican diplomats should issue no declarations that amounted to a grant of recognition: he felt that this was an insulting practice and offended against the sovereignty of other nations. In 1980 the UK, USA, and many other states adopted the Estrada doctrine.

Compare tobar doctrine.

estreat

(from Old French estraif, 'an abstract of record')

1. n. an extract from a record relating to *recognizances and fines.

2. v. To forfeit a recognizance, especially one given by the surety of someone admitted to bail, or to enforce a fine.

ET

See employment tribunal.

ethnic cleansing

See ethnic minority.

ethnic minority

A group numerically inferior to the rest of the population of a state whose members are nationals of that state and possess cultural, religious, or linguistic characteristics distinct from those of the total population and show, If only implicitly, a sense of solidarity, directed towards preserving their own social customs, religion, or language. The attempted extirpation of an ethnic minority by the forces of the majority within a state (known as ethnic cleansing) can be regarded as a crime against humanity (See war crimes) justifying humanitarian intervention.

euro

See European Monetary Union.

Euro Norm

(EN)

A European standard adopted by European standards bodies, such as CEN (the European Standardization Committee) and CENELEC (the European Electrotechnical Standardization Committee), in place of a national standard, such as those produced in the UK by the British Standards Institution (BSI).

European Atomic Energy Community

Euratom

(European Atomic Energy Community, Euratom)

The organization set up under the Treaty of Rome (1957) by the six members of the *European Coal and Steel Community and effective from 1 January 1958. Euratom was formed to create the technical and industrial conditions necessary to establish the nuclear industries and direct them to peaceful use to obtain a single energy market.

See European Community.

European Bank for Reconstruction and Development

EBRD

(European Bank for Reconstruction and Development, EBRD)

An intergovernmental bank set up in 1990 to provide loans for industrial and commercial projects in the countries of central and eastern Europe. Membership includes all the countries of the European Union and the Organization for Economic Cooperation and Development, as well as the central and eastern European countries. The EU provided 51% of the initial capital. The bank's headquarters are in London.

European Central Bank

ECB

(European Central Bank, ECB)

A central bank of the *European Union to which member states who have adopted *European Monetary Union (EMU) are committed by the *Maastricht Treaty. The ECB was set up in 1998 and became active in 1999, as the governor of economic and monetary policy throughout the Union. It works closely with the central banks of the states participating in EMU.

European Coal and Steel Community

ECSC

(European Coal and Steel Community, ECSC)

The first of the European Communities, established by the *Paris Treaty (1951) and effective from 1952. The ECSC created a common market in coal, steel, iron are, and scrap between the member states, and it coordinates policies of the member states in these fields. The original members were Belgium, France, West Germany, Italy, Luxembourg, and the Netherlands. These six countries, in 1957, signed the *Treaty of Rome setting up the European Economic Community.

See European Community.

European Commission

Commission of the European Communities

(European Commission, Commission of the European Communities)


Date: 2015-01-29; view: 96


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