Оxford_dictionary_of_law 25 page

executive agency

An independent agency, operating under a chief executive, that is responsible for delivering a service according to the policy of a central government department. Examples are the Benefits Agency and the Passport Agency. The intention is that central government should become purely policy­making, the services it is responsible for being delivered by executive agencies.

executor

n.

A person appointed by a will to administer the testator's estate. A deceased person's property is vested in his executors, who are empowered to deal with it as directed by the will from the time of the testator's death. They must, however, usually obtain a grant of *probate from the court in order to prove the will and their right to deal with the estate. Appointment as an executor confers only the power to deal with the deceased's property in accordance with his will, and not beneficial ownership, although an executor may also be a beneficiary under the will.

Compare administrator.

executor de son tort

(French: by his own wrongdoing)

A person who deals (intermeddles) with a deceased person's assets without the authority of the rightful personal representatives or of the court. He is answerable to the rightful personal representatives and to the creditors of the estate for any acts done without such authority and for any assets of the estate that come into his hands.

executor's year

The period of a year, starting from the death of the deceased, within which nobody can compel his personal representatives to distribute the estate, even if the testator has directed payment of a legacy before the expiry of that period (Administration of Estates Act 1925).

executory

adj.

Remaining to be done. A contract that has yet to be carried out is said to be an executory contract, and *consideration that has still to be given for a contract is described as executory consideration.

See also executory interest; executory trust.

Compare executed.

executory interest

(mainly historical)

An interest in property that arises or passes to a particular person on the occurrence of a specified event. For example, when property is settled in trust "for A, but for B if he marries Mary", then B has an executory interest. Under the Law of Property Act 1925 executory interests in land can only exist as equitable interests.

Compare remainder; reversion.

executory trust

(imperfect trust, incompletely constituted trust) A trust that is incomplete, i.e. one that the beneficiaries are unable to enforce until some further act is done by the settlor or a third party.

Compare executed trust.

exemplary damages

(punitive damages, vindictive damages) Damages given to punish the defendant rather than (or as well as) to compensate the claimant for harm done. Such damages are exceptional in tort, since the general rule is that damages are given only to compensate for loss caused. They can be awarded in some tort actions: (1) when expressly authorized by statute; (2) to punish oppressive, arbitrary, or unconstitutional acts by government servants; (3) when the defendant has deliberately calculated that the profits to be made out of committing a tort (e.g. by publishing a defamatory book) may exceed the damages at risk. In such cases, exemplary damages are given to prove that "tort does not pay". Exemplary damages cannot be given for breach of contract.

exemption clause

A term in a contract purporting to exclude or restrict the liability of one of the parties in specified circumstances. The courts do not regard exemption clauses with favour. If such a clause is ambiguous, they will interpret it narrowly rather than widely. If an exclusion or restriction is not recited in a formal contract but is specified or referred to in an informal document, such as a ticket or a notice displayed in a hotel, it will not even be treated as a term of the contract (unless reasonable steps were taken to bring it to the notice of the person affected at the time of contracting). The Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations 1999 contain complex provisions limiting the extent to which a person can exclude or restrict his *business liability towards consumers. In addition, the 1977 Act subjects certain types of exemption clause to a test of reasonableness, even in a business-to-business transaction. The Office of Fair Trading runs an unfair terms unit to monitor such clauses and enforce the 1999 Regulations. Other statutes forbidding the exclusion or restriction of particular forms of liability are the Defective Premises Act 1972, the Consumer Protection Act 1987, and the Road Traffic Act 1988.

See also exclusion and restriction of negligence liability; international supply contract.

exempt supply

A supply that is outside the scope of *value-added tax. Examples include sales of land, the supply of certain financial and insurance services, and the services performed in the course of employment.

See also zero-rated supply.

exequatur

n.

A certificate issued by a host state that admits and accords recognition to the official status of a *consul, authorizing him to carry out consular functions in that country. The sending state grants the consular official a commission or patent, which authorizes the consul to represent his state's interests within the host state.

ex gratia

(Latin)

Done as a matter of favour. An ex gratia payment is one not required to be made by a legal duty.

exhaustion of local remedies

The rule of customary international law that when an *alien has been wronged, all municipal remedies available to the injured party in the host country must have been pursued before the alien appeals to his own government to intervene on his behalf. This is a customary precondition to any *espousal of claim by a state on behalf of a national based upon foreign soil.

exhaustion of rights

A free-trade principle which holds that, once goods are put on the market, owners of *intellectual property rights in those goods, who made the goods or allowed others to do so under their rights, may not use national intellectual property rights to prevent an import or export of the goods. Within the EU these rules derive from Articles 28-30 (formerly 30-36) of the Treaty of Rome.

See also free movement.

exhibit

1. n.

A physical object or document produced in a court, shown to a witness who is giving evidence, or referred to in an *affidavit. Exhibits are marked with an identifying number, and in jury trials the jury is normally permitted to take exhibits with them when they retire to consider their verdict. Physical objects produced for the inspection of the court (e.g. a murder weapon) are referred to as *real evidence.

2. vb. To refer to an object or document in an *affidavit.

ex nudo pacto non oritur actio

See consideration.

ex officio

(Latin: By virtue of holding an office).

Thus, the Lord Chief Justice is ex officio a member of the Court of Appeal.

ex officio information

A criminal information laid by the Attorney General on behalf of the Crown. It was abolished in 1967.

See Laying an information.

ex officio magistrate

A magistrate by virtue of holding some other office, usually that of mayor of a city or borough. Most ex officio magistrateships were abolished by the Justices of the Peace Act 1968 and the Administration of Justice Act 1973, but High Court judges are justices of the peace ex officio for the whole of England and Wales and the Lord Mayor and aldermen are justices ex officio for the City of London.

ex parte

(Latin)

1. On the part of one side only. Since the introduction of the *Civil Procedure Rules in 1999, this phrase is no longer used in civil proceedings, having been replaced by without notice.

See without notice application.

2. On behalf of. This term is used in the headings of law reports together with the name of the person making the application to the court in the case in question.

expatriation

n.

A person's voluntary action of living outside his native country, either permanently or during his employment abroad, whereby he renounces or loses allegiance to his former state of nationality.

Compare deportation.

expectant heir

A person who has an interest in remainder or in reversion in property or a chance of succeeding to it (interest in expectancy). An unconscionable contract with an expectant heir (e.g. in which he sells his inheritance at an undervalue in order to raise cash) may be set aside by the court.

expert opinion

See opinion evidence.

Expiring Laws Continuance Acts

Statutes formerly passed annually to continue in force for a further year a number of miscellaneous Acts that were originally stated to remain in force for one year only. The renewal of temporary statutes is now effected individually.

explosive

n.

Any substance made in order to achieve an explosion that causes damage or destruction or intended to be used in that way by a person who possesses it. If someone committing *burglary has an explosive with him, he is guilty of aggravated burglary, punishable with a maximum of life imprisonment. The Explosive Substances Act 1883 creates special offences of (1) causing an explosion that is likely to endanger life or cause serious damage to property (even if no harm or damage is actually done); (2) attempting to cause such an explosion; and (3) making or possessing an explosive with the intention of using it to endanger life or to seriously damage property. Under the Offences Against the Person Act 1861, it is an offence to injure anyone by means of an explosion, to send or deliver an explosive to anyone, or to place an explosive near a building, ship, or boat with the intention of causing physical injury. These crimes cover most acts of *terrorism.

export bans

Anticompetitive practices (*anticompetitive practices) that have the effect of banning the resale of products from one EU territory in another state of the EU. Export bans have long been held to infringe the competition rules in *Article 81 of the Treaty of Rome; they can lead the European Commission to levy fines of up to 10% of annual worldwide group turnover. Examples of practices that infringe the rules include clauses in contracts banning exports; an export ban in a written contract will be void when Article 81 applies. However, when the *vertical agreements regulation 2790/99 applies it is permitted to restrict an exclusive distributor from actively soliciting sales outside its territory. It is not permissible to prevent a distributor from advertising on a website as this is regarded as 'passive' rather than 'active' selling. In addition, practices that have the effect of bolstering or imposing an export ban are forbidden, including buying up all *parallel imports, marking products solely for the purposes of tracing them to stop parallel importation, and sending faxes to, or otherwise putting pressure on, dealers not to engage in parallel importation.

ex post facto

(Latin: by a subsequent act)

Describing any legal act, such as a statute, that has retrospective effect.

expressio unius est exe/usio alterius

See interpretation of statutes.

express term

A provision of a contract, agreed to by the parties, that is either written or spoken. Such a provision may be classified as a *condition, a *warranty, or an *innominate term.

Compare implied term.

express trust

A trust created expressly by the settlor, i.e. by stating directly his intention to create a trust. There is no need for formal words provided that the intention to create a trust is clear from the documents or from the oral statements of the settlor, but most express trusts are contained in documents that have been professionally drafted.

Compare implied trust.

expropriation

n.

The taking by the state of private property for public purposes, normally without compensation (Compare compulsory purchase, which carries with it a right to compensation). The right to expropriate is known in some legal systems as the right of eminent domain. In the UK, expropriation requires statutory authority except in time of war or apprehended war (See Royal prerogative).

ex proprio motu

(ex mero motu)

(Latin: of his own motion)

Describing acts that a court may perform on its own initiative and without any application by the parties.

expulsion

n.

The termination by a state of an alien's legal entry and right to remain. This is often based upon the ground that the alien is considered undesirable or a threat to the state.

Compare deportation.

extended sentence

A sentence longer than the maximum prescribed for a particular offence, which was formerly imposed on persistent offenders under certain circumstances. The power to impose extended sentences was abolished by the Criminal Justice Act 1991.

extinguishment

n.

The cessation or cancellation of some right or interest. For example, an *easement is extinguished if the dominant and servient tenements come into the same ownership. Mere *non-user of an easement, however, will not cause it to be extinguished unless an intention to abandon it can be shown.

extortion

n.

A common-law offence committed by a public officer who uses his position to take money or any other benefit that is not due to him. If he obtains the benefit by means of menaces, this may also amount to blackmail.

extradition

n.

The surrender by one state to another of a person accused of committing an offence in the latter. Extradition from the UK relates to surrender to foreign states (Compare fugitive offender) and is governed by the Extradition Act 1989. There must be an *extradition treaty between the UK and the state requiring the surrender. The offence alleged must be a crime in the UK as well as in the requesting state, it must be both covered by the treaty and within the list of extraditable offences contained in the Act itself, and it must not be of a political character.

See also double criminality.

extradition treaty

A treaty under the terms of which a state agrees to deport a fugitive criminal (or suspect) to the state where the offence was committed or to the fugitive's state of nationality (See extradition). In the latter case the crime in question must be one that is a breach of the municipal law of the national committed outside the territorial boundaries of the state of which he is a citizen. Extradition treaties are bilateral in character and there is a lack of uniformity in their provisions and in their interpretation. However, they invariably contain the following three features: (1) the state that has custody will not surrender the fugitive unless prima facie evidence of his guilt is submitted to them; (2) no political offenders will be surrendered; (3) no surrender will be made unless adequate assurances are given that the accused will not on that occasion be tried for any offence other than the crime for which he is surrendered.

extrajudicial divorce

A divorce granted outside a court of law by a nonjudicial process (such as a *ghet or a *talaq). An extrajudicial divorce will not be recognized in the UK if it takes place in the UK, Channel Islands, or Isle of Man.

See also overseas divorce.

extraordinary general meeting

Any meeting of company members other than the *annual general meeting (See also general meeting). Except when the meeting is for the passing of a *special resolution, 14 days' written notice must be given (7 days suffices in the case of an unlimited company). Only *special business can be transacted. Such a meeting can be convened by the directors at their discretion or by company members who either hold not less than 10% of the paid-up voting shares (See call) or, in companies without a share capital (See limited company; unlimited company), represent not less than 10%of the voting rights.

extraordinary resolution

A decision reached by a majority of not less than 75% of company members voting in person or by proxy at a general meeting. It is appropriate in situations specified by the Companies Act 1985, e.g. *voluntary winding-up. At least 14 days' notice must be given of the intention to propose an extraordinary resolution; if the resolution is to be proposed at the annual general meeting, 21 days' notice is required.

extraterritoriality

n.

A theory in international law explaining *diplomatic immunity on the basis that the premises of a foreign mission form a part of the territory of the sending state. This theory is not accepted in English law (thus a divorce granted in a foreign embassy in England is not obtained outside the British Isles for purposes of the Recognition of Divorces Act 1971). Diplomatic immunity is based either on the theory that the diplomatic mission personifies - and is entitled to the immunities of - the sending state or on the practical necessity of such immunity for the functioning of diplomacy.

extrinsic evidence

Evidence of matters not referred to in a document offered in evidence to explain, vary, or contradict its meaning. Its admissibility is governed by the *parol evidence rule.

ex turpi causa non oritur actio

(Latin: no action can be based on a disreputable cause)

The principle that the courts may refuse to enforce a claim arising out of the claimant's own illegal or immoral conduct or transactions. Hence parties who have knowingly entered into an *illegal contract may not be able to enforce it and a person injured by a fellow-criminal while they are jointly committing a serious crime may not be able to sue for damages for the injury.

fact

n.

An event or state of affairs known to have happened or existed. It may be distinguished from law (as in *trier of fact) or, in the law of evidence, from opinion (See opinion evidence). The facts in issue are the main facts that a party carrying the persuasive *burden of proof must establish in order to succeed; in a wider sense they may include subordinate or collateral facts, such as those affecting the *credit of a witness or the *admissibility of evidence.

See also factum.

factor

n.

An agent entrusted with the possession of goods (or documents of title representing goods) for the purposes of sale. A factor is likely to fall within the definition of a *mercantile agent in the Factors Act 1889 and to have the powers of a mercantile agent. A factor has a *lien over the goods entrusted to him that covers any claims against the principal arising out of the agency.

factum

n.

(Latin)

1. A *fact or statement of facts. For example, a factum probans (pl. facta probantia) is a fact offered in evidence as proof of another fact, and a factum probandum (pl. facta probanda) is a fact that needs to be proved.

2. An act or deed.

See also non est factum.

failure to maintain

The failure of either spouse to provide reasonable maintenance for the other or to make a proper contribution towards the maintenance of any children of the family during the subsistence of the marriage. Upon proof of such failure, magistrates' courts have jurisdiction to make orders for unsecured periodical payments and for lump-sum orders not exceeding £1000. The divorce county courts and High Court have power to make orders for periodical payment (which may also be secured by a charge on the property of the respondent spouse) and for lump-sum orders (of any sum). It is no longer necessary to prove wilful neglect to maintain (i.e. deliberate withholding of maintenance). Under the Child Support Act 1991, application for periodical payments for children can now usually be made directly to the Child Support Agency (See child support maintenance) rather than the court.

failure to make disclosure

Failure of a party to disclose documents as required by a disclosure direction (See disclosure and inspection of documents). This will lead to an application to the court for an order compelling disclosure. The court will most likely consider an *unless order with some sanction for noncompliance, e.g. dismissal of action, striking out of the defence.

fair comment

The defence to an action for *defamation that the statement made was fair comment on a matter of public interest. The facts on which the comment is based must be true and the comment must be fair. Any honest expression of opinion, however exaggerated, can be fair comment. but remarks inspired by personal spite and mere abuse are not. The judge decides whether or not the matter is one of public interest.

See also rolled-up plea.

fair dismissal

Dismissal (*dismissal) of an employee when a tribunal decides that an employer has acted reasonably in dismissing the employee and that the dismissal was for a lawful reason, i.e. on the grounds of the employee's capability, qualifications, or conduct; redundancy; the fact that it would be illegal to continue employing the employee: or some other sufficient and substantial reason.

Compare unfair dismissal.

fair rent

Rent fixed by a rent officer or rent assessment committee for the holder of a protected or statutory tenancy (*protected tenancy; *statutory tenancy). The rent is registered in relation to the property. When fixing the rent, no account is taken of the scarcity of rented property and therefore the rent is often lower than a market rent. The rent of assured tenancies (*assured tenancy) is fixed by agreement between the landlord and tenant. The tenant can apply to a *rent assessment committee to determine the rent if the landlord wishes to increase it. The committee must fix the rent at the amount the landlord could obtain on the open market. There is no registration of rent for assured tenancies, but the rents determined by rent assessment committees are recorded and this information is available to the public.

fair trading

See Director General of Fair Trading.

fair trial

A right set out in Article 6 of the European Convention on Human Rights and now part of UK law as a consequence of the *Human Rights Act 1998. The right to a fair trial applies in civil and criminal proceedings and includes the right to a public hearing (subject to some exceptions) by an independent and impartial tribunal established by law. In criminal cases there are the following specified rights: the *presumption of innocence; the right to be told the details of the case; to have time and facilities to prepare a defence and to instruct lawyers (with financial support where necessary); to call witnesses and examine the witnesses for the prosecution; and to have the free assistance of an interpreter.

See also equality of arms.

fairway

n.

The mid-channel of a navigable river, extending as near to the shore as there is sufficient depth of water for ordinary navigation.

fair wear and tear

A phrase often found in repairing covenants in leases. When a tenant is not obliged to repair fair (reasonable) wear and tear occurring during his tenancy, he must nevertheless do any repairs to prevent consequential damage resulting from the original wear and tear. For example, if a slate blows off a roof the tenant is not liable to repair it, but he ought to prevent the rain entering through the hole and doing more damage.

false accounting

An offence, punishable by up to seven years' imprisonment, committed by someone who dishonestly falsifies, destroys, or hides any account or document used in accounting or who uses such a document knowing or suspecting it to be false or misleading. The offence must be committed for the purpose of gain or causing loss to another. There is also a special offence (also punishable by up to seven years' imprisonment) committed by a company director who publishes or allows to be published a written statement he knows or suspects is misleading or false in order to deceive members or creditors of the company.

See also forgery.

false imprisonment

Unlawful restriction of a person's freedom of movement, not necessarily in a prison. Any complete deprivation of freedom of movement is sufficient, so false imprisonment includes unlawful arrest and unlawfully preventing a person leaving a room or a shop. The restriction must be total: it is not imprisonment to prevent a person proceeding in one direction if he is free to leave in others. False imprisonment is a form of *trespass to the person, so it is not necessary to prove that it has caused actual damage. It is both a crime and a tort. Damages, which may be *aggravated or *exemplary, can be obtained in tort and the writ of *habeas corpus is available to restore the imprisoned person to liberty.

false plea

sham plea

(false plea, sham plea)

A statement of case that is obviously frivolous or absurd and is made only for the purpose of vexation or delay. A court may order a statement of case that would adversely affect the fair trial of a case to be struck out or amended.

false pretence

The act of misleading someone by a false representation, either by words or conduct. The former offence of obtaining property by false pretences is now known as obtaining property by *deception.

false statement

See perjury.

false trade description

A description of goods made in the course of a business that is false in respect of certain facts (See trade description). Under the Trade Descriptions Acts 1968 and 1972 it is an offence to apply a false trade description to goods either directly, by implication, or indirectly (e.g. by tampering with a car's mileometer or painting over rust on the bodywork). It is also an offence to supply or offer to supply goods to which a false trade description is attached. These offences are triable either summarily or on indictment (in which case they carry a maximum two years' prison sentence). They are offences of *strict liability, although certain specified defences are allowed (e.g. that the defendant relied on information supplied by someone else). The Acts are supplemented by the Fair Trading Act 1973.

falsification of accounts

See false accounting.

family

n.

A group of people connected by a close relationship. For legal purposes a family is usually limited to relationships by blood, marriage, or adoption, although sometimes (e.g. for social security purposes) statute expressly includes other people, such as common-law wives (See common-law marriage). The courts have interpreted the word "family" to include unmarried couples living as husband and wife in permanent and stable relationships. In the past, gay couples have always been excluded from the definition. However, in a recent case the court interpreted the word "family" in the Rent Act 1977 to include the gay partner of a deceased tenant.

family assets

Property acquired by one or both parties to a marriage to be used for the benefit of the family as a whole. Typical examples are the *matrimonial home, furniture, and car. There is no special body of law dealing with family assets as such, but the courts have wide discretion to make orders in relation to such assets upon dissolution of the marriage and have developed flexible guidelines to apply in the case of family assets. Thus, one spouse will often acquire a share in the home owned by the other, by reason of his or her contributions to the welfare of the family and its finances.

family assistance order

A court order under the Children Act 1989 that a probation officer, or an officer of a local authority, should advise, assist, and befriend a particular child or a person closely connected with the child (such as a parent) in order to provide short-term support for the family. The order can only be made with the consent of the person it concerns (other than the child) and has effect for up to six months.

family credit

See working families tax credit.

Family Division

The division of the *High Court concerned with *family proceedings and noncontentious probate matters. Until 1971, it was known as the *Probate, Divorce and Admiralty Division. It may hear some appeals (See appellate jurisdiction). The chief judge of the Division is called the President.

Family Health Services Authority

(FHSA)

See Health Authority; National Health Service.

family life

A right set out in Article 8 of the European Convention on Human Rights and now part of UK law as a consequence of the *Human Rights Act 1998. The right to family life extends beyond formal relationships and legitimate arrangements. This right is a *qualified right; as such, the public interest can be used to justify an interference with it providing that this is prescribed by law, designed for a legitimate purpose, and proportionate. Public authorities have a limited but positive duty to protect family life from interference by third parties. The right to found a family (the right to procreation) is contained in Article 12 of the Convention.

Date: 2015-01-29; view: 1184