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╬xford_dictionary_of_law 26 page

family name

See surname.

family proceedings

All court proceedings under the inherent jurisdiction of the High Court that deal with matters relating to the *welfare of children. Before 1989 the court's powers to make orders concerning children varied, depending on the level of the court and the proceedings involved. The Children Act 1989, together with the Family Proceedings Rules 1991, rationalized the court's powers and created a unified structure of the High Court, county courts, and magistrates' courts. The ambit of family proceedings is very wide, including proceedings for *divorce, domestic violence (See battered spouse or cohabitant), children in care (See care order), *adoption, and *wardship and applications for a parental order under section 30 of the Human Fertilization and Embryology Act 1990 (See section 30 order).

family provision

Provision made by the courts out of the estate of a deceased person in favour of his family or *dependants. The court may award a family provision if it is satisfied that the provision made for the applicant either by the deceased person or by the law of intestacy is, in the circumstances, unreasonable.

Farrand Committee

A governmental committee set up in 1984 to consider (1) what tests were needed for non-solicitor conveyancers, and what other requirements should be imposed on them to ensure adequate consumer protection; and (2) the scope for simplifying conveyancing practice and procedure in England and Wales. Licensed conveyancers (*licensed conveyancer) were created in response to the committee's recommendations on (1), and the Conveyancing Standing Committee was set up to advise the Law Commission on (2).

fast track

The track to which a civil case is allocated when the amount claimed exceeds £5000 but is less than £15,000 (See allocation). The fast track provides a streamlined procedure in order to ensure that any legal and other costs remain proportionate to the amount claimed. It achieves this through the use of standard directions by the court, a fixed timetable of about 30 weeks between directions and trial, a trial of one day only, no oral expert evidence to be used in trial, and costs being fixed dependent on the level of advocacy used.

fatal accidents

Formerly, at common law, the death of either party extinguished the right to bring an action in tort. In addition, a person who caused death was not liable to compensate the deceased's relatives and others who suffered loss because of the death. Both rules have now been abolished by statute.

By the Law Reform (Miscellaneous Provisions) Act 1934, a right of action by (or against) a deceased person survives his death and can be brought for the benefit of (or against) his estate. Thus if a person is killed in a motor accident due to the negligence of the driver, an action can be brought against the driver in the name of the deceased; any damages obtained become part of the deceased's estate. Actions for defamation of a deceased person and claims for certain types of loss are excluded from the Act and do not survive death. The Fatal Accidents Act 1976, amended by the Administration of Justice Act 1982, confers the right to recover damages for loss of support on the dependants of a person who has been killed in an accident, if the deceased would have been able to recover damages for injury but for his death. The class of dependants who may sue is defined by statute and includes such persons as spouses, former spouses, parents, children, brothers, and sisters. The main purpose of the action is to compensate dependants for loss of the financial support they could have expected to receive from the deceased. However, damages for bereavement may be claimed, on the death of a spouse or an unmarried minor child, by the surviving spouse of the former or the parents of the latter; other relatives have no claim. The amount awarded is currently fixed at £7500. Funeral expenses can be recovered if incurred.



federal state

A state formed by the amalgamation or union of previously autonomous or independent states. A newly created federal state is constitutionally granted direct power over the subjects or citizens of the formerly independent states. As such, the new federal state becomes a single composite international legal person. Those former entities that comprise it have consented to subsume their former sovereignty into that of the federal state, although they retain their identity in municipal law. Examples of federal states include the USA and Switzerland.

Compare confederation.

fee

n.

A legal estate (other than leasehold) in land that is capable of being inherited. Since the Law of Property Act 1925 the term's only modern significance is in the phrase *fee simple absolute in possession. All other such estates that formerly existed in fee are now equitable interests only.

fee farm rent

See rentcharge.

fee simple absolute in possession

One of only two forms of ownership of land that, under the Law of Property Act 1925, can exist as a legal estate (See also term of years absolute). All others take effect as equitable interests. Fee simple indicates ownership that is not liable to end upon any person's death, with the expiration of time, or on the failure of a particular line of heirs. Absolute means that the owner's rights are not conditional or liable to terminate on the occurrence of any event (except the exercise of a right of *re-entry - Law of Property (Amendment) Act 1926). In possession means that the owner's rights are immediate, thus future interests do not qualify, but possession need not imply actual physical occupation (for instance, a person in receipt of rents and profits can be said to be in possession).

fee tail

A legal estate in land that was abolished by the Law of Property Act 1925. It can now exist only as an equitable *entailed interest, and no new entailed interests can be created since 1997.

felony

n.

Formerly, an offence more serious than a *misdemeanour. Since 1967 the term has been abandoned (although it is retained in pre-1967 statutes that are still in force) and the law formerly relating to misdemeanours now applies to felonies.

See also arrestable offence; indictable offence; summary offence.

feme covert

(Anglo-French)

A married woman, under the *coverture of her husband.

feme sole

(Anglo-French)

An unmarried woman. The term includes a widow or divorcee or a woman whose marriage has been annulled.

ferae naturae

See classification of animals.

ferry

n.

A public highway by boat across water connecting places where the public have rights (usually of way) granted by royal charter or acquired by *prescription.

feudal system

A political, economic, and social system in which the main social bond was the relationship between the Lord and others and in which this personal relationship was inseparable from a proprietary relationship that existed between them. It was introduced into England as a result of the Norman Conquest (1066). At its centre was the doctrine of tenures. All the land in the country was regarded as being owned by William I as the result of his conquest, and thereafter only the Crown could own land. The subject could merely hold it on a tenure, either directly from the Crown or indirectly through an intermediate superior. Such lands as William did not retain in his own possession he parcelled out to his barons. Holding directly from him, they were known as tenants-in-chief, and the tenures on which they held were knight service (which involved a duty to render military service for a specified number of days in each year), sergeanty (the performance of personal services), or frankalmoign (services of a religious character). Tenants-in-chief subgranted portions of their lands to lesser men to hold by tenure from them, the lesser men did likewise, and so on. The process of subgranting was called subinfeudation, and a man's immediate superior was known as his mesne lord. The principal tenures by which land was held through subinfeudation were knight service, frankalmoign, and socage (the rendering of agricultural or other services of a fixed nature, including the payment of money). All these tenures were free tenures. Much land was, however, held by unfree tenure, known as *copyhold: its tenant (a villein) was required to give any type of labour demanded of him.

The system of tenures did not continue as an active force for more than a few centuries. The services to be performed were gradually commuted to money payments (quit rents), tenures were virtually reduced to socage and copyhold by the Statute of Military Tenures (or Tenures Abolition Act) 1660, and copyhold was converted into socage by the Law of Property Act 1922. However, the theory that the subject cannot own the land itself remains at the roots of land law; what he can own is an *estate in land, which entitles him to enjoy the land as much as if he did own it.

fiction

n.

An assumption that something is true irrespective of whether it is really true or not. In English legal history fictions were used by the courts during the development of forms of court action. They enabled the courts to avoid cumbersome procedures, to make remedies available when they would not be otherwise, and to extend their jurisdiction. For example, the action of *trover was originally based on the defendant's finding the claimant's goods and taking them for himself. In time, it became unnecessary to prove the "finding": a remedy was granted on the basis only of proving that the goods were the claimant's and that the defendant had taken them.

fiduciary

(from Latin: fiducia, 'trust')

1. n. A person, such as a trustee, who holds a position of trust or confidence with respect to someone else and who is therefore obliged to act solely for that person's benefit.

2. adj. In a position of trust or confidence. Fiduciary relationships include those between trustees and their beneficiaries, company promoters and directors and their shareholders, solicitors and their clients, and guardians and their wards.

fieri facias

fi. fa.

(fieri facias, fi. fa.)

(Latin: you should cause to be done)

A writ of execution to enforce the payment of a debt when judgment has been entered against the debtor. The writ can also be used to enforce a judgment for payment of damages. The writ is addressed to the *sheriff requiring him to seize the property of the debtor in order to pay the debt, interest, and costs.

fieri feci

(Latin: I have caused to be done)

The report of the *sheriff or other appropriate officer saying how much he has recovered by levying execution under a writ of *fieri facias.

final act

A document containing a formal summary of the proceedings of an international conference. The signature appended to the final act is not regarded as binding on the signatory state with regard to the treaties it refers to. For the document to be binding, a separate signature is required followed by *ratification. In rare circumstances, the final act can constitute a *treaty.

final judgment

The *judgment in civil proceedings that ends the action, usually the judgment of the court at trial. Appeal against a final judgment may be made without leave of the court.

Compare interim judgment.

final process

A *writ of execution on a judgment or decree.

Finance Bill

A parliamentary Bill dealing with taxation matters, usually introduced each year to enact the Budget proposals.

financial assistance

(in company law)

A loan, guarantee, security, indemnity, or gift by a registered company or any of its subsidiaries made for the purpose of assisting someone to acquire its shares. Under the Companies Act 1985, this is unlawful unless it can be shown that the company's principal purpose for giving the assistance was not to finance the acquisition of its shares or that the assistance was an incidental part of another, larger, purpose of the company. A *private company may make such transactions, however, if the directors make a declaration, supported by the company's auditors, to the effect that the company is able to pay all its debts for at least one year following the assistance being given. In addition, the Companies Act 1985 lays down a strict timetable for providing the assistance, which must be complied with by the private company.

financial provision order

An order for periodical payments or a lump sum made for the purpose of adjusting the financial position of the parties to a marriage and any children of the family. Such orders may be made on or after the granting of a decree of divorce, nullity, or judicial separation or when one party to the marriage has failed to provide, or to make a proper contribution towards, reasonable maintenance for the other or a child of the family. On divorce, judicial separation, or nullity, the court also has the power to make *property adjustment orders. In determining whether to make financial provision orders, the court has a very wide discretion under section 25 of the Matrimonial Causes Act 1973. It has an overriding duty to give first consideration to the welfare of any child under the age of 18 years and to try to achieve a *clean break wherever possible. The Act lists seven matters that the court must take into account as part of the circumstances it is to consider. These include: the financial resources and needs each of the parties has or is likely to have in the foreseeable future; the age of the parties and the length of the marriage; the standard of living enjoyed by the family before the breakdown of the marriage; the contributions that each of the parties has made to the welfare of the family, which include looking after the home or caring for the family; and the conduct of the parties, but only where it would be very unjust to ignore such conduct. A recent landmark case in this area made it clear that the implicit objective of section 25 is to achieve a fair outcome and that there should be no discrimination between husbands and wives and their respective roles (i.e. if one spouse stays at home while the other goes out to work, this fact is immaterial). A starting point should be that assets are equally divided, unless there is a good reason for not doing so.

See also maintenance pending suit; property adjustment order.

financial relief

Any or all of the following: *maintenance pending suit orders, *financial provision orders, *property adjustment orders, and court orders for maintenance during the marriage and for the maintenance of children (See child support maintenance). The court has powers to set aside transactions made by a husband or wife with the intention of preventing a spouse from making a claim for financial relief, or to prevent such a transaction from taking place (See avoidance of disposition order). Financial relief provisions for children, other than in matrimonial proceedings, are consolidated in the Children Act 1989; for example, it is possible for unmarried parents and those in whose favour a residence order is made to obtain financial relief. In addition, children over the age of 18 have an independent right to seek financial relief from their parents.

financial year

For statutes referring to finance, the period fixed by a statute of 1854 as the 12 calendar months ending on 31 March. Annual public accounts are made up for this period. For income-tax purposes, the year runs to 5 April. Companies and other bodies are free to choose their own financial years for accounting purposes.

See also tax year.

fine

n.

1. A sum of money that an offender is ordered to pay on conviction. Most *summary offences are punishable by a fine with a fixed maximum, in accordance with a standard scale of five levels. These are currently (2001) as follows: level 1 -£200; level 2 - £500; level 3 - £1000; level 4 - £2500; level 5 - £5000. Under the Criminal Justice Act 1991, before fixing a fine, a court must enquire into the financial circumstances of the offender and the amount of the fine fixed by the court should, in addition, reflect the seriousness of the offence. Sometimes provision is made for imprisonment in cases of failure to pay the fine. A fine may also be imposed instead of, or in addition to, any other punishment for someone convicted on indictment (except in cases of murder). This fine is at large, i.e. the amount is at the discretion of the judge. Fines are often imposed upon companies for breach of statutory obligations; although the sums may be relatively small, companies will try to avoid being fined because of the bad publicity this may cause.

When imposing a fine on an offender under the age of 16 (See juvenile offender), the court is not normally empowered to order the offender to pay the fine himself unless his parent or guardian cannot be found or it would be unreasonable in the circumstances to expect his parent or guardian to pay it. Otherwise the offender pays unless payment by the parent or guardian is more appropriate.

2. A lump-sum payment by a tenant to a landlord for the grant or renewal of a lease.

See also premium.

firearm

n.

For the purposes of the Firearms Act 1968, any potentially lethal weapon with a barrel that can fire a shot, bullet, or other missile or any weapon classified as a *prohibited weapon (even if it is not lethal). The Act creates various offences in relation to firearms. The main offences include: (1) buying or possessing a firearm without a licence; (2) buying or hiring a firearm under the age of 17 or selling a firearm to someone under 17 (similar offences exist under the Crossbows Act 1987 in relation to crossbows); (3) possessing a firearm under the age of 14; (4) supplying firearms to someone who is drunk or insane; (5) carrying a firearm and suitable ammunition in a public place without a reasonable excuse; (6) trespassing with a firearm; (7) possessing a firearm with the intention of endangering life; (8) using a firearm with the intention of resisting or preventing a lawful arrest; (9) having a firearm with the intention of resisting or preventing a lawful arrest; (9) having a firearm with the intention of committing an indictable offence; (10) possessing a firearm or ammunition after having previously been convicted of a crime; and (11) having a firearm in one's possession at the time of committing or being arrested for such offences as rape, burglary, robbery, and certain other offences. The Firearms Act 1982 extends the provisions of the 1968 Act to imitation firearms that can be easily converted to firearms and a 1988 Act strengthened controls over some of the more dangerous types of firearms, shotguns, and ammunition. The Firearms (Amendment) Act 1997 bans all handguns above .22 calibre. The public may own and use less powerful pistols in secure gun clubs. The pistols may not be removed from the clubs without prior permission of the police. The Act also provided for the establishment of licensed gun clubs, tightened police licensing procedures, and introduced stronger police powers to suspend or revoke certificates. Anyone who uses a handgun must have a licence. The police have powers to revoke certificates when good reasons for possessing the gun no longer exist. Illegal possession of a prohibited weapon carries a maximum sentence of 10 years' imprisonment. The government proposes to extend the ban to include all privately owned handguns; legislation is expected to be in force by the end of 1997. Under the Theft Act 1968 someone who has with him a firearm or imitation firearm while committing *burglary is guilty of aggravated burglary. For the purposes of this Act, a firearm may include an airgun, air pistol, or anything that looks like a firearm.

See also offensive weapon; repeat offender.

fire damage

An occupier of land or buildings is not liable for a fire that begins there accidentally (Fires Prevention (Metropolis) Act 1774). Liability is imposed if the fire is caused by negligence, nuisance, or a non-natural user of the land or if the fire, having started accidentally, is negligently allowed to spread.

first offender

A person with no previous conviction by a criminal court. A court of summary jurisdiction (See magistrates' court) is not empowered to send a person to prison for a first offence, unless it is satisfied that there is no other appropriate method of dealing with that person.

See also sentence.

 

fishery

n.

See piscary.

fishery limits

The area of sea over which a state claims exclusive fishing rights, except as agreed in treaties with other states. British fishery limits extend to 200 nautical miles from the baselines used for measuring the *territorial waters. Fishery limits may be limited or restricted by bilateral or multilateral fishing treaties or agreements, such as the EU's *Common Fisheries Policy. The UK Merchant Shipping Act 1988 preventing "quota hopping" (See quota) in British waters by non-UK EU vessels, such as Spanish and Dutch vessels, was held unlawful by the European Court of Justice in 1996.

See also exclusive economic zone.

fit for habitation

A statutory implied covenant applied to certain tenancies at a very low rent. Premises are regarded as not reasonably fit for habitation if they are defective in one or more of the following: repair, stability, freedom from damp, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for cooking and for storage and preparation of food, and disposal of waste water. These provisions are currently under review. A landlord normally has no obligation to see that premises are fit for habitation when the statutory provisions do not apply. There is an implied term that furnished tenancies are fit for habitation at the commencement of the tenancy.

fitness for purpose

A standard that must be met by one who sells goods in the course of a business. When the buyer makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods are reasonably fit for that purpose, except when the circumstances show that the buyer does not rely (or that it is unreasonable for him to rely) on the skill or judgment of the seller.

fixed charge

See charge.

fixed-date summons

Formerly, a summons in the county courts used to initiate actions in which a claim was made for any relief other than the payment of money. Such a claim is now made by means of a *claim form.

fixed penalty notice

A notice given to a person who has committed a traffic offence entitling that person to discharge any liability to conviction by payment of a prescribed amount of money in accordance with the Road Traffic Offenders Act 1988.

fixed-sum credit

Any facility (other than *running-account credit) under a *personal-credit agreement by which the debtor is entitled to receive credit, either in one amount or by instalments.

fixed term

A tenancy or lease for a fixed period. The date of commencement and the length of a lease must be agreed before there can be a legally binding lease. It may take effect from the date of the grant, an earlier date, or a date up to 21 years ahead. At the end of the fixed term, the lease or tenancy comes to an end automatically: there is no need for a notice to quit. However, if the tenancy is an *assured tenancy, it will continue at the end of the term as a *statutory periodic tenancy unless it is brought to an end by *surrender of tenancy or a court order.

See also half a year; long tenancy.

fixture

n.

A chattel that has been annexed to land or a building so as to become a part of it, in accordance with the maxim quicquid plantatur solo, solo cedit (whatever is annexed to the soil is given to the soil). Annexation normally involves actual affixation, but a thing resting on its own weight can be regarded as annexed if it can be shown that it was intended to become part of the land or to benefit it. Fixtures become the property of the freeholder, subject to certain rights of removal (as, for example, in the case of *trade fixtures and certain agricultural fixtures). A vendor of land may retain the right to fixtures as against the purchaser by express provision in the contract.

flag of convenience

The national flag of a state flown by a ship that is registered in that state but is owned by a national of another state. A state whose law allows this practice can grant, in return for financial considerations, nationality and the right to fly its national flag to virtually any ship without stipulating any requirements, such as those relating to the safety of the ship and crew, the nationality of the vessel's owner, or the country of construction. Before a state is justified in extending its nationality to a ship, or permitting a ship to fly its flag, it seems that there must be some effective link connecting the ship with the state. Hence a flag of convenience may only be validly granted when a genuine link exists, though what constitutes such a link remains unclear.

See also flag state jurisdiction.

flagrante delicto

(Latin)

In the commission of an offence. Certain types of *arrest can only be made when a person is in the act of committing an offence (See arrestable offence). The phrase is most commonly applied to the situation in which a person finds his or her spouse in the act of committing adultery. Someone who kills his or her spouse in this situation may have a defence of *provocation.

flag state jurisdiction

The rule whereby, exceptions applying, a ship on the *high seas is subject only to the jurisdiction of the flag state, i.e. that state permitting it the right to sail under its flag (See flag of convenience).

floating charge

See charge.

flotation

n.

A process by which a public company can, by an issue of securities (shares or debentures), raise capital from the public. It may involve a prospectus issue, in which the company itself issues a *prospectus inviting the public to acquire securities; an offer for sale, in which the company sells the securities on offer to an issuing house, which then issues a prospectus inviting the public to purchase the securities from it; or a placing, whereby an issuing house arranges for the securities to be taken up by its own or another's clients in the expectation that they will ultimately become available to the public on the open market.

See also rights issue; tender offer; underwriter.

f.o.b. contract

(free on board contract)

A type of contract for the international sale of goods in which the seller's duty is fulfilled by placing the goods on board a ship. There are different types of f.o.b. contract: the buyer may arrange the shipping space and the procurement of a bill of lading and nominate the ship to the seller; he may nominate a general ship and leave it to the seller to place the goods on board and to procure a bill of lading; or the seller may be asked to make all the shipping arrangements for which the buyer will pay. The risk of accidental loss or damage normally passes to the buyer when the goods are loaded onto the ship. Insurance during the sea transit is the responsibility of the buyer. f.o.b. is a defined *incoterm in Incoterms 2000.

football hooliganism

The Sporting Events (Control of Alcohol etc.) Act 1985 contains finable offences of possessing alcohol, being drunk, or causing or permitting the carriage of alcohol on trains and vehicles capable of carrying nine or more passengers; the vehicle must be carrying two or more passengers to or from a "designated sporting event" (mainly Football league club and international fixtures), and normal scheduled coach or train services are excluded. A constable who reasonably suspects that a relevant offence is being or has been committed may stop the vehicle or train and search it or the suspected offender. It is also an offence to be drunk or to possess alcohol or (unless lawful authority is proved) fireworks and similar objects (but not matches or lighters) in the viewing area within two hours before, during, or one hour after the event, or while trying to enter. Under the Public Order Act 1986, persons convicted of the above alcohol-related offences, or offences committed at the football ground, can be excluded by the courts from football matches. Admission to a designated football match is controlled under the Football Spectators Act 1989 and is subject to the control of disorderly behaviour there under the Football (Offences) Act 1991. Under the Football Spectators Act 1989, a banning order may be made to prohibit an offender from attending a football match in England and Wales. Such an order may also require that the offender surrender his passport to prevent him travelling to a football match abroad.

See also offences against public order.

footpath

n.

Under the Highways Act 1980, any *highway (other than a *footway) over which the public have a right of way on foot only.


Date: 2015-01-29; view: 105


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