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╬xford_dictionary_of_law 27 page

footway

n.

Under the Highways Act 1980, any way over which the public have a right of way on foot only and which is part of a highway that also comprises a way for the passage of vehicles.

Compare footpath.

forbearance

n.

A deliberate failure to exercise a legal right (e.g. to sue for a debt). A forbearance to sue at a debtor's request may be *consideration for some fresh promise by the debtor. A promise not to enforce a claim that is bad in law may still be consideration if the claim is believed to be valid. A requested forbearance, even if it is not binding, may have more limited effects either at common law or in equity (e.g. in certain circumstances it may not be revoked without reasonable notice).

force majeure

(French)

Irresistible compulsion or coercion. The phrase is used particularly in commercial contracts to describe events possibly affecting the contract and that are completely outside the parties' control. Such events are normally listed in full to ensure their enforceability; they may include *acts of God, fires, failure of suppliers or subcontractors to supply the supplier under the agreement, and strikes and other labour disputes that interfere with the supplier's performance of an agreement. An express clause would normally excuse both delay and a total failure to perform the agreement.

forcible entry

A common-law offence (as amended by various statutes) that applied under certain circumstances when force was used to gain entry to premises. The common-law offence has been replaced by a statutory *arrestable offence of using or threatening violence against people or property in order to secure entry into premises (Criminal Law Act 1977). The offence only applies if there is someone present on the premises who is opposed to the entry and the offender knows of this. The fact that the offender is the legal owner or occupier of the premises is not in itself a defence. However, there is a special defence if the offender can prove that he was at the relevant time a displaced *residential occupier or protected intending occupier who requires the property for his residence and has a qualifying freehold or leasehold interest, tenancy, or licence and was seeking to gain entry or to pass through premises that form an access to his own place of residential occupation. These provisions do not apply to landlords seeking to regain possession and it is a summary offence to make false statements when claiming to be a protected occupier. It is not an offence, however, for a person unlawfully evicted from his own home to use force to re-enter, subject to the common-law rule that the force must not be excessive. The police may use force to enter with lawful authority.

See also adverse occupation.

foreclose down

See redeem up, foreclose down.

foreclosure

n.

A remedy available to a mortgagee when the mortgagor has failed to pay off a *mortgage by the contractual date for redemption. The mortgagee is entitled to bring an action in the High Court, seeking an order fixing a date to pay off the debt; if the mortgagor does not pay by that date he will be foreclosed, i.e. he will lose the mortgaged property. If, after this order (a foreclosure order nisi) is made, the mortgagor does not pay on the date and at the place (usually a room in the Royal Courts of Justice) named, the foreclosure is made absolute and the property thereafter belongs to the mortgagee. However, the court has discretion to allow the mortgagor to reopen the foreclosure and thereby regain his property. The remedy is unpopular: the mortgagee's *power of sale may be more useful; moreover, if the mortgaged property is worth less than the loan, the mortgagee cannot sue for the balance, a point that has recently re-acquired significance.



See also repossession.

foreign agreement

An agreement or contract the proper law of which is the law of some country other than England and Wales, Northern Ireland, or Scotland.

See foreign law; proper law of a contract.

foreign bill

Any bill of exchange other than an *inland bill. The distinction is relevant to the steps taken when the bill has been dishonoured (See dishonour).

foreign company

A company incorporated outside Great Britain but having a place of business within Great Britain. Foreign companies are subject to provisions of the Companies Acts relating to registration, accounts, name, etc.

See oversea company.

foreign enlistment

The offence under the Foreign Enlistment Act 1870 of enlisting oneself or others (except with the licence of the Crown) for armed service with a foreign state that is at war with a state with which the UK is at peace. A foreign state for this purpose includes part of a province or persons exercising or assuming powers of government. It is also an offence under the Act (again, except with licence) to build or equip any ship for such service or to fit out any naval or military expedition for use against a state with which the UK is at peace.

foreign judgments

The *judgment of a foreign court may be enforced in England provided that the foreign court was competent and that the judgment is for a definite sum and is final and conclusive. At common law a foreign court is regarded as competent if (1) the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purpose of either protecting or obtaining the release of property seized (or threatened with seizure) in the proceedings or of contesting the jurisdiction of that court; (2) the judgment debtor was claimant in or counterclaimed in the proceedings in the original court; (3) the judgment debtor, being a defendant in the original court, had agreed before the proceedings commenced to submit to the jurisdiction of that court or of the courts of that country; or (4) the judgment debtor, being a defendant in the original court, was resident in the country of that court when the proceedings were instituted (or, in the case of a corporation, had its principal place of business in that country).

In addition to the common-law rule, foreign judgments may be registered for enforcement by the English courts under a number of statutory powers, notably those contained in the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Civil Jurisdiction and Judgments Act 1982, which derive from such international conventions as the *Brussels Convention and the Lugano Convention.

foreign law

For the purposes of *private international law, any legal system other than that of England. A foreign legal system may be the system of a foreign state (one recognized by public *international law) or of a law district. Thus the law of Scotland, Northern Ireland, the Channel Islands, and Isle of Man and the law of each of the American or Australian states or Canadian provinces is a separate foreign law. When an element of foreign law arises in an English court, it is usually treated as a question of fact, which must be proved (usually by expert evidence) in each case. The English courts retain an overriding power to refuse to enforce (or even to recognize) provisions of foreign law that are against English public policy, foreign penal or revenue laws, or laws creating discriminatory disabilities or status.

See also community law.

foresight

n.

Awareness at the time of doing an act that a certain consequence may result. In the case of some crimes (e.g. *wounding with intent) an *intention by the accused to bring about a certain consequence must be proved before he can be found guilty; foresight is not enough (See also ulterior intent). However, conviction for many crimes (including *wounding) requires only that the accused foresaw a specified consequence as likely or possible. In all cases where foresight suffices for liability, the court may not assume that the defendant had foresight merely because the particular consequence that occurred was the natural and likely consequence of his acts.

See also recklessness.

forfeiture

n.

Loss of property or a right as a consequence of an offence or of the breach of an undertaking. There are three main situations in which the courts may order forfeiture of property. (1) Property that is illegally possessed is subject to forfeiture. (2) Any property relating to an offence under the Misuse of Drugs Act 1971 or the Drug Trafficking Offences Act 1986 (See controlled drugs) may be forfeited and either destroyed or dealt with as the court sees fit (this includes the proceeds of the sale of drugs). (3) Property may be forfeited if it is legally possessed but used (or intended to be used) to commit a crime (e.g. a getaway car) when the owner has previously been convicted of an offence. Property confiscated under this heading is held by the police for six months and then disposed of.

Most *leases provide for the landlord to terminate the lease when the tenant is in breach of his covenants. The landlord must follow a particular procedure before effecting forfeiture. From 24 January 1996 a freeholder cannot forfeit a lease for nonpayment of a service charge unless the lessee accepts the charge or the *leasehold valuation tribunal agrees. In the case of forfeiture for nonpayment of rent, the landlord must make a formal demand for the rent unless the lease exempts him from the need to do this. When other covenants have been breached, the landlord must serve a statutory notice on the tenant specifying the breach, requiring him to put it right where this is possible, and requiring compensation in money if appropriate. If the tenant fails to comply with the notice the landlord may proceed with forfeiture. This may be done through court proceedings for possession or, more rarely, by *re-entry. A landlord loses his right of forfeiture if he treats the lease as continuing when he is entitled to forfeit it. This is known as waiver of forfeiture.

See also confiscation order; racial hatred; relief from forfeiture.

forgery

n.

The offence of making a "false instrument" in order that it may be accepted as genuine, thereby causing harm to others. Under the Forgery and Counterfeiting Act 1981, an "instrument" may be a document, a stamp issued by the Post Office or the Inland Revenue, or any device (e.g. magnetic tape) in which information is recorded or stored. An instrument is considered to be "false" if, for example, it purports to have been made or altered (1) by or on the authority of someone who did not in fact do so; (2) on a date or at a place when it was not; or (3) by someone who is nonexistent. In addition to forgery itself, it is a criminal offence under the Act to copy or use a false instrument, knowing or believing it to be false. It is also an offence merely to have in one's possession or control anyone of certain specified false instruments with the intention of passing them off as genuine. It is also an offence to make or possess any material that is meant to be used to produce any of the specified false instruments. These specified instruments include money or postal orders, stamps, share certificates, passports, cheques, cheque cards and credit cards, and copies of entries in a register of births, marriages, or deaths. All the above offences are punishable on indictment by up to ten years' imprisonment and upon summary trial to a *fine at level 5 on the standard scale and/or six months' imprisonment.

The Act also deals with the offences of counterfeiting currency (notes or coin), with or without the intention of passing it off as genuine; possessing counterfeit currency; passing it off; making or possessing anything which can be used for counterfeiting; and importing or exporting counterfeit currency. It is also an offence to reproduce any British currency note (e.g. to photocopy a £5 note), even in artwork, and, under certain circumstances, to make an imitation British coin. Some of these offences are subject to the same penalties as forgery.

forum

n.

(from Latin: public place)

The place or country in which a case is being heard. If a case involving a foreign element is brought in the English courts, the forum is England.

See lex fori.

forum non conveniens

(Latin: not in agreement with the judicial forum)

A doctrine that permits a court to decline to accept jurisdiction over a case, so that the case may be tried in an alternative forum (i.e. a foreign court). Such decisions are almost entirely at the court's discretion, except that the party seeking a forum non conveniens decision must submit to the effective jurisdiction of the alternative court. The stay will be granted by the court if it is satisfied that a foreign court having competent jurisdiction is available and that the case may be tried more suitably for the interests of all the parties and the ends of justice in that court. The factors that courts generally consider in making this decision include the location of witnesses, exhibits, and documents, the language of the witnesses and documents, the citizenship of the claimants, and the law applicable to the dispute.

In general, the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay, but if the court is satisfied that another court is available, the burden will then shift to the claimant to show that there are special circumstances requiring that the trial should nevertheless take place in the first court.

forum prorogatum

(Latin)

Prorogated jurisdiction, which occurs when a power is conferred - by the consent of the parties and following the initiation of proceedings - upon the International Court of Justice, which otherwise would not have adjudicated. Such consent can be indicated in an implied or informal way or by a succession of acts.

forum rei

(Latin: forum of the thing)

The court of the country in which the subject of a dispute is situated.

forum shopping

The practice of choosing a country in which to bring a legal case through the courts on the basis of which country's laws are the most favourable. In some instances there is a choice of jurisdiction.

foster child

A child who is cared for by someone other than its natural or adopted parents or a person having parental responsibility (See foster parent). Local authorities are obliged by law to supervise the welfare of foster children within their area and to inspect and control the use of premises as foster homes. Foster children do not include children who are looked after by relatives or guardians or boarded out by a local authority or voluntary organization.

foster parent

A person looking after a *foster child. Foster parents have no legal rights over the children they foster, who may be removed from their care by their parents or legal guardian. They may, however, apply to have the child made a ward of court or apply for a residence order (See section 8 orders) when a child has lived with them for three years (or within that period if the local authority gives its consent), which will invest them with parental responsibility. If the child has been living with them for at least 12 months they may apply to adopt him.

four-day order

A supplemental order of a civil court fixing the time for the performance of an act in cases in which no time has been fixed by the principal order. In the Chancery Division this is known as a four-day order although four days is not invariably the time fixed.

four unities

See joint tenancy.

franchise

n.

1. (in constitutional law) A special right conferred by the Crown on a subject. Also known as a liberty, it is exemplified by the right to hold a market or fair or to run a ferry.

2. (in constitutional law) The right to vote at an election. To qualify to vote at a parliamentary or local-government election, a person must be a *commonwealth citizen or a citizen of the Republic of Ireland, must be aged 18 or over, must be shown on the register of electors governing the election (See elector) as resident on the qualifying date in the parliamentary constituency or local government area concerned, and must not be subject to any legal incapacity to vote. Those incapacitated are peers and peeresses in their own right (for parliamentary elections only, and not including peers of Ireland), persons serving sentences of imprisonment, persons convicted during the preceding five years of certain offences relating to elections or to the bribery of public officials, and persons who are incapable of understanding the nature of their acts.

3. (in commercial law) A licence given to a manufacturer, distributor, trader, etc., to enable them to manufacture or sell a named product or service in a particular area for a stated period. The holder of the licence (franchisee) usually pays the grantor of the licence (franchisor) a royalty on sales, often with a lump sum as an advance against royalties. The franchisor may also supply the franchisee with a brand identity as well as finance and technical expertise. Franchises are common in the fast -food business, petrol stations, travel agents, etc. A franchise contract in the EU must comply with regulation 4087/88, which sets out which provisions are permitted and which are banned under EU *competition law.

franked income

Formerly, income that a person or a company received on which *advance corporation tax had been paid. In the case of an individual the tax paid was imputed (See imputation system) to the basic income-tax liability of the recipient. In the case of a company, it was imputed to its own liability to corporation tax.

fraud

n.

A false representation by means of a statement or conduct made knowingly or recklessly in order to gain a material advantage. If the fraud results in injury to the deceived party, he may claim damages for the tort of *deceit. A contract obtained by fraud is voidable on the grounds of fraudulent *misrepresentation.

See also constructive fraud.

In relation to crime,

See cheat; conspiracy; cybercrime; defrauding; dishonesty; false pretence; forgery.

fraud on a power

An exercise of a *power of appointment that, although made to an object within the class chosen by the donor, was made in circumstances that render it void. Examples are when the appointor intended to obtain a benefit for himself or another or when there was a deliberate intention to defeat the intentions of the donor of the power.

fraud on the minority

An improper exercise of voting power by the majority of members of a company. It consists of a failure to cast votes for the benefit of the company as a whole and makes a resolution voidable. Examples are the ratification of an expropriation of company property by the directors (themselves the majority shareholders) and alteration of the articles of association to allow the compulsory purchase of members' shares when this is not in the company's interests. Actual or threatened fraud on the minority may give rise to a *derivative action.

fraudulent conveyance

A transfer of land made without valuable *consideration and with the intent of defrauding a subsequent purchaser. An example of fraudulent conveyance is when A, who has contracted to sell to B, conveys the land to his associate C in order to escape the contract with B. Under the Law of Property Act 1925, B is entitled to have the conveyance to C set aside by the court.

fraudulent misrepresentation

See misrepresentation.

fraudulent trading

Carrying on business with the intention of defrauding creditors or for any other fraudulent purpose, e.g. accepting advance payment for goods with no intention of either supplying them or returning the money. Such conduct is a criminal offence and the court may order those responsible to contribute to the company's assets on a *winding-up.

See also wrongful trading.

freeboard

n.

Under the Merchant Shipping (Safety and Load Line Conventions) Act 1932, the vertical distance measured amidships from the upper edge of the deck line to the upper edge of the load line mark.

freedom from encumbrance

The freedom of property from the binding rights of parties other than the owner. In contracts for the sale of goods, unless the seller makes it clear that he is contracting to transfer only such title as he or a third person may have, there is an implied *warranty that the goods are free from any charge or encumbrance not disclosed or known to the buyer before the contract was made.

freedom of association

A right set out in Article 11 of the European Convention on Human Rights and now part of UK law as a consequence of the *Human Rights Act 1998. This right protects freedom of peaceful assembly, including the right to form and join trade unions and similar bodies. It 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. The right of those in the armed forces, the police, and the administration of the state is protected only to the extent that any interference with this right must be prescribed by law.

freedom of expression

A right set out in Article 10 of the European Convention on Human Rights and now part of UK law as a consequence of the *Human Rights Act 1998. Freedom of expression (*freedom of expression) constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man...it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb...such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'." Convention jurisprudence gives different weight to different kinds of expression. The most important expression - political speech - therefore is likely to be protected to a much greater extent than the least important - commercial speech.

Freedom of expression 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.

freedom of testation

A person's right to provide in his will for the distribution of his estate in whatever manner he wishes. The principle is restricted by the powers of the court to set aside a will made by a person of unsound mind (See testamentary capacity) and to award *reasonable financial provision from an estate to certain relatives and dependants of the deceased under the Inheritance (Provision for Family and Dependants) Act 1975.

freedom of thought, conscience, and religion

A right set out in Article 9 of the European Convention on Human Rights and now part of UK law as a consequence of the *Human Rights Act 1998. While freedom of thought itself is an *absolute right, and as such not subject to public-interest limitations, the right to manifest one's beliefs or religion is a *qualified right; therefore the public interest can be used to justify an interference providing that this is prescribed by law, designed for a legitimate purpose, and proportionate.

free elections

A right set out in Article 3 of the First Protocol to the European Convention on Human Rights and now part of UK law as a consequence of the *Human Rights Act 1998. The state has a duty to hold free elections at reasonable intervals by secret ballot, under conditions that will ensure the free expression of the opinion of the people in the choice of the legislature. This duty does not apply to local elections (local authorities are not the legislature but the European Parliament is), and there is no duty to use any particular system of voting (proportional representation or first past the post).

free from average

See average.

freehold

n.

The most complete form of ownership of land: a legal estate held in *fee simple absolute in possession.

freeing for adoption

Giving consent in general terms to the *adoption of one's child, as opposed to consenting to an adoption by particular prospective adopters. The procedure is used by an *adoption agency in cases in which the parents freely agree that the child may be adopted, or their consent is dispensed with by the court on one of the statutory grounds. Once an order is made, the parental rights and duties are transferred to the adoption agency, who may then proceed to arrange for the child's adoption without asking the parents' consent or notifying them who the adopters are. Adoption law is currently under review: if recommendations are adopted, freeing orders will be abolished.

free movement

The movement of goods, persons, services, and capital within an area without being impeded by legal restrictions. This is a basic principle of the *European Community, whose treaty insists on the free movement of goods (involving the elimination of customs duties and quantitative restrictions between member states and the setting up of a *Common External Tariff) as well as the free movement of services, capital, and persons (including workers and those wishing to establish themselves in professions or to set up companies).

See also exhaustion of rights.

free on board

See F.O.B. contract.

freezing injunction

An injunction, now consolidated in statute, that enables the court to freeze the assets of a defendant (whether resident within the jurisdiction of the English court or not). This prevents the defendant from removing his assets abroad and thus makes it worthwhile to sue such a defendant. The remedy is draconian and has become very popular, both in the commercial world and outside it; any person seeking the remedy, however, must himself disclose all material information to the court. Before the introduction of the Civil Procedure Rules in 1999, freezing injunctions were known as Mareva injunctions, from the case Mareva Campania Naviera SA. v International Bulkcarriers SA (1975).

freight

n.

1. The profit derived by a shipowner or hirer from the use of the ship by himself or by letting it to others, or for carrying goods for others.

2. The amount payable under a contract (of affreightment) for the carriage of goods by sea.

frustration of contract

The unforeseen termination of a contract as a result of an event that either renders its performance impossible or illegal or prevents its main purpose from being achieved. Frustration would, for example, occur if the goods specified in a sale of goods contract were destroyed (impossibility of performance); if the outbreak of a war caused one party to become an enemy alien (illegality); or if X were to hire a room from Y with the object (known to Y) of viewing a procession and the procession was cancelled (failure of main purpose). Unless specific provision for the frustrating event is made, a frustrated contract is automatically discharged and the position of the parties is, in most cases, governed by the Law Reform (Frustrated Contracts) Act 1943. Money paid before the event can be recovered and money due but not paid ceases to be payable. However, a party who has obtained any valuable benefit under the contract must pay a reasonable sum for it. The Act does not apply to certain contracts for the sale of goods, contracts for the carriage of goods by sea, or contracts of insurance.

fugitive offender

A person present in the UK who is accused of committing an offence in a Commonwealth country or a dependent territory of the UK and is liable to be surrendered for trial under the Fugitive Offenders Act 1967. The requirements for surrender are similar to those for *extradition to a foreign state, except that no treaty is involved.

full age

See majority.

full powers

A document produced by the competent authorities of a state designating a person (or body of persons) to represent the state for negotiating, adopting, or authenticating the text of a *treaty, for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

See also signature of treaty.

full representation

See community legal service.

fully mutual housing association

A housing association whose rules restrict membership to people who are tenants or prospective tenants of the association and prevent the granting or assigning of tenancies to those who are not members. Fully mutual housing associations are exempt from the *assured tenancy provisions.

fundamental breach

See breach of contract; innominate terms.

funeral expenses

The reasonable cost of a deceased person's burial, which is the first priority for payment from his estate.

furnished tenancy

See assured tenancy; protected tenancy.

future goods

Goods to be manufactured or acquired by a seller after a contract of sale has been made. Future goods must be distinguished as the subject of a contract of sale from existing goods, which are owned or possessed by a seller.


Date: 2015-01-29; view: 91


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