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See also certificate of incorporation; lifting the veil.

2. See doctrine of incorporation.

incorporation by reference

1. Reference in a will to another document without which the will cannot be understood (the document then forms part of the will). For example, a will leaving a specified sum "to each of the persons listed in my notebook" incorporates the notebook. The document must be clearly identified in the will, in existence at the date of the will, and clearly referred to as being in existence at that date.

2. Reference to named contract terms, for example on the back of a railway ticket, saying where the terms can be seen for those who want to read them. This will often be sufficient to incorporate the terms by reference into the contract, although the other party may not have taken the opportunity to read the terms. However, there are risks in incorporation; for example, it is harder to enforce an exclusion of liability clause (See exemption clause) if the terms are merely incorporated by reference.

incorporeal hereditament

See hereditament.

incoterm

n.

An international trade term. Incoterms, the best known of which are *c.i.f. and *f.o.b., are used as an international shorthand in commercial agreements. A glossary of these terms, the latest edition of which is Incoterms 2000, is published by the International Chamber of Commerce. It sets out definitions of the various incoterms, which deal with such matters as which party to a contract is responsible for transport of the goods, who insures them in transit, and who arranges payment of customs duties.

incriminate

v.

1. To charge with a criminal offence.

2. To indicate involvement in the commission of a criminal offence. A witness in court need not answer a question if, in the judge's opinion, the answer might expose him to the danger of criminal prosecution. A witness does not have this protection when his answer might lead only to civil action against him.

indecency

n.

Conduct that the average man would find shocking or revolting. There are common-law offences of outraging public decency and conspiring to outrage public decency (See conspiracy); examples might include staging an indecent exhibition, keeping a *brothel, or *indecent exposure. Indecency is a question of fact that is left in each case to the jury to decide.

See also gross indecency.

indecent assault

An *assault or *battery in circumstances of indecency. Indecent assault is punishable by up to ten years' imprisonment. Consent (*consent) is normally a defence, except when the victim is under the age of 16. Touching or attempting to touch the genitals of another person without their consent would constitute an indecent assault.

See also doli capax; gross indecency; indecent exposure.

indecent exposure

Exposing one's body in public in a way that outrages public decency. When the exposure (by a man or woman) goes far beyond the generally accepted standards of decency and at least two people could have seen it, it amounts to a common-law offence, even if no one was actually disgusted or upset; such conduct is also punishable under the Vagrancy Act 1824. If a man exposes his genitals to a woman, even in private, with the intention of insulting her, he is guilty of a statutory offence and is liable to imprisonment. Such conduct, if threatening or frightening, may also amount to an *indecent assault.

indefeasible

adj.

Incapable of being made *void.

indemnity

n.

An agreement by one person (X) to pay to another (Y) sums that are owed, or may become owed, to him by a third person (Z). It is not conditional on the third person defaulting on the payment, i.e. Y can sue X without first demanding payment from Z. If it is conditional on the third person's default (i.e. if Z remains the principal debtor and must be sued for the money first) it is not an indemnity but a *guarantee. Unlike a guarantee, an indemnity need not be evidenced in writing.

An indemnity insurance policy is taken out for the benefit of a mortgagee (lender) when a high proportion (often 80%) of the purchase price for a domestic property is borrowed. Such indemnity policies have been held by the courts not normally to be for the benefit of the mortgagor (borrower), although the mortgagor pays the premiums on the policy; only the mortgagee can make a claim.

See also insurance.

indemnity basis

A basis of *assessment of costs under which the receiving party recovers all costs incurred except any that have been unreasonably incurred or are of an unreasonable amount. The receiving party is given the benefit of any doubt on questions of reasonableness.

indenture

n.

(mainly historical)

A deed, generally one creating or transferring an estate in land (e.g. a conveyance or a lease).

independent contractor

A person or firm engaged to do a particular job of work, as opposed to a person under a *contract of employment. An independent contractor is his own master, bound to do the job he has contracted to do but having a discretion as to how to do it. A taxi-driver, for example, is the independent contractor of the passenger who hires him. A person who uses an independent contractor is not generally vicariously liable for torts committed by the contractor, but may be in exceptional cases; situations in which *vicarious liability may be incurred include those in which the contractor is employed in particularly hazardous activities, or to perform statutory duties, or to work on or over (but not merely near) the highway, or is specifically authorized to commit a negligent act.

Independent Housing Ombudsman

A body set up under the Housing Act 1996, under the control of the *Housing Ombudsman, to ensure protection for housing association tenants against landlord mismanagement and to attempt to resolve disputes for housing association tenants.

independent trade union

A trade union holding a certificate of independence issued by the *Certification Officer. A certificate will only be issued if the union is not under the domination or control of any employer, group of employers, or employers' association and is not liable to any interference from them tending towards such control. A union that is refused a certificate of independence may appeal to the *Employment Appeal Tribunal. Trade unions that do not hold a certificate of independence cannot conclude a collective agreement restricting employees' rights to strike and have no statutory right to certain information that employers must disclose to recognized independent trade unions (See disclosure of information). Only officials of independent trade unions have a statutory right to time off work to pursue union activities and duties. Rules regarding the dismissal of an employee for an *inadmissible reason and rules that prohibit employers from taking other action to deter employees from participating in a union only apply if the union holds a certificate of independence.

index maps

Maps kept in the Land Registry showing the position and extent of every registered estate in land. The index maps can be searched to find out if a particular piece of land has an estate registered in respect of it.

indictable offence

An offence that may be tried on *indictment, i.e. by jury in the Crown Court. Most serious common-law offences are indictable (e.g. murder, rape) and many are created by statute. When statute creates an offence without specifying how it is to be tried, it is automatically an indictable offence. An attempt to commit an indictable offence is itself an indictable offence; the same is not true for a *summary offence. Some indictable offences, if not very serious, may be tried either by magistrates or on indictment (See offences triable either way).

indictment

n.

A formal document accusing one or more persons of committing a specified *indictable offence or offences. It is read out to the accused at the trial. An indictment is in a particular form. It is headed with the name of the case and the place of trial. There is then a statement of offence, stating what crime has allegedly been committed, followed by particulars of offence, i.e. such details as the date and place of the offence, property stolen, etc. If the accused is charged with more than one offence, each allegation and charge appears in a separate paragraph called a count. Counts may, however, be framed in the alternative, i.e. two or more counts may charge different offences arising out of the same allegation of fact but the defendant may be convicted of only one of them; for example, when a defendant is charged as a principal in one count and as an accessory in another in respect of the same incident.

See also bill of indictment; trial on indictment.

indigenous peoples

Those peoples and nations that have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories and consider themselves distinct from other sectors of the societies now prevailing in those territories (or parts of them). Forming a non-dominant sector of the prevailing society, they exhibit a determination to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions, and legal systems. Examples of indigenous peoples include the Sami (Lapps) in Scandinavia and the Cymry (Welsh) in the United Kingdom.

Individual Savings Account

(lSA)

A type of savings account on which no tax is payable. There are three main types of property (components) that can be included in an ISA: cash, stocks and shares, and life assurance policies. These can be included all in one ISA- a maxi-ISA, or separately in mini-ISAs. In each tax year a taxpayer can invest in either one maxi-ISA (which must include stocks and shares) or up to three mini-ISAs - one each for cash, stocks and shares, and life assurance. No tax is payable on any of the income from ISA savings and investments, including dividends, interest, and bonuses, and no capital gains tax is payable on gains arising on ISA investments. The ISA manager will arrange for tax credits attached to dividends from UK companies to be paid into the ISA until 5 April 2004. The insurer does not have to pay tax on income or capital gains on investments (including claiming tax credits on dividends from UK companies) used to back ISA life assurance policies; no tax is payable when the policy pays out. Money can be withdrawn at any time without losing tax relief. The maximum that may be invested in ISAs in the tax year 2001-02 is £7000.

indivisible contract

See performance of contract.

indorsement

n.

See endorsement.

inducement

n.

1. The promise of some advantage (e.g. bail) held out by a person in authority in relation to a prosecution to a person suspected of having committed a criminal offence. At common law a confession made after an inducement was inadmissible. It may now render the confession unreliable, and therefore inadmissible, under the terms of the Police and Criminal Evidence Act 1984.

2.

See misrepresentation.

industrial death benefit

A state pension formerly payable to the widow of a man who had died from injuries sustained in the course of his employment or from a prescribed industrial disease. The system came to an end in April 1988. However, widows whose husbands die after that date as a result of an industrial accident or disease are entitled to widows' benefit and retirement pensions, their husbands being deemed to have satisfied the contribution conditions in full.

industrial democracy

Participation in company management by employees. This may take the form of including directors elected by employees on the board of directors.

See also employees' share scheme.

industrial dispute

See trade dispute.

industrial injuries disablement benefit

A pension or lump sum payable by the state to a person disabled by injury or a prescribed industrial disease sustained or contracted in the course of his employment. The benefit is payable as a weekly amount. The amount of the benefit depends on the degree of disablement, which is assessed by a specialist or a board of two doctors. To be entitled to benefit, the disablement must be assessed as being at least 14%of total disability (1% in the case of pneumoconiosis, byssinosis, and diffuse mesothelioma). The benefit is payable if the claimant is still suffering disability 15 weeks or more after the date of the accident or onset of the disease. It is payable for a period assessed as the time for which the claimant is likely to suffer the disability. The assessment can be reviewed if the claimant's condition deteriorates or if he is still disabled at the end of the period of assessment.

industrial tribunal

See employment tribunal.

inevitable accident

An accident that could not have been prevented by the exercise of ordinary care and skill.

infant

(minor)

n.

Since 1969, a *child under the age of 18. Certain rights (such as rights of parental responsibility, the right to make a child a ward of court, and the right to withhold consent to marriage) only apply to infants. Other rights (such as the right to marry with consent) are governed by different age limits, often 16. Infants have a limited *capacity to contract.

infanticide

n.

The killing of a child under 12 months old by its mother. If the mother can show that the balance of her mind was disturbed because of the effects of the childbirth or lactation, she will be found guilty of infanticide, rather than murder, and punished as though she was guilty of *manslaughter. Most cases of infanticide are dealt with by probation or discharge.

See also diminished responsibility.

inferior court

Any of the courts that are subordinate to *superior courts, having a jurisdiction limited to a particular geographical area, size of claim, or type of case. Their decisions are normally subject to appeal to a superior court, and the exercise of their jurisdiction may be subject to control by a superior court. In England and Wales, *county courts and *magistrates' courts are inferior courts.

information

n.

See laying an information.

informed consent

The doctrine that determines the information to be disclosed to a patient to render his consent to treatment lawful. In the USA, the doctrine is based upon the "prudent patient" criterion, i.e. the nature, depth, and amount of information is judged by the physician as that required by a prudent patient. In the UK the doctrine is based upon the "prudent physician" criterion, i.e. the nature, depth, and amount of information is judged by the physician as that which is necessary for the patient. Failure to disclose such information will render any treatment unlawful.

informer

n.

A person who gives information to the police about crimes committed by others. An informer who is himself involved in the crimes may sometimes receive a lighter sentence in return for cooperation with the police that leads to the conviction of other offenders. However, the police may not employ their own informers to participate in crimes and then arrest the criminals, and a police informer who pretends to join a plot to commit a crime may himself be guilty of *conspiracy. It is nevertheless generally thought that if a police informer pretends to help in committing a crime with the intention of frustrating it, he will not be considered an *accessory if he fails to prevent the crime taking place.

in gross

Absolute, i.e. existing in its own right and not as ancillary to land or any other thing. For example a *profit à prendre can exist in gross, conferring rights on persons whether or not they own land capable of benefiting. An easement cannot exist in gross since there must be a dominant tenement.

inherent vice

An inherent defect in certain goods that makes them liable to damage. Some fibres, for example, are liable to rot during shipment. If a carrier or insurer of such goods has not been warned of the inherent vice, he will not be liable for damage resulting directly from the defect.

inheritance

n.

1. The devolution of property on the death of its owner, either according to the provisions of his will or under the rules relating to intestacy contained in the Administration of Estates Act 1925 as amended.

2. Property that a beneficiary receives from the estate of a deceased person.

inheritance tax

A tax introduced by the Finance Act 1986 to replace capital transfer tax. The tax is payable on the value of a person's estate on death added to the value of lifetime gifts in the seven years preceding death and on certain other lifetime gifts. At present (2001-02) there are two rates of tax: nil on estates up to £242,000; 40% on estates over that figure. The tax charged on lifetime gifts made within the seven years before the death of the donor is reduced on a sliding scale according to how long before death the gift was made. Other lifetime gifts are charged at half the death rate. There are a number of exemptions, including gifts between husband and wife, gifts to charities and political parties, and gifts for national purposes or for the public benefit.

inhibition

n.

(in land law)

An entry in the proprietorship register relating to registered land (See land registration) that prohibits the registration of any dealing with the land (such as a transfer or mortgage) for a specified time or until a specified event occurs or until further order or entry. An inhibition may be registered on the application of any person having a sufficient interest; for example, when the owner of land claims that another has become registered as proprietor by fraud. The Chief Land Registrar has total discretion whether to make or cancel any order or entry, but an inhibition must be registered when a receiving order in bankruptcy is made against the proprietor or when registered land is transferred to the incumbent of a benefice.

inhuman treatment or punishment

Treatment that causes intense physical and mental suffering. The prohibition on inhuman treatment or punishment as set out in Article 3 of the European Convention on Human Rights is now part of UK law as a consequence of the *Human Rights Act 1998. This right is an *absolute right; inhuman treatment or punishment can never be justified as being in the public interest, no matter how great that public interest might be. Public authorities have a limited but positive duty to protect this right from interference by third parties.

injunction

n.

A remedy in the form of a court *order addressed to a particular person that either prohibits him from doing or continuing to do a certain act (a prohibitory injunction) or orders him to carry out a certain act (a mandatory injunction). For example, a prohibitory injunction may be granted to restrain a nuisance or to stop the infringement of a copyright or trademark. A mandatory injunction may be granted to order a person to demolish a wall that he has built in breach of covenant. The remedy is discretionary and will be granted only if the court considers it just and convenient to do so; it will not be granted if damages would be a sufficient remedy.

Injunctions are often needed urgently. A temporary injunction (interim or interlocutory injunction) may therefore be granted at a special hearing pending the outcome of the main hearing of the case. If it is granted, the claimant must undertake to compensate the defendant for any damage he has suffered by the grant of the injunction if the defendant is successful in the main action. If judgment is given for the claimant in the main action, a perpetual injunction is granted. A person who fails to abide by the terms of an injunction is guilty of *contempt of court.

See also freezing injunction; quia timet.

injurious falsehood

See malicious falsehood.

injury

n.

1. Infringement of a right.

2. Actual harm caused to people or property.

inland bill

A *bill of exchange that is (or on the face of it purports to be) both drawn and payable within the British Islands or drawn within the British Islands upon some person resident there. All other bills are foreign bills. Unless the contrary appears on the face of a bill, the holder may treat it as an inland bill. The distinction is relevant to the steps taken when a bill has been dishonoured (See dishonour).

Inland Revenue, Board of

Board of Inland Revenue

The body responsible for the care, management, and collection of most taxes within the UK. The officials of which it is made up are the Commissioners. The day-to-day administration is carried out by civil servants. Inspectors of Taxes are responsible for assessing taxes, which are collected by Collectors of Taxes (See also self-assessment). A taxpayer can appeal against an inspector's assessment either to the General Commissioners for his district (lay persons appointed to hear appeals) or to a Special Commissioner (a full-time official appointed by the Treasury to hear appeals).

in limine

(Latin)

Preliminary; used, for example, to describe an objection or pleading.

in loco parentis

(Latin)

In place of a parent: used loosely to describe anyone looking after children on behalf of the parents, e.g. foster parents or relatives. In law, however, only a guardian or a person in whose favour a residence order is made stands in loco parentis; their rights and duties are determined by statutory provisions.

Inner Temple

An *Inn of Court situated in the Temple between the Strand and the Embankment. The earliest recorded claim for its existence is 1440. Its Hall and Library were destroyed by bombing in World War II but have since been rebuilt.

innocent misrepresentation

See misrepresentation.

innocent passage

See territorial waters.

innominate terms

(intermediate terms)

Terms of a contract that cannot be classified as *conditions or *warranties. The parties to a contract may label the terms of the contract as either conditions or warranties and those labels will usually be respected by the courts provided that the result is reasonable. Similarly, certain terms have traditionally been treated as conditions or warranties even though they have not been labelled as such (for example, time clauses in mercantile contracts are to be treated as conditions). Innominate terms are those that will not fit the above categories. The remedy for breach of an innominate term will depend on whether or not the breach is of a fundamental nature, i.e. that the injured party has been deprived of substantially the whole of the benefit of the contract. If the injured party has been so deprived, he will be entitled to treat the contract as repudiated and claim damages. If not, he will be entitled to damages only.

See also breach of contract.

Inns of Chancery

Formerly, Inns similar but subordinate to the *Inns of Court, to which they were attached (for example, Staple Inn and Barnard's Inn were attached to Gray's Inn). Originally they were societies in which students prepared for admission to the Inns of Court; later they became societies of attorneys. They were dissolved in the late 19th century.

Inns of Court

Ancient legal societies situated in central London; every *barrister must belong to one of them. These voluntary unincorporated associations have the exclusive right of call to the Bar. The early history of the Inns is disputed, but they probably began as hostels in which those who practised in the common law courts lived. These hostels gradually evolved a corporate life in which *Benchers, barristers, and students lived together as a self-regulating body. From an early date they had an important role in legal education. In modern times four Inns survive: *Gray's Inn, *Inner Temple, *Lincoln's Inn, and *Middle Temple.

Inns of Court and Bar Educational Trust

See Council of Legal Education.

innuendo

n.

In an action for *defamation, a statement in which the claimant explains the defamatory meaning of apparently innocent words that he alleges are defamatory. The claimant must set out in his particulars of claim the facts or circumstances making the words defamatory.

in personam

(Latin: against the person)

Describing a court action or a claim made against a specific person or a right affecting a particular person or group of people (Compare in rem). The *maxim of equity "equity acts in personam" refers to the fact that the Court of Chancery issued its decrees against the defendant himself, who was liable to imprisonment if he did not enforce them.

inquest

n.

An inquiry into a death the cause of which is unknown. An inquest is conducted by a *coroner and often requires the decision of a jury of 7-11 jurors. It must be held in the case of a sudden death whose cause is unknown or suspicious, a death occurring in prison, or when the coroner reasonably suspects that the death was caused by violent or unnatural means. Inquests are not, however, criminal proceedings; witnesses are usually cross-examined only by the coroner and the strict laws of evidence do not apply. If unlawful *homicide is suspected, and criminal proceedings are likely, the coroner will usually adjourn the inquest (and must do so if requested to by a chief police officer). If the inquest jury find that a particular person caused the death in circumstances amounting to homicide, that person may stand trial. It is an offence to dispose of a body with the intention of preventing an inquest being held.

inquiry

n.

(in international law)

An attempt to discover the facts surrounding an international incident that is the subject of a dispute between two or more parties by means of an impartial investigative body. Such an investigation is intended to promote a successful resolution of the dispute. In treaty law each of the *Bryan Treaties and a number of other treaties between South and Central American states provided for the establishment of permanent commissions of inquiry. In 1967, the UN General Assembly adopted a resolution supporting the institution of such impartial fact-finding and requested the Secretary-General to establish a register of experts whose services could be used by states in specific disputes.

See also conciliation; good offices; mediation.

inquisition

n.

A document containing the verdict of a coroner's *inquest. It consists of the caption (details of the coroner, jury, and the inquest hearing), the verdict (identification of the body and probable cause of death), and the attestation (signatures of the coroner and jurors). An open verdict may be recorded when there is insufficient evidence of the cause of death.

inquisitorial procedure

A system of criminal justice, in force in some European countries but not in England, in which the truth is revealed by an inquiry into the facts conducted by the judge. In this system it is the judge who takes the initiative in conducting the case, rather than the prosecution or defence; his role is to lead the investigations, examine the evidence, and interrogate the witnesses.

Compare accusatorial procedure.

in re

(Latin: in the matter of)

A phrase is used in the headings of law reports, together with the name of the person or thing that the case is about (for example, cases in which wills are being interpreted). It is often abbreviated to re, in which form it is used in headings to letters, etc.

in rem

(Latin: against the thing)

1. Describing a right that should be respected by other people generally, such as ownership of property, as distinct from a right *in personam.

2. Describing a court action that is directed against an item of property, rather than against a person or group of people. Actions in rem are a feature of the *Admiralty Court.

insanity

n.

(in criminal law)

A defect of reason, arising from mental disease, that is severe enough to prevent a defendant from knowing what he did (or what he did was wrong). A person accused of a crime is presumed sane and therefore responsible for his acts, but he can rebut this presumption and escape a conviction if he can prove (See burden of proof) that at the time of committing the crime he was insane. For purposes of this defence, insanity is defined by the McNaghten Rules. These were formulated by judges after the trial of Daniel McNaghten (1843), who killed the Prime Minister's secretary by mistake for the Prime Minister, under the delusion that the government was persecuting him, and was acquitted on the grounds of insanity. According to the rules, the defendant must show that he is suffering from a defect of reason arising out of "a disease of the mind". This would usually include most psychoses, paranoia, and schizophrenic diseases, but psychopaths and those suffering from neuroses or subnormality would not normally fall within the terms of the rules. The defendant must also show that, as a result of the defect of reason, he either did not know the "nature and quality" of his acts, i.e. he did not know what he was doing (for example, if he put a child on a fire, thinking it was a log of wood) or he did not know that his acts were wrong, even if he knew their nature and quality (for example, if he knew he was murdering, but did not know that this was wrong). If the defendant is suffering from an insane delusion, he is treated as though the delusion was true and will have a defence if there would normally be one on those facts (for example, if he kills someone under the insane delusion that he is acting in self-defence, since self-defence is a defence). Medical evidence may be brought, but the jury are entitled to form their opinion on the facts. If found to be insane the defendant is given a special verdict of "not guilty by reason of insanity" and may be admitted to hospital. In cases of homicide, the accused must be sent to hospital (usually a *special hospital, such as Broadmoor). Because of the consequences of successfully pleading it, in practice insanity was usually only pleaded to avoid the death penalty. However, a defendant who puts his mental state in issue (e.g. by raising a defence of *diminished responsibility on a murder charge) might have to change his plea to guilty to avoid being treated as pleading insanity (though he is entitled to appeal against an insanity verdict).

Date: 2015-01-29; view: 829