Оxford_dictionary_of_law 5 page

For the purposes of the Mental Health Act 1983, a form of *mental disorder comprising mental impairment and severe mental impairment. Mental impairment implies a lack of intelligence that does not amount to severe mental impairment but that nevertheless requires or will respond to medical treatment. Severe mental impairment is a lack of intelligence and social functioning associated with aggressive or severely irresponsible conduct.

arrest of judgment

A motion by a defendant in criminal proceedings on indictment, between the conviction and the sentence, that judgment should not be given on the ground of some objection arising on the face of the *record, such as a defect in the indictment itself. Such motions are extremely rare in modern practice.

arrived ship

See lay days.

arson

n.

The intentional or reckless destruction or damaging of property by fire without a lawful excuse. There are two forms of arson corresponding to the two forms of *criminal damage in the Criminal Damage Act 1971. Arson carries a maximum sentence of life imprisonment.

article

n.

A clause in a document. The plural, articles, is often used to mean the entire document, e.g. *articles of association.

Article 81

A provision of the Treaty of Rome that prohibits anticompetitive agreements the aim or effect of which is to restrict, prevent, or distort competition in the EU (See also competition law). Article 81 (formerly 85) applies directly in all member states (See Community legislation) and is often used against *cartels; it only applies when the agreement affects trade between member states. Agreements that infringe the Article are void and unenforceable; third parties have the right to bring actions for damages if they have suffered loss through the operation of such agreements. Infringement of the Article may result in EU fines of up to 10% of annual worldwide turnover. In the UK there are very similar provisions in the Competition Act 1998, which prohibit anticompetitive agreements under Chapter I of that Act.

See also block exemption.

Article 82

A provision of the Treaty of Rome, with direct effect throughout the EU (See Community legislation), that prohibits *abuses of a dominant position by businesses in the EU. Examples of breaches of Article 82 (formerly 86) include refusing to supply an existing customer (for example, when it has begun to operate in competition with the dominant company), selectively reducing prices to stop competition from competitors (See predatory pricing), unfair or excessive prices, tying clauses, and refusing to license *intellectual property rights. Article 82 only prohibits such conduct if the business is dominant, i.e. if it enjoys a market share of 40% or more in the EU (or a substantial part of it). The rules only apply when the conduct affects trade between member states. There is a very similar prohibition in the Chapter II prohibition of the Competition Act 1998, which holds that abuse of a dominant position will breach UK law if it has effects in the UK.

Article 234 Reference

A provision of the Treaty of Rome entitling national courts to refer matters of EU law to the European Court of Justice for a determination. The case ultimately returns to the national court for a final judgment. Such a procedure is known as a "234 reference". Article 234 (formerly 177) is a provision of the Treaty that empowers the Court of Justice to decide such issues as how the Treaty of Rome should be interpreted and whether or not the European Commission or other bodies have acted properly.

articles of association

Regulations for the management of registered companies (See table a). They form, together with the provisions of the *memorandum of association, the company's constitution.

artificial insemination

See human assisted reproduction.

artificial person

See juristic person.

ascertained goods

See unascertained goods.

assault

n.

An intentional or reckless act that causes someone to be put in fear of immediate physical harm. Actual physical contact is not necessary to constitute an assault (for example, pointing a gun at someone is an assault), but the word is often loosely used to include both threatening acts and physical violence (See battery). Words alone cannot constitute an assault. Assault is a form of *trespass to the person and a crime as well as a tort: an ordinary (or common) assault, as described above, is a *summary offence punishable by a *fine at level 5 on the standard scale and/or up to six months' imprisonment. Certain kinds of more serious assault are known as aggravated assaults and carry stricter penalties. Examples of these are assault with intent to resist lawful arrest (two years), assault occasioning *actual bodily harm (five years), and assault with intent to rob (life imprisonment).

See also affray; indecent assault.

Assembly of the European Communities

See European Parliament.

assent

n.

A document by which personal representatives transfer property to a beneficiary under a will or on intestacy. Under the Administration of Estates Act 1925 they may transfer *real estate (including leaseholds) to beneficiaries by an assent in writing, which must be signed by the personal representatives. A beneficiary's title to the property is not complete until the assent has been effected. Personal representatives may also use an assent to vest land in trustees. An assent, once executed, relates back to the death of the deceased. Where an assent is made after 1998, it triggers registration of the land. If the land is already registered, the assent must be completed by registration.

See land registration.

assent procedure

A procedure introduced by the Single European Act 1986 that gives greater powers to the *European Parliament over the unelected European Commission. It applies when there is one reading of a new legislative measure in the Parliament: Parliament either assents by an absolute majority to the measure as presented to it or rejects it; it does not have a power to amend the measure.

Compare codecision procedure; cooperation procedure.

assessment of costs

The method by which the amount of costs payable by one party to another, or payable by a client to his solicitor, is determined by an officer of the court. Before the introduction of the *Civil Procedure Rules in 1999, this was called taxation of costs. Assessments may be summary or detailed. In a summary assessment, the court determines the amount payable immediately at the end of the hearing. In this instance, the court can call for whatever evidence is available at the time (e.g. brief fee) to determine the amount. This is the preferred method of assessment in *fast track trials. In contrast, a detailed assessment involves the quantification of costs to a *costs officer, who considers the amount at some stage after the hearing. Detailed assessments are mostly carried out by district judges in the county courts but there is a dedicated office, the Supreme Court Costs Office, for the High Court.

assessor

n.

A person called in to assist a court in trying a case requiring specialized technical knowledge. The High Court and the Court of Appeal have wide powers to appoint assessors to assist them in any action, but this power is rarely exercised except in Admiralty cases. Assessors will not give oral evidence and will not be open to cross-examination or questioning. In cases involving questions of navigation and seamanship, it is the invariable practice to appoint assessors who are Elder Brethren of Trinity House. In proceedings to review an *assessment of costs a practising solicitor and a *costs officer are usually appointed to assist the judge.

assets

pl. n.

Physical property and/or rights that have a monetary value and are capable of being those of a *juristic person or a natural person (i.e. a human being). They can comprise real assets (real property) and personal assets (personal property). In respect of a juristic person, such as a corporation, assets include fixed or capital assets (those identified as being held and used on a continuing basis in the business activity, e.g. machinery) and current or circulating assets (those not intended to be used on a continuing basis in the business activity but realized in the course of trading).

In respect of a natural person who is deceased, assets comprise all real and personal property that forms part of the deceased's estate and is available for the payment of the deceased's debts and liabilities.

See also family assets; wasting assets.

assignee

n.

See assignment.

assignment

n.

1. The transfer of a *chose in action by one person (the assignor) to another (the assignee). By the rules of the common law, this was not permissible. If, for example, A was owed a contract debt by B, he could not transfer his right to C so as to enable C to sue B for the money owed. The assignment of certain choses in action is now authorized and governed by particular statutes. For example, the Companies Act 1985 allows shares in a company to be transferred in the manner prescribed by the company's articles of association. These, however, are special cases; in general, choses in action, whether legal (e.g. the benefit of a contract) or equitable (e.g. a right under a trust), can be transferred either by equitable assignment or, under the Law of Property Act 1925, by statutory assignment. For an equitable assignment, no formality is required. It is sufficient that the assignor shows a clear intention to transfer ownership of his right to the assignee. If, however, it is a legal chose that is assigned, the assignor must be made a party to any proceedings by the assignee to enforce the right. In the above example, C can sue B for the debt, but he must join A as co-claimant or (if A refuses to lend his name to the action in this way) as co-defendant. A statutory assignment under the Law of Property Act 1925 is sometimes referred to as a legal assignment, but since it may relate to an equitable chose in action as well as a legal one this is not wholly accurate. It enables the assignee to enforce the right assigned in his own name and without joining the assignor to the proceedings even if it is a legal chose. There are three requirements for its validity: it must be absolute; it must be in writing; and written notice of it must be given to the person against whom the right is enforceable. For these purposes, an absolute assignment is one that transfers the assignor's entire interest to the assignee unconditionally. If less than his entire interest (e.g. part of a debt) is transferred, or if any condition is attached to the transfer (e.g. that the consent of a third party be obtained), the assignment is not absolute. An assignment need not, however, be permanent to be absolute, and this is exemplified by the mortgage of a chose in action. If A, who owes money to C, assigns to C as security for that debt a debt due to him from B, with the proviso that C will reassign the debt if A settles what is due to him, the assignment is absolute despite the proviso for reassignment.

The assignment of contractual rights (which must be distinguished from *novation) is subject to certain restrictions. For reasons of public policy, the holder of a public office must not assign his salary nor a wife her right to maintenance payments awarded in matrimonial proceedings. Rights to the performance of personal services, as under contracts of employment, are also incapable of being assigned. Intellectual property rights (*intellectual property) must be assigned or transferred by document in writing signed by the assignor. Stamp duty (*stamp duty) is payable on assignments of property if the value transferred is over £60,000.

2. The transfer of the whole of the remainder of the term of a lease. A tenant may assign his lease unless there is a covenant against it: there is often a covenant against assignment without the landlord's consent. The landlord cannot charge a fee for giving his consent unless there is express provision for this in the lease and he may not withhold his consent unreasonably. Less commonly, a lease may contain a covenant that prohibits any assignment at all. Where a lease contains a covenant against assigning without the landlord's consent, such consent not to be unreasonably withheld, the landlord has certain statutory duties. These are: he must give the tenant notice of his decision within a reasonable time of the tenant requesting consent; the notice must give reasons for any refusal of consent, or conditions attached to acceptance (the conditions themselves must not be unreasonable); and the landlord cannot withhold consent unless the tenant would be in breach of covenant if he completed the transaction without consent.

See also business tenancy.

assignor

n.

See assignment.

assize

n.

1. An assize court or council. In modern times assizes were sittings of High Court judges travelling on circuits around the country with commissions from the Crown to hear cases. These commissions were either of oyer, terminer, and general gaol delivery, empowering the judges to try the most serious criminal cases, or of nisi prius, empowering them to try civil actions. These assizes were abolished by the Courts Act 1971, and the criminal jurisdiction of assizes was transferred to the Crown Court. At the same time, the High Court was empowered to hear civil cases anywhere in England and Wales without the need for a special commission.

2. A statute or ordinance, e.g. the Assize of Clarendon, Novel Disseisin.

association agreement

An agreement between a member state of the European Union and a non-EU country or organization, as provided for in Article 310 of the Treaty of Rome. The agreement, which may be with a country, a union of states, or an international organization, establishes an association involving reciprocal rights and obligations, common action, and special procedures.

assurance

n.

See insurance.

assured agricultural occupancy

A form of *assured tenancy in which the tenant is an agricultural worker living in a *tied cottage. This kind of tenancy replaced protected occupancies (*protected occupancy) from 15 January 1989. In certain circumstances a local authority may be required to rehouse assured agricultural occupants.

See Agricultural Dwelling House Advisory Committee.

assured shorthold tenancy

A special kind of *assured tenancy at the end of which the landlord is entitled to recover possession without having to show one of the usual grounds for possession of an assured tenancy. This kind of tenancy was introduced by the Housing Act 1988, replacing protected shorthold tenancies. Under the 1988 Act the landlord was obliged to give the tenant notice before the grant of the tenancy that it was an assured shorthold tenancy. However, under the Housing Act 1996, from 28 February 1997 the requirement for the landlord to serve a notice is removed, and all new tenancies are automatically assured shortholds unless otherwise agreed. If a landlord wants to give the tenant security under an assured tenancy, this must be specifically created; if this is not done, the tenancy is an assured shorthold without *security of tenure. A tenant can apply to a rent assessment committee if he thinks the rent of the tenancy is excessive. The committee can fix a new rent if they think that the rent is significantly higher than that of other assured tenancies in the area. However, government regulations may restrict this right in certain areas or in certain circumstances.

The landlord may obtain possession at any time when he would have been entitled to do so contractually, by giving two months' notice and specifying that the tenancy is an assured shorthold tenancy. No order for possession may be made in the first six months of the tenancy.

assured tenancy

A form of tenancy under the Housing Act 1988 that is at a market rent but gives *security of tenure. The premises may be furnished or unfurnished. This kind of tenancy replaces protected tenancies (*protected tenancy) except those in existence before the Housing Act 1988 came into force. Former assured tenancies under the Housing Act 1980(where different provisions applied) are converted into the new kind of assured tenancy.

To qualify as an assured tenancy, the premises must be let as a separate dwelling, within certain rateable value limits. There are certain exceptions, such as when the landlord lives in another part of the same premises. Under the Housing Act 1996, from 28 February 1997 all new residential tenancies are assured shorthold tenancies (*assured shorthold tenancy) without security of tenure, unless a notice is specifically served stating that the parties are creating an assured tenancy.

The rent is an open market rent agreed between the landlord and tenant, and it is not registered. However, the landlord must give the tenant notice if he intends to increase the rent, and the tenant can then apply to a *rent assessment committee if he thinks the increase is excessive. The rent assessment committee determines the rent at the current market value. There are limits on the frequency of rent increases.

The landlord can only regain possession on certain statutory grounds. These include: nonpayment of rent; that the landlord formerly lived in the dwelling and requires it again for his own use; that the tenant is a *nuisance neighbour or may become a nuisance; and that alternative accommodation is available (the court has discretion in this last case).

When the tenant of an assured tenancy dies, his spouse has a right, in certain circumstances, to take over the tenancy as successor to the deceased tenant. An assured tenant cannot usually assign the tenancy without the landlord's consent.

See also statutory periodic tenancy.

asylum

n.

Refuge granted to an individual whose *extradition is sought by a foreign government. This can include refuge in the territory of a foreign country (territorial asylum) or in a foreign embassy (diplomatic asylum). The latter is particularly contentious as it is a derogation from the sovereignty of the territorial state; moreover, diplomatic asylum may only be granted in cases of an alleged political offence and not in cases involving common-law crimes. Diplomatic asylum is well recognized in Latin American states. Conventions relating to it include the Havana Convention of 1928, the Montevideo Convention of 1933, and the CarACAS Convention of 1954. The UK Asylum and Immigration Act 1996 made it a criminal offence for employers to employ anyone subject to immigration control.

See immigration; political asylum.

at sea

See privileged will.

attachment

n.

A court order for the detention of a person and/or his property. Attachment can be used by the courts for the punishment of *contempt of court. However, the most common form of attachment is attachment of earnings, by which a court orders the payment of judgment debts and other sums due under court orders (e.g. maintenance) by direct deduction from the debtor's earnings. Payment is usually in instalments, and the debtor's employer is responsible for paying these to the court.

See also garnishee proceedings.

attempt

n.

(in criminal law)

Any act that is more than merely preparatory to the intended commission of a crime; this act is itself a crime. For example, shooting at someone but missing could be attempted murder, but merely buying a revolver would not. One may be guilty of attempting to commit a crime that proves impossible to commit (e.g. attempted theft from an empty handbag).

attendance centre

A nonresidential institution run by a local authority at which offenders between the ages of 17 and 21 may be ordered by a youth court to attend if they have not previously been sentenced to prison or detention in a young offender institution. Attendance, which is outside normal school or working hours, is for periods of up to 3 hours each, to a maximum of 36 hours. Such orders are made when it is felt that a custodial order is not required but a fine or other order would be too lenient.

attestation

n.

The signature of witnesses to the making of a will or *deed. Under the Wills Act 1837 as amended the testator must acknowledge his signature (See acknowledgment) in the presence of two witnesses who must each sign (attest) at the same time in the testator's presence. The signature of each party to a deed must be attested by one witness.

attorney

n.

A person who is appointed by another and has authority to act on behalf of another.

See also power of attorney.

Attorney General

AG

(Attorney General, AG)

The principal law officer of the Crown. The Attorney General is usually a Member of Parliament of the ruling party and holds ministerial office, although he is not normally a member of the Cabinet. He is the chief legal adviser of the government, answers questions relating to legal matters in the House of Commons, and is politically responsible for the *Crown Prosecution Service, *Director of Public Prosecutions, *Treasury Solicitor, and *Serious Fraud Office. He is the leader of the English Bar and presides at its general meetings. The consent of the Attorney General is required for bringing certain criminal actions, principally ones relating to offences against the state and public order and corruption. The Attorney General sometimes appears in court as an *advocate in cases of exceptional public interest, but he is not now allowed to engage in private practice. He has the right to terminate any criminal proceedings by entering a *nolle prosequi.

See also solicitor general.

attornment

n.

1. An act by a bailee (See bailment) in possession of goods on behalf of one person acknowledging that he will hold the goods on behalf of someone else. The attornment notionally transfers possession to the other person (constructive possession) and can thus be a delivery of goods sold.

2. (largely historical) A person's agreement to hold land as the tenant of someone else. Some mortgages provide that the owner of the land attorns tenant of the mortgagee for a period of years that will be terminated when the debt is repaid.

auction

n.

A method of sale in which parties are invited to make competing offers (bids) to purchase an item. The auctioneer, who acts as the agent of the seller until fall of the hammer, announces completion of the sale in favour of the highest bidder by striking his desk with a hammer (or in any other customary manner). Until then any bidder may retract his bid and the auctioneer may withdraw the goods. The seller may not bid unless the sale is stated to be subject to the seller's right to bid. Merely to advertise an auction does not bind the auctioneer to hold one. However, if he advertises an auction without reserve and accepts bids, he will be liable if he fails to knock the item down to the highest outside bidder. An auctioneer who discloses his agency promises to a buyer that he has authority to sell and that he knows of no defect to the seller's title; he does not promise that the buyer of a specific chattel will get a good title.

auction ring

A group of buyers who agree not to compete against each other at an auction with a view to purchasing articles for less than the open-market value. The profit earned thereby is shared among the members of the ring, or a second "knock-out" auction is held in private by the members of the ring with the article being sold to the highest bidder and the profit shared among the members. Under the Auctions (Bidding Agreements) Acts 1927 and 1969 it is a criminal offence for a dealer to participate in an auction ring and a seller is given the right to set aside the contract of sale if one of the purchasers is a dealer in a ring.

audi alterarn partern

See natural justice.

Audit Commission

See district auditors.

audit exemption

Exemption from the requirement to file audited accounts, which (since 11 August 1994) can be claimed by small companies with a turnover of under £90,000 per annum and a balance-sheet total under £1.4M.

auditor

n.

A person appointed to examine the *books of account and the *accounts of a registered company and to report upon them to company members. An auditor's report must state whether or not, in the auditor's opinion, the accounts have been properly prepared and give a true and fair view of the company's financial position. The Companies Acts 1985 and 1989 set out the qualifications an auditor must possess and also certain rights to enable him to fulfil his duty effectively.

authentication

n.

A distinct procedural step at the conclusion of a *treaty at which the definitive text of the treaty is established as correct and authentic and not subject to further modification.

authority

n.

1. Power delegated to a person or body to act in a particular way. The person in whom authority is vested is usually called an *agent and the person conferring the authority is the principal.

2. A governing body, such as a *local authority, charged with power and duty to perform certain functions.

3. A judicial decision or other source of law used as a ground for a legal proposition.

See also persuasive authority.

authorized capital

nominal capital

(authorized capital, nominal capital)

The total value of the shares that a registered company is authorized to issue in order to raise capital. The authorized capital of a company limited by shares (See limited company) must be stated in the memorandum of association, together with the number and nominal value of the shares (See capital). For example, an authorized capital of £20,000 may be divided into 20000 shares of £1 (the nominal value) each. If the company has issued 10000 of these shares, it is said to have an issued capital of £10,000 and retains the ability, without an increase in capital (See alteration of share capital), to issue further shares in future. If the company has received the full nominal value of the shares issued, its *paid-up capital equals its issued capital. Where a company has not yet called for payment (See call) of the full nominal value, it has uncalled capital. Reserve capital is that part of the uncalled capital that the company has determined (by *special resolution) shall not be called up except upon a winding-up.

authorized investments

Formerly, investments in which a trustee was permitted to invest trust property. Under the Trustee Investments Act 1961 (replacing earlier legislation, which did not give wide enough powers) trustees could invest not more than half the trust fund in shares in certain companies; the other half had to be invested in authorized securities, certain debentures, local authority loans, etc. A *general power of investment has now been given to trustees by the Trustee Act 2000.

authorized securities

See authorized investments.

automatic reservation

A *reservation to the acceptance by a state of the compulsory jurisdiction of the International Court of Justice. This is made under the *optional clause of the Statute of the Court, which permits an accepting state to unilaterally claim the right to determine the scope of its reservation.

automatism

n.

Unconscious *involuntary conduct caused by some external factor. A person is not criminally liable for acts carried out in a state of automatism, since his conduct is altogether involuntary. Examples of such acts are those carried out while sleepwalking or in a state of concussion or hypnotic trance, a spasm or reflex action, and acts carried out by a diabetic who suffers a hypoglycaemic episode. Automatism is not a defence, however, if it is self-induced (for example, by taking drink or drugs). When automatism is caused by a disease of the mind, the defence may be treated as one of *insanity. Mere absent-mindedness, even when brought about by a combination of, for example, depression and diabetes, is not regarded as a defect of reason under the defence of *insanity. It may, however, be grounds for concluding that the accused was not capable of having the necessary *mens rea at the time of the offence.

autopsy

post-mortem

(autopsy, post-mortem (Latin: after death)

n.

The examination of a body after death in order to establish the cause of death. Autopsies are frequently requested by coroners (See inquest).

autrefois acquit

(French: previously acquitted)

A *special plea in bar of arraignment claiming that the defendant has previously been acquitted by a court of competent jurisdiction of the same (or substantially the same) offence as that with which he is now charged or that he could have been convicted on an earlier indictment of the same (or substantially the same) offence. When this plea is entered the judge determines the issue. If the plea is successful it bars further proceedings on the indictment. The plea may be combined with one of *not guilty.

Date: 2015-01-29; view: 1326