Оxford_dictionary_of_law 14 page

condition precedent

See condition.

condition subsequent

See condition.

condominium

n.

1. Joint sovereignty over a territory by two or more states (the word is also used for the territory subject to joint sovereignty). For example, the New Hebrides Islands in the South Pacific were a Franco-British condominium until 1980. Sovereignty is joint, but each jointly governing power has separate jurisdiction over its own subjects.

Compare co-imperium.

2. Individual ownership of part of a building (e.g. a flat in a block of flats) combined with common ownership of the parts of the building used in common.

condonation

n.

Forgiving a matrimonial offence or turning a blind eye to it. Formerly a bar to divorce, it is no longer relevant in divorce proceedings.

confederation

n.

A formal association of states loosely bound by a treaty, in many cases one establishing a central governing mechanism with specified powers over member states but not directly over citizens of those states. In a confederation, the constituent states retain their national sovereignty and consequently their right to *secession.

Compare federal state.

conference

n.

1. A meeting of members of the House of Lords and the House of Commons appointed to attempt to reach agreement when one House objects to amendments made to one of its Bills by the other.

2. A meeting between counsel and a solicitor to discuss a case in which they are engaged. Conferences usually take place at counsel's chambers. If the barrister involved is a QC, the meeting is called a consultation.

confession

n.

An *admission, in whole or in part, made by an accused person of his guilt. At common law, confessions were admissible if made voluntarily, i.e. not obtained as a result of some threat or inducement held out by a person in authority (such as a police officer). They are now governed by the Police and Criminal Evidence Act 1984, which requires the prosecution, if called upon to do SO, to prove beyond a reasonable doubt that the confession was not obtained by oppression of the person who made it or as a result of anything that was likely to render the confession unreliable. A confession may also be ruled to be inadmissible if the civil rights of the accused have been breached, for example if he has been denied access to legal advice.

confession and avoidance

A pleading in the *defence that, while admitting or assuming the truth of the material facts alleged in the particulars of claim (the confession), seeks to avoid or destroy the legal consequences of those facts by alleging further facts constituting some defence to the claim (the avoidance). An example is a plea of self-defence to an action for assault.

confidential communication

The mere fact that a communication is confidential does not in itself make it inadmissible; it will only be so if it is within the scope of an evidentiary *privilege, such as legal professional privilege or public-interest privilege.

confidential information

See breach of confidence.

confiscation order

An order that requires an offender convicted by the Crown Court of an *indictable offence, who has benefited by at least £10,000 from that offence (or an offence taken into consideration), to pay a sum that the court thinks fit. Magistrates may make such orders only in relation to a limited class of offences (e.g. offences relating to the supply of video recordings of unclassified work). The order is enforced like a *fine and is in addition to any other sentence. The High Court may make a restraint order prohibiting the transfer or disposal of realizable property held by a person when proceedings have been instituted against him for a relevant offence.

See also controlled drugs.

conflict of laws

See private international law.

confusion of goods

The mixing of goods of two or more owners in such a way that their original shares can no longer be distinguished. The owners hold the goods in common, in proportion to their shares. One owner may be awarded possession of the mixture, if he has best right to it, subject to him compensating the other owner for his proportion.

conjugal rights

The rights of either spouse of a marriage, which include the right to the other's consortium (company), cohabitation (sexual intercourse), and maintenance during the marriage. There is, however, no longer any legal procedure for enforcing these rights. The old action for restitution of conjugal rights was abolished in 1971 and a husband insisting on sexual intercourse against the wishes of his wife may be guilty of *rape.

See also consummation of a marriage.

connivance

n.

Behaviour of a person designed to cause his or her spouse to commit a matrimonial offence, such as adultery. Connivance is no longer an absolute bar to divorce, but may still be evidence that the marriage has not irretrievably broken down.

conquest

n.

The acquisition by military force of enemy territory followed by its formal annexation after the cessation of hostilities. It does not include the acquisition of land as a term of a peace treaty (See cession). The acquisition of territory after a war in the absence of any peace treaty, because the defeated state has ceased to exist, is known as debellatio or subjugation. Conquest is not now regarded as a legitimate means of acquiring territory, and hence conferring valid title, as Article 2(4) of the UN Charter expressly prohibits aggressive war and Article 5(3) of General Assembly Resolution 3314 (XXIX) of 1975 effectively nullifies any legal title acquired in this way.

consanguinity

(blood relationship)

n.

Relationship by blood, i.e. by descent from a common ancestor. People descended from two common ancestors are said to be of the whole blood. If they share only one ancestor, they are of the half blood.

Compare affinity.

consecutive sentences

See concurrent sentence.

consensus ad idem

(Latin: agreement on the same thing)

The agreement by contracting parties to identical terms that is necessary for the formation of a legally binding contract.

See acceptance; mistake; offer.

consent

n.

Deliberate or implied affirmation; compliance with a course of proposed action. Consent is essential in a number of circumstances. For example, contracts and marriages are invalid unless both parties give their consent. Consent must be given freely, without duress or deception, and with sufficient legal competence to give it (See also informed consent). In criminal law, issues of consent arise mainly in connection with offences involving violence and *dishonesty. For public-policy reasons, a victim's consent to conduct which foreseeably causes him bodily harm is no defence to a charge involving an *assault, *wounding, or *homicide; in other cases the defendant should be acquitted if the magistrates or jury have a reasonable doubt not only as to whether the victim had consented but also as to whether he thought the victim had consented.

See also age of consent; battery; conveyance; rape.

conservation area

An area designated as such by a local planning authority (See town and country planning) because it is of special architectural or historic interest the character of which ought to be preserved or enhanced. Each building in the area becomes protected as if it were a *listed building, and trees not protected by a *tree preservation order may only be lopped, felled, etc., after notice to the authority.

consideration

n.

An act, forbearance, or promise by one party to a contract that constitutes the price for which he buys the promise of the other. Consideration is essential to the validity of any contract other than one made by deed. Without consideration an agreement not made by deed is not binding: it is a nudum pactum (naked agreement), governed by the maxim ex nudo pacto non oritur actio (a right of action does not arise out of a naked agreement).

The doctrine of consideration is governed by four major principles:

(1) A valuable consideration is required, i.e. the act, forbearance, or promise must have some economic value. Good consideration (natural love and affection or a moral duty) is not enough to render a promise enforceable.

(2) Consideration need not be adequate but it must be sufficient. Not to be adequate in this context means that it need not constitute a realistic price for the promise it buys, as long as it has some economic value. If X promises to sell his £50,000 house to Y for £5000, Y is giving valuable consideration despite its inadequacy. £1 is often the consideration in commercial contracts. That it must be sufficient means sufficient in law. A person's performance of, or promise to perform, an existing duty usually cannot in law constitute consideration.

(3) Consideration must move from the promisee. Thus if X promises to give Y £1000 in return for Y's promise to give employment to Z, Z cannot enforce Y's promise, for he has not supplied the consideration for it.

(4) Consideration may be executory or executed but must not be past. A promise in return for a promise (as in a contract of sale) is executory consideration; an act or forbearance in return for a promise (as in giving information to obtain a reward) is executed consideration. However, a completed act or forbearance is past consideration in relation to any subsequent promise. For example, if X gives information to Y gratuitously and Y then promises to reward him this is past consideration, which does not constitute consideration.

consistory court

See ecclesiastical courts.

Consolidated Fund

The central account with the Bank of England maintained by the government for receiving public revenue and meeting public expenditure. Most payments from it are authorized annually by Consolidated Fund Acts, but some (e.g. judicial salaries) are permanent statutory charges on it.

consolidating statute

A statute that repeals and re-enacts existing statutes relating to a particular subject. Its purpose is to state their combined effect and so simplify the presentation of the law. It does not aim to alter the law unless it is stated in its long title to be a consolidation with amendments. An example of a consolidating statute is the Trade Union and Labour Relations (Consolidation) Act 1992.

Compare codifying statute.

See also interpretation of statutes.

consolidation of actions

A procedure in civil cases by which two or more cases may be amalgamated. It is generally necessary to show that some common question of law or fact will arise in all the cases. The purpose of consolidation is to save costs and time.

consolidation of mortgages

The right of a mortgagee who has taken mortgages on two or more properties from the same mortagor to require the mortgagor to redeem all of the mortgages or none, provided that the contractual date of redemption (See power of sale) for all of them has passed. The right arose because it was considered unfair to a mortgagee to have one security redeemed when another, given by the same mortgagor, might be inadequate to secure that loan. Since 1881 at least one of the mortgage deeds must show an intent to allow consolidation for the mortgagee to exercise the right.

Compare tacking.

consortium

n.

1. The right of one spouse to the company, assistance, and affection of the other. Formerly, a husband could bring an action in tort (per quod consortium amisit) against anyone who, by a tortious act against his wife, deprived him of consortium. A wife had no corresponding action. The action for loss of consortium was abolished by the Administration of Justice Act 1982.

2. See concert party.

conspiracy

n.

1. An agreement between two or more people to behave in a manner that will automatically constitute an offence by at least one of them (e.g. two people agree that one of them shall steal while the other waits in a getaway car). The agreement is itself a statutory crime, usually punishable in the same way as the offence agreed on, even if it is not carried out. Mens rea (See mens rea), in the sense of knowledge of the facts that make the action criminal, is required by at least two of the conspirators, even if the crime agreed upon is one of *strict liability. One may be guilty of conspiracy even if it is impossible to commit the offence agreed on (for example, when two or more people conspire to take money from a safe but, unknown to them, there is no money in it). A person is, however, not guilty of conspiracy if the only other party to the agreement is his (or her) spouse. Nor is there liability when the acts are to be carried out in furtherance of a trade dispute and involve only a summary and nonimprisonable offence. Incitement to conspire and attempt to conspire are no longer crimes.

Some forms of criminal conspiracy still exist at common law. These are now limited to: (1) conspiracy to *defraud (e.g. to commit fraud, theft, obtain property by deception, or infringe a copyright) or to cause an official to act contrary to his public duty; (2) conspiracy to corrupt public morals (See corruption of public morals); and (3) conspiracy to outrage public decency (this might include an agreement to mount an indecent exhibition).

2. A conspiracy to injure a third party is a tort if it causes damage to the person against whom the conspiracy is aimed. It is not necessary to prove that the conspirators used unlawful means. If unlawful means have not been used, conspiracy is not actionable if the predominant purpose of the conspirators was legitimate. Protection of one's own financial or trade interests is thus a legitimate purpose provided no unlawful means are used; but retaliation for an insult to one's dignity is not. The operation of the tort in *trade disputes is limited by statute.

constable

n.

See police officer.

constituency

n.

An area of the UK for which a representative is elected to membership of the *House of Commons or the *European Parliament.

See also boundary commissions.

Constituency Members

Members of the *London Assembly each of whom represents one of the 14 London constituencies. Constituency Members are elected every four years in May by voters in London, at the same time as *London Members and the *Mayor of London are elected. Each of the 14 London constituencies returns one member.

constitution

n.

The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state. Most states have a written constitution, one of the fundamental provisions of which is that it can itself be amended only in accordance with a special procedure. The constitution of the UK is largely unwritten. It consists partly of statutes, for the amendment of which by subsequent statutes no special procedure is required (See Act of Parliament), but also, to a very significant extent, of *common law rules and *constitutional conventions.

constitutional conventions

Practices relating to the exercise of their functions by the Crown, the government, Parliament, and the judiciary that are not legally enforceable but are commonly followed as if they were. One of the most important is that the Crown must exercise its constitutional powers only in accordance with the advice of ministers who collectively command the support of a majority of the House of Commons. There is no single reason why conventions are observed. For example, it is a very old convention that Parliament must be summoned at least once a year. If that were not to happen, there would be no annual Finance Act and the government would be able to function only by raising illegal taxation. By contrast. if the Crown broke the convention that the royal assent must not be refused to a Bill duly passed by Parliament, illegal conduct would not necessarily follow (although the future of the monarchy could well be at risk). The basic reason for obeying conventions is to ensure that the machinery of government should function smoothly; conventions have not been codified into law and therefore can be modified informally to meet changing circumstances.

constitutive theory

The proposition that the existence of a state can only begin with its formal or implied *recognition by other states. The constitutive theory of recognition insists that only the positive act of recognition creates the new *international legal personality.

Compare declaratory theory.

construction

n.

See interpretation.

constructive

adj.

Describing anything that is deemed by law to exist or to have happened, even though that is not in fact the case.

constructive desertion

Behaviour by one spouse causing the other to leave the matrimonial home. If the behaviour is so bad that the party who leaves is forced to do so, it is the spouse who stays behind who is considered, in law, to have deserted, and not the spouse who actually left. A petition for divorce may therefore be brought, after two years, on the ground of *desertion by the spouse who remained behind.

constructive dismissal

Termination of a contract of employment by an employee because his employer has shown that he does not intend to be bound by some essential term of the contract. Although the employee has resigned, he has the same right to apply to an employment tribunal as one who has been unfairly dismissed by his employer.

See also unfair dismissal.

constructive fraud

(legal fraud)

Any of certain forms of unintentional deception or misrepresentation (Compare fraud). The concept is applied by equity to those cases in which the courts will not enforce or will set aside certain transactions (e.g. contracts) because it is considered unfair or unconscionable for a person to insist on the transaction being completed. This unfairness may be inferred from the terms of the transaction (when these are such that no person with proper advice would have entered the transaction) or from the relationship of the parties (for example, that of solicitor and client or of trustee and beneficiary).

constructive notice

Knowledge that the law presumes a person to have even if he is actually ignorant of the facts. A purchaser of unregistered land has constructive notice of all matters that a prudent purchaser would discover on inspection of the property or proper investigation of the title. It has also been held that a purchaser has constructive notice of the rights of any person (such as a spouse) who may reside on the property but is not an owner of the legal estate and therefore does not appear on the title deeds. A purchaser of unregistered land is bound by all matters of which he has constructive, as well as actual, notice unless those matters are void against him for want of registration under the Land Charges Act 1972. Those dealing with registered companies have constructive notice of the contents of documents open to public inspection at the *Companies Registry.

See also actual notice; imputed notice.

constructive total loss

A loss of a ship or cargo that is only partial but is treated for the purposes of a marine insurance policy as if it were an *actual total loss. This may occur when an actual total loss either appears unavoidable (e.g. when a perishable cargo becomes stranded indefinitely) or can only be prevented by incurring expenditure greater than the value of the ship or cargo. In estimating the cost of repairs for this purpose, general average contributions by other insurers are left out of account, but the expense of salvage operations is a relevant factor. The insured must serve a notice of *abandonment of the ship or cargo on the underwriters. This must be unconditional and served within a reasonable time of his learning of the loss; once accepted by the underwriters, it is irrevocable. The underwriters become liable to indemnify him as for a total loss and in return are entitled to all his rights in the ship or cargo.

constructive trust

A *trust imposed by equity to protect the interests of the beneficiaries when a trustee or some other person in a fiduciary relationship gains an advantage through his position. It differs from an *implied trust in that no reference is normally made to the expressed or presumed intention of the parties. English law at present recognizes only the institutional constructive trust. This is a trust that automatically comes into being when certain circumstances arise; for example, when a person in a fiduciary position makes an unauthorized profit or when a stranger meddles in a trust. The concept is frequently used in commercial cases but not exclusively so. In a domestic setting, a constructive trust arises when a sole legal owner of property tries to exclude the rights of another person (usually a cohabitee) who has contributed to the purchase price of the property on the understanding that ownership of the property is to be shared, or when the sole legal owner tries to deny an express agreement to share ownership of the property. Other Commonwealth jurisdictions recognize a remedial constructive trust: a trust imposed at the discretion of the court to remedy an injustice. This is not accepted by English courts, although recent case law has suggested that a development in this area is possible.

consul

n.

A *diplomatic agent commissioned by a sovereign state to reside in a foreign city, to represent the political and trading interests of the sending state, and to assist in all matters pertaining to the commercial relations between the two countries.

See also diplomatic mission.

consumer

n.

A private individual acting otherwise than in a course of a business. Consumers are often given greater legal protection when entering into contracts, for example by having a right to avoid certain unfair terms or to cancel the contract (See consumer protection; distance selling). Many regulations define "consumer" in a particular manner.

consumer-credit agreement

A *personal-credit agreement in which an individual (the debtor) is provided with credit not exceeding £25,000. Unless exempted, consumer-credit agreements are regulated by the Consumer Credit Act 1974, which contains provisions regarding the seeking of business, entry into agreements, matters arising during the currency of agreements, default and termination, security, and judicial control. A loan to an individual businessman for business purposes can be a consumer-credit agreement.

consumer-credit business

Any business that comprises or relates to the provision of credit under *consumer-credit agreements regulated by the Consumer Credit Act 1974. With certain exceptions, e.g. local authorities, a licence is required to carryon a consumer-credit business.

consumer-credit register

The register kept by the Director General of Fair Trading, as required by the Consumer Credit Act 1974, relating to the licensing or carrying on of *consumer-credit businesses or *consumer-hire businesses. The register contains particulars of undetermined applications, licences that are in force or have at any time been suspended or revoked, and decisions given by the Director under the Act and any appeal from them. The public is entitled to inspect the register on payment of a fee.

consumer goods

Goods normally supplied for private use or consumption. The Unfair Contract Terms Act 1977 provides that if consumer goods prove defective when used otherwise than exclusively for business purposes as a result of negligence of a manufacturer or distributor, that person's *business liability cannot be excluded or restricted by any guarantee under which the goods are sold. Under the Consumer Protection Act 1987, suppliers of all consumer goods must ensure that the goods comply with the *general safety requirement. Otherwise they commit a criminal offence.

consumer-hire agreement

An agreement made by a person with an individual, a partnership, or with some other unincorporated body (the hirer) for the *bailment of goods to the hirer. Such an agreement must not be a *hire-purchase agreement, must be capable of subsisting for more than three months, and must not require the hirer to make payments exceeding £25,000. The concept thus does not include a hiring by a company. Consumer-hire agreements. unless exempted, are regulated by the Consumer Credit Act 1974.

Compare consumer-credit agreement.

consumer-hire business

Any business that comprises or relates to the bailment of goods under *consumer-hire agreements regulated by the Consumer Credit Act

1974. With certain exceptions, e.g. local authorities, a licence is required to carryon a consumer-hire business.

consumer protection

The protection, especially by legal means, of consumers (those who contract otherwise than in the course of a business to obtain goods or services from those who supply them in the course of a business). It is the policy of current legislation to protect consumers against unfair contract terms. In particular they are protected against terms that attempt to exclude or restrict the seller's implied undertakings that he has a right to sell the goods, that the goods conform with either description or sample, and that they are of satisfactory quality and fit for their particular purpose (Unfair Contract Terms Act 1977). EU directive 93/13 renders unfair terms in consumer contracts void; it is implemented in the UK by the Unfair Terms in Consumer Contracts Regulations 1999. The Office of Fair Trading runs a special unfair terms unit, which investigates cases in this field. There is also provision for the banning of unfair *consumer trade practices (Fair Trading Act 1973). Consumers (including individual businessmen) are also protected when obtaining credit (Consumer Credit Act 1974) and there is provision for the imposition of standards relating to the safety of goods under the Consumer Protection Act 1987 and the General Product Safety Regulations 1994. There are, in addition, many legislative measures that are product-specific, such as toy safety regulations. For tort liability under the Consumer Protection Act, See products liability.

consumer trade practice

Any practice carried on in connection with the supply of goods (by sale or otherwise) or services to consumers. These practices include the terms or conditions of supply and the manner in which they are communicated to the consumers, the promotion of the supply of goods or services, the methods of salesmanship employed in dealing with consumers, the way in which goods are packed, or the methods of demanding or securing payment for goods or services. Under the Fair Trading Act 1973.consumer trade practices are controlled by the Minister, the *Director General of Fair Trading, and the Consumer Protection Advisory Committee, who may ban any practice that adversely affects the economic interests of consumers in the UK.

consummation of a marriage

The "completion" of a marriage by an act of sexual intercourse. It is defined for these purposes as complete penetration of the vagina by the penis (although ejaculation is not necessary). A marriage may be consummated despite the use of a contraceptive sheath. If a spouse is incapable of consummation or refuses without good reason to consummate the marriage, these may be grounds for *annulment of the marriage. If one of the partners refuses to arrange an additional marriage ceremony (e.g. in a church) without which he knows his spouse will not agree to have intercourse, this may be a good reason for the spouse's refusal to have intercourse. In this case it is the partner who refused to arrange the ceremony who is regarded as not having consummated the marriage, even though that partner is willing to have intercourse.

contact

n.

(in family law)

The opportunity for a child to communicate with a person with whom that child is not resident. The degree of contact may range from a telephone call to a long stay or even a visit abroad, and the court may formalize such arrangements by making a contact order (See section 8 orders). A parent being visited by a child may exercise *parental responsibility during the child's visit. The question of contact after a child has been adopted is becoming a contentious issue.

See also care contact order.

contact order

See section 8 orders.

contemporanea expositio

(Latin: contemporaneous interpretation)

The interpretation of a document in the sense in which it would have been interpreted at the time of its making. This principle is applied particularly to the interpretation of ancient documents.

contempt of court

1. (civil contempt) Disobedience to a court judgment or process, e.g. breach of an injunction or improper use of discovered documents. If the injunction is served on the defendant with a penal notice attached, breach of the injunction can result in the defendant being jailed.

Date: 2015-01-29; view: 1239