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Lord Chief Justice 3 page

Compare takeover.

2. The extinguishing of a lesser interest in land when it comes into the same ownership as a greater one. For example, if a freehold owner acquires the unexpired leasehold estate, the latter may merge into the freehold. Whether or not merger occurs depends on the circumstances of the transaction (thus a leasehold that is subject to a subsisting mortgage will not normally merge with the freehold) and the intention of the parties.

mesne profits

Money that a landlord can claim from a tenant who continues to occupy property after his tenancy ends, the amount being equivalent to the current market rent of the property. This may be more than the rent that the tenant was paying before the tenancy ended. If the landlord continues to accept the original rent from the tenant at the end of the tenancy, a new tenancy may be created.

messuage

n.

A house and its associated garden, outbuildings, and orchard.

Michaelmas Day

See quarter days.

micro-state

n.

A state with an area of less than 500 square miles and a population under 100,000. Examples of micro-states include Andorra, Antigua and Barbuda, Grenada, and Monaco, all of which have been admitted to membership of the United Nations. Although the UN membership of such small states was contentious, ultimately the principle of universality of membership of states, whatever their size, prevailed over the issue, of whether or not they were capable of fulfilling their obligations as members.

See also recognition.

Middle Temple

One of the four *Inns of Court, situated in the Temple between the Strand and the Embankment. The earliest recorded claim for its existence is 1404.

Midsummer Day

See quarter days.

military court

A *court martial or the *Court of Chivalry.

military law

See service law.

Compare martial law.

Military Staff Committee

A committee established under Article 47 of the United Nations Charter. Articles 43-47 of the Charter (within *Chapter VII) envisage, through the Military Staff Committee, advance military cooperation for UN collective military security. This body is to advise the Security Council on all questions relating to armed forces placed at the disposal of the latter. It consists of the chiefs of staff of the permanent members of the Security Council, although other members of the United Nations may be invited to sit with it when the efficient discharge of the Committee's responsibilities so requires.

Due to deadlock, principally among the permanent members of the Security Council, the Committee declared that it could wake no further progress on the matter of military cooperation for UN collective security measures. Although the Committee still formally exists it has had no real function to perform since its establishment in October 1945.

See also collective security; enforcement action.

military stores

Any chattel belonging to the Crown that is issued, or stored for the purpose of being issued when required, for military purposes.

Compare naval property.



military testament

See privileged will.

minerals

pl. n.

See mining lease.

minimum term

See life imprisonment.

minimum wage

The lowest rate of remuneration that an employer may pay. The National Minimum Wage's adult hourly rate from October 2001 is £4.10; this will increase to £4.20 in October 2002. The youth rate for 18-21-year-olds is (from October 2001) £3.50 per hour.

mining lease

A lease granting a tenant the right to extract minerals from the land for a specified period in return for a rent (which may vary in accordance with the amount or value of minerals extracted). The Settled Land Act 1925 allows the tenant for life of settled land to grant mining leases for up to 100 years whether or not he is liable for any *waste committed by him, and whether or not the mine is already open. As a general rule, and subject to any contrary intention expressed in the settlement. the tenant for life is entitled to three-quarters of the rent, but if he is liable for waste in respect of minerals, he is only entitled to one-quarter of the rent. In either case, the balance must be paid as *capital money to the trustees of the settlement. The Act defines minerals for these purposes as all substances in or under the land that can be extracted by underground or surface working.

minister

n.

A person (by *constitutional convention a member of either House of Parliament) appointed to government office by the Crown on the advice of the Prime Minister. He may be a senior minister in charge of a department (normally styled Secretary of State but sometimes Minister), a senior minister without specific departmental responsibilities (e.g. the Lord Privy Seal or a Minister without Portfolio), or a junior minister assisting in departmental business (a Minister of State or a Parliamentary Secretary or Under-Secretary). In the Treasury the ministerial ranks are *Chancellor of the Exchequer, Chief Secretary, Financial Secretary, and Ministers of State.

ministerial responsibility

The responsibility to Parliament of the Cabinet collectively and of individual ministers for their own decisions and the conduct of their departments. A minister must defend his decisions without sheltering behind his civil servants; if he cannot, political pressure may force his resignation.

mini-trial

n.

See alternative dispute resolution.

minor

n.

See infant.

minor interests

Interests in *registered land that cannot be created or transferred by registered disposition, are not *overriding interests, and could be overridden by a registered proprietor unless protected by registration. Such interests include the equitable interests of beneficiaries under a settlement and all charges that would be registrable at the Land Charges Department if the land had been unregistered (See registration of encumbrances). Minor interests are protected by registration of a notice, caution, inhibition, or restriction as appropriate.

minority

n.

The state of being an *infant (or minor).

Compare majority.

minority clauses

Clauses in treaties between states that make special provision for *ethnic minorities. For example, in the Greco-Bulgarian convention of 1919 there was a minority clause that allowed for free migration of minorities between the signatory powers.

minority protection

Remedies evolved to safeguard a minority of company members from the abuse of *majority rule. They include *just and equitable winding-up, applying for relief on the basis of *unfair prejudice, bringing a *derivative action or a *representative action, and seeking an *investigation of the company.

minutes

pl. n.

Records of company business transacted at general meetings, board meetings, and meetings of managers. Registered companies are required to keep such records. Minutes of general meetings can be inspected by company members at the registered office.

miscarriage

n.

1. A failure of justice or a failure in the administration of justice.

2. A spontaneous *abortion, i.e. one that is not induced.

mischief rule

See interpretation of statutes.

misconduct

n.

Incorrect or erroneous conduct.

See wilful misconduct.

misdemeanour

n.

Formerly (i.e. before 1967), any of the less serious offences, as opposed to *felony.

misdescription

n.

A misleading or inaccurate physical or legal description of property in a contract for its sale. When a vendor cannot convey property corresponding to its description in the contract for sale, a breach of contract results, which at the very least gives the purchaser a right to damages.

If the misdescription is substantial (i.e. it is reasonable to suppose that it constitutes the basis for the purchaser entering into the contract in the first place), the vendor will be unable to enforce the contract against the purchaser. When there is an innocent misdescription, which is not substantial, the contract may be enforced by the vendor, but subject to a suitable reduction in the contractually agreed price, even if the purchaser would prefer to rescind the contract (See rescission). Alternatively, the purchaser might prefer to compel the vendor to convey what title. he can (despite the misdescription) and receive compensation in addition. If the misdescription operates in the purchaser's favour, the vendor has no right to claim any compensation from him.

Under the Property Misdescription Act 1991, *estate agents and property developers are prohibited from making false or misleading statements about property in the course of their business. Misdescription in this case relates to what purports to be fact and not to mere expressions of opinion.

Compare misrepresentation.

misdirection

n.

An incorrect direction by a judge to a *jury on a matter of law. In such cases the Court of Appeal may quash the conviction.

misfeasance

n.

1. The negligent or otherwise improper performance of a lawful act.

2. (in company law) An act by an officer of a company in the nature of a breach of trust or breach of duty, particularly relating to the company's assets.

Compare malfeasance; nonfeasance.

misfeasance summons

An application to the court by a creditor, contributory, liquidator, or the official receiver during the course of winding up a company. The court is asked to examine the conduct of company officers and others who are suspected of a breach of a *fiduciary or other duty towards the company and it can order them to make restitution to the company.

misjoinder of parties

An incorrect *joinder of parties in an action. In modern practice this does not cause the action to abate but it can be rectified by *amendment.

misleading advertising

Advertising that deceives or is likely to deceive those to whom it is addressed or whom it reaches and, because of its deceptive nature, is likely to affect consumers' behaviour or injures or is likely to injure a competitor. EU directive 84/450 requires EU member states to harmonize laws in this area.

mispleading

n.

The omission of an essential allegation in a claim form or other statement of case. In modern practice, it can usually be rectified by *amendment.

misprision

n.

Failure to report an offence. The former crime of misprision of felony has now been replaced by the crime of *compounding an offence. However, the common-law offence of misprision of treason still exists; this occurs if a person knows or reasonably suspects that someone has committed treason but does not inform the proper authorities within a reasonable time. The punishment for this offence is forfeiture by the offender of all his property during his lifetime.

misrepresentation

n.

An untrue statement of fact, made by one party to the other in the course of negotiating a contract, that induces the other party to enter into the contract. The person making the misrepresentation is called the representor, and the person to whom it is made is the representee. A false statement of law, opinion, or intention does not constitute a misrepresentation; nor does a statement of fact known by the representee to be untrue. Moreover, unless the representee relies on the statement so that it becomes an inducement (though not necessarily the only inducement) to enter into the contract, it is not a misrepresentation. The remedies for misrepresentation vary according to the degree of culpability of the representor, If he is guilty of fraudulent misrepresentation (i.e. if he did not honestly believe in the truth of his statement, which is not the same as saying that he knew it to be false) the representee may, subject to certain limitations, set the contract aside by *rescission and may also sue for damages. If he is guilty of negligent misrepresentation (i.e. if he believed in his statement but had no reasonable grounds for doing so) the representee was formerly entitled only to rescission but may now (under the Misrepresentation Act 1967 or by an action in tort for negligence) also obtain *damages. If the representor has committed merely an innocent misrepresentation (one he reasonably believed to be true) the representee is restricted to rescission, subject to the discretion of the court under the 1967 Act to award him damages in lieu. A representee entitled to rescind a contract for misrepresentation may decide instead to *affirm it.

See also misdescription; nondisclosure.

mistake

n.

A misunderstanding or erroneous belief about a matter of fact (mistake of fact) or a matter of law (mistake of law). In civil cases, mistake is particularly important in the law of contract. Mistakes of law have no effect on the validity of agreements, and neither do many mistakes of fact. When a mistake of fact does do so, it may render the agreement void under common-law rules (in which case it is referred to as an operative mistake) or it may make it voidable, i.e. liable, subject to certain limitations, to be set aside by *rescission under more lenient rules of equity.

When both parties to an agreement are under a misunderstanding, the mistake may be classified as either a common mistake (i.e. a single mistake shared by both) or a mutual mistake (i.e. each misunderstanding the other). In the case of common mistake, there is full *consensus ad idem and the mistake renders the contract void only if it robs it of all substance. The principal (and almost the only) example is when the subject matter of the contract has, unknown to both parties, ceased to exist (res extincta). A common mistake about some particular attribute of the subject matter (e.g. that it is an original, not a copy) is not an operative mistake. However, a common mistake relating to any really fundamental matter will render a contract voidable. In the case of mutual mistake there is no real consensus, but the contract is nevertheless valid if only one interpretation of what was agreed can be deduced from the parties' words and conduct. Otherwise, the mistake is operative and the contract void. When only one party to a contract is under a misunderstanding, his mistake may be called a unilateral mistake and it makes the contract void if it relates to the fundamental nature of the offer and the other party knew or ought to have known of it. Otherwise, the contract is valid so far as the law of mistake is concerned, though the circumstances may be such as to make it voidable for *misrepresentation.

A deed or other signed document (whether or not constituting a contract) that does not correctly record what both parties intended may be rectified by the courts. When one signatory to a document was fundamentally mistaken as to the character or effect of the transaction it embodies, he may (unless he was careless) plead his mistake as a defence to any action based on the document (See non est factum).

In criminal cases, a mistake or accident may mean that a person lacked *mens rea. It has become clear in recent years that a person has a defence if he would have had a common-law defence, such as *consent, *provocation, or one of the *general defences, had the facts been as he mistakenly supposed them to be. If someone commits a crime in ignorance that the law forbids it, he is usually guilty (*ignorantia juris non excusat: ignorance of the law is no excuse).

If a defendant makes a mistake as to the civil law that prevents him having the mens rea required to be guilty of the crime, he will normally be acquitted of the crime, even if his mistake is unreasonable (for example, if he damages someone else's property in the belief that it is his own, and this belief is caused by a mistake as to the law of property).

See also general defences; intoxication.

mistakes in judgment

See slip rule.

mistrial

n.

A trial that is vitiated by some fundamental defect.

mitigation

n.

1. Reduction in the severity of some penalty. Before *sentence is passed on someone convicted of a crime, the defence may make a plea in mitigation, putting forward reasons for making the sentence less severe than it might otherwise be. These might include personal or family circumstances of the offender, and the defence may also dispute facts raised by the prosecution to indicate aggravating circumstances. In raising mitigating factors, *hearsay evidence and documentary evidence of *character are accepted.

2. Reduction in the loss or injury resulting from a tort or a breach of contract. The injured party is under a duty to take all reasonable steps to mitigate his loss when claiming *damages.

mixed action

A form of court action combining a claim relating to real property with a claim for damages.

mixed fund

A fund of money derived from the sale of both real and personal property.

mixed property

*property that has some of the attributes of both real and personal property. Emblements (*emblements) are an example.

mock auction

An auction during which (1) any lot is sold to someone at a price lower than his highest bid for it; (2) part of the price is repaid or credited to the bidder; (3) the right to bid is restricted to those who have bought or agreed to buy one or more articles; or (4) articles are given away or offered as gifts. Under the Mock Auction Act 1961 it is an offence to promote or conduct a mock auction of plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use, ornaments, or any musical or scientific instrument.

molestation

n.

Behaviour that has the effect or intention of annoying or pestering one's spouse (or cohabitant) or children. Such an act need not involve violence or physical assault; harassment (for example by threatening letters or telephone calls) may constitute molestation. Under the Family Law Act 1996, spouses (and in some cases unmarried cohabitants) can apply for a court injunction to prevent molestation (See nonmolestation order). Magistrates' courts have similar powers under the 1978 Domestic Proceedings and Magistrates' Courts Act, but only if there is violence and only in relation to married couples. There are procedures for protecting children in an emergency (See emergency protection order).

See also battered child; battered spouse or cohabitant; stalking.

money Bill

A Bill that, in the opinion of the Speaker of the House of Commons, contains only provisions dealing with taxation, the Consolidated Fund, public money, the raising or replacement of loans by the state, and matters incidental to these subjects. Such a Bill can become an Act without the House of Lords' consent (See Act of Parliament).

money had and received

A former ground for court action that occurred when the defendant was in possession of money that should have belonged to the claimant (for example, when money had been paid to an agent who then failed to pass it on to his principal).

money laundering

Legitimizing money from organized or other crime by paying it through normal business channels. EU measures exist to control, on an EU-wide basis, the laundering of money, especially that resulting from organized crime.

moneylender

n.

A person whose business it is to lend money. The Moneylenders Acts 1900-27 contained provisions for the control of moneylenders, including the form of their contracts. Under the Acts, the term "moneylender" did not include pawnbrokers, friendly or building societies, corporate bodies with special powers to lend money, those carrying on a banking or insurance business, or businesses whose primary object is not the lending of money. The more extensive provisions of the Consumer Credit Act 1974 have replaced the provisions of the Moneylenders Acts.

monism

n.

The theory that national and international law form part of one legal structure, in which international law is supreme. It is opposed to dualism, which holds that they are separate systems operating in different fields.

monopoly

n.

A situation in which a substantial proportion of a particular type of business is transacted by a single enterprise or trader. The Fair Trading Act 1973 contains provisions assigning functions in respect of monopolies to the *Director General of Fair Trading and the Competition Commission. It defines a monopoly situation, in relation to the supply of goods and services and the export of goods, as one in which a single enterprise, connected group of companies, or trade association has one-quarter of the relevant business. When the Competition Commission finds that a monopoly situation exists and operates against the public interest, the Minister has powers to remedy or prevent the adverse effects. Sometimes monopolies involving more than one company (complex monopolies) are investigated. The Director General of Fair Trading may also investigate joint abuses of a dominant position (*abuse of a dominant position) that breach Chapter 11 of the Competition Act 1998 and thus has a choice as to which provisions are used to investigate monopolies.

month

n.

A calendar month or a lunar month (28 days). The common law adopted the lunar month, but the Interpretation Act 1978 provides that the word is to be presumed to mean calendar month in Acts of Parliament, and the Law of Property Act 1925 provides similarly for deeds and other written documents.

moot

n.

A mock trial, often held in university law schools and at the Inns of Court, for students as practice for future advocacy. A hypothetical case is presented to students for preparation and then argued before the judge(s) at the moot. This practice originates in the formal moots held in the medieval Inns of Court, which were considered an essential part of legal education.

moral law

The body of laws to which individuals feel themselves subject, often through their religious beliefs.

See also canon law; natural law.

mortgage

n.

An interest in property created as a form of security for a loan or payment of a debt and terminated on payment of the loan or debt. The borrower, who offers the security, is the mortgagor; the lender, who provides the money, is the mortgagee. Virtually any property may be mortgaged (though land is the most common); exceptions include the salaries of public officials. The name is derived from Old French (literally: dead pledge), since at common law failure to repay on the due date of redemption (which in most mortgages is set very early) formerly resulted in the mortgagor losing all his rights over the property. By the rules of equity the mortgagor is now allowed to redeem his property at any time on payment of the loan together with interest and costs (See equity of redemption). The mortgagee has a right to take possession of the mortgaged property as soon as the mortgage is made, irrespective of whether the mortgagor has defaulted. However, this right (1) must only be used for the purpose of protecting or enforcing the security, (2) may be excluded by agreement, or (3) is subject to a power in the court to adjourn proceedings for possession, to suspend the execution of an order for possession, or to postpone the date for delivery of possession, where the mortgaged property is a dwelling house (Administration of Justice Act 1970 as amended). This right is normally used as a preliminary to an exercise of the mortgagee's power of sale. In face of continued nonpayment of the loan, the mortgagee may sell the mortgaged property under a *power of sale, appoint a *receiver, or obtain a decree of *foreclosure.

Under the Law of Property Act 1925 the only valid legal mortgages are (1) a lease subject to *cesser on redemption and (2) a deed expressed to be a charge by way of legal mortgage (See charge). All other mortgages are equitable interests only (See equitable mortgage). All mortgages of registered land are noted in the charges register on application by the mortgagee (See land registration), and a *charge certificate is issued to him. When mortgaged land is unregistered, a first legal mortgagee keeps the title deeds. A subsequent legal mortgagee and any equitable mortgagee who does not have the title deeds should protect his interests by registration (See puisne mortgage; registration of encumbrances).

See also priority of mortgages.

mortgage action

A court action brought by a mortgagee for possession of the mortgaged property or payment of all money due to him, when the mortgagor has failed to pay the amounts due under the mortgage.

mortgagee

n.

See mortgage.

mortgage interest relief

Tax relief on the interest payments made to a lender on a loan for the purchase of the taxpayer's only or *main residence. which was available until 5 April 2000; after that date, the relief was withdrawn. It applied to the interest on a loan of up to £30,000; from 1998 until 5 April 2000 the rate of relief was 15%.

mortgagor

n.

See mortgage.

motion

n.

Formerly, an application made orally and in open court to a judge for an order. This term has been rendered obsolete by the *Civil Procedure Rules; motions are now referred to as applications.

motive

n.

The purpose behind a course of action. Motive is not normally relevant in deciding guilt or innocence (for example, killing to save someone from suffering is still murder or manslaughter), although it may be of some relevance in the crime of *libel. Nor is a bad motive relevant in deciding legal guilt. However, a good motive may be invoked as a reason for mitigating a punishment upon conviction, and a bad motive may provide circumstantial evidence that the defendant committed the crime he is charged with.

motor car

See motor vehicle.

motor cycle

See motor vehicle.

motoring offences

See offences relating to road traffic.

motor insurance

See third-party insurance.

Motor Insurers' Bureau

A body set up by the insurance industry, by agreement with the Department of Transport. It provides cover if someone has been injured or killed in a motor accident and in respect of a liability required by the Road Traffic Act to be covered by a contract of insurance when either (1) a judgment against the party liable is unsatisfied, for example because the party is (in breach of the Road Traffic Act) uninsured, or (2) the wrongdoer cannot be identified.

motor vehicle

For the purposes of the Road Traffic Acts, any mechanically propelled vehicle intended or adapted for use on the roads. This includes motor cars (vehicles of not more than 3 tonnes in unladen weight, designed to carry loads or up to seven passengers) and motor cycles (vehicles of not more than 8 cwt in unladen weight and having less than four wheels). A car from which the engine has been removed may still be considered to be mechanically propelled if the removal is temporary, but if so many parts have been removed that it cannot be restored to use at a reasonable expense, it ceases to be mechanically propelled. A dumper used for carrying materials at a building site is not intended for use on roads, even if it is in fact used on a road near the building site; and a go-kart is not intended nor adapted for use on the roads (even though it is capable of being used on the roads).

See also conveyance.

motorway driving

Contravention of the regulations relating to driving on a motorway, as outlined in the Highway Code, is an offence punishable by *endorsement (carrying 3 points under the totting-up system (*totting up)) and discretionary *disqualification.

MOT test

An annual test originally ordered by the Ministry of Transport (now Department of Transport, Local Government, and the Regions) to be carried out on all motor vehicles over a certain age to ensure that they comply with certain legal requirements relating to vehicle maintenance. The test covers brakes, steering, lights and indicators, windscreen wipers and washers, the exhaust system, horn, tyres (and to some extent, the wheels), bodywork and suspension (insofar as they affect the brakes and steering), and seat belts. It is an offence to put on the road a motor vehicle that has been registered for over three years (five years in Northern Ireland) without a valid test certificate. A certificate is issued for 12 months and must be renewed annually; a vehicle that is subject to a test cannot be licensed without a test certificate (See road tax). It is not an endorsable offence not to have an MOT certificate, but this may invalidate the motorist's insurance and result in a charge of *driving without insurance. An MOT certificate does not indicate that the vehicle is roadworthy in all respects and is not a defence to charges brought under the *vehicle construction and maintenance regulations.

movables

pl. n.

Tangible items of property other than land and goods fixed to the land (i.e. immovables).


Date: 2015-01-29; view: 404


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