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LEGAL ENGLISH WORKSHOP HANDOUT

DEFINITIONS OF LAW

LAW That which is laid down, ordained, or


established. A rule or method according to which
phenomena or actions co-exist or follow each
other. Law, in its generic sense, is a body of rules of
action or conduct prescribed by controlling authority,
and having binding legal force. Black's Law
Dictionary (1990)

The Human Race is ruled by two


things: namely, natural law and
usages (mos, moris,
mores). Natural law is what is
contained in the law and the
Gospel. By it, each person is
commanded to do to others what
he wants done to himself and is prohibited from
inflicting on others what he does not want done to
himself. Gratian, Decretum D.1 d.a.c.1 (ca. 1140
A.D.)
LAW 1. The principles and regulations established by
a government and applicable to a people, whether in
the form of legislation or of custom and policies
recognized and enforced by judicial decision. 2. Any
written or positive rule or collection of rules
prescribed under the authority of the state or nation,
as by the people in its constitution. The Random
House Dictionary of the English Language

LAW 1. A body of rules, whether proceeding from


formal enactment or from custom, which a particular
state or community recognizes as binding on its
members or subjects. Oxford Dictionary of the English
Language

LAW Rules of conduct of any organized society,


however simple or small, that are enforced by threat
of punishment if they are violated. Modern law has a
wide sweep and regulates many branches of
conduct. Columbia Encyclopedia

DICTIONARY ENTRIES:

1.
The principles and regulations established in a community by some
authority and applicable to its people, whether in the form of
legislation or of custom and policies recognized and enforced by
judicial decision.
2.
Any written or positive rule or collection of rules prescribed under the
authority of the state or nation, as by the people in its constitution.
3.
The controlling influence of such rules; the condition of society
brought about by their observance: maintaining law and order.
4.
The body of such rules concerned with a particular subject or derived
from a particular source: commercial law.

CONTRACTUAL LAW

1 Under the common law, a promise becomes an enforceable contract when there is an
offer to one party (offeror) that is accepted by the other party (offeree) with the exchange of
legally sufficient consideration (a gift or donation does not generally count as consideration);
hence the equation learned by law students: offer + acceptance + consideration = contract. The
law regards a counter offer as a rejection of the offer. Therefore, a counter offer does not serve
to form a contract unless, of course, the counter offer is accepted by the original offeror.

2 For a promise to become an enforceable contract, the parties must also agree on the
essential terms of the contract, such as price and subject matter. Nevertheless, courts will
enforce a vague or indefinite contract under certain circumstances, such as when the conduct
of the parties, as opposed to the written instrument, manifests sufficient certainty as to the
terms of the agreement.

3 An enforceable agreement may be manifested in either written or oral words (an


express contract) or by conduct or some combination of conduct and words (an implied
contract). There are exceptions to this general rule. For example, the Statute of Frauds requires
that all contracts involving the sale of real property be in writing.

4 In a contractual dispute, certain defences to the formation of a contract may permit a


party to escape his/her obligations under the contract. For example, illegality of the subject
matter, fraud in the inducement, duress and the lack of legal capacity to contract all enable a
party to attack the validity of a contract.

5 In some cases, individuals/companies who are not a party to a particular contract may
nevertheless have enforceable rights under the contract. For example, contracts made for the
benefit of a third party (third-party beneficiary contracts) may be enforceable by the third party.
An original party to a contract may also subsequently transfer his rights/duties under the
contract to a third party by way of an assignment of rights or delegation of duties. This third
party is called the assignee in an assignment of rights and the delegate in a delegation of duties.

TORT LAW OR LAW OF TORTS

A tort is a civil, not criminal, wrong, which excludes breach of contract. A tort entitles a person
injured by damage or loss resulting from the tort to claim damages in compensation. Tort law
has been built upon decisions made in reported court cases. Torts include, for example:

 Negligence – the breach of a duty of care which is owed to a claimant or plaintiff, who
in consequence suffers injury or (a) loss.
 Trespass – direct and forcible injury, for example if person A walks over B’s land without
lawful justification or A removes B’s goods without permission.
 Defamation – publishing a statement about someone which lowers the person in the
opinion of others. This is known as libel when in a permanent form, and slander if it is
in speech.
 Nuisance – For e4xample if A acts in a way that prevents B from the use and enjoyment
of his land.

In the case of product defects causing damage or harm to consumers, strict liability, that is,
legal responsibility for damage independent of negligence, is imposed on producers and
suppliers by the Consumer Protection Act, which puts into effect a European Union Product
Liability Directive.
INTELLECTUAL PROPERTY (IP) LAW

Intellectual property is an expansive and rapidly changing area of the law which deals with the
formulation, usage and commercial exploitation of original creative works. A majority of the
issues that arise within this area revolve around the boundary lines of intangible property rights
and which of those rights are afforded legal protection. The abstract quality of the property
rights involved presents a contrast to other areas of property law. Furthermore, the rapid
changes occurring in this field raise topical debates over such things as gene patenting,
genetically modified food and peer-to-peer networking (e.g. music piracy on the Internet).

Traditionally, intellectual property rights are broken down into three main areas: patents,
trademarks and copyrights. Other areas which warrant mentioning are trade secrets, design
rights and the concept of passing off.

A patent is a monopoly right in an invention. Patent law is regulated in various jurisdictions


through legislation. A patent must be granted pursuant to the relevant legislation in order to
create the monopoly in the invention. Once the patent is granted, the protection remains in
force for a statutory period of years, e.g. 20 years in the UK.

A registered trademark is similar to a patent in that it provides the holder with an exclusive right
to use a “distinctive” mark in relation to a product or a service. A common aspect of applicable
legislation is that the mark must be distinctive. In other words, it must be capable of functioning
as an identifier of the origin of the good and thereby avoid confusion. For example, the use by
another of a domain name that is substantially similar to the trademark, so-called
cybersquatting.

Copyright is a right subsisting in original literary, dramatic, musical and artistic works and in
sound recordings, films, broadcasts and cable programmes, as well as the typography of
published editions. Copyrights holders possess economic rights associated with their works,
including the essential right to prohibit unauthorized use of the works.

OTHER AREAS OF LAW

CRIMINAL LAW

Criminal law, sometimes (although rarely) called penal law, involves the prosecution by the state
of a person for an act that has been classified as a crime. This contrasts with civil law, which
involves private individuals and organizations seeking to resolve legal disputes. Prosecutions are
initiated by the state through a prosecutor, while in a civil case the victim brings the suit. Some
jurisdictions also allow private criminal prosecutions.

Depending on the offence and the jurisdiction, various punishments are available to the courts
to punish an offender. A court may sentence an offender to execution, corporal punishment or
loss of liberty (imprisonment or incarceration); suspend the sentence; impose a fine; put the
offender under government supervision through parole or probation; or place them on a
community service order.
Criminal law commonly proscribes – that is, it prohibits – several categories of offences: offences
against the person (e.g. assault), offences against property (e.g. burglary), public-order crimes
(e.g. prostitution) and business or corporate crimes (also called white-collar crimes) such as
insider dealing or insider trading.

In criminal cases, the burden of proof is often on the prosecutor to persuade the trier (whether
judge or jury) that the accused is guilty beyond a reasonable doubt of every element of the
crime charged. If the prosecutor fails to prove this, a verdict of not guilty is rendered. This
standard of proof contrasts with civil cases, where the claimant or plaintiff generally needs to
show a defendant is liable on the balance of probabilities (more than 50% probable). In the
USA, this is referred to as the preponderance of the evidence.

Some jurisdictions distinguish between felonies (more serious offences, such as rape) and
misdemeanours (less serious offences, such as petty theft. It is also worth noting that the same
incident may sometimes lead to both a criminal prosecution and an action in tort.

There is also a new generation of crimes called cybercrimes that may affect you personally, such
as credit card fraud online, commonly known as credit card scams, and identity (ID) theft, when
financial benefit is obtained by deception using stolen personal information.

Other cybercrimes may impact on your business. There is cyberfraud, such as pharming, where
users are moved to fake, non-genuine sites, when they try to link to their bona fide bank
website. Also, there is phishing, when a fraudster, by misrepresentation, gets Internet users to
disclose personal information in reply to spam email sent unsolicited to a large number of
people. Internet users can also be tricked into money laundering activities which aid the transfer
of illegal or stolen money.

NEGOTIABLE INSTRUMENTS

Negotiable instruments are documents which represent an intangible right of payment.


Examples include promissory notes, certificates of deposit and cheques. When drafted using
the correct and very particular language prescribed by common law or statutes, a document
becomes negotiable, which means that it can be freely transferred by endorsement (usually by
signature) or delivery? One of the most important features of negotiable instruments is that
they are generally not subject to the nemo dat rule. This general principle of law states that “he
who hath not cannot give”, i.e., a transferor who does not hold title cannot transfer title to a
transferee. In the realm of negotiable instruments, that rule is sacrificed in order to facilitate the
free alienability of negotiable instruments, which aids commerce in general.

Negotiable instruments serve two different functions in commercial transactions: accredit


function and a payment function. The credit function allows negotiable instruments to be used
to obtain credit now, to be repaid out of future income. Common examples include promissory
notes, certificates of deposit and debentures or bonds.

The payment function allows negotiable instruments to be used in lieu of cash payments which
may be inconvenient (or risky) to transfer directly. Common examples are cheques (checks) and
bills of exchange or drafts.
ENVIRONMENTAL LAW

International environmental law is a fast-developing area affected by scientific discovery and


opinion. It encompasses, that is, includes, both international treaties (or conventions)
incorporated into national law and international customary law (general practice accepted as
law). These constitute the laws that nation states are obliged to follow or otherwise suffer
sanctions from the international legal community. There is also international diplomacy and
non-binding instruments which create guiding principles such as the 1972 Stockholm
Declaration and the 1992 Rio Declaration.

The main principles framed in international environmental law are:

 Polluter pays principle – the cost of damage is carried by the party responsible
 Precautionary principle – to act carefully where knowledge is not certain
 Sustainable development principle – to act in the best interest of future generations
 Environment impact assessment principle – to use national planning before carrying
out changes to the environment and to consider the costs of ecological effects
 Common but differentiated responsibility principle – for countries to have shared but
different responsibilities for the environment

COMPETITION LAW

Competition Law or Antitrust Law concerns itself with the regulation of business activities which
are anti-competitive. This area of the law is very complex, as it combines economics and law. It
regulates cartels, monopolies, oligopolies and mergers. A cartel is a type of agreement among
undertakings which would normally compete with each other to reduce their output to agreed
levels or sell at an agreed price. One of the key ingredients in sustaining a cartel is a defined
relevant market with high barriers to entry so that new undertakings cannot penetrate the
market. The classic tool used by the cartel to gain monopoly profits is price-fixing.

Common aspects of enactments aimed at preventing anti-competitive activities include


restrictions on abuse of a dominant position through such instruments as predatory pricing,
bid-rigging and tie-in arrangements among others. Most countries prohibit behaviours which
attempt to gain a monopoly position.