Business Law-E.ppt

1、1,BUSINESS LAW 1. Sources of Law,朱永锐律师,2,Introduction,the framework of law within the business environment; a cursory knowledge of legal matters; three learning outcomes-3 parts.,3,Three learning outcomes,3 Parts of this book Scottish legal system and the sources of law; Law of contract

2、; Formation, management and dissolution of business enterprises.,4,Scottish legal system and the sources of law,Sources of Scots Law Scottish Court System: Civil Scottish Court System: Criminal Legal Personel,5,Part 1 Sources of Scots Law (1),Civil law independent from but closely tied with the rest

3、 of the UK; law making powers conferred by Westminster-health, education.; Acts of parliament-apply to UK, England,and/or Scotland; common law-rules which evolved over generations,11,Part 1 Sources of Scots Law (3),three main sources of Scots Law Statutory- statute law-legislation at 3 levels in the

4、 UK Acts of Parliament-statutory legislation-UK level, and Scotland level Delegated legistlation-lower level Legislation refers to parliamentary law ie Acts of the Westminster Parliament or the Scottish Parliament. The phrase can also refer to Regulations (usually issued in the form of Statutory Ins

5、truments) EU law-EU legislation-EU level Common law Judicial precedent-see P217 Salomon v Salmon custom Equity Institutional writing,12,Judicial Precedent,No legislation-no provision in any Act of Parliament-no provision in any piece of delegated legislation in point-the same question of law Made in

6、 a higher court. Then the judge make a decision which he sees as fair and just-create the law, ie. precedent.,13,Other common law sources,Custom practice long been recognised-now rarely source of new law Equity fairness or natural justice no legislation in criminal law instutional writings less auth

7、ority,14,What is the difference between statutory law and common law? the doctrine of judicial precedent Judicial precedent is part of the unwritten law of Scotland. a process whereby a judge or judges can develop a rule of law by making a decision in a test case A test case is one in which clarific

8、ation of an important point of law is sought after listening to opposing legal arguments, Judges will have to make the decision as to which view of the law is correct Once this decision has been made, future judges and courts will be expected to follow the reasoning laid down in the test case if the

9、y are dealing with a case which raises similar legal issues. not every judge can make a new, binding legal rule the ruling came from superior courts, for example, the High Court of Justiciary or the Supreme Court,15,Examples of Judicial Precedents Donoghue v Stevenson 1932 Saloman v Saloman,16,Statu

10、tory law v Common law,passed by parliament overrules common law written down in statute, e.g. Acts of Parliament,developed historically primarily judge made law not written down in statute form,17,Statutory Legislation Acts of Parliament, UK level,Legislation passed by UK parliament most apply to UK

11、 public Bills-by MPs to affect the whole country; and, private Bills-by promoters to affect a particular locality or body of persons; 1st-2nd reading, committee-report stage, 3rd reading, HL, Royal Assent,18,Statutory Legislation Scotland level,Legislation passed by Scottish Parliament Excutive Bill

12、-by Ministers Members Bill-by MSP Committee Bill-by the Governor of a parliamentary Committee Private Bill-by external person(s) or body 4 stages: principles considered-content developed-Bill scrutinised-Royal Assent include Scottland in its title,19,Statute Acts of Parliament are often referred to

13、as legislation or statute law. the Westminster alone made laws for Scotland and now has given the Scottish Parliament authority in many different areas to make statute law. Examples of Acts Employment Rights Act 1996, the Health and Safety at Work Act 1974, Sale of Goods Act 1979, Abolition of Feuda

14、l Tenure (Scotland) Act 2000 and Protection of Children (Scotland) Act 2003,20,Westminster and Scottish Parliament,Which is superior : the Westminster or the Scottish Parliament the Westminster; the new Scottish Parliament is not completely independent; the Scottish Parliament derives its authority

15、from the Westminster to pass laws for Scotland. a simple Act of the Westminster may abolish Scotlands Parliament the two legislative bodies in order of importance the Westminster; The Scottish Parliament,21,Delegated Legislation,made by bodies lower than parliament; power conferred by parliament in

16、advance. Statutory Instruments- Orders-by privy council-in times of emergency, war, strike, etc.; Regulations-by Ministers to fill in details of an Act of parliament. Bylaws-by local authorities or public corporations Acts of Sederunt and Acts of Adjournal,22,EU Legislation,23,EU Legislation,The fou

17、r most important institutions: Council of Ministers the most powerful organ-performs the legislative role The European Parliament-the power to make laws European Court of Justice(ECJ)-enforces European Union Law to ensure the law is applied in Community. often initiated by the Commission occasionall

18、y by member state/institution The European Commission-propose laws-bring breaches of the various European Union Treaties to the attention of the European Court (often regarded as the Guardian of the various European Union Treaties).,24,EU Legislation,Primary legislation-to set up EU-Treaty of Rome C

19、ommission and/or Council of Ministers Regulations-binding in their entirely; applicable directly. Directives-focus on result and leave form and methods; eg. Financial Collateral Directive-FCAR Decisions- Recommendations Opinions,25,Which is superior: Scots or European Union Law If any conflicts, the

20、 European Union law shall prevail “the primacy of European Union Law” - should there be a conflict between a European Union legal rule or provision and Scots Law, a Scottish Court would be obligated to implement the European provision at the expense of domestic law. Britain is a member of the Europe

21、an Union as a result of the passing of the European Communities Act 1972 by the Westminster Parliament. It is this legislation which recognises the supremacy of European law over domestic law. By the time Britain became a member of the European Union in 1973, many of the key laws were already in pla

22、ce and Britain had to accept these as the price of membership of the European Communities (now the Union).,26,Glossary,legislation n. 立法，须由立法机关通过的法律的总称 statute n. 法规，立法机构通过的单行法、特定的法规，（条文形式） statutory a. 法定的 civil law 民法 criminal law 刑法 civil law system/countries 成文法体系/国家 common law 普通法、判例法 case law

23、判例法 equity 衡平法 judicial precedent 司法先例，（案例形式） custom 惯例 bill 提案 act 法案,27,?,What is common law? Describe civil law (civil dispute) and criminal law (criminal conduct) How would you describe the sources of Scots Law? How are they established? What is legislation? Describe the legislations in Scotland

24、. Who can pass laws for Scotland? Can Scottish Parliament pass laws of all kinds? How do you identify a law passed by Scottish Parliament?,28,Where is statutory law written down? What is statute? What is a statute called? Which of legislation and judicial precedent is more powerful? Discuss the rela

25、tion between UK Parliament and Scottish parliament,29,What is the doctrine of judicial precedent? How does it influence the work of judges? What is primary EU law? Can you list any legal rules made by EU? Explain EU legislative power. If any conflict between Scots law and EU law, which one should pr

26、evail? What is the role of ECJ?,30,Part 2 Scottish Court System Civil Courts,the Sheriff Court .uk/ the Court of Session the Supreme Court (the House of Lords) .uk the ECJ,31,The Sheriff Court,6 sheriffdoms each of the 6 has a sheriff principals belo

27、w the principal are sheriffs hear both criminal and civil cases sheriffs from advocates and solicitors of at least 10 years standing,32,Jurisdiction of the Sheriff Court,over persons-where the defender resides 3 exceptions business property concerned contract performance over subject matter 2 main l

28、imitations certain actions, eg. legitimacy, lost documents, reserved for the Court of Session certain actions, eg. heritable rights, the Court of Session,33,How cases are tried?,most cases-by the Sheriff alone industril injury-by a jury of 7 Summary Cause-claims between GBP750-1500 Small Claims Proc

29、edure-claim for 5000 or less-DIY,34,Appeal from the Sheriff Court,2 routes for summary cases from the Sheriff to the Sheriff Principal on a point of law; from the Sheriff Principal to the Inner House of the Court of Session, only if leave granted. alternatives for ordinary case to the Sheriff Princi

30、pal, then to the Inner House of the Court of Session; or to the Inner House directly,35,The Court of Session,Supreme civil court a court of 1st instance appeal court for ordinary cases Outer House and Inner House,36,The Outer House,Court of 1st instance a claim of at least 15000 cases with a claim o

31、f more than 15000, the Outer House share jurisdiction with the Sheriff over persons-reside in Scotland/heritable property in Scotland over subject matter-all civil claims except exclusive jurisdiction of the High Court or excluded by statutory,37,How cases are tried?,by one Lord Ordinary; or a jury

32、of 12 where a claim for damages from stree or industrial injury is involved.,38,Appeal from the Outer House,to the Inner House,39,Sheriff or Outer House, which is better?,cheap: no advocates fees, or solicitors. convenient,expensive travel to Edinburgh more authorative ruling a large amount of money

33、 important case,40,The Inner House,1st Division and 2nd Division, equal in authority hear 2 kinds of cases appeals from the Sheriff and the Outer House cases concerning interpretations of a legal document, involving the law of taxation hear,41,How cases are tried?,3 judges normally in appeal cases,

34、evidence rared heared simply hear: legal argument based on evidence given in the original case legal argument on questions of law,42,Appeal from the Inner House,to the Supreme Court,43,?,Does Inner House hear only cases of 2nd instance? What are the differences between the Outer House and the Sherif

35、f Court?,44,The Supreme Court of the UK,the House of Lords of the UK the Supreme Court, Oct 1 2009 hear appeals from the Inner House in civil cases 3 justices normally, and 5, 7, or 9 for important cases,45,46,The European Court of Justice,set up under the Treaty of Paris in 1952 situated in Luxembo

36、urg one member state sends one judge only 13 judges sitting as Grand Chamber assisted by 8 advocates-general to present reasoned opinions,47,Cases Heard in ECJ,appeals from member states court cases of ist instance by the attacthed Court of 1st Instance for giving rulings on cases brought by individ

37、uals and relating to unfair competition,48,ECJs Job,to ensure: EU legislation (the Community law) interpreted and applied in the same way in each member state has the power to settle disputes between member states, EU institutions, businesses and individuals,49,Alternative to a Civil Action,Arbitrat

38、ion speed informality cost privacy technical expertise Tribunals,50,51,Part 3 Scottish Court System Crminal Prosecution Service,Police Procurator Fiscal-conduct public prosecutions in the Sheriff and District Courts-if prosecute, then solemn or summary procedure, which court the High Court of Justic

39、iary-supreme criminal court-only solemn cases and most serious crime-jury of 15-ulimited powers of sentencing the Shreiff Courts-the busiest-both solemn and summary cases the District Court -the lowest-minor criminal cases-summary procedure,52,Appeal,from the 3 Courts to the Court of Criminal Appeal

40、 3 judges normarlly, or 5, 7 or more. no right of appeal to the House of Lords,53,?,Which is the busiest court and why?,54,Part 4 Legal Personnel,Lawyers solicitors advocates QC Judges from sheriffs and sheriff principals of 5 years standing from trained lawyers Sheriffs from advocates and solicitor

41、s of at least 10 years practice,55,Senior Law Officers,Law Officers-from advocate-represent the Crown in criminal cases Lord Advocate the most senior in overall charge of prosecution helped by Advocate Deputies and Crown Office control over Procurator Fiscal Solicitor General,56,the roles of Lord Ad

42、 and Solicitor G ultimate responsibility for all administration in the criminal cases; guide Scottish legislation through parliament; appear as lawyers for the prosecution.,57,Law of Contract,Introduction Prof. Gibbs: agreement; capacity; form; perform; not trifling; legal obligation three essential

43、s,58,Essentials,Agreement Two parties Legal obligation,59,Offer Error; Misrepresentation,Illegality against the law in restraint of trade between employer and emloyees between seller and purchaser Solus,61,Error,identity of the parties the subject matter the nature of contract the price of the contr

44、act,62,Misrepresentation,innocent conditions fraudulent conditions negligent through concealment or failure to disclose facts,63,Concealment or Failure to disclose facts,Fraudulent concealment actually does sth to hide facts Gibson v National Cash Register (1925) Let the buyer beware 2 exceptions ut

45、most good faith fiduciary duties,64,Two Exceptions,Utmost good faith both parties have a duty to disclose all material facts insurance contracts contracts guanranteeing honesty of employees to form partnership to take shares via a prospetus The Spathari CAse (1925),65,Fiduciary duties one party is i

46、n a position of trust in relation to the other party parent and child principal and agent trustee and beneficiary lawyer and client accountant and client Task 11 Derry v Peek (1889),66,5.2.6 Exclusion clauses,Basic rule: parties are free to agree whatever terms they want in contract. However, one pa

47、rty may have more bargaining power and often attempt to exclude their liability. Where are exclusion clauses often found? tickets notices Whether they are legal depends on certain conditions.,67,Nature of Ticket,Whether or not an integral part of a contract. Chapelton v Barry Taylor v Glasgow,68,Pos

48、t Formation Conditions,Olley v Marlborough Court Ltd Thornton v Shoe Lane Parking Ltd,69,Brought to Attention,If a ticket is an integral part of a contract, the conditions must be adequately brought to attention of the customer. Henderson v Stevenon (1875) Task 8,70,Unfair Contract Terms Act,This is

49、 the statutory law which covers exclusion clauses. Those attempting to exclude liability for death or personal injury (同中国合同法第53条),71,Fair and Reasonable,The courts will apply the reasonable test. the bargaining strenths of each party the customers knowledge of the condition and its effect Woodman v

50、 Photo Trade Processing(1981) Interfoto Picture(1988),72,Summary,Common law: exclusion caluses-binding-only if meet certain conditions statutory law: The Act-binding-only if fair and reasonable.,73,5.2.7 Termination of Contract,performance payment prescription acceptiation confusion compensation del

51、egation novation frustration,74,performance a contract terminates when all the parties concerned have fully performed their respective obligations. payment An obligation is terminated when the debtor makes payment.,75,Prescription (时效,形成权) active prescription: creation of rights negative prescriptio

52、n: lapse of rights once a certain length of time has passed. Negative prescription allows certain rights to lapse if the rights have not been exercised for a certain length of time e.g., most contractual rights lapse after 5 years; debt unpaid for 2 years; some never lapse, recover stolen parperties

53、,76,Acceptilation before full performance, parties may agree to end the contrat; one party who has paerformed her duties may discharge the other party from performance Confusion a person becomes both the creditor and the debtor,77,Compensation set off/netting Delegation Subject to the consent of the

54、 creditor, a new debtor can replace the original one.,78,Novation new obligation replace the prior obligation Frustration: after formation, the contract becomes illegal, or impossible; or still possible and legal, however, due to change of circumstanes, performance will be so radically altered that

55、it no longer represent the parties original intention no damages,79,5.2.8 Breach of Contract,What is a breach? Where one party fails to perform his/her legal obligation under a contract, he/she commits a breach of contract. example1 example2,80,Remedies for a Breach,Damages Specific implement Rescis

56、sion Defensive remedies,81,Damages,The object of awarding damages to someone is place them in the position they would have been in had the contract been completed. Damages are really awarded as compensation, if the person actually lost money. If no actual losses, damages may be awarded for trouble a

57、nd inconvenience, known as nominal damages.,82,Calculation of Amount depends on the amount lost however, the party claiming damages may not be entitled to claim the full amount he has lost if: he has not taken reasonable steps to minimise his loss the loss is too remote and unforseeable Hobbs v Lond

58、on,83,Conventional or Liquidate Damages The parties to a contract sometimes will agee that if there is a breach, then the other party will be entitled to a certain sum as damages. it should be fair and reasonable. Lord Elphinstone v Monkland The courts use penalty to describe unreasonable sums. By c

59、ontrast, even if defined as penalty but reasonable, it is conventional damages.,84,Specific Implement,Positive specific implement to force the party who acted in breach of a contract to complete the contract, ie. to fufil their obligations Negative specific implement to stop the party for acting in breach of contract, ie. to stop doing sth.,85,The obligation is to pay money