TORT . A tort is a civil wrong, not criminal, which excludes breach of contract. . A tort authorized a person, injured by damage, to claim damages in compensation. . Tort law has been built upon decisions made in report court cases. . An example of tort is: negligence; direct and forcible injury; defamation; nuisance. . A tort is a wrongful act that injures or interferes with another’s person or his property. . A tort case is a civil court proceeding. . The accused is the “defendant” and the victim is a “plaintiff”. . The charges are brought by the plaintiff; and if the defendant loses, he has to pay damages to the plaintiff. What kind of damages exist? There are two main categories of damages: actual and punitive. 1. Actual damages: include special or compensatory damages and general damages for pain and suffering. The first one includes the economic loss; lost wages; medical bills and these damages must be proven at trial with evidence of certain factors (ex. Medical bills; amount of damage to property). The second one, for pain and suffering, are damages presumed suffered in an accident. 2. Punitive damages: are the other type of damages. They are given to punish the defendant and deter others from causing similar damage. These type of damages are assessed when the action of the defendant are aggraved by violence, oppression or fraud. To win a tort cause you must prove two things: the defendant committed the tort and, as result of the tort, the plaintiff or his property was injured. CRIME . Is a wrongful act that the State or the federal government has identified as a crime. . A criminal case is a criminal proceeding . The accused is called the “defendant” and the victim is the person who has been hurt by wrongfull act. . The charges are brought by the government. . If the defendant loses, he must serve a sentence that may limits his freedom. . A fine is paid to the government and there is possible restitution to the victim. Criminal law is passed by the government to protect citizens. A crime is a wrongfull act that injures or interferes with the interest of society and not with the interest of a single person. CIVIL AND CRIMINAL PROCEEDINGS The criminal and civil courts system are separate but some courts hear both criminal and civil matters. Civil cases are essentially about the resolution of the disputes between private legal person and in some cases they can also involve a public body when acting in a private law capacity. Judicial rewiew is part of public or administrative law and consists of an application to the High Court, that asking the court to review the way a public body has made decision. The court will not decide the merits of the decision, only its lawfulness under public law principles, and the court can ask the authority to reconsider the matter. Unlike civil cases, a prosecution in a criminal case has to be taken by the police or by certain public bodies, where legislation allows this. There is an important difference about the test of proof in civil and criminal cases. In civil cases have to be proved on the “balance of probabilities”; criminal cases have to be proved beyond reasonable doubt. The hierarchy of civil proceedings sees: 1) County Court (or in certain cases Magistrate’s courts) that deal with the majority of cases in the civil court system; 2) High Court; 3) Court of Appeal (civil division); 4) Supreme Court. The hierarchy of criminal proceeding sees: 1) Magistrate’s courts, that deal with the 98% of criminal work, but also a small number of civil matters; 2) Crown Court; 3) Court of Appeal (criminal division); 4) House of Lords. Civil Case All cases concerning goods, property, debt, repayment, breach of contract (with some exception such as fraud) are subject to civil procedure. In civil proceeding most claims are initiated by the use of the claim form which functions as summons. After a claim has been presented a copy is delivered to the defendant with a response pack inviting the defendant to admit the claim o to defend it. The response pack also contain a counterclaim form for the defendant to use if he wish claim against the claimant. A defendant must respond within 14 days of service of the claim. If not responsa, judgment may be given in favor of the claimant. The defendant can get time extention for filing a reply. The cases are allocated to a regime by a procedural judge according to their monetary value. Criminal Justice Criminal law, sometime called penal law, involves the prosecution by the State of a persone for an act that has been classified as a crime. There are three categories of criminal offences: 1) summary offence: tried without a jury, are minor crimes only triable in the Magistrate’s Courts; 2) indictable offence: are serious crimes, such as murder, which can only be heard in the Crown courts. The formal document that containing the alleged offences is called indictment; 3) theft or burglary: can be heard in either the Magistrate’s courts or the Crown courts. Depending on the offence and the jurisdiction, various punishment are available to the courts to punish the offender: corporal punish or loss of liberty (incarceration); suspende the sentence; impose a fine. Most crimes are characterized by two elements: criminal act; criminal intent. The prosecutor must prove the existence of criminal act and intent, without reasonable doubt; this standard of proof contrasts with civile cases, where the claimant generally needs to show a defendant that is liable on the balance of probabilities. COMMON LAW – CIVIL LAW The legal system of different countries around the world are tipically the common law or the civil law, or, in some cases a combination of the two. In general a common law system is based on the concept of judicial precedent. In this system the decision of the judges are used as precedent for future cases. Although the common law system have laws created by legislator, the judges must interpret laws through judicial precedent and then apply them to individual cases. In certain common law countries, courts have the ability to strike down laws that were passed by legislator if those are unconstitutional in violation of federal laws. In UK the concept of parliamentary sovereignty means that legislation can only be strike down by Parliament (not courts). The two pillars of UK constitution are: the sovereignty of parliament; the rule of law. The first means that the Parliament is the supreme legislative body; the second that all laws and government actions must be conform to a set of fundamental principles. The most important UK legal system are: legislation, common law, European law and the European Convention on Human Rights. There isn’t a single document that contains the whole of the UK law. Civil law system, on the other hand, place much less emphasis on precedent than they do on the codification of the law. In a civil law system the judge applies remedies found in the codified law. In Italy, for example, most of the sources of law are written acts. The system of sources of law is structured like a pyramid with the constitution on the top. COMPANY LAWS A company is a business association which has the character of a legal person, distint from its officers and shareholders this is important because it allows the company to continue perpetually despite the changes in ownership and insulate the owner against personal liability; but in some cases, for example when the company is used to perpetrate fraud or acts ultra vires, the court can subject the shareholders to personal liability. By contrast a partnership is a business association that isn’t considered to be a legal entity, but only an association of owners partners are not insulated against personal liability, and the partenership may cease to exist if a change in owners occurs, for example when a partener dies. A company is formed when a certificate of incorporation is iussed by the authority. The constitution required two documents: 1) memorandum of association; 2) articles of association. The management of a company is carried out by it’s officers, who include a director, manager and a company secretary. The functions of the director can be classified into two groups: 1) duty of care; 2) fiduciary duty. In general a director must act in the best intersts of the company and not or any collateral purpose. Incorporation The regulations for incorporation, that is forming a company, are set out in the companies act 1985. There are a number of steps to be followed in this procedure: 1. At first is necessary to choose a name for the company which is legally acceptable. The application for registration can be rejected if the name can’t be distinguished easely from a company which already exist. The use of certain words, for example “British”, can require prior approval before they can be used in a company name. 2. On completation of registration, the new company will receive a company number, also known as a registered number which remains constant through its life. 3. Its possible to begin trading as a company by the purchase of a shelf company that is already registered. 4. A company must have an office in the jurisdiction at which it can be served with any legal process. The Statutory books and official register must be kept there and be available for inspection. 5. Other dateils of any registered company can be found free at company house. Memorandum and Articles of Association When a company is incorporated, it must adopt memorandum and articles of association, also known as the mem and arts. The memorandum sets the companies objects or purposes, while the articles set out the relationship between the company and its shareholders. Most companies are “limited companies”, with the liability of members limited to the nominal value of the shares they hold. Any company will have a maximum amount of share capital that can be issued, known as the authorized share capital. A company is not required to issue all of its authorized share capital. The term capitalisation refers to the act of providing capital for a company. Initially it take places through the iussance of shares authorized in the memorandum of association. The authorized share capital, that is the maximum amount of share capital that a company can iussance, is stated in the memorandum of association. The Memorandum also state the name of the subscribers. The minimun share capital for a “public limited company” in Great Britain is 50.000 pounds. The division of the share capital usually take place in two classes of shares: 1) ordinary shares; 2) preference shares. The “ordinary shareholders” have voting rights, but the payment of dividends depends upon the performance of the company. The “preference shareholders” receive a fixed dividend, independently of performance, before the payment to ordinary shareholders, but they haven’t voting rights. Shares in British companies are subject to pre-emption rights. The company must offer the newly iussed shares to the existing shareholders, who have the rights of “first refusual”. The shareholders can give up their pre-emption rights by special resolution. The share capital isn’t the only means of corporate finance. The other is the “loan capital” typified by obligation share. Sole trader Is the simplest and commonest form of business structure. This is generally a small enterprise like a small shop. It’s directed by a single individual person and differs form a company because the management is usually given to the same person, who is personally responsible for all the debts and risk becoming bankrupt. The formalities are few, aside from added Tax or regulations. Partnerships A common form of structure for certain kinds of business, for example architect or lawyers, is a partnership. A partnership needs at least two members and normally maximum twenty, but for some type of companies there isn’t size limit. All partner are liable for the company’s debts. The partnership agreement can set the duration of partnership and how profits and loses are to be shared. The agreement can set also what rules will apply to the capital, what restriction are imposed on partners and so on. It’s also possible to have a Limited Liability Partnership, which has a legal entity separate from its members look like a limited liability company. Limited companies “A private limited company” is a separate legal entity which can sue and be sued in its own rights. The company is identified by its registered number, which will remain the same irrespective of any changes of name. “ A public limited company” is differenziated from a private limited company in that the shares can be sold to the general public through the stock market to rice share capital. In this typology of company the minimum share capita is 50.000 pounds and 25% must be paid up. While in a private limited company there isn’t a minimum share capital. FORMATION OF CONTRACT Opposed to civil law where contracts are generally formed simply through offer and acceptance, in common law a promise became an enforceable contract where there is not only an offer by one party and an acceptance by the other party, but also an exchange of legally sufficient consideration offer + acceptance + consideration + intention. For a promise, to became an enforceable contract, the parties must also agree on the essential terms such as price and subject matter. An enforceable contract can born by: 1) express contract (written or oral words); 2) implied contract (deduce from the conduction of the parties). A contract may be declared invalid by one party in the event of illegality of the subject matter (for example fraud). Finally a contract can also may a benefit for a third party in some cases. TERMS Express terms: are stipulated expressly in the contract (ex: this agreement shall commence on 10 april 2021 and will have a duration of three years this is an initial term). A condition is an essential term of contract. If it’s not performed, it authorized the other party to repudiate the contract it is breach of contract. The condition must be performed. A warranty is a term that is secondary to the main purpose of the contract and not authorized the party to repudiate. Implied terms: are not made express within the contract, but may be implied into the contract: 1) by costum, if there isn’t express term to the contrary; 2) by statute; 3) by common law: by the intention of the parties, if it is a term which is necessary to make the contract work. In a commercial contract we can find exclusion and limitation clauses that can exclude liability for specific categories of damages and limit liability for breach of contract. The principles causes: 1) a force of majeure; 2) language clauses; 3) a choice of governing law and jurisdiction. It’s a basic principle of contract law that new terms cannot be introduced after a binding contract has been made; the proposed standard terms must be incorporated into the offer. PRIVATY OF CONTRACT The principle of privaty of contracts means that a third party can’t be vincolated by term of contract to which is not a party. But since the contract act pass in 1999, a party can be able to enforce contractual rights depending on the circumstances. There are other way in which a third party can be affected by terms of contract: for example in the case in which a subsequent agreement between the original parties and the third party may have the effect of entirely replacing the original contract. DISCHARGE OF CONTRACT Parties may be released for their contractual obligations by breach, by agreement, or by frustration. For example: if a contract is partly perfomed a breach of condition is committed. If the innocent party accepts partial performance, a claim to remuneration may be raised in a court; however the innocent party could have the right to repudiate the contract. A contract can be discharged by agreement between the parties. If it become impossibile to perform (death of a party), the contract is discharged by frustration. REMEDIES OF BREACH OF CONTRACT We can have some cases: 1) money claimed as compensation for loss; 2) the courts can make a decree of specific performance; 3) the courts can make an injunction to restrain a party from breaking a contract. CONTRACT’S FORM: 1) must be in the form required by the law; 2) between parties with the capacity to contract; 3) may be made in writing; made orally; or implied from the conduct. Sometimes a contract can be defective and may consequently be void or voidable or unenforceable. Void: if one, or both of the parties is not recognized in law as having legal capacity. Voidable: if there is some defect in its formation. Unenforceable: when it is inapplicable. In this case the court will not compel a party to act or compensate the other. A contractual can be inapplicable for numerous reasons related to circumstances of the signing, terms of the agreement, or events that occur after the contract has been signed.
