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Officious Bystander
The officious bystander is a metaphorical figure of English law and legal fiction, developed by MacKinnon LJ in ''Southern Foundries (1926) Ltd v Shirlaw'' to assist in determining when a term should be implied into an agreement. While the officious bystander test is not the overriding formulation in English law today, it provides a useful guide. The suggested approach is to imagine a nosey, officious bystander walking past two contracting parties and asking them whether they would want to put some express term into the agreement. If the parties would instantly retort that such a term is "of course" already mutually part of the agreement then it is apt for implication. Overview In ''Southern Foundries (1926) Ltd v Shirlaw'' 9392 KB 206 MacKinnon LJ wrote, The test is outdated to the extent that it suggested implication was a process dependent on what contracting parties would have subjectively intended. The main problem is that people would often disagree, or one side's barga ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
English Law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, been the foundation and prime source of English law, the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations and by-laws. In the absence of any statutory law, the common law with its principle of '' stare decisis'' forms the residual source of law, based on judicial decisions, custom, and usage. Common law is made by sitting judges who apply both statutory law and established principles which are derived from the reasoning from earlier decisions. Equity is the other historic source of judge-made law. Common law can be amended or repealed by Parliament. Not being a civil law system, it has no comprehensive codification. However, most of its criminal law has been codified from its common la ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Legal Fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales. Development of the concept A legal fiction typically allows the court to ignore a fact that would prevent it from exercising its jurisdiction by simply assuming that the fact is different. In cases where the court must determine whether a standard has been reached, such as whether a defendant has been negligent, the court frequently uses the legal fiction of the "reasonable man". This is known as the "objective test", and is far more common than the "subjective test" where the court seeks the viewpoint of the parties (or "subjects"). Sometimes, the court may apply a "mixed test", as in the House of Lords' decision in ''DPP v Camplin'' 1978. Legal fictions are different from legal presumptions which assume a certain state of facts until th ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
MacKinnon LJ
Sir Frank Douglas MacKinnon (11 February 1871 – 23 January 1946) was an English lawyer, judge and writer, the only High Court judge to be appointed during the First Labour Government. Early life and legal practice Born in Highgate, London, the eldest son of 7 children of Benjamin Thomas, a Lloyd's underwriter and Katherine ''née'' Edwards, he attended Highgate School and Trinity College, Oxford, graduating in classics (1892) and '' literae humaniores'' (1894). MacKinnon was called to the bar by the Inner Temple in 1897 and became a pupil of Thomas Edward ScruttonRubin (2004) where he was a contemporary of James Richard Atkin, later to become Lord Atkin. When Scrutton became a QC in 1901, MacKinnon benefited from Scrutton's former junior practice in commercial law. MacKinnon's brother, Sir Percy Graham MacKinnon (1872–1956) was, from time to time, chairman of Lloyd's and his family connections helped build his practice. MacKinnon married Frances Massey in 1906 and t ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Southern Foundries (1926) Ltd V Shirlaw
''Southern Foundries (1926) Ltd v Shirlaw'' 940AC 701 is an important English contract law and company law case. In the field of contracts it is well known for MacKinnon LJ's decision in the Court of Appeal, where he put forth the "officious bystander" formulation for determining what terms should be implied into agreements by the courts. In the field of company law, it is known primarily to stand for the principle that damages may be sought for breach of contract by a director even though a contract may ''de facto'' constrain the exercise of powers to sack people found in the company's constitution. Facts Mr Shirlaw had been the managing director of Southern Foundries Ltd, which was in the business of iron castings. But then another company called ‘Federated Foundries Ltd’ took over the business. The new owners had altered article 8 of Southern Foundries Ltd's constitution, empowering two directors and the secretary (who were friends of Federated Foundries) to remove any di ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Implied Terms In English Law
Implied terms in English law are default rules for contracts on points where the terms which contracting parties expressly choose are silent, or mandatory rules which operate to override terms that the parties may have themselves chosen. The purpose of implied terms is often to supplement a contractual agreement in the interest of making the deal effective for the purpose of business, to achieve fairness between the parties or to relieve hardship. Terms may be implied into contract through statutes, custom or by the courts. When implied by statute, Parliament may well make certain terms compulsory. The examples are numerous. For instance, the National Minimum Wage Act 1998, provides that in any contract for work, the worker must be paid according to a minimum wage set by Parliament (£6.19 per hour for workers aged 21 or over as of October 2012). Another example is that under the Unfair Contract Terms Act 1977, liability can only be excluded when reasonable in contracts among busi ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Inequality Of Bargaining Power
Inequality of bargaining power in law, economics and social sciences refers to a situation where one party to a bargain, contract or agreement, has more and better alternatives than the other party. This results in one party having greater power than the other to choose not to take the deal and makes it more likely that this party will gain more favourable terms and grant them more negotiating power (as they are in a better position to reject the deal). Inequality of bargaining power is generally thought to undermine the freedom of contract, resulting in a disproportionate level of freedom between parties, and that it represents a place at which markets fail. Where bargaining power is persistently unequal, the concept of inequality of bargaining power serves as a justification for the implication of mandatory terms into contracts by law, or the non-enforcement of a contract by the courts. Historical development The concept of inequality of bargaining power was long recognised, ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
AG Of Belize V Belize Telecom Ltd
is a judicial decision of the Privy Council in relation to contract law, company law and constitutional law. It concerns the correct method for interpretation and implication of terms into a company's articles of association. It was approved by the UK Supreme Court in '' Société Générale, London Branch v Geys'' and ''Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd''. Facts In 1989 Belize privatised its telecommunications network. Established the year after independence in 1974, the Belize Telecommunications Authority's business and assets were transferred to a corporation called Belize Telecommunications Ltd (renamed Belize Telemedia in 2007). The government was to gradually sell off its shares, but in the process retain a "special share" (often called a golden share). According to the company's constitution, among various rights over important transactions, the special shareholder could appoint two of the eight directors. Class "B" shareh ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Lennie Hoffmann, Baron Hoffmann
Leonard Hubert "Lennie" Hoffmann, Baron Hoffmann (born 8 May 1934) is a retired senior South African–British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009. Well known for his lively decisions and willingness to break with convention, he has had an especially large impact on the interpretation of contracts, shareholder actions in UK company law, in restricting tort liability for public authorities, human rights and intellectual property law, in particular patents. Currently, he serves as a Non-Permanent Judge of the Court of Final Appeal of Hong Kong. Early life Born 8 May 1934 in Cape Town, Leonard Hubert Hoffmann was the son of a well-known solicitor who co-founded what has become Africa's largest law firm, Edward Nathan Sonnenbergs. Education He was educated at the University of Cape Town and then attended The Queen's College, Oxford, as a Rhodes Scholar, where he studied for the BCL degree and won the Vinerian Scholarship. Between 1961 and 1973, ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Johan Steyn, Baron Steyn
Johan van Zyl Steyn, Baron Steyn, PC (15 August 1932 – 28 November 2017) was a South African-British judge, until September 2005 a Law Lord. He sat in the House of Lords as a crossbencher. Early life and education Steyn was born in Stellenbosch in the Union of South Africa, the son of Janet Lacey Blignaut and Izak van Zyl Steyn, a professor of law at the University of Stellenbosch. His father died before he turned three years old and he subsequently were sent to live with his paternal grandparents. He received his schooling at the Hoërskool Jan van Riebeeck in Cape Town where he matriculated in 1950. He studied law at the University of Stellenbosch before reading Law as a Rhodes Scholar at University College, Oxford. Career He was called to the Bar in South Africa in 1958 and appointed a Senior Counsel of the Supreme Court of South Africa in 1970. As a result of his opposition to apartheid in his native South Africa, he settled in the UK in 1973, joining the English ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Equitable Life Assurance Society V Hyman
''Equitable Life Assurance Society v Hyman'' implied_terms. _Facts The_Equitable_Life_Assurance_Society.html" ;"title="English contract law">000UKHL 39is an English contract law case, concerning Implied terms in English law">implied terms. Facts The Equitable Life Assurance Society">Equitable Life (est 1762) issued ‘with profits’ life assurance policies, which are a way of saving for retirement. If policy holders took benefits as a taxable Annuity (European financial arrangements), annuity (i.e. with a payment annually), then they got tax exemptions on the premiums (and bonuses at the end of the year). They could choose to have their annuity at a "guaranteed annual rate" ("GAR") that would be fixed, or a "current annuity rate" ("CAR") that would fluctuate according to the market. The choice did not affect the premium. From 1993 the current annuity fell below the guaranteed one. Article 65 of the Equitable Life's Articles of Association said the directors could, at their discr ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
English Contract Law
English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth of Nations, Commonwealth (such as Australian contract law, Australia, Canadian contract law, Canada, Indian contract law, India), from membership in the European Union, continuing membership in Unidroit, and to a lesser extent the United States. Any agreement that is enforceable in court is a contract. A contract is a Voluntariness, voluntary Law of obligations, obligation, contrasting to the duty to not violate others rights in English tort law, tort or English unjust enrichment law, unjust enrichment. English law places a high value on ensuring people have truly consented to the deals that bind them in court, so long as they comply with statutory and UK human rights law, human rights. Generally a contract forms w ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
UK Company Law
The United Kingdom company law regulates corporations formed under the Companies Act 2006. Also governed by the Insolvency Act 1986, the UK Corporate Governance Code, European Union Directives and court cases, the company is the primary legal vehicle to organise and run business. Tracing their modern history to the late Industrial Revolution, public companies now employ more people and generate more of wealth in the United Kingdom economy than any other form of organisation. The United Kingdom was the first country to draft modern corporation statutes, where through a simple registration procedure any investors could incorporate, limit liability to their commercial creditors in the event of business insolvency, and where management was delegated to a centralised board of directors. An influential model within Europe, the Commonwealth and as an international standard setter, UK law has always given people broad freedom to design the internal company rules, so long as the mandato ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
