Law in Everyday Life
John Seely
Published by Oxpecker
Smashwords Edition
Copyright 2011 John Seely
Smashwords Edition, Licence Notes
This eBook is licensed for your personal enjoyment only. This eBook may not be resold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it was not purchased for your use only, then please return to Smashwords.com and purchase your own copy. Thank you for respecting the hard work of this author.
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Table of Contents
Chapter 4: From cradle to grave
Chapter 5: The law and the householder
Chapter 6: The law and the driver
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Preface to the 2011 Edition
This book was originally published by Oxford University Press in 2003 as part of the One Step Ahead series.
It describes the law of England as it was at the time of writing (2002-3), and was checked by lawyers at that time. Things change, so some of the laws referred to here may have been superseded.
The author and publisher make no warranty about the content of this work. You should not take any legal action without taking professional advice.
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Chapter 1: Introduction
The law seems to permeate every aspect of our lives. As I write the opening paragraph of this book, I am carrying out my part of a legal contract with the publisher which runs to over 5,000 words. And what words! For example:
5.1.1 the Author hereby grants to the Publisher during the legal term of copyright including any renewals and extensions thereof an exclusive licence on the terms and conditions herein contained to produce or publish the work ...
Popular perceptions of law and lawyers are that:
The law is unnecessarily complicated. It uses long incomprehensible sentences stuffed with jargon.
Lawyers speak this language to each other so as to exclude the rest of us.
When we have to consult them, lawyers charge an inordinate amount of money.
Some of this is undoubtedly true. It takes years of training to qualify as a solicitor and even longer to make a success as a barrister. Those who succeed can perhaps be forgiven if they aim to make all those years pay off. And they can point to the disasters that occur when laypeople try to approach the law on a D-I-Y basis.
But painting the portrait of law and lawyers in this negative way is misleading. It is true that the volume of legislation and regulation increases every year, but there are those in the profession and outside it who are working hard and with some success to make the law clearer and more accessible to those it is meant to serve. For example, if you have to make a small claim (up to £5,000) against someone who owes you money, there is a special and simplified procedure that enables you to do so. And those whose first serious encounter with the courts is a divorce case will find that the language and approach adopted are much more practical and humane than was the case even twenty years ago. In this age of electronic information, the legal system has used the new technology to explain itself to the general public in a number of web sites that offer clear, straightforward information and advice.
This book is written from the perspective of a ‘customer’ of the law. In my own life I encounter the law as a private individual, as a self-employed writer, and as a member of the Boards of two small companies, both of which frequently take advice from lawyers. I also bring to the writing a deep interest in language and communication. The law referred to throughout is that of England and Wales; Scotland has its own legal system, which is significantly different.
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Chapter 2: Important concepts
This chapter is about some of the ideas behind our legal system. If you sometimes wonder why the elaborate structure of our law is so complicated, or exactly what concepts like ‘tort’ mean, then this chapter is for you. If such things seem academic and remote, then you may prefer to skip to the later chapters dealing with specific aspects of the law. All the legal terms used in this chapter can also be found in the Glossary.
What is the law?
The law exists to ensure that civilized life is possible:
Compulsion
The
law ensures that individual citizens can go about their daily
business without being attacked or robbed, and that society can set
up institutions which will be respected by the individual. To do
this, the government provides the legal machine with the weapons of
compulsion: police to enforce the law and catch those who break it,
courts to establish guilt and innocence, and prisons to punish
offenders.
The
Constitution
Government itself is defined by
constitutional laws. In Britain some of the most fundamental laws of
our constitution are traditional rather than being written down, but
there is also a mass of written law covering how we are governed,
both centrally and by local authorities.
A
framework
As individuals we want to be able to
make private arrangements between ourselves, secure in the knowledge
that if others break their word, we will be compensated for our loss.
We want to make sure that other people cannot spoil our enjoyment of
our property or hurt us physically by their carelessness—and that
if they do we can get them to stop and/or be compensated. The law
provides a framework within which we can protect ourselves in this
way.
A
system
To achieve all these things we need a law
that is consistent and consistently applied. So we need a legal
system that is capable of applying the law fairly and consistently
and amending and interpreting it so that it can deal with new and
changing circumstances.
Public and private law
So we need law that deals with the whole of society, but which also serves us as individuals.
Public law is those branches of the law that deal with society as a whole and the individual citizen's relationship with society.
criminal law
constitutional law
tax law
administrative
law
(All the rules and regulations set up by government
departments in areas such as social security.)
Private law covers relationships between individuals, groups, and organizations:
family law
company law
contract law
the law of tort.
Crime
People want to live in an orderly society in which they can go about their public and private lives without fear of being injured or having their property damaged or stolen by others. We wish to be free to do as we like without harming others and without interference from others. We also allow the state to stop us from doing things that harm ourselves. In addition we empower the state to protect us from threats from outside the country and to protect our security. Individual citizens have to be prevented from acting in a way that threatens national security. In order to achieve this we empower the state to pass and enforce laws and to punish those who break them. This is the foundation on which the criminal law is built: to prevent individuals from behaving in ways which harm others or society as a whole.
Criminal law protects...
the
state against individuals
This is the basis of
laws about national security.
the
individual from harm by others
By, for example,
laws about murder, assault, and rape, as well as lesser offences such
as careless driving.
the individual's property
the
individual from his own unwise actions, which may also harm
others
This is why there are laws banning drugs
and laws against obscenity.
How do we define a crime?
Lawyers use two Latin phrases when they are defining crimes: actus reus and mens rea. Actus reus means literally ‘guilty act'. To find someone guilty of a crime it has to be proved that they committed an action defined by the law as a crime. So, for example, the law distinguishes between the crimes of assault and battery. Assault means acting in such a way towards someone that they are put in fear of personal injury. In other words you can assault someone without touching them. Battery, on the other hand, means deliberately making physical contact with someone without their consent.
The last sentence contained the word ‘deliberately'. Mens rea is the second component of a crime and means ‘guilty mind'. A crime is a criminal act done with a ‘guilty mind'. The law distinguishes different degrees in this. For some crimes, like murder, it has to be proved that there was specific intent: when X raised the axe he specifically intended to kill Y. For other crimes, it is necessary to prove recklessness or negligence by the perpetrator. There is a fourth group of crimes in which the perpetrator's state of mind is of no importance. If you are caught by a police speed trap breaking the speed limit it makes no difference at all whether you intended to or not; the simple fact of exceeding the limit is sufficient. Crimes of this kind are referred to as absolute or strict liability offences.
Is there a difference between law and morality?
It is sometimes difficult to draw a clear line between what is criminal and what is immoral. Some actions are obviously both —murder, for example. Others are clearly immoral but not illegal—for example adultery. But there is a grey area in between. Some actions are illegal, because on the whole society disapproves of them on moral or religious grounds, even though they harm no one's life or property. For example a majority of citizens agree that young children should not be exposed to scenes in films depicting extreme violence or overt sexuality, so there are laws and regulations governing this. Other laws involving morality are less easy to justify: blasphemy is still a crime in England, although many people consider that the law should be repealed, especially since it only refers to the Christian religion.
Tort
When a crime is committed the state has to ensure that the offender is caught, tried, and, if found guilty, punished. But there are many occasions when the actions of one person, while not necessarily criminal, still injure the health, possessions, or interests of another. For example, while carrying a ladder along the street I may accidentally strike a passer-by and knock them unconscious. As a result they may be unable to work for several weeks. I haven't committed a crime, but my lack of care has caused both physical and financial injury to another. The injured person may then be able to take action in a civil court to claim compensation from the guilty person under the law of tort.
The legal term tort comes from a medieval French word meaning ‘wrong’ or ‘injustice'. It is a principle of the legal system that people have a right to security of their persons and property. If that right is infringed, then they are entitled to compensation. (Indeed, if they believe that their rights are about to be infringed they have the right to try to stop it happening.) It follows from this, if my actions injure another person or their property then they have the right to claim compensation from me. It is helpful if such liability can be proved, but sometimes this is not possible—no one can be shown to be liable. In this case, the injured party may be unable to claim any compensation—because there is no one to claim it from.
Strict liability
Sometimes the law says that people are liable when common sense suggests that they are not. Suppose, for example, I own a fierce dog but have put a stout fence round my land and make sure that whenever I go out the gate is securely fastened. I have taken all reasonable precautions. But then the postman comes to the house and leaves the gate open. The dog escapes and attacks an elderly woman in the street. Who is liable? English law holds that this is a case of strict liability and even though I did all I could to stop the event occurring, I am still liable, simply because I owned a dog that was likely to attack people.
Negligence
If someone considers that they have suffered injury, or their property has been damaged, by my actions they can sue me for negligence and claim damages. The person suing becomes the ‘claimant’ and I become the ‘defendant'. This is how it works:
The claimant will have to prove that I had a duty of care. In other words this was a situation in which I should have taken care not to cause them any harm.
They must prove that I was indeed negligent (careless).
The claimant has to show that the harm caused was a direct result of this lack of care.
Finally they must demonstrate that they have suffered some kind of material loss as a result of this. (For example, in the case of a physical injury they might not have been able to work for a period of time.)
In my defence I might be able to argue that no reasonable precautions 1 could have taken would have stopped the accident occurring; or that the claimant was at the time in the course of committing a crime; or that the claimant was partly or wholly responsible for what happened.
Occupier's liability
If you own land, then you have a liability towards people who enter it to ensure that they don't suffer any harm. So if your roof is in need of repair and a visitor is injured by a falling tile, they may sue you for damages. Even trespassers are covered by this, although the occupier's liability towards them is, not unreasonably, less than it is towards visitors who have a legal right to enter the property.
Trespass
The word ‘trespass’ comes from an Old French word meaning passing across, passage. A useful substitute word for its legal meaning might be ‘interference'. In English law it comes in three forms: trespass to land (the best known), trespass to goods (interfering with someone else's possessions), trespass to person (which usually takes the form of preventing someone from enjoying freedom of movement—for example by imprisoning them).
Nuisance
The word ‘nuisance’ comes from the French word ‘nuire', meaning to harm or hurt. This covers any action (often a series of actions) which interfere with someone else's life. For example if a householder operates loud machinery late at night they may well be committing a nuisance because it stops neighbours from sleeping.
Defamation
If you make public a statement that damages someone's reputation, that person may sue you for defamation. You have harmed them personally and they may demand recompense in the form of damages; they will also want the truth made public and some form of apology.
Contract
In our private lives when people make promises we expect them to keep them. Sometimes we are disappointed and we know that some of our acquaintances are more dependable than others. But it wouldn't be possible to run our public lives on this basis. Imagine what would happen if when pay day came round and the boss said, ‘I'm sorry I can't pay you this week—I've spent all the payroll money on a new house.'
Public life depends on people making agreements and keeping to them. The two parties involved bind themselves to do something in the future and then expect that this agreement will be fulfilled. Economic and social life would be impossible if we could not trust such a system. Because of this the state provides a guarantee: if one of the parties fails to perform what has been promised, then the other can take action in the courts.
If an agreement is to be legally enforceable, it has to be serious, clearly defined, and intended to be a legal agreement. In addition it has to be of benefit to both parties; there has to be an element of a bargain about it. In English law it does not, on the other hand, need to be written down. You can commit to a contract, as such agreements are known by lawyers, in speech, in writing, or by actions.
The underlying principles of the law are that legally binding agreements should be carried out and if they are not, then the innocent party should not be put at any kind of disadvantage. This can be achieved in a number of ways: for example, by forcing the other party to perform their side of the bargain; by requiring them to provide a substitute; or by requiring monetary compensation.
What the law means by a contract
In a true contract:
there have to be two parties to the agreement;
the agreement must be meant to be legally binding;
there has to be some kind of exchange of goods or services.
The law says that there have to be to be the following five essential components:
1.
Offer
One party says in effect, ‘If you accept
this offer, I will do X.’ This must be seriously intended and can
be in speech, writing, or through some kind of action. (For example
if, in London, a large red bus with a sign saying ‘Marble Arch’
stops at the bus stop for me to get on, that can be regarded as a
seriously intended offer to take me to Marble Arch if I pay the
fare.)
2.
Acceptance
The other party has to accept the
whole of the offer. If they say they accept a modified version of it,
that isn't an acceptance, but a counter-offer. Once they have
accepted, a contract exists between the two parties. The acceptance
is normally in the same form as the offer: speech, writing, or
action. (So, to continue the example, if I get on the bus it is an
acceptance of the offer and an understanding that I will fulfil my
part of the bargain—to pay the fare required to get to Marble
Arch.)
3.
Consideration
The agreement has to involve an
exchange of consideration. This means that money, goods, or services
—or some combination of the three—has to pass from A to B and
from B to A. So, in the example the consideration offered by the bus
company is to carry me to Marble Arch; in return I offer the
consideration of the fare. Money has been exchanged for services.
4.
Intention
The parties must have the intention to
enter into a contract that is legally binding. If the contract
concerns a business relationship, the law assumes that this is the
intention unless the parties state otherwise.
5.
Capacity
Each of the two parties has to be able
to understand what they are undertaking. If you are over eighteen it
is assumed you can do this unless it can be proved that at the time
of engaging in the contract you were mentally incapable or drunk and
that the other party knew this and that the goods or services you
were being offered were ‘luxuries’ rather than ‘necessaries'.
‘Necessaries’ are things required by the person involved for the
maintenance of their ordinary life. The law takes the view that these
differ from person to person. So, for example, an elaborate walking
stick with a silver handle might be a ‘necessary’ for a wealthy
elderly person, while it would be a luxury for a healthy and
impoverished teenager. If the goods or services offered were
necessaries then you will have to pay for them.
The terms of the contract
Central to a contract are the promises, descriptions, and conditions agreed by the parties. These are called the terms of the contract. They are of two kinds:
Express
terms
These are the terms that the parties have
discussed and expressed in speech or writing. They are particular to
the specific contract.
Implied
terms
These are terms which are not in the
contract itself but which are implied by the law of the land (e.g.
laws about employment conditions) or by tradition or custom (e.g.
what has always been done in a traditional local market). It is also
possible for a court to interpret what the parties must have intended
by their contract, even if the words didn't actually say that.
Discharge of a contract
A contract can be ended or ‘discharged’ in one of four ways:
Performance
As
the name suggests, this means that the two parties both do exactly
what they said they would do.
Agreement
The
parties agree not to perform exactly what they said they would do.
(For example they perform most of what the contract sets out and
agree to forget about the rest of it.)
Frustration
It
becomes impossible (for example through a change in the law or the
death of one of the parties) to perform.
Breach
of Contract
One of the parties fails to perform
and the other sues for breach of contract. If breach of contract is
proved, the defendant then has to pay damages to the complainant.
These are limited to the amount of actual financial loss. Sometimes a
contract will specify the amount of damages, in order to avoid
lengthy and expensive litigation. These ‘liquidated damages’
should reflect the likely amount of financial loss. If they are much
higher and are put into the contract to punish the defaulter, this is
known as a penalty clause. Courts will not enforce penalty clauses,
limiting damages to the amount actually lost.
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Chapter 3: The legal system
In England there are three main types of law: statute law, common law, and European Union law.
Statute law
In theory the Legislature (Parliament) makes laws which are administered by the Executive (Her Majesty's Government) and when there are disputes they are decided upon by the Judiciary (the judges and the courts). In fact most legislation originates with the Government, which also oversees and pays for the administration of justice. Nevertheless it is an important principle of English law that the Judiciary is completely independent of the Executive.
Most new laws are initiated by the Government, although a few come from individual Members of Parliament (Private Members’ Bills). A bill is drafted and placed before Parliament. It receives three ‘readings’ in the House of Commons, during which it is scrutinized in detail and amended, before passing on to the House of Lords which examines it in similar detail and may reject it all or in part. If this happens it returns to the Commons, which may accept the Lords’ decision, or may insist that they reconsider. Ultimately the Lords cannot prevent the Commons from passing a bill, but they can delay the process —even to the extent that the bill is lost through lack of time. Once a bill has passed through all its stages in Parliament it goes to the Queen for the Royal Assent, at which point it becomes an Act of Parliament and the law of the land.
Common law
Much of the English Constitution is unwritten, having developed in response to events over the centuries. Something similar is true of the common law. As situations have arisen in which people have been in dispute, judges have been asked to adjudicate. If no law exists covering the exact details of the case, they make a judgment based on cases that are comparable. These written judgments have accumulated to form the common law. Where a litigant is unhappy with the judge's ruling, he or she may appeal to a higher court. If this makes a different judgment, then that in turn becomes part of the law. A lower court cannot overturn the judgment of a higher, so that the judgments of the highest court in the land, the House of Lords, are always supreme. The only way in which its judgments can be overturned is by the passing of a new statute by Parliament.