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Part Ⅰ ESSENTIALS OF THE ENGLISH LEGAL SYSTEM3

1 Essentials of the legal system3

1.1 The classification of English law3

1.2 Legal personality3

1.3 The sources of English law4

Preface9

Table of Cases10

1.4 Statutory interpretation11

1.5 European Community law16

1.6 The European Convention on Human Rights22

Recommended further reading24

Questions24

2.2 The civil courts25

2 Civil dispute resolution25

2.1 Tribunals25

2.3 The stages of an action in the High Court28

2.4 The stages of an action in the county court31

2.5 Enforcement of civil judgments33

2.6 Arbitration35

Table of Statutes46

2.7 Alternative dispute resolution(ADR)50

Recommended further reading52

Questions52

Part Ⅱ INTRODUCTION TO THE LAW OF OBLIGATIONS57

3 The law of contract57

3.1 Essentials of a contract58

3.2 Matching offer and acceptance58

3.3 Acceptance61

3.4 Tenders63

3.5 Exceptional cases63

3.6 Consideration63

3.7 Intention to create legal relations68

3.8 Collateral contract/lock-out agreements69

3.9 Vitiating elements70

3.10 Operative mistake at common law70

3.11 Operative mistake in equity73

3.12 Misrepresentation74

3.13 Duress,undue influence and unconscionable bargains78

3.14 Public policy and illegality80

3.15 Absence of formalities86

3.16 Capacity to contract87

3.17 Terms of the contract90

3.18 Terms implied by the court90

3.19 Terms implied by statute91

3.20 Classification of terms as conditions and warrinties91

3.21 Exclusion or exemption clauses93

3.22 Incomplete or inchoate agreements96

3.24 Performance97

3.23 Discharge of contracts97

3.25 Discharge by agreement98

3.26 Discharge by acceptance of breach100

3.27 Discharge by subsequent impossibility:frustration101

Recommended further reading103

Questions103

4 The law of tort105

4.1 Importance of tortious liability105

4.2 Establishing tortious liability107

4.3 General defences to tort108

4.4 Persons who can sue and be sued in tort109

4.5 More than one person liable as tortfeasor110

4.6 Cessation of liability111

4.7 Negligence112

4.8 Defences to an action for negligence120

4.9 Occupiers liability122

4.10 Nuisance125

4.11 The rule in Rylands v. Fletcher130

Recommended further reading134

Questions134

5 Judicial remedies for contract and tort135

5.1 Damages136

5.2 Consequential and incidental loss138

5.3 Remoteness of damage in contract139

5.4 Mitigation of loss140

5.5 Contributory negligence140

5.6 Non-compensatory damages140

5.7 Compensatory damages in tort141

5.8 Remoteness of damage in tort142

5.9 Intervening cause144

5.11 Contributory negligence145

5.10 Mitigation145

5.12 Pure economic loss146

5.13 Non-compensatory damages in tort147

5.14 Equitable remedies in contract148

5.15 Restitutionary remedies151

Recommended further reading152

Questions153

6.1 Business organisations in the UK157

6.2 The sole trader157

6 Business organisations157

Part Ⅲ BUSINESS ORGANISATIONS157

6.3 The partnership158

6.4 The registered company158

6.5 Changes in company form160

6.6 Groups of companies:holding and subsidiary companies161

6.7 General distinctions between partnerships and companies161

Recommended further reading172

Questions172

7.1 The essentials of partnership173

7 The law of partnerships173

7.2 The formation of a partnership177

7.3 Illegal partnerships179

7.4 The relationships of partners to persons dealing with them180

7.5 The distinction between actual and usual authority of partners181

7.6 Liability for debts and contractual obligations182

7.7 Liability for torts and other offences182

7.8 Holding out:the liability of the quasi-partner184

7.10 The relationship of partners to one another185

7.9 Liability of incoming and outgoing partners185

7.11 Partnership property186

7.12 The rights of partners inter se187

7.13 Duties of partners188

7.14 Dissolution of partnership190

7.15 The consequences of dissolution192

7.16 Treatment of assets on dissolution193

7.17 Application of assets on dissolution194

7.18 Profits made after dissolution but before winding up195

7.19 Rescission of partnership agreement195

7.20 Dissolution of insolvent partnership195

7.21 Limited liability partnerships in England and Wales196

Recommended further reading197

Questions197

8 Registered companies198

8.1 The constitution of a registered company198

8.2 The articles of association203

8.3 The legal effect of the Memorandum and Articles of Association206

8.4 Company promoters207

8.5 Provisional contracts by public companies209

8.6 Ultra vires contracts and outsider protection209

8.7 unauthorised contracts and outsider protection210

8.8 The company s share capital212

8.9 The payment of dividends219

8.10 Financial assistance for the acquisition of own shares220

8.11 Companies taking charges over their shares223

8.12 Shares and shareholders223

8.13 Becoming a member of a company227

8.14 Ceasing to be a member228

8.15 Transfer of shares228

8.16 Estoppel by share certificate229

8.19 The directors230

8.17 The register of members230

8.18 The register of substantial shareholdings230

8.20 Directors duties236

8.21 Statutory enforcement of directors duties244

8.22 Relief from liability248

8.23 The company secretary248

8.24 The enforcement of directors duties249

Recommended further reading256

Questions256

9.1 The nature and classification of business property259

9.2 Introduction to the English law of real property259

9 Business property259

Part Ⅳ BUSINESS ASSETS,BORROWING AND SECURITIES259

9.3 Rights over the property of another262

9.4 The reforms of 1925262

9.5 Registered and unregistered conveyancing263

9.6 The classification of estates and interest in land:unregistered and registered264

9.7 Choses in possession265

9.8 Choses in action266

9.9 Intellectual property rights268

9.10 Product design protection287

9.11 Semiconductor chip design protection291

Recommended further reading292

Questions292

10 Securities for loans293

10.1 The nature of a security293

10.2 Mortgages of land293

10.3 Priority and protection of mortgagees296

10.4 Protection of the mortgagor298

10.5 Remedies of the mortgagee300

10.6 Mortgages of registered stocks and shares304

10.7 Miscellaneous securities306

10.8 Mortgages of life insurance polices307

10.9 Goods as a security310

10.10 Securities created by registered companies311

10.11 Charges over company assets311

10.12 The registration of charges314

10.13 Disadvantages of floating charges318

10.14 Duty of charge holder with regard to authority of company and offices320

10.15 Guarantees and indemnities320

10.16 Property covered by a retention of title clause328

10.17 Liens331

Recommended further reading332

Questions332

Part Ⅴ BUSINESS CONTRACTS337

11 The law of agency337

11.1 Definition of agency337

11.2 Types of agent337

11.3 The authority of the agent338

11.4 The rights and duties of the agent342

11.5 The rights of the agent against the principal346

11.6 Agents liability to the third party348

11.7 Termination of agency350

11.8 Commercial agents351

Recommended further reading354

Questions354

12 Contracts of employment355

12.1 The contract for service and the contract for services355

12.2 Vicarious liability358

12.3 Continuity of employment359

12.4 Formation of the contract of employment360

12.5 Restraint of trade clauses392

12.6 Fixed-term and performance contracts392

Recommended further reading394

Questions394

13 Contracts for the sale and supply of goods395

13.1 Contracts for the sale of goods395

13.2 The form of the contract396

13.3 The implied terms in a contract for the sale of goods396

13.4 Waiver of breach of condition404

13.5 Exclusion of terms implied by the Sale of Goods Act 1979405

13.6 Similar protection for other contracts under which goods pass406

13.7 The passing of the property and the passing of the risk406

13.8 Sale by a non-owner413

13.9 Performance of the contract419

13.10 Rights of the unpaid seller against the goods421

13.11 Actions for breach of the contract424

13.12 Contracts for the supply of goods425

13.13 Goods supplied under hire-purchase and conditional sale agreements429

13.14 Discrimination in respect of services,goods and facilities429

Questions430

Recommended further reading430

14 Consumer credit agreements435

Part Ⅵ PAYMENT METHODS435

14.1 Agreements within the Act436

14.2 Licensing and seeking business438

14.3 Form and contents of the agreement439

14.4 Cancellation440

14.5 Dealer as creditor s agent440

14.6 Creditors liability for suppliers defaults441

14.7 Misusing credit facilities441

14.10 Extortionate credit bargains442

14.8 Early and late payment by the debtor442

14.9 Default and non-default notices442

14.11 Death of debtor443

14.12 Hire-purchase and other instalment sales443

14.13 Protection of the private purchaser of a motor vehicle448

14.14 Conditional sale and credit sale agreements448

Recommended further reading448

Questions448

15.2 Bills of exchange and cheques contrasted450

15 Bills of exchange,cheques,credit and debit cards450

15.1 Bills of exchange and cheques in settlement of debts450

15.3 The essentials of a bill of exchange451

15.4 Capacity and authority of the parties454

15.5 Acceptance of a bill of exchange455

15.6 Payment of a bill of exchange456

15.7 Inchoate instruments456

15.8 Negotiation of a bill of exchange or cheque457

15.9 The consideration for a bill458

15.10 The holders of a bill458

15.11 The cash equivalence of the bill of exchange or cheque460

15.12 Discharge of a bill of exchange or cheque461

15.13 The banker-customer relationship463

15.14 The duties owed by the bank to the customer463

15.15 The customer s duties to the bank468

15.16 Bankers protection:the paying and the collecting banker469

15.17 The protection of the paying banker470

15.18 The protection of the collecting banker470

15.19 Analogous instruments and bankers drafts472

15.20 The collecting banker as holder in due course473

15.21 Electronic funds transfer(EFT)474

Recommended further reading476

Questions476

Part Ⅶ CONSUMER PROTECTION479

16 Consumer protection479

16.1 Trade descriptions479

16.2 False trade descriptions479

16.3 False statements as to services,accommodation and facilities482

16.4 Defences484

16.5 False or misleading indications as to price487

16.6 Product liability489

16.7 The Sale of Goods Act 1979490

16.8 Tortious liability:negligence490

16.9 The Consumer Protection Act 1987,Part Ⅰ490

16.10 The Consumer Protection Act 1987,Part Ⅱ493

16.11 Collateral contract of guarantee497

16.12 Contracts for unsolicited goods and services498

16.13 Cancellable agreements for goods and services498

16.14 Unfair terms in consumer contracts499

Questions502

Recommended further reading502

17 Competition law503

17.1 Aims of competition law503

17.2 UK and EC competition law503

17.3 The Fair Trading Act 1973503

17.4 References to the Consumer Protection Advisory Committee(CPAC)504

17.5 Control of rogue dealers504

17.6 Voluntary codes of practice505

17.7 Monopolies505

17.8 Mergers506

17.9 Agreements and so on preventing,restricting or distorting competition507

17.10 Abuse of dominant position511

17.11 Investigation and enforcement of Chapter Ⅰ and Chapter Ⅱ prohibitions512

17.12 Basis of EC competition law514

17.13 Determination of infringement at Community level514

17.14 Determination at national level515

17.15 Extraterritorial extension of rules516

17.16 Restrictive practices contrary to Article 85(1)516

17.17 Abuse of a dominant position:Article 86523

Recommended further reading528

Questions529

Part Ⅷ PERSONAL AND CORPORATE INSOLVENCY533

18 Personal insolvency533

18.1 Individual voluntary arrangements(IVAs)533

18.2 Bankruptcy536

Recommended further reading549

Questions549

19 Corporate insolvency550

19.1 Receivership550

19.2 Administration orders557

19.3 Company voluntary arrangements(CVAs)563

19.4 Company winding up565

19.5 Criminal liability arising from insolvency580

19.6 Disqualification of directors arising from insolvent liquidation580

19.7 Dissolution of a defunct company580

19.8 Power of court to declare dissolution void581

Recommended further reading581

Questions581

Index583