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Land Law - Freehold Covenants

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21.05.2017

Freehold covenants involve someone who is making a promise and suffers a burden (covenantor) and another person who receives the benefit of that promise (covenantee). When the original owners move on then questions arise as to whether the original burden or benefit can also run with the land. This means having to explore whether the land transfer happens in common law or equity. In common law the starting point is privity of contract whereby a contract between two people cannot bind individuals who are not party to that contract. However while the courts have held that the burden does not pass (Austerberry v Corporation of Oldham [1885]) it is certainly possible for the benefit to do so when it touches and concerns the land (Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1947]). In equity the case of Tulk v Moxhay [1843] held that the burden can pass as the purchaser will have notice. To prevent this principle becoming too broad in nature a distinction is made between positive and negative covenants. For positive covenants the covenantor has to actively do something (Hayward v Brunswick Permanent Building Society [1881]) while for negative covenants there is an obligation to refrain from doing something as in Tulk v Moxhay [1843]. The burden of a positive covenant cannot pass in common law and only passes in equity where there are reciprocal burdens and benefits as in Halsall v Brizell [1957]. However this was restricted by Lord Templeman in Rhone v Stephens [1994] where it was held that this principle would not be effective where there is no choice in accepting the burden. The Law Commission has recently suggested that this are should be replace by 'land obligations' in an extensive review of the subject. Meanwhile for the burden to pass in equity a number of (rather straight forward) requirements must be met: the covenant must touch and concern the land proximity (the dominant land must be able to benefit) – Kelly v Barrett [1924] intention for the burden to run (presumed by s. 79 Law of Property Act 1925 the covenant must be registered unregistered land – class D(ii) land charge registered land – notice under ss. 32 & 33 Land Registration Act 2002 When looking at the benefit of a negative covenant running in equity there are three circumstances to consider: Annexation - where the benefit is permanently attached to the land. For this purpose Federated Homes v Mill Lodge Properties Ltd [1980] interpreted s. 79 LPA25 so that if the covenant touched the land and the dominant land was identified then annexation is automatic. Assignment - is very similar to annexation and attaches a covenant to the land at a later date. However the conveyance and assignment must be simultaneous (Re Union of London and Smith’s Conveyance [1933]). Schemes of development - such as housing estates where there are reciprocal enforcement of obligations the area is clearly identified. Despite privity of contract it is also important to consider the rights of third parties. s. 56 LPA25 enables a person not party to a covenant to sue upon it where the covenant purports to be made with that person (Lyus v Prowsa Developments Ltd [1982]) and the covenantee is clearly identifiable (Re Ecclesiastical Commissioners for England’s Conveyance [1936]). In certain circumstances unidentified third parties can sue if a covenant was made for their benefit as per the Contracts (Rights of Third Parties) Act 1999. For breach of a covenant a number of remedies are available: Quia timet injunction Injunction to prevent continued breach Mandatory injunction Damages in lieu of an injunction where the requirements of Shelfer v City of London Electric Lighting Co. [1895] are met. Covenants can be modified or discharged by way of applying the Upper Tribunal (Lands Chamber) under one of the four grounds in s. 84 Law of Property Act 1925: the covenant has become obsolete continued enforcement of the covenant is obtrusive to a public/private use of land of no practical benefit/contrary to the public interest compensable by money all those entitled to the benefit consent to the discharge the discharge confers no injury on the person benefiting

Rule of Law

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25.04.2016

New lecture on the rule of law following on from the previous lecture on the separation of powers: 🤍

EU Law - Direct Effect

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23.04.2017

Direct effect allows rights under EU law to be enforced within a domestic court system. Vertical direct effect allows rights to be enforced against an emanation of the state while horizontal direct effect allows rights to be enforced against other individuals or against companies. Direct effect is also conditional on the type of EU law that is being enforced. Treaties are a form of primary legislation and have vertical and horizontal direct effect so long as the relevant treaty article matches the conditions set out in Van Gend en Loos (1963): Clear and unconditional Prohibition Not dependent on member state implementation Regulations are directly applicable and as such also have vertical and horizontal direct effect. Directives, in principle, only have vertical direct effect because they are an obligation for member states to implement them. Even then they can only be enforced when they grant rights to individuals (Defrenne v SABENA (No. 2) (1979)) and the time limit for implementation has passed (Pubblico Ministero v Ratti (1979)). However there is a way that directives can have horizontal direct effect and this is known as indirect effect. This works because the courts themselves can be considered as emanations of the state and so in their judgments have to enforce EU law between individuals. This concept first arose in Von Colson v Land Nordrhein-Westfalen (1984) and was applied in the UK through Lister v Forth Dry Dock [1989]. An emanation of the state was defined in Foster v British Gas plc [1990] as a body that: Provides a public service Under the control of the state Has special powers beyond those of individuals

Land Law - Registered Land Part 1

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18.03.2018

Registered land allows for certainty about pieces of land and also efficiency when it comes to transferring land between people. It is the most effective way of protecting rights in relation to a piece of land. The basic rule from s. 28(1) of the Land Registration Act 2002 works on the basis of first come, first serve but this is based on the idea of e-conveyancing. Until that time the special priority rule focuses on what is actually on the register. This can include charges such as positive and restrictive covenants as well as financial charges like mortgages. It also includes notices in the register that is the main focus of the lecture. Whether they are permanent or temporary, minor interests can generally be protected by the entrance of a notice on the register. The can include certain leases, contracts and even mortgages and charges that are equitable. This also covers the statutory rights of spouses and civil partners in the Family Law Act 1996. Some things cannot go into the register such as short-term leases, beneficial interests under a trust of land and restrictive covenants between a lessor and lessee. While anyone can apply to have a notice put in the register this does not necessarily make it valid. In fact while many non-controversial notices can be agree with the owner there are also unilateral notices that can be entered where there is a dispute although the owner can apply to have these removed. Any minor interest not in the register that could have been registered is liable to be postponed upon a sale of the land. This can operate harshly but preserves the integrity of the register ensuring it reflects reality. Where the registered land system is used to commit fraud the courts will step in. This is most common where a person is aware of an unregistered interest but acts so as to negate it such as in Buttigeig v Micallef (1998) and Loke Yew v Port Sweetenham Rubber Co. Ltd [1913]. If a purchaser's conscience has been touched either by positive affirmation or the surrounding context this may also establish a constructive trust; Ashburn Anstalt v Arnold [1989].

Separation of Powers

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16.04.2016

Lecture on the separation of powers for students studying law in the UK. Next lecture on the rule of law: 🤍

Public Law - Judicial review

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19.05.2016

A lecture for law students on judicial review in the UK.

EU Law - Free Movement of Goods - Article 34, 35 and 36

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08.04.2016

A video lecture on articles 34, 35 and 36 of the TFEU looking at quantitative restrictions and MEQRs in EU law. This is a follow on from the first lecture on article 30 available here: 🤍

Introduction to Trusts Law

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09.10.2016

At their heart trusts are simply a way of more than one person owning property. It has been suggested that they originate from knights who went on crusades in the 12th century. Within a trust there is a settlor who commences the trust and originally has absolute ownership. Ownership then splits between a trustee who takes legal title and a beneficiary who takes an equitable interest. There are three different types of trust: express, resulting and constructive trusts. Express trusts are set out in agreements. Resulting trusts are implied by the court where either the beneficiaries are not clearly defined by an agreement or where a contribution has been made towards the purchase price of property. Constructive trusts exist in order to prevent wrongdoing and abuse of the fiduciary duty. The different formats of a trust are bare trusts and fixed trusts (for a set number of beneficiaries) and discretionary trusts where the trustee has an active role in making decisions based on an uncertain future. Trusts are used in a variety of situations such as wills, in business and even for tax avoidance purposes. They have played a significant role in popular culture in books such as Pride and Prejudice by Jane Austen, Bleak House by Charles Dickens and Pamela by Samuel Richardson.

Introduction to Land Law - What is land?

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17.10.2016

The question 'What is land?' might seem overly simplistic but in a legal context comprises a range of factors. The best way to think of land is in 5 dimensions: 1) x-axis 2) y-axis 3) z-axis 4) Time 5) Equity The definition of land comes from s. 205(1)(ix) of the Law of Property Act 1925 but apart from adding information about corporeal and incorporeal hereditaments it is not of great use. 1 and 2) The x and y-axis is how land appears on a map. However maps such as the ordnance survey are not definitive as to boundaries. This can cause boundary disputes that cost a lot of money and take a lot of court time. There are common law rules in place such as ad medium felium that can help resolve such disputes. Alluvion and deluvion can also affect the boundaries of a piece of land. 3) On the z-axis it was originally stated that 'Cuius est solum, eius est usque ad coelum et ad inferos' which means that land would extend from heaven to hell. Nowadays people have limited rights to things like oil, gas, coal, gold and silver beneath their land although they do have rights to minerals. Subterranean trespass is also something to consider. Above ground there are limitations in terms of a range of factors such as aircraft, sunlight, leylandii, treasure (Treasure Act 1996), trees, plants, flowers, wild animals, birds and water. Fixtures are another important consideration though it can be hard to contrast with chattels. One way to make the contrast is by looking at the judgment of Blackburn J in Holland v Hodgson (1872) that builds on the phrase 'Quicquid plantatur solo, solo cedit' by looking at the mode, degree and purpose of the annexation. 4) People in England and Wales cannot technically own land as all land is owned by the Crown. However people can own estates in land and the fee simple absolute effectively gives ownership for an unlimited period of time. On the other hand leasehold estates give ownership rights for a limited (but often long) period of time. 5) The final dimension take account of equity and trusts and examines legal and beneficial ownership of land. Ultimately equity ensures people deal with land in a conscionable fashion.

Tort Law - Psychiatric Harm

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29.01.2017

Due to societal changes in the perception and understanding of mental illness there is now less reticence by the courts to award damages for psychiatric harm. Nevertheless this type of injury must be recognised medically and go beyond mere grief. Claimants are split between primary and secondary victims. A primary victim is one who suffers psychiatric harm after being physically injured/put in fear of injury (Page v Smith [1996]) but this zone of danger is interpreted in a narrow fashion (Rothwell v Chemical & Insulating Co Ltd [2006]). The definition has been expanded in some circumstances to include, for example, rescuers (White v CC of S Yorkshire [1999]). Secondary victims are witnesses to an injury/situation where a person is put in fear of injury but have to met four criteria before being able to successfully claim: Not be overly susceptible to psychiatric harm Bourhill v Young [1983] Jaensch v Coffey [1984] Have suffered the harm through shock North Glamorgan NHS Trust v Walters [2002] Have been in physical proximity of the accident/aftermath “direct, immediate perception” – Alcock v CC of S Yorkshire [1992] Have enjoyed a close personal/familial relationship with the victim Extended to fiancés in Alcock but not to rescuers – White v CC of S Yorkshire [1999]. Certain relationships create a duty of care as regards psychiatric harm: Commercial relationship: Attia v British Gas [1988] Solicitor/client: Al-Kandari v Brown [1980] Schools/children: X v Bedfordshire CC [1995] Doctor/Patient: Re. Organ Retention Group Litigation [2004] The employer/employee relationship can give rise to a duty but it is dependent on the context and the task that is being undertaken. An important series of cases on the subject of psychiatric harm involved the Hillsborough disaster and the litigation that followed. Physical harm is normally self-evident but requires a context specific inquiry into social perceptions of damage (MacFarlane v Tayside Health Board [2000]). Pure economic loss is entirely financial in nature.

Contract Law - Intention to Create Legal Relations

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Intention to create legal relations is the final element of any binding contract between parties. It sits alongside offer, acceptance and consideration. The intention is all about how serious the parties are to be legally bound. As stated in Dalrymple v Dalrymple (1811), Contracts are not “mere matters of pleasantry and badinage” but should be intended to create a legal relationship between the parties. When thinking about intention to create legal relations it is often helpful to split things into domestic and commercial agreements. Domestic agreements are presumed to not be binding (Balfour v Balfour [1919]) but that presumption can be rebutted if the subject matter is serious enough (Merritt v Merritt [1970]), there is a mutuality of obligations and/or there is performance of the agreement (Pettitt v Pettitt [1970]). In a similar fashion other domestic relationships can also rebut the presumption of no intention to create legal relations such as parent and child (Jones v Padavatton [1969]) and even roommates (Simpkins v Pays [1955]). On the other hand the presumption for commercial agreements is that there is an intention to be legally bound. Although this presumption can be rebutted in the context of 'advertising puff' (Carlill v Carbolic Smoke Ball Co [1893]) and an express intention not to be bound (Rose and Frank v Compton [1923]; Kleinwort Benson Ltd v Malaysian Mining Corporation Bhd [1989]) it is very difficult to do so.

Equity & Trusts - Breach of Trust

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14.04.2019

There are essentially two types of remedy available in this area: *in personam (against the person for breach of a duty of care etc.) *in rem (against the property, normally when you are trying to get it back) There also happen to be two types of breach: *where the trustee has done something they are not allowed to *where the trustee does something they are allowed to but does so in a negligent manner In the first type of breach it is possible to get a remedy by considering this a falsifying of the account. In other words the money taken by the trustee is considered to be their own money and they then have to reimburse the trust (Nocton v Lord Ashburton [1914]) Where the breach is one of negligence it is more appropriate to think about the idea of surcharging the account. This is where the trustee makes up the difference that has been caused by their negligence as seen in Target Holdings v Redferns [1996] If a trustee has made a profit from their office then this can create a personal remedy but is more likely to be considered by the court as establishing a constructive trust in relation to the profits (Keech v Sandford (1726); Boardman v Phipps [1967]) If a third party receives trust property that they should not have got then they must return it if: *they received it as a gift (equity will not assist a volunteer) *they had knowledge which makes it unconscionable for them to retain the benefit; Nourse LJ in Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001]; (suspicion is not enough – Abou-Rahmah v Abacha [2006]) A person who assists a breach may be liable to account for any profits They can also be liable in equity if they are dishonest The test for dishonesty traditionally comes from Twinsectra Ltd v Yardley [2002]: D was dishonest by reasonable standards and realised that by those standards the conduct was dishonest However Barlow Clowes Intl Ltd v Eurotrust Intl Ltd [2006] suggests a more objective standard: The test is an objective one but can take into account subjective factors such as the experience and intelligence of the defendant Injunctions can be used in certain circumstances such as where a breach is anticipated When it comes to tracing you follow the property and the person who ends up with it is considered to be a constructive trustee However this is not automatic and in fact the right is rather limited in its scope E.g. If funds are mixed and the person goes bankrupt then they are lost There are four preliminary requirements for tracing: *Existence of a fiduciary relationship *Existence of an equitable proprietary interest *Tracing itself would not be inequitable; Re Diplock (1948) *The property must be in a form in which it can be traced; Bishopsgate Investment Management v Homan [1995] The first rule is that when money is withdrawn from an account, the trustee is presumed to be spending her own money first; Re Hallett’s Estate (1880) Beyond that amount the money is presumed to be from the trust itself Later repayments to the account are not repayments to the trust unless that is explicitly stated; Roscoe v Winder [1915] If a mixed fund is used to purchase property then the beneficiaries have first charge over this property; Re Oatway (1903) If the property increases in value they can take their portion If the property decreases in value they can take the original sum that was invested Foskett v McKeown [2001] Finally where money is mixed into an account from two trusts then tracing operates on a principle of ‘first in, first out’ (Clayton's Case (1816); Barlow Clowes Intl v Vaughan [1992]) Other points to consider when dealing with breaches of trust include: A trustee may be able to avoid liability; Armitage v Nurse [1997] If a beneficiary contributes to a breach of trust then their interest may be held back by the court to compensate other beneficiaries A beneficiary who consents to a breach cannot then sue after the fact

Equity & Trusts - Three Certainties: Objects

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Certainty of objects is more about the people who are the beneficiaries of a trust instrument rather than the physical objects that make up a trust. We have to examine the different types of trust: Fixed trusts are simple because they clearly identify the beneficiaries. Fiduciary mere powers give trustees a power without the obligation to actually use that power. As far as the certainty of objects is concerned we have the is or is not test from Re Gulbenkian [1968] but this raises problems around a small percentage of postulants where there is uncertainty. Lord Browne-Wilkinson attempted to resolve this in Re. Barlow [1979] by seeing the benefits as a series of identical, individual gifts. Discretionary trusts are not truly discretionary as they require a trustee to exercise their power. McPhail v Doulton [1975] applied the is or is not test but in Re. Baden (No. 2) [1973] the justices attempted to resolve the uncertainty issue: Sachs LJ: Onus is on the apparent beneficiary Megaw LJ: Trust can still be valid with minor uncertainties Holders of personal powers are not subject to a fiduciary duty and so certainty of objects does not apply; Megarry VC in Re. Hay’s ST [1981]. There are some grey phrases and areas of language worth examining closely: 'Friends' Generally uncertain; Brown v Gould [1972] BUT Re. Baden (No. 2) [1973] 'Customers' Uncertain; Sparfax v Dommett [1972] 'Relatives' Statutory next of kin; McPhail v Doulton [1970] There are also ways of resolving uncertainty: Using experts Re. Tuck’s ST [1978] Rules that set out how to define beneficiaries Re. Wright’s WT [1857] Administratively workable Re. Hay’s ST [1982] There also has to be consideration of partial failure of trusts on grounds of uncertainty: Generally where a trust partially fails the whole trust fails Re. Gulbenkian [1968] Remove the uncertain clause of the instrument Re. Leek [1969] Courts will always try to validate a trust where possible to do so Harman J in Re. Gestetner [1953]

Criminal Law - Intoxication

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29.07.2016

A video lecture on intoxication for law students studying criminal law on the LLB or GDL. Intoxication comes down to three key questions: 1) Was the intoxication voluntary or involuntary? 2) If voluntary was it a crime of specific or basic intent? 3) Is the drug one that is known to cause people to become aggressive? The key principle underlining all of this is that intoxication is not a defence as such but more of a denial of mens rea for an offence. The onus of proof for proving mens rea lies with the Crown as per Sheehan [1975]. Involuntary intoxication is narrowly defined as per Allen [1988]. The most famous case for involuntary intoxication is Kingston [1994] which notes that a lack of mens rea is still required. Meanwhile the question for offences involving negligence is would the reasonable person have acted in the same way having suffered involuntary intoxication? Voluntary intoxication requires a distinction between crimes of specific and basic intent with D being not guilty if he did not form the mens rea for a crime of specific intent. The definition of a crime of specific intent has been hotly debated over the years in cases such as Majewski [1973] (ulterior intent/when the mens rea goes beyond the actus reus) and Heard [2007] (purposive intent) but the best approach is to look at a range of examples: Specific intent: murder, grievous bodily harm (GBH), theft, robbery, burglary, handling stolen goods, criminal damage with intent. Basic intent: rape, sexual assault, kidnapping, assault and criminal damage through recklessness. When looking at the actual substance causing intoxication we first ask is it common knowledge that using the drug is liable to make the user become aggressive? If not then the test is one of recklessness as per Griffiths LJ in Bailey [1983]. Intoxication is not relevant when there are statutory defences as in Jaggard v Dickinson [1981]. Generally a mistake arising from voluntary intoxication cannot be relied on as per O'Grady [1987] and Hatton [2005]. Dutch courage is also no defence as per A-G for Northern Ireland v Gallagher [1963].

Contract Law - Consideration

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Consideration is one of the key elements of any contract alongside offer, acceptance and intention to create legal relations. Consideration is generally thought of as some form of benefit or detriment. However in the case of Dunlop v Selfridge [1915] the court adopted a definition from the academic Pollock who suggested that consideration is the price paid for a promise. The two forms of consideration are executory and executed. Executory consideration is an exchange of promises whereas executed consideration is a promise made in return for the performance of an act. It is important that executed consideration is differentiated from past consideration as past consideration is not good consideration; Re McArdle [1951]. Generally for executed consideration it will be clear that the parties always intended some sort of bargain between them as per the traditional rule from Lampleigh v Braithwait (1615). The person involved in the contract must be the one who pays the consideration; Price v Easton (1833). This is very similar to the idea of privity of contract although it is important to note that this has since been affected by the Contracts (Rights of Third Parties) Act 1999. Consideration must be of some value and therefore be sufficient but does not need to be adequate (Thomas v Thomas (1842); Chappell & Co Ltd v Nestle Co Ltd [1960]). Consideration will generally be something concrete like money or land rather than something abstract like ‘love’ or ‘affection’. However surrendering a legal claim can constitute consideration; Horton v Horton (No. 2) [1961]. Consideration will not be sufficient if it constitutes something that is already a legal duty (Collins v Godefroy (1831)) but will be sufficient if it goes beyond a legal duty (Harris v Sheffield United Football Club [1988]). Similarly consideration will not be sufficient if it constitutes something that is already a contractual duty (Stilk v Myrick (1809)) but will be sufficient if it goes beyond the contractual duty (Hartley v Ponsonby (1857)) or confers some other contractual advantage (Pinnel’s Case (1602)). The idea in Pinnel’s Case was affirmed in Foakes v Beer (1884) but was somewhat challenged by Denning J in Central London Property Trust Ltd v High Trees House Ltd [1947]. This is known as promissory estoppel and requires: 1) an unequivocal promise by words or conduct 2) a change in position of the promisee 3) inequity if the promisor goes back on their word

Tort Law - Duty of Care

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The duty of care is one of the key aspects of tort law and provides a foundation for claimants when bringing a case. The origin of the duty of care comes from Brett MR in Heaven v Pender [1883] but the most famous formulation is the neighbour principle from Donoghue v Stevenson [1932] by Lord Atkin. Circumstances in which a duty of care can exist were broadened a great deal in the case of Anns v Merton LBC [1978] by Lord Wilberforce who included policy factors but cases such as Junior Books Ltd v Veitchi Co Ltd [1983] showed that this was too far wide-ranging and opened up liability for even pure economic loss. The law was narrowed in Hill v CC of W Yorkshire [1988] and the modern test now comes from Caparo Industries plc v Dickman [1990] where three factors are considered: 1) Foreseeability 2) Proximity and 3) whether it is fair, just and reasonable to impose a duty of care. The duty of care is based on the objective standard or 'the man on the Clapham omnibus'. The law is relatively forgiving of the ordinary man (Wells v Cooper [1958]; The Ogopogo [1972]). A variation in the standard has been applied to children (McHale v Watson [1966]; Latham v Johnson [1913]) but has been applied strictly to drivers (Nettleship v Weston [1971]; Broome v Perkins [1987]). Professionals are held to the standard of a normal person in their profession and the question of what is to be considered normal practice can be derived from the Bolam test (Bolam v Friern Hospital [1957]) where it was held that if the practice is supported by a substantial body of opinion within the profession then it will be allowed within the duty of care. The Hand formula is useful when making a judgment and can be expressed as the incursion of liability where the burden is less than the possibility of damage occurring multiplied by the loss incurred. See further: Latimer v AEC Ltd. [1953]; Bolton v Stone [1951]; Paris v Stepney BC [1951]; Haley v London Electricity Board [1965]. The burden of proof is assessed on the balance of probabilities and in certain circumstances res ipsa loquitur can be said to apply as per Erle CJ in Scott v London and St. Katherine Docks Co. [1865].

Law101xMarcus Cleaver | #4 What he would change about the UK Legal System

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19.10.2021

Marcus Cleaver is currently a host of UK Law Weekly podcast - which gives an excellent summary of recent UK Supreme Court Cases. More interestingly, he had worn many hats - taken many positions across the UK legal field! Check out this video series to learn more about what deciding to pursue law as a career meant to him. #law#advice#lawstudent#learn#UK#interview

Criminal Law - Manslaughter

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Manslaughter is unusual because it is more about an unlawful homicide that is not enough to amount to murder. There are two main types of manslaughter; voluntary and involuntary. The difference is based on the intention of the defendant so if there is an intention to kill or do grievous bodily harm then we are looking at voluntary manslaughter and if there is no such intention then we are looking at involuntary manslaughter. The first type of voluntary manslaughter is based on the loss of control and replaces the old law of provocation. Loss of control comes from s. 54 of the Coroners and Justice Act 2009 and has three main elements: 1) Loss of self-control 2) The loss of self-control had a qualifying trigger 3) A person of D’s sex and age but reasonable tolerance might have acted the same way 1) This change in the law accounts for some of the previous criticisms that came from the case of Ahluwalia [1992]. In particular the loss of control no longer has to be sudden and temporary but as per s. 54(4). 2) Previously the qualifying trigger could be anything said or done but Doughty [1986] showed that this was too broad. Now there has to be fear of serious violence (s. 55(3)). Things said or done can still operate as a trigger but only where they created grave circumstances or gave D a justifiable sense of being wronged (s. 55(4)). However if D actually incited this herself then this cannot act as a trigger (s. 55(6)). Sexual infidelity also cannot act as a a trigger. 3) This brings statute law in line with the Privy Council decision in A-G for Jersey v Holley [2005]. Another type of voluntary manslaughter is diminished responsibility as per section 2 of the Homicide Act 1957. This is based on an abnormality of the mind that was defined by Parker CJ in Byrne [1960] who said it is “a state of mind so different from ordinary human beings that the reasonable man would term it abnormal”. It is important to note thought that this is not insanity and instead relates to an impairment of mental responsibility for the death. The main type of involuntary manslaughter is an unlawful and dangerous act. For an act to be unlawful it must not only be a crime but also a significant cause for the subsequent death; Kennedy (No. 2) [2007]. Meanwhile dangerous is given its ordinary meaning as per Church [1966] and is not to be applied ex post facto. The other types of involuntary manslaughter are as follows: Gross negligence - Adomako [1994]: Where there is a breach of the duty of care that causes death and is considered by a jury to amount to gross negligence in that regard. Reckless - Lidar [1999]: Where there is a conscious taking of risk that means it is likely serious bodily harm will be caused. Corporate - As per section one of the Corporate Manslaughter and Corporate Homicide Act 2007.

Equity & Trusts - Three Certainties: Intention

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The three certainties for creating an express trust are intention, subject matter and objects. There has to be certainty of intention to create a trust and not some other type of instrument. For example a trust cannot be used to perfect an imperfect gift (Milroy v Lord [1862]). Secondly although a charge is quite similar to a trust they are distinct (Clough Mill v Martin [1984]). Bank accounts are not a trust relationship but instead a transfer of money to the bank (Foley v Hill [1848]). A person is also not allowed to set up a trust in order to avoid a liability. This is known as a sham device and a classic example was seen in Midland Bank v Wyatt [1995]. To distinguish between a trust and a sham device we have to "examine external evidence" and also look at the context as per Arden L.J. in Hitch v Stone [2001]. Courts can also infer the intention to create a trust by the words used or the actions of those involved. In Paul v Constance [1977] the phrase “the money is as much mine as it is yours” was sufficient while in Re. Kayford [1975] establishing a separate bank account was enough although this was disputed in Re. Farepak [2006]; a case that reached a different conclusion. The courts will not always readily infer a trust and in Tito v Waddell (No. 2) [1977] the word 'trust' was not sufficient. It is also necessary to distinguish between trusts and mere moral obligations. The phrase "in full confidence only imposed a moral obligation in Re. Adams & Kensington Vestry [1884] but in Comiskey v. Bowring-Hanbury [1905] the same phrase did create a trust because it created rights for other people. This question of rights is key and in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] the question 'Would it be unconscionable of the legal owner to deny others rights in the property?' was found to be useful. Finally in relation to wills and probate, certainty of intention is based on two factors: The wording of the Will (Re. Denley [1969]) The context of the trust’s creation

EU Competition Law - Articles 101 and 102

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09.05.2016

Video lecture on articles 101 and 102 TFEU - competition law in the EU.

marcuscleaver Live Stream

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26.04.2019

Support the stream: 🤍

Introduction to Equity and Trusts - Maxims of Equity

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23.08.2016

An introduction to the law of equity including the historical background as well as the principles of equity. Equity is at its heart about fairness and making sure that the law is not applied too strictly so as to create injustice. However it is also important to not have a system that is overly capricious and so certain maxims of equity have been developed to ensure a degree of consistency. A system of common law and equity also creates practical challenges and two court systems meant that cases could last for years as criticised by Charles Dickens in his novel Bleak House. This issue was resolved by the Judicature Act 1873 that amalgamated the two strands and left us with the court structure that we have today. The maxims of equity are as follows: Equity will not suffer a wrong to be without a remedy Equity follows the law Where there is equal equity, the law shall prevail Delay defeats equity He who seeks equity must do equity He who comes to equity must come with clean hands Equality is equity Equity looks to intent rather than to form Equity looks on as done that which ought to have been done Equity imputes an intention to fulfil an obligation Equity acts in personam Equity will not permit the law to be used as an engine of fraud Equity will not assist a volunteer Equity abhors a vacuum

marcuscleaver Live Stream

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00:43:14
10.05.2019

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Article 45 - Free Movement of Workers

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30.04.2016

Lecture on the free movement of workers in EU law.

EU Law - Freedom of Establishment and Services

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29.10.2017

The distinction between establishment and services is based on the idea that establishment is more permanent whereas services are more temporary in nature. Establishment mainly falls under Art. 49 with 49(1) allowing for primary and secondary establishment and (2) prohibiting unequal or discriminatory treatment. The law in this area is directly effective as per Reyners [1974]. Equivalent qualifications across member states are interpreted broadly as per Heylens [1987] and also Directive 2005/36 Meanwhile article 49(2) has been broadened beyond discrimination to include any unjustified restriction on the freedom of establishment. The main case in this are is Gebhard [1995] that allows for restrictions only if they meet four criteria: 1) Non-discriminatory 2) Justified 3) Needed to secure an objective 4) Don't go beyond what is necessary to achieve that objective A national can rely on Art. 49 with respect to their own member state only when they have exercised the freedom of movement themselves as per Knoors [1979] Article 54 states companies should be treated in the same way as individuals and although company law can vary from state to state the ECJ has placed a lot of focus on achieving the overall objective of freedom of establishment as seen in Centros [1999] and Überseering [2002]. However once a company is established in a Member State they are then subject to that country's rules as regards incorporation etc. as per Daily Mail [1988] and Cartesio [2008] The liberalisation provided by Art. 54 means that it can be difficult to crack down on tax avoidance as seen in Cadbury Schweppes [2006]. Freedom of services is based on the temporary nature of the work rather than the infrastructure or, as per Commission v Portugal [2010], the period of time. Art. 57 loosely defines services and 58 excludes other services that are covered in other parts of the treaty. Art. 56 also has direct effect as per Van Binsbergen [1974]. Similarly there also has to be an inter-state element as seen in Deliège [2000] Also covered is the freedom to receive services; Luisi & Carbone [1984] The service does have to be provided for remuneration and this line can become blurred in relation to certain healthcare systems that are a hybrid between user and government payments Some controversial services such as abortion, gambling and marijuana can still be considered services (Grogan [1991]) but can be subject to national rules that provide a proportional and non-discriminatory restriction (Zenatti [1999]). Taking a broad definition it is even possible that certain social benefits may also fall within the definition; Cowan [1989]. Art. 62 allows for restrictions on policy, security and health grounds. Beyond this Van Binsbergen [1974] sets out the conditions for any restriction imposed by a Member State: 1) Pursuit of a legitimate public interest 2) Applied without discrimination 3) Proportionate 4) Respects fundamental rights (Carpenter [2002]) This freedom can be controversial as it allows greater liberalisation in the labour market at the expense of employee rights. This came to a head in Laval [2007] although this judgment has been tempered somewhat by the Rome I Regulation. Restrictions on tax grounds can be allowed to prevent fraud but not for other, broader reasons; Danner [2002]. Non-discriminatory restrictions can also be caught if they are a hinderance to the freedom of services (Alpine Investments [1995]) and Gebhard [1995] also applies within this context. The Bolkenstein Directive sought to achieve greater harmonisation by focusing on the country of origin but after protest this was watered down and so only mainly deals with a range of procedural and administrative issues.

Introduction to Commercial Law

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00:20:44
23.09.2018

🤍 🤍 Topics included: Introduction and personal property Sale of goods Passing of property and risk Transfer of title Perishable goods Delivery, Acceptance and Payment Statutory Implied Terms Seller's Remedies Buyer's Remedies Introduction to Agency Creation of the Agency Relationship Authority of an Agent Rights and Duties of an Agent

Family Law Course - Divorce

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00:21:27
19.03.2019

🤍 🤍 Topics covered: Marriage and Civil Partnerships Divorce and Dissolution Divorce Agreements Divorce - Distribution of Property and Finance Parentage Legal Parenthood Parental Responsibility Welfare Principle under s. 1 Children Act 1989 Section 8 Orders Child Arrangements Order (Residence and Contact) Prohibited Steps and Specific Issue Orders Domestic Violence Adoption Child Intervention

EU Law - Free Movement of Goods - Article 30

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28.03.2016

An EU law video lecture on Article 30 TFEU that prohibits customs duties when goods cross a border. The lecture also briefly examines Article 110 on internal taxation. Watch the second part at: 🤍

Family Law - Divorce and Dissolution (2022 Update)

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12.06.2022

Link to the full family law course: 🤍 In this video I talk about the changes to family law instituted by the Divorce, Dissolution and Separation Act 2020 that recently came into force. This change revolutionises the law by opening up the possibility for no fault divorce. Divorce is now more online thanks to the MyHMCTS system and joint applications are now a possibility for the first time when both parties intend for the marriage or civil partnership to end. There is still a two stage process but instead of there being a decree nisi and decree absolute, there is now a conditional order and a final order. Once a conditional order is granted, a final order can be applied for after only six weeks. Some of the old case law seems like it will still apply. For example, in Dennis v Dennis [2000] it seems possible that a procedural irregularity would make the final order invalid and in certain circumstances, the application can be refused altogether. The single ground for divorce remains the irretrievable breakdown of the marriage but none of the 'facts' now need to proven. Instead a statement as to the irretrievable breakdown will be considered conclusive. Divorce has many legal effects including: Parties can remarry Property/finance orders take effect Certain financial benefits Rights relating to the family home are lost Duties in relation to children continue subject to orders by the court Wills may be impacted The Act also amends the situation for civil partnerships in a similar way. Other methods of formally ending a relationship include decrees of judicial separation and where one of the parties is missing and presumed to be dead (Presumption of Death Act 2013).

Commercial Law Update 2022-23

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11.09.2022

Updates in the field of commercial law for students on the LL.B. Gumroad link: 🤍

Employment Law Update 2022-23

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11.09.2022

Employment law updates for the academic year 2022-23. Find the full course here: 🤍

Equity & Trusts - Powers and Duties of Trustees

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07.04.2019

Whereas a duty must be exercised by a trustee, a power is something that can be exercised by the trustee. In any case the trustee is afforded discretion and so according to Pitt v Holt [2013] they must simply act: *in good faith *responsibly *reasonably *based on the facts (e.g. type of trust) *often on the advice of experts (e.g. accountants, lawyers etc.) Trustees do not have to give reasons for their decisions (Re Beloved Wilkes’ Charity (1851)) and the court will only interfere when the trustee acts in bad faith (Klug v Klug [1918]). This comes up when the trustee acts on bad advice where under the new case law of Pitt v Holt [2013] it actually makes it much harder for such mistakes to be rectified. Duties of the trustee include: *providing information (Re Londonderry’s Settlement [1965]) *exacting impartially between beneficiaries (Howe v Earl of Dartmouth (1802)) *exercising a duty of care as per the Trustee Act 200 in relation to actions such as investments, insurance, purchasing land, reversion, appointments etc. Meanwhile the available powers include maintenance and advancement under ss. 31 and 32 of the Trustee Act 1925 respectively. Other powers are the purchasing of land as well as a limited power of delegation. An important point to note is that the trust instrument itself can exclude a great deal of liability relating to loss and damage (Armitage v Nurse [1998]) which is a major advantage for trustees. However liability cannot be excluded for fraud.

Public Law - Parliamentary Sovereignty

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20.06.2016

A video lecture on the subject of parliamentary sovereignty for UK law students.

Criminal Law - Murder

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25.06.2017

The definition of murder comes from Sir Edward Coke in Institutes of the Lawes of England (1628): “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, [so as the party wounded, or hurt etc. die of the wound or hurt, etc. within a year and a day after the same].” The first part deals with a person being of sound mind and therefore covers issues such as insanity under the M'Naghten (1843) rules as well as diminished responsibility under s. 2 of the Homicide Act 1957. The age of criminal responsibility in England and Wales is 10 years old. Unlawfully killing excuse defendants who have a lawful excuse for their actions such as actin in self-defence. Within any county has been greatly expanded to cover all murders committed by British citizens (s. 9 Offences Against the Person Act 1861; s. 3 British Nationality Act 1948) and can even cover non-British citizens under s. 4 Suppression of Terrorism Act 1978. The victim must be in existence and this can be controversial in areas where the start of life is concerned. The foetus is not seen as being in existence and therefore falls under other offences such as under the Infant Life (Preservation) Act 1929. The baby must have independent existence and be fully expelled from the mother (Poulton (1832)) but does not necessarily have to have the umbilical cord cut yet (Reeves (1839)). Under Article 2 of the European Convention on Human Rights this issue is left to the states under the mar

Introduction to Consumer Law

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18.08.2016

An introduction to consumer law for those studying the subject for LLB/GDL law in the UK. Consumer law is an extension of contract law and therefore requires the essential elements of a contract: offer; acceptance; consideration; and intention to create legal relations. However consumer law is more specific and deals with contract between a buyer and a seller. The seller is a commercial entity whereas the consumer buys for personal reasons. This creates a power imbalance that lies at the heart of consumer law and is something that the law has to constant tackle. Consumer law has recently been consolidated in the Consumer Rights Act 2015. Although consumer law mainly deals with civil law there are also elements of criminal law involved when thinking about corporate manslaughter.

marcuscleaver Live Stream

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00:56:12
12.04.2019

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A Democratic Deficit in the EU?

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10.06.2016

A video lecture for law students that examines the argument that there is a democratic deficit in the EU. Both sides of the argument are considered in the light of recent Treaty changes and the make up of EU institutions.

ECHR Lecture

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30.10.2015

A video lecture on the European Convention on Human Rights (ECHR). This lecture discusses the background to the Convention, the different types of rights (absolute, limited and qualified) as well as many of the key articles contained in the Convention.

Family Law Update 2022-23

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11.09.2022

Family law update for the academic year 2022-23. Find the entire course at 🤍

Land Law - Mortgages (Part 1)

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31.05.2017

The key to mortgages is striking a balance between two parties; the mortgagor (often a homeowner) and the mortgagee (often a bank). Beyond this mortgages are also about balance between the strictness of contract law and the flexibility provided by equity. Often the mortgagee is in the stronger bargaining position and will try to enforce a strict adherence to the contract however if this is unconscionable then equity will step in to protect the mortgagor (Knightsbridge Estates Trust Ltd v Byrne [1939]). The key equity is the right to redeem the mortgage and this is essentially the right of the mortgagor to pay back the mortgage (including costs and interest) to the mortgagee at any time after the date of redemption. Under the 'clogs and fetters' doctrine any attempt to interfere with this right of the mortgagor is liable to be altered or struck down by the court. Such clogs or fetters generally fall under one of three categories: 1) Exclusion/postponement of the right In theory the mortgagor can redeem the mortgage at any time between the date of redemption right until the mortgagee can foreclose on the property. The case of Samuel v Jarrah Timber [1904] is a good example of how this right can be curtailed. The mortgage agreement included a clause that gave the mortgagee the right to buy the property at any time in the first 12 months of the contract. This meant that the mortgagor could potentially pay back the mortgage and yet still lose the property! Even though this was contractually agreed the House of Lords reluctantly stepped in and regarded this clause as a fetter to the right of redemption. Interestingly though this is in contrast to the case of Lewis v Frank Love Ltd [1961] where the mortgage contract and the option were two distinct documents and therefore allowed by the courts. This, however, should not be taken as a hard and fast rule as the case of G&C Kreglinger v New Patagonia Meat [1914] requires a judge to look at the reality of the situation. On the other side of the coin the mortgagee does have the right to postpone the earliest date of redemption and while this can be unreasonable it is not allowed to be unconscionable. 2) Unfair collateral advantages When the mortgagee tries to gain some other advantage outside of the actual mortgage agreement the courts will always view this with suspicion. According to Lord Parker in G&C Kreglinger v New Patagonia Meat [1914] these will be struck down if they are: Unfair and unconscionable; or A penalty that clogs equity of redemption; or Inconsistent with the right to redeem The most common type of collateral advantage exists in the commercial sphere in the form of solus agreements where the mortgagee requires a certain product to be exclusively stocked in a commercial property. Cf Esso Petroleum v Harper’s Garage [1968]. For more information on these topics it is also important to consider the law around restraint of trade as well as EU competition law under Art 101 TFEU. 3) Oppressive interest rates and charges The UK is somewhat unusual in that the mortgagee does have discretion in terms of the interest charge on a mortgage as most clearly seen in the case of Paragon Finance v Nash [2002] where a variable rate was allowed and Wednesbury unreasonableness was considered. However this does not mean that interest rates can be oppressive as in the case of Cityland & Property (Holdings) Ltd. v Dabrah [1968]. Another important and often overlooked area for mortgagors is consumer protection law. s. 140A(1) of the Consumer Credit Act 1974 allows the court to intervene where the relationship between the creditor and debtor is unfair to the debtor. Meanwhile s. 62 of the new Consumer Protection Act 2015 sets out in full the requirement for contract terms to be fair. Protection for the mortgagee is also important where the complainant has been “misled” as to the facts of the transaction or has had their will “overborne or coerced” as per RBS v Etridge (No. 2) [2002]. Misrepresentation can cause financial transactions to be voided (Barclays Bank plc v O’Brien [1994]) while undue influence founds an equity in the complainant to void a transaction. According to Lord Browne-Wilkinson in the O'Brien case there are two types of undue influence: actual (such as threats or violence) or presumed (arising out of a relationship). Within presumed undue influence there are two sub-classes: (A) certain designated relationships; and (B) where the complainant places trust and confidence in the other person. In the first instance the burden is on the complainant to establish the relationship but after that the burden is on the other person to try and disprove undue influence. As in Papouis v Gibson-West [2004] this can often be done by showing that the person got independent, professional advice. Undue influence is also a concern for the lender who can be put on inquiry if they have actual or constructive notice of undue influence.

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