Nov 12, 2014

Written By Billy Sexton, Editor, AllAboutLaw.co.uk

Key Questions for Core Areas of Law - Part 1

Nov 12, 2014

Written By Billy Sexton, Editor, AllAboutLaw.co.uk

In part one of a special series organised with Oxford University Press and their authors, AllAboutLaw.co.uk take the four core areas of law (Contract Law, Criminal Law, Equity & Trusts and EU Law) and ask some key questions. This should provide LLB and GDL students with some extra knowledge regarding each specific area, which should be handy when it comes to completing coursework and revising for exams…

Contract Law: How do you easily establish whether there has been an offer and acceptance in a contract law case study?

This is often the first lesson; there are no easy answers but there are legal principles that will assist and it would be foolish to suppose that this exercise should be attempted without these principles (although there are those who mistakenly suppose that the law must reflect a general layman’s understanding). This is often the first occasion you will have to demonstrate your knowledge of the legal principles and how these legal principles can guide you to provide some legal advice in a specific case scenario. Start with the key definitions of an offer and an acceptance. An offer is a definite promise to be bound, without further negotiation, if the offeree agrees to the offer terms. Acceptance of that offer is the final and unqualified agreement to all the terms contained in that offer and must be made in response to that offer.

You can establish offer and acceptance relatively easily if your case study happens to be unilateral (a reward or ‘if’ scenario where there is a promise of reward in exchange for performance of a specified act, e.g. a reward of £50 for the return of my lost dog). The offer in a unilateral scenario will be the promise of payment setting out the terms of the reward. The acceptance is the performance of the act requested in that offer. The classic case is Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256. There are other issues which typically attract attention in a unilateral contract law case study, e.g. is revocation possible? Note: a simple sale of goods whereby I promise to pay you £20 for your book is bilateral (promise in exchange for a promise). It is not a promise in exchange for an act since you can accept by ‘promising’ to pay. The acceptance is not the act of payment. Just one reason why this exercise cannot be described as ‘easy’!

In such bilateral instances, the key is to look at each communication in your contract law case study. There may be a number of communications which fall short of an offer because they are invitations to treat or invitations to others to negotiate. These communications suggest that further communications are necessary before a position is reached where one party can say ‘yes’ or ‘no’ to a firm proposal from the other, e.g. inviting or requesting others to respond to websites, advertisements, brochures or to submit tenders or bids (Partridge v Crittenden [1968] 1 WLR 1204). Generally, the retailer or person requesting auction bids and tenders wishes to retain control of the contract - and this translates as control over the acceptance. It follows that the offer comes from the customer, e.g. placing an order, submitting a tender.

There may be communications which fall short of an acceptance because, although they purport to be an acceptance, they do not match the terms of the offer (this is known as the mirror image rule – Hyde v Wrench (1840) 49 ER 132). Instead, these communications are counter-offers – or fresh offers on the revised terms they contain. They destroy the original offer terms which are no longer available to be accepted. Of course, the counter-offer may itself be accepted, e.g. as in the battle of forms case Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd [1979] 1 WLR 401.

Professor Jill Poole is the Deputy Dean of Aston Business School and author of Textbook on Contract Law, Casebook on Contract Law and Concentrate Contract Law.

Criminal Law: What are the best methods to establish whether an offence has been committed in criminal law problem questions?

When confronted with a problem question for the first time, students often feel daunted by the challenge that it poses. Students are accustomed to writing discursive essays and therefore find it counterintuitive to have to evaluate whether Dave or Deidre has committed a criminal offence. There is, however, a method of approaching criminal law problem questions that makes them more manageable and it is one that my co-author and I rely upon when analysing offences in Smith and Hogan’s Text, Cases and Materials on Criminal Law. A problem question will invariably require the evaluation of whether more than one offence has been committed and this approach should therefore be followed for each individual offence within the problem.

First, specify what offence is being considered. The facts of the problem question should point in the direction of a particular crime. Whether all the elements of that offence are present is a more difficult issue, but specifying what offence is being considered at the outset aids clarity of expression.

Second, specify what the elements of the offence are, separating the actus reus from the mens rea, and where they are found, either in the common law or in statute. Ensuring that the elements of the offence are clearly set out will make it less likely that one will be forgotten when it comes to evaluating whether each is present.

Third, examine each element of the offence in a systematic fashion, concluding whether it is present or not and substantiating the analysis with authorities. Of course, the examiner’s aim is to test knowledge and for that reason there will be some tricky issues to consider. Each topic in the criminal syllabus poses its own unique difficulties. There might be a conflict between cases, with one pointing in one direction and another in a different direction, or even amongst the judges in the same case. These are the controversies that the examiner will seek to exploit with the aim of testing the student’s understanding of the law and it is therefore crucial to have a firm grasp of what these controversies are and take a view on them.

Finally, once each element of the offence has been examined, state whether Dave or Deirdre is guilty. Don’t forget to consider any possible defences, relying upon the same method. Students have a tendency to sit on the fence for fear of giving the ‘wrong’ answer. In most instances there will be no right or wrong answer. What matters is whether the conclusion that is reached is one that is justified given the analysis that preceded it!

Karl Laird is Lecturer in Law at Exeter College, University of Oxford, and the co-author of Smith and Hogan’s Text, Cases, and Materials on Criminal Law.

Equity and Trusts: Is it possible to make sense of trusts law?

If this question is controversial, the answer may be more so: I don't think it is possible to make perfect sense of trust law, if by “sense” we mean “scientific sense”. The common-law courtroom is not a chemical flask in which outcomes are perfectly predictable. The leading cases – the ones that make it into the textbooks – sometimes resolve old uncertainties, but they very often create new conundrums. Barclays Bank v Quistclose – which established the “Quistclose trust” – is a good example. It performs the powerful alchemy of turning a basic contractual right into a property interest under a trust. Property rights are gold in insolvency. If a contracting party goes insolvent, the other party’s personal right to recover damages may be worthless. If your trustee goes insolvent your property right in assets held by the trustee is untarnished.

My task as an author of textbooks on trusts law is to help students to understand a subject that doesn't make perfect scientific sense. My technique is to give students solid ground to stand on from where they can appreciate whether a particular case does or does not conform to the orthodox idea of the trust. With solid ground to stand on, students of trusts law can understand the subject without having to pretend that every decision can be fitted into a system that makes perfect sense. This can be a great comfort to students. What is the solid ground on which my textbooks set the student reader? It is simply to regard the trust as a form of property ownership that is created whenever ownership of an asset is divided. There is no trust where a single person owns an asset absolutely (so that nobody else has legal title and nobody else has a beneficial interest in equity), but where ownership is divided there is then a trust and this puts obligations on the trustee to exercise legal powers for the benefit of the beneficiaries. Standing on this solid foundation, the student can appreciate when a decision is unorthodox. The judge's reasons, as ever in the common law, will usually come down to some rule of Parliament or precedent, and if the rules fail to explain the case some combination of principle, policy or pragmatism will explain it. It isn't possible to make perfect scientific sense of trust law, but it is possible to understand it and to appreciate what judges are doing and why.

Professor Gary Watt, is Professor of Law at Warwick Law School and the author of Trusts and Equity and Equity and Trusts Directions.

EU Law: Highlight the relevant legislation and the case law surrounding the free movement of EU citizens.

The following Treaty elements, secondary legislation and Court of Justice (CoJ) jurisprudence reveal the extent of rights available to EU Citizens.

Treaty Provisions

- Article 3(2) TEU Free movement of persons guarantee.

- Articles 20-24 TFEU Establishment and outline of rights of EU Citizenship.

- Article 26 (2) TFEU Internal Market definition

- Articles 45–48 TFEU (workers); Articles 49–55 TFEU (establishment) and Articles 56–62 TFEU (provision of services) provide the basic regimes for these economically active categories of persons.

- Art 15 (2) EU Charter of Fundamental Rights – Freedom to seek employment, to work to exercise the right of establishment and to provide services in any Member State.

Secondary EU Legislation

Two principal enactments provide a whole range of rights.

- Directive 2004/38 the citizens’ (and family members) rights Directive.

- Regulation 492/2011 access to employment and rights for workers

Leading case law

Definition & scope of those covered or classed as a worker has been progressively expanded by the CoJ and the status of worker can include:

- Case 75/63 Hoekstra v BBDA – temporarily unemployed

- Case 66/85 Lawrie-Blum v Land Baden-Württemburg: Teacher Trainee (but case provides 3 criteria for determining worker)

- Case 196/87 Steymann: Payment in kind

- Case 415/93 Bosman: Restrictions to market access applies to workers

- Case C-292/89 Antonissen: Work seekers (But confirmed in Case C-138/02 Collins no benefits entitlement)

- Case 39/86 Lair v Universität Hannover: Students where a link to prior work exists

Entry and procedural issues

- Case 159/79 R v Pieck: Deportation not an appropriate penalty for minor breaches

- Cases 115–116/81 Adoui and Cornauille v Belgian State: public policy and security provisos interpreted narrowly

The extensive rights accorded to EU Citizens can exemplified by Regulation 492, Art 7 case law: Case 32/75 Christini v SNCF: Rail travel, Case 94/84 ONE v Deak: Benefits for family.

Public Service exclusion

- Case 152/73 Sotgui v Deutsche Bundespost: Access covered but not conditions

- Case 149/79 Commission v Belgium (Public Employees): Limits range of Posts included

Citizenship

- Case C-184/99 Grzelczyk: No discrimination where lawfully resident.

- Case C-135/05 Rottmann: Nationality a matter for each state

- Case C-158/07 Förster v IB-Groep: An integration period before benefits can be paid is acceptable

- Case C-413/99 Baumbast and R v Home Office, Case C-200/02 Chen & Case C-34/09 Zambrano v ONEM: Non EU Family carers of EU Citizens also protected

Services and Establishment

Internal Market Services Directive 2006/123 detailed rules on Establishment and Services

- Case 2/74 Reyners v Belgian State & Case 33/74 Van Binsbergen: Treaty Articles Directly effective

- Case C-55/94 Gebhard v Milan Bar Council & Case C-76/90 Säger v Dennemeyer: Definitions of both terms and limits of permissible restrictions

- Case C-167/01 Inspire Art: Company registration may be subject to objective conditions

Receiving Services

- Case C-73/08 Bressol: Restrictions can be objectively justified

- Case C-17/00 de Coster: Includes non-physical cross border services.

Wholly internal situations

- Cases 64 and 65/96 Land Nordrhein-Westfalen v Uecker and Jacquet & Case-434/09 McCarthy: No cross border element = EU law does not apply

Nigel Foster is a Visiting Professor at Saarland University in Germany and the University of the West of England. He is also the author of EU Law Directions, Foster on EU Law, and Questions & Answers EU Law, and the editor of Blackstone’s EU Treaties and Legislation 2014 - 2015.

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