Entry 15

Today I was meant to have a lecture in Equity, but unfortunately, the lecturer is unwell, and it was postponed. This means that I just had Tort law today, like before it is mainly going over cases, which means that today I’ll just have a short blog post, as I have no intention of repeating case summaries.

The main takeaway from the lecture is that there is something called the “But For” test which is used to help determine causation. It is considered the general principle when trying to figure out causation in the case of tort. The leading case for this Barnett v Chelsea & Kensington Hospital (I know, that I said that I wasn’t going to repeat case summaries – but technically this is just one) which is about Barnett going to hospital after getting arsenic poisoning (unknown at the time) and was sent home after a nurse consulted a doctor over the phone. He died within 5 hours, and his widow sued for damages saying that the hospital had been negligent and failed in its duty to care for her husband. While this may be true, however, given the amount of arsenic that Barnett had consumed, it was determined that there was no hope of saving him. Hence causation of his death has nothing to do with his lack of treatment; therefore exonerating the Hospital. From this, we can see that there is an all or nothing attitude with Tort. (bear in mind that in Tort you do not need to prove beyond reasonable doubt as is the case of criminal law)

Sometimes this general principle is ignored for fairness, and there are exceptions, known as the Fairchild Principle (from a case called Fairchild v Glenhaven Funeral Services Ltd). Mostly what to take from this, is that sometimes judges do deviate from the general principle for reasons which are not always clear. This brings up problems that if the courts have been unable to sort out, by statute. If there is no precise definition of what makes something an exception, then how can the Judges justify why they have come to that conclusion if there are similar? If we are meant to live in a just society, then we can have exceptions. Just not arbitrary ones, which is coming across from the cases.

Entry 14

Today was a tripleheader of Equity, Public and Land Law. However, more important than all three, Tottenham played Real Madrid at the Santiago Bernabeu, so as an avid Spurs fan that has eaten up into my time to write this blog post.

In today’ tutorial for Equity and trusts, we continued to examine trusts and the purposes for today’s class we spent our day looking at discretionary trusts. What I took from the class (which is relevant to all the areas of law) is the importance of wording when describing what is happening in the trust, i.e. is this a trust or a power of appointment. While in writing them we care about the words, this might not have been the case for the settler, so we must also consider the importance of the meaning (or intent) of the settler. While the latter might not always be upheld, especially if the wording is loose, it should not just be disregarded.  That is to say, the use of precatory words do not create trusts, but nor do they prevent trusts.

Then I had my lecture in public law. We have continued to look at the result of cases regarding common law to create retrospective laws, which seems to be fine ( the example of marital rape) but don’t seem okay when Parliament does so (the Burmah Oil example). I do not think that is a problem in a legal sense for Parliament to have retrospective laws, Parliament is sovereign. It can do what it wants. Putting on my political scientist hat for a few minutes; they won’t do whatever pleases them or suits them due to game theory. While Parliament as an institution can do whatever it wants, MPs cannot. They are bound to their electorate and baring a civil war, or a revolution will be at the will of the people (precisely not what the Daily Mail refers to, I jest). Also, Parliament has to deal with foreign governments, and if they wish to conduct business with them over time (repetitive game), then they have little interest to defect to changing what they agreed to in the past (bit more commentary on Brexit: Britain will give money to the EU decades after leaving (it’s the pensions that have already been agreed. Don’t like it? Tough, we decided to it and if we want to prove to others that we are going to keep our word when coming to future trade deals. No project fear, just bleeding reality).

Gone slightly off topic…

Finally, we had our first tutorial in land law. I must say that the change in preparations really paid off. While I did not contribute to the class, I was able to stay on top of what everyone saying and understand points being raised. And as always, Land Law is about being anal, though not seemingly in the case eofManchester Aiport Plc v Dutton. While I would like to go on. I have far surpassed my word limit if you want to know more, just shoot me a message.

PS. Hugo Lloris, what a man!

Entry 13

Today was Criminal Law day. An early morning start (especially in terms for a student) for a two-hour lecture which is visibly more empty than usual as I was able to place some stuff next to me. Then a couple of hours later, into the tutorial. While there can be an advantage of having the class a few hours after by having the ideas fresh in your head; I don’t enjoy having class so close to lectures. Unlike this blog, I do not have the time to digest the material that has been taught to me. While I won’t have this every week, this is still a bit of a nuisance for me.

In the lecture, I am learning Latin and how to spell in Latin on the fly; phrases such as sine qua non & novus actus interveniens. Half the time I am staring at someone’s laptop while they are searching the term (I write on paper, as the exams are written), leaving me to play catch up what the lecturer is saying. So, sine qua non is just a way saying that there is a causal link between the defendant’s actions and the claimant’s injury. And novus actus interveniens is just a way of saying that there is a new intervening act between the initial crime of the defendant and the claimant. The main point to take from this is that we need to ensure that when convicting someone, they are not being sentenced for something they didn’t commit, but also that they are getting a fair sentence. For example, if I was stabbed by Mike in hand and decided not to get any more treatment, thus get a blood infection and die as a result, then is Mike responsible for my death? Morally, probably; but in legal terms, as I didn’t decide to get a wound checked out, I committed the actus reus that killed me. Don’t worry about Mike though, he should still be charged with gross bodily harm for the stabbing.

Regarding the class, it was an introductory lecture (thankfully the last one), and we just went over the course, what is expected of us etc. Nothing new.

With it being Friday, I’ll call that a week. Thanks again for the support.

 

 

Entry 12

Thursday is a real slog, four hours straight of teaching and then a two break followed by two hours of lecture. As I had bit h an EU law tutorial and lecture, I will put them together, followed by land law and finally a brief bit on contract law.

The first EU tutorial was actually great by us diving straight into the content. We examined the nature of the various institutions within the EU and what each institution’s interests are. This helps us looked at the next section of the class, which is the concept of institutional balance and does this lead to a democratic deficit? Just to clarify, an institutional balance does not equate to each institute having the same or equal power. Instead, it is about making sure that each institution is staying within its powers provided by the various treaties and not encroaching on another institution’s powers. If there is overlap (or claim of encroachment), then it is up to the European Court of Justice to determine who can use the power. This links to the democratic deficit as there is lack of participation in the elections of the European Parliamentary Elections and there is no direct say for the people in other areas. In class, some colleagues were okay with this, due to it being a free choice and the supranational state gets it powers from elected parliaments across the continent (it’s not direct democracy). I, however, vehemently disagree and think that if you want to improve participation, then compulsory voting should be enforced. If everyone is forced to vote, then they will have to educate themselves to make an informed decision, nor can people complain about the lack of representation (compulsory voting should also be in the national elections). The lecture was about Brexit, and this is in the news, I would just say as before; treaties matter (I am sure that this will come up again).

Land law can be summed down to two questions. What is the nature of the rights given in regards to the land? Secondly, how was the right created? (What is the formality?) This is to say that process of creating a proprietary right, helps determine whether or not it is a right proprietary means (or if it is one in the first place). I know a tautology of sorts (How can we determine the first question without the second? However, it is important to note that rights are limited to what they can be, and thus the process is vital. Why? Certainty. The more certainty there is, the easier it is to complete a transaction. It’s business and essential business in the UK in the recent history of the last 100 years given the rise of property owners. There are a few exceptions to this, but this is more for a practical sense for government departments not be swamped. The only issue for the exceptions is that those who are most likely to be affected, do not know. So there should be a concerted effort to improve knowledge about this. Maybe a topic in PSHE at school?

Finally, I had an introductory tutorial in contract law. The problem was that I did not read the handouts properly and proceeded to answer the questions for next class… Well, at least the effort will not go to waste.

Entry 11

Big news for me personally today (still relating to the GDL), I was made a course representative: with no election. This meant that I have continued my streak of entering positions of authority with no backing of my fellow students. Whose said that democracy was alive and well with students?
To more academic issues, today a doubleheader of Equity and Trusts followed up by a Tort Law, which resulted in four hours of lectures in a row. This was followed by a career fair in law.

Today’s lecture in equity and trusts was nothing special, and we went over the terms of a will and what types of trusts are formed depending on the language that is used and how this effect claims for the will. The most interesting thing regarding this part of the law is the fact that cases are dated (not that they are out of date, but just…old) and this due to no one litigating these issues anymore. Ambiguity is good for lawyers, to allow them to manoeuvre within the law, but is it the best thing if we are not clear on what specific tests (how do we identify what type of trust) mean? I’m not sure if it does. I can see the arguments for, but does this ambiguity make it better for the everyday person? No, especially according to rational choice theory. How can one make optimal decisions, if one does not know the outcome of the decisions? The problem is, no one will litigate on the vague tests, as there is very little to gain. Maybe time for statute?

Tort, as last time is just case after case. After case. I guess, what is most remarkable so far from tort is the concept of reasonable person and more unclear terms; such as what is the magnitude of risk? These are terms that can easily be interpreted in various ways, and while I understand that precedent is vital here (hence the bucket loads of cases), but the philosopher within me asks the question: who sets a precedent? Looking at what Denning said about the importance of cricket in some of the cases (quite rightly in my opinion), it lacks objectivity. I am not sure why, but this does irk me for some reason. I’ll hopefully be able to come back to this and fully explain why I feel this way. The only other thing to note from tort law is the poorly written statute that is written. I cannot believe that some of the best-educated people in the country come up with drivel that I am sure could be done better b myself. And I’ll admit at this stage, I would terrible at writing statute. Maybe there is hope for me to go into politics eventually…

Entry 10

Today I had my first tutorial in Tort law. As I have already noted about my lecture, there is a massive focus on the number of cases I need to know. While I was able to complete the ominous amount of reading, alas I had not prepared the adequate level of detail (well there wasn’t a standard set for the class or me, but I could do more to participate better in class).  The problem I found, was that my style of learning is not suited for talking in a law tutorial class. I usually do all my readings and make minimal notes and aim for zero (no, not because I am lazy) and then try and answer the questions to the best of ability the next day with no help. Then I go to class, with my answer, jot down what others say and see if this matches up with my notes (or fill in the blanks). Thus today I was unable to remember the details of my final case and while I was able to put in the answer for my notes, if I were to be called upon in class my answer would only ensure the sounds crickets. Know you may think, Hanik, where has this habit helped you in any situation? I’ll tell you. Philosophy (and sometimes Politics) where I can use my own intuitions and logic to deduce answers and reasoning. Then when I cannot, I go back write up some more notes and finally when exam season rolls around, I write proper notes based on what I was missing. The problem is that there are way too many cases for me to remember, so it looks as though I will have to adopt a new method. So sorry to my course mates, for not being useful in class.

 

Then I had my fourth public law lecture. And it was as usual quite enjoyable. I was not able to sit back and just act as though I knew everything. We had a quick look at the old South African constitutional crisis to see the importance of protecting entrenched clauses in the constitution. Before moving onto the powers of Parliament and seeing if Parliament could change the law retrospectively (the answer is yes it can, FYI) and what examples there are. So we looked at what Parliament did over in the post-war era to protect itself from the damages entailed during the war. It led to the question, should we be concerned about our actions now, if they are to be deemed illegally prosecutable in the future. And how would you do so? How could I plan to act, if I do not know what I was legally allowed to do so? In the US, this is not an issue, as the Constitution settles the matter (you can’t), but in the UK, we do not have a codified Constitution. What the effects on Common Law, which is set on precedent? I would like to be able to answer the questions, but we didn’t finish the planned lecture and will go onto to it next time. So while I wait, what are your thoughts?

Entry 9

Criminal Law was back on the agenda today, and it tied in Tort Law quite well as the main topic of the lecture was omission and commission regarding the duty of care. With this in mind, I am not going to bore you with more details about the duty to care, and it’s Friday night. The main difference is the cases explored and the criminal law going through the various exceptions of when there is an omission, much faster.

While I was due to have a contract tutorial, it was postponed until further notice, and that just leaves us with the tutorial in public law which I shall flesh out. This week we had a kind introductory look into the constitution ideas and what determines them. We didn’t go through a point that is made in political theory about the social contract. The gist of the social contract is the normative rules of a society that members of the community endorse. The conventional view of the social contract (though it can be traced further back) is one of consent. This is leaving the State of Nature (associated with Hobbes in Western Philosophy), and in part of moving from the chaos (Hobbesian), we consent to the joining the rules of the polity. This view is also discussed by Locke and Rousseau and is the mainstream view in political theory until Kant (and more recently Rawls) brought some validity to contractualist view. In class, we only glossed over the consent view as being the prevailing view; which it is not. The Rawlsian view is currently very popular with his theory of justice being derived from the veil of ignorance in the original position. The contractualist view is the idea of using thought experiments and practical reasoning to form an agreement via deliberation. While this sounds really similar to consent, there is a big difference, which is regarding duties. If one consent (and essentially forced to obey) it creates a duty, the contractualist viewpoint of the agreement does not create a duty allowing for more alterations.

We also talked about electing judges, like some US states (and I think Bolivia citation needed). Just to some up the conclusion: no, don’t elect judges. Keep them above politics to help ensure an independent judiciary within democratic societies. (this is not saying that the appointed system is perfect).

 

Otherwise, have a good weekend. And thanks for the continuous support.

Entry 8

Today was land law lecture day. Well I two land law lectures, so I am running with it. The first thing you need to know about land law is that it is anal. What I mean by this, is while land law is common law (make no exception to it), it relies on statute law (apparently). The reason why the relationship with statue is essential to making land law anal, is simply that land law doesn’t give a hoot to what is just. If you have your contract forfeited in a mortgage on day one and have no clause in the contract to only forfeit if you default on your terms of repayment. Then tough luck. You may be able to go through other legal options, but not land law. As I said before, it’s anal. For me, I prefer this to a degree. I can be pedantic (not just because it rhymes with my name) and entirely facetious when arguing about…well almost anything. It comes naturally to me. The only possible issue ahead is that terms in land law are for land law only. This could cause some confusion in the future.

Today we focused on proprietary rights with land and going through the different types of possessions of land. The one type of right that stood out to me was options right. Options are giving the person a right to purchase at a pre-agreed price in the future, regardless of the market rate. The reason that this stood out to me is that I have seen this before at home (dining table chat between my parents) and in the office. Options are used in the futures markets (and in other financial markets) and are a financial tool used to guarantee a win essentially (they have a high cost, so not available to most people). If you think the market is going one way up, you go long on the asset and then place a put option at the price you are willing to leave the market at. If the price goes beyond that, don’t use the option and sell higher. Market collapses, and you messed up, use your option to make money still (or reduce losses). The real question is who on earth is going to give you an option? In financial markets, there are loads of firms (depending on jurisdiction), but why would you do it with land? In the UK at least, prices are tending to go up. The only reason I could imagine it in was during a sale of a large piece of land where the seller would have an option to buy back at a particular rate, but honestly, I would be wary of such an offer. If the option is not worth it, they won’t use, so the result is that the piece of land was not worth it, and if it is good then you will get stuffed (or the holder of the option is an idiot). So if you are more of a risk taker, try and pay a higher rate and secure your future.

Take an example from football, Dani Carvajal moving from Real Madrid to Bayern Leverkusen in 2012 for roughly 5M Euros, and then being sold back a season later for 6.5M Euros. You might say Leverkusen did well, 1.5M profit, but if you look at his market value of 10M at the time and it is one year into a five-year contract. Could have done a lot better. So if you can afford to purchase a call or put option, you should be making bank.

Entry 7

Today kicked off with a lecture in Equity and Trusts and a little pop quiz that had totally skipped my mind, surprising I knew more than I thought but should be better prepared for next week. Afterwards, we look at two of the three certainties. Intention & Subject Matter (with Objects being the third).  When it comes to intention, I put on my philosophers’ hat, due to our analysis of what do these words mean. Essentially, it was analytic philosophy-lite. To explain let’s look at mandatory obligation, which says that in the event of death it must be explicit that the person wants a trust to be formed, not precatory words (words of desires and prayer). The use of the word trust is not helpful, as I could say: “I trust that X does give an annual allowance to Y”. Trust here is a hope, not an obligation. And if you want an obligation, then be clear. The takeaway point is when writing your will don’t use sweet words and frivolous language. Be blunt. You are dead. Think of it as giving people more time to mourn over you, rather than fight over your possessions. Be self-centred, even in death. Otherwise, it’s up to the interpretation of what is your intentions (hence analytic-lite ). We then looked at the Subject Matter. The reduction is this: is it clear what we are talking about. What do certain words mean if I say: “ The majority should go to A and the rest B”,  is it 50.1% or 99.9%? The rule is from Hancock and Watson which further points towards being clear. We then went over segregation of tangible property and intangible property. I also wish to take a quick note that when it involves financial problems, commercial law has been presented to take precedence over equity. Why? I think we can take a hint from public law. If parliament is sovereign, then those who pay for parliament probably matter more than what is just (in the eyes of parliament).

Then I was back to Tort law. We continued with a duty to care, but with a distinctive look at how this affects public authorities. While the content of the lecturer was engaging, it did bring out some of my greatest fear learning law. Going through case by case, by case, by case. We are looking at the progression of law and each step in its evolution. I’m not saying that this is futile, or wrong, it makes perfect logical sense. However, coming from a social science background, we could just say the final (or current) outcome and have a footnote concerning someone else going through the hassle of proving the evolution of the idea. Looks as though I have some adapting to do. Regarding the content, of public authorities. Courts don’t want you to sue them or place duties onto them because then it takes away money from the authority to do its job. E.g. if you sue the police and say they were negligent, you receive damages, those damages could have been used to prevent another crime. So if you want to take the police or another public body to court, the best bet is the human rights act by the looks of it. Though I wouldn’t take legal advice from the internet.

Entry 6

Today marked the beginning of tutorials for me. Today’s class was in Equity, like the lecture, it was more of an introductory class, and thus we didn’t actually discuss anything of importance or of much interest. It was the first time that our group, at City you’re in the same group for the tutorials for the whole year. So we started with a simple going around the class and introducing ourselves and then asking a question about equity or providing an observation from our readings and then relating this to some of the preset questions in the tutorial guidelines. When called upon, I naturally introduced myself (without the tagline: Don’t Panic, It’s Hanik)  and then presented an observation about one of the possible remedies in equity: an injunction. I suggested that injunctions don’t make sense as a solution anymore, from my limited understanding as they are easy to usurp in today’s information age. I gave the example of celebrities using injunctions in the press to stop court dealings being published in England and Wales, but if I (as a bystander) know there was an injunction, the first thing I would do is go on twitter and see who it was. I then pointed out from reading Private Eye, that the remedy is not readily accessible to the general public (due to the costs). Thus with it not working that well and not available to all, it doesn’t fit into the notion of equity, which is fairness (yes I understand equity isn’t about the Chancery’s opinion anymore, but more on precedent now). The tutor took the point that injunctions can go beyond the borders, but that is a slow development, but happening phenomena. However, he became a bit focused on that costs side of using equity and said that was part of the realities of life, which while true; was not the focus of my question which was on injunctions alone. I guess I need to be clearer when asking questions in class.

Also, I had another lecture on the public law where we looked at the judicial review and the how this fits into the concept of parliamentary sovereignty. If parliament is sovereign, and its power is absolute, then what room is there for interpretation? This was represented to us with a poorly written hypothetical Act, and our client was trying to get around the law (without breaking it). What to do? So, we found the simplest solution and then went through the possible ways that a judge will use to decide what to do: to interpret or not to interpret. The orthodoxy is to not interpret, as then the courts are then legislating, not parliament. Thus is parliament is no longer the most powerful. The opposite view is that the courts do not create, but merely try and understand what Parliament meant and enforce that. This could be solved by Parliament created clearer laws, thus no issue. Where do I lie on the scale? I currently believe that it should be a strict reading of the statuary law as possible. To elaborate on “possible”: even if the absurd occurs, allow it. Only stop it if it infringes on the rights of others. Then put it on hold and then ask for Parliament to come back to you. Doesn’t seem that revolutionary, but sometimes it doesn’t have to be. Liked sliced bread, is the best thing since bread itself. Small change, big consequence.*

*the last two sentences are an inside joke.

P.S. I didn’t forget to upload yesterday. I just have Mondays off and have yet to come up with filler. Any ideas welcomed.