Civil Law and Criminal Law

Question 1a

There are basically two types of law, civil law and criminal law, and there are a number of differences between the two:

Civil cases are usually dealt with in County Court or High Court and the main purpose of civil law is to uphold the rights of individuals. Which courts the civil action is held in, is decided by the amount of money that is involved.

• Less than £25,000 – Always heard in County Court
• More than £50,000 – Always heard in High Court
• Less than £5,000 are normally dealt with in County Court using a fast track system that cuts down the costs and time involved in resolving smaller disputes

Criminal cases are usually dealt with in the first instance in Magistrates Court and then if the case is of a serious nature transferred to Crown Court.

Civil cases are usually disputes between two individuals or an organisation and an individual, the party who starts the case by taking action is usually called the claimant, and the party that the action is being taken against is usually called the defendant. The claimant takes action against the defendant who will then be liable or not liable for a form of compensation which is usually a payment of a sum of money awarded to the claimant. This decision is usually made by a Judge.

The main purpose of criminal law is to maintain law and order and protect society as a whole and to provide punishment for those who break the laws. Criminal law deals with individuals that have committed a crime against the state and normally involves the government as one of the parties (prosecution). Action is normally taken against an offender by the Crown Prosecution Service on behalf of the state and can be punishments such as prison, Community sentences or a fine.

Civil law is the section of the law that deals with activities such as:

• Property disputes
• Work related disputes
• Consumer disputes
• Contractual Disputes
• Copyright
• Defamation of character

Criminal law is the section of the law that deals with serious crimes such as:

• Rape
• Murder
• Manslaughter
• Treason
• Assault
• Stealing

One of the other crucial differences between Civil and Criminal law is that burden of proof is lower in a civil case. With civil law cases, it only has to be proved on the likely hood that the defendant is guilty. When a verdict is reached in a civil case it does not necessarily mean that it is the end of the claim, the case may be appealed and heard in the Court of Appeal or transferred to the House of Lords.

When the prosecution take action against a defendant, the defendant may be found guilty or not guilty and the decision is normally made by Magistrates or a Jury. The final decision made must be proven beyond a reasonable doubt.

Question 1b

The county court deals with civil cases only and these cases are dealt with by a judge or district judge. A civil case may be started in any county court but it can be transferred to the defendant’s local court.

County courts are the most junior of all the civil courts and thus deals with a wide range of smaller civil disputes such as:

• Landlord and tenant disputes
• Boundary and land disputes
• Personal injury claims
• Consumer disputes
• Discrimination cases
• Dept
• Employment disputes
• Straight forward divorce cases

County court decision are decided by the Judge and If the defendant is found to be liable they would be ordered to pay either a lump sum or instalments of money to the claimant as a form of compensation.

Crown court deals with criminal law and hears serious criminal cases. The verdict in crown court is not decided by the judge, it is decided by a public jury of twelve people. When the jury have made a decision on whether the defendant is guilty or not guilty, the judge will then pass sentence.

If a defendant is found guilty in crown court they are punished in relation to their crime and may face punishments such as imprisonment or a form of community sentencing such as community service or probation.

Appeals from the magistrates’ court are also dealt with in the crown court and are usually dealt with by a judge and at least two magistrates.

The crown court will also deal with convictions that are referred by magistrates’ court for sentencing

Question 1c

The legal standard of proof in civil cases is lower than in criminal cases and the evidence brought before the court must be proved on the balance of probabilities. In most cases it is the legal burden of the claimant to prove his case by asserting the existence of fact. However there are some exceptions where the burden shifts to the defendant.

In criminal cases the facts have to be proven beyond reasonable doubt, if there is any doubt that the defendant is innocent then he should be found not guilty. It is for the prosecution to prove that the defendant is guilty and if the defendant denies the accusations from the prosecution it is for them to defend against those claims.

Question 1d

Actus Reus – is the Latin phrase which translates as ‘guilty act’. In legal terms this is one of the elements to be proven before anyone can be liable to criminal punishment. The actus reus part is something which has been made criminal through criminal law or statute.

Mens Rea – is the Latin phrase for ‘guilty mind’. This defines the state of mind of the person doing or planning to do the criminal activity.

The difference is therefore defined in the intention of the person doing the act. As a simple example, if one person kills another person unintentionally (actus reus) this may be deemed as manslaughter whereas if some kills someone internationally or with malice (mens rea) then this would be considered to be murder.

Question 2

An invitation to treat and a contractual offer differ. An invitation to treat is defined as an invitation from Party X to Party Y to make an offer, whereas a contractual offer is a definitive offer from one party to the other. In the case of a contractual offer the two parties are defined as the offeror (party making the offer) and the offeree (party to whom the offer is made).

In accordance with Partridge v Crittenden (1968) the defendant placed an advertisement in a magazine offering to sell Bramblefinch hens and cocks at 25 shillings. The court decided that the advertisement was not an offer and merely an invitation to treat. It was noted that the defendant had a limited number of birds for sale and had only intended to sell the number of birds he owned. In the event that the Courts would have ruled this to be an offer then the defendant would have been in the unenviable position that he would have been in breach of contract to all those people that would have replied to his advertisement and were not able to purchase a bird.

When considering goods which are displayed in shops by shopkeepers, it is noted that only upon a customer proposing to purchase goods from the shop this will then become an offer and thereafter the shopkeeper is entitled to either accept or refuse the offer made by the customer. The Partridge V Crittenden (1968) case together with this illustrates that despite Penelope’s offer to sell the Chocoholic Hamper to customers for £19.99 is defined as an invitation to treat rather than a contractual offer. Tess is therefore not legally entitled to purchase the hamper at £19.99.

Conversely, an advertisement may constitute an offer where the advertiser intends to be legally bound by the advertisement proposal. In Carlill v Carbolic Smoke Ball Co (1893) the defendants were the manufacturers of a smoke ball which was intended to treat influenza. The defendants advertised in newspapers that anyone who caught influenza after using the smoke ball would be paid £100. The plaintiff used the smoke ball in the manner specified, caught influenza and claimed £100 from the defendants. The Court of Appeal decided that the advertisement in this case was, in fact, an offer as the defendants intended to be legally bound by their promise as soon as the act was carried out, without any further bargaining.

Penelope’s advertisement in the Melstock Courier stated that ‘the first customer of Chocoholics to make a purchase will receive a free box of chocolates’. It is clear that Penelope’s intention was to give away a free box of chocolates without any further bargaining. In this event, Tess is legally entitled to a free box of chocolates.

Question 3

The question requires exploration of whether Hardy’s advertisement is a contractual term or a representation and how the difference would affect the legal remedies available to Henchard.

Representations are pre-contractual statements wherein three factors ordinarily apply being a) a statement b) of specific and verifiable fact and c) the statement induces a contract. In the event that a representation is false it becomes a misrepresentation.

Misrepresentations can be defined as being fraudulent, negligent or innocent.

Fraudulent misrepresentation – a false representation made knowing or believing the same to be false or not caring whether it is true or false. For a false misrepresentation to be made there must be some dishonesty involved. In the event of fraudulent misrepresentation the injured party make seek damages and/or rescission.

In Derry v Peek (1889) an act incorporating a tramway company provided that carriages might be moved by animal power, and with the Board of Trade consent, also by steam power. A prospectus was then issued by the Directors containing a statement that the company could use steam rather than horses and the plaintiff bought shares on the strength of the statement. Thereafter the plaintiff bought an action for deceit and it was ruled that the defendants were not fraudulent in this case and they had made a careless statement, whilst honestly believing it to be true.

Negligent misrepresentation – is a false statement made by a party which does not have any reasonable grounds to believe that the statement is true. The party that has been misled has the opportunity to sue for damages and/or rescission.

In the Misrepresentation Act 1967 s 2(1) the sub-section only recognises a claim for damages, and does not refer to rescission, however, in Mapes v Jones (1974) 232 EG 717, a property dealer contracted to lease a Grocers Shop to the Claimant for 21 years but did not have sufficient interest to grant the lease, as the maximum period available to him was 18 years. Despite the constant requests no lease was supplied so the claimant closed the shop and considered the contract to be repudiated. It was held that the claimant was entitled to rescission for misrepresentation.

Innocent Misrepresentation – innocent misrepresentation is a false statement made by a party who has reasonable grounds to believe that the statement is true, not only what the statement was made but also at the time when the contract was entered into.

It is presumed that if Hardy had not made the pre-contractual representation that he was selling an 18th century writing desk as owned by a famous 19th-century judge of the House of Lords, then Henchard, would not have purchased the desk. In view of Hardy’s experience as an antique dealer it would seem that innocent misrepresentation can be ruled out as can negligent misrepresentation as not only is the desk a reproduction, the name of the previous owner had also been incorrect. We have not, however, been made aware of the circumstances behind why Hardy made this statement although from the facts provided it would be surmised at this stage that it is a fraudulent misrepresentation. In the event of fraudulent misrepresentation, Henchard may claim for damages and/ or rescission, particularly as only two weeks have passed since the purchase.

It is worth noting that when a party is sued for deceit then they cannot defend the claim on the basis that the claimant should have done more checking. This is particularly pertinent in the case of Henchard who is purportedly a collector of legal memorabilia. This point of law has been illustrated in the Standard Chartered Bank v Pakistan National Shipping Corp (No 2) (2002) case.

Furthermore, consideration must also be made to whether Henchard knew the statement was untrue. Whilst it appears not, if he had, in fact known it to be untrue then it would not be possible to sue Hardy. This is illustrated by Redgrave v Hurd (1981).

Contractual terms differ from representations. A contractual term can be explained ‘as such that the claimant would not have made the contract without it’. However, differentiating between representations and contractual terms has become less important since the Misrepresentation Act was passed in 1967. In the Misrepresentation Act 1967, negligent misrepresentation was recognised thereby allowing parties to action for damages even in respect of inducement or mere representation.

Contractual terms encompass any conditions or warranties made, for example, contractual conditions are considered to be vital or fundamental obligations of the contract whereas a warranty is a secondary obligation (consider the after-care service provided on a new car).

The difference between conditions and warranties are vital in determining the legal remedies available to a claimant and, in the case of dispute, the individual case is looked at in detail by the Court.

For Henchard it seems that the fact that the writing desk having been owned by Lord Diljohn was the most salient point of the purchase. This could be considered a condition of the contract. In this circumstance, the legal remedy available to Henchard for the breach of condition would be that he could either repudiate the contract or he could claim for damages and continue with said contract. There do not appear to have been any warranties made by Hardy.

In Dick Bentley Productions Ltd v Harold Smith Motors Ltd (1965) the car dealer incorrectly stated that a car had done 20,000 miles since being fitted with a replacement engine and gearbox. The Court held that the dealer was in a position to know the correct facts and thus the statement was a contractual term. This scenario could be compared to the Hardy/Henchard situation.

Question 4a

Undue influence was popularised after Henry Bolingbroke used this phrase in 1735 in an essay concerning improper electoral practices.

There are protections under common law against undue influence which aim to stop people from being pressured into making significant legal decisions. It is used to cover forms of influence which are not as serious as duress.

In the recent case of Goodchild v Branbury (2007) where a frail old man gave some land to his nephew it was challenged by lawyers that the gift was under ‘undue influence’. The challenge was successful as it could not be explained on the basis of the relationship between the old man and his nephew and furthermore the old man had not taken any legal advice.

Some relationships are presumed to have some undue influence involved, for example, parent-child relationships whereas some are not presumed to have undue influence involved, for example, employer-employee relationships.

In the event that undue influence is proven the legal remedy is that the contract may be voidable and therefore can be rescinded. It is important that time does not lapse between a party claiming relief as delay may be taken as affirmation of the contract. This was shown in the Allcard v Skinner (1887) ruling.

Duress is a common-law concept which involves coercion and is characterised by a lack of choice. Duress affects all contracts and gifts procured by its use and encompass not only acts of violence but also threats of violence.

As illustrated in The Siboen and The Sibotre (1976) case it was said that duress could be a defence if a person was forced to make a contract by the threat of having a valuable picture slashed or his house burnt down.

Other cases suggest that duress has the same remedies as fraud as it makes contracts voidable.

Question 4b

Undue influence can take many forms including bullying, emotional blackmail and threats. The test is one of whether there was a relationship of trust and confidence that allows such presumption.

There is other case law which has a similar story to that of Rhona and Miss Abigail, for example, Goodchild v Branbury (2007). It is clear that Miss Abigail is an elderly woman who needs taking care of and whilst there has not been any acts of violence or threats of violence by her niece, Rhona, there appears to have been some undue influence used.

Additionally, Miss Abigail, similar to Mr Goodchild, has not taken any professional advice in relation to the sale of the property.

In the case of undue influence, this makes the contract voidable for Miss Abigail and therefore it may be rescinded. We are not advised of how much time has elapsed between Miss Abigail discovering that the market value is £150,000 which is £100,000 more, however, in the case of rescission it is important that too much time does not pass because as time passes it is considered to be an affirmation of the contract.

Bibliography

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• Law Directory, http://www.lawdirectory.org.uk/articles/article-1.html, viewed 27th February 2010.
• Legal Explanations, www.legal-explanations.com, viewed 2nd March 2010.
• Wikipedia, http://en.wikipedia.org, viewed 6th March 2010.
• Law Essays UK, www.law-essays-uk.com, viewed 6th March 2010.
• Wikipedia, http://en.wikipedia.org, viewed 7th March 2010.
• Times Online, http://business.timesonline.co.uk, viewed 7th March 2010.