Lecture 1 Flow of concluding a judgment Crime Citation of previous cases Punishment Criminal Law Civil Law Concern with forbidding certain conduct and with Deals with private rights and obligations punishment to who break the law A person can be an individual or a company Forbidden: an offence or a crime Include wide range of law Civil courts: place the innocent party in the position he would have been in if the other party had not defaulted. Punishment: fines and imprisonment Not a crime but need compensate according to the level of loss The behavior The parties The burden of proof The consequence Criminal Law Civil Law An offence/crime A right/obligation Prosecution v defendant Plaintiff v defendant Beyond a reasonable doubt Balance of probabilities Punishment: fines/imprisonment Compensation for the loss Lecture 2 What is law - Describe rules which have two particular characteristics - Create by some authority Authority: can be found in a variety of setting Parental, informal, bureaucratic（官僚的）, political Break law authority will uphold/enforce it Example：Hong Kong Ordinances（法令）: created by HKSAR legislature Cases: upheld and enforces by the Hong Kong courts Judiciary（司法）: The courts and all relevant personnel Basic Assumption of law 1. Obeying law - Obey any order - Maintain the order of society - Case: Prigg v. Pennsylvania, 1842 A black woman was born in Maryland as a slave and move to Pennsylvania. Pennsylvania is a free state that prohibited blacks from being taken out. Conclusion: the master of the black woman wasn’t allowed to be taken back to Maryland. 2. Keeping the boundary of rights - Stay neutral - Moral VS Law - Case: Cruzan v. Director, Missouri Department of Health, 1990 In 1983, Nancy Cruzan (25 years old) was injured in a car accident. She was in persistent vegetative state (PVS)（持續植物人狀態）. Surgeons inserted a feeding tube for her long-term care. In 1998, Her parents ask the doctors to remove her feeding tube. The hospital refused to do so unless have a court order, as the removal of the tube would cause Cruzan’s death. Conclusion: Received a court order for the feeding tube to be removed. 3. Relying on the procedure - Make sure the procedure is impartial and justified - Case: O.J. Simpson murder case, 1995 Simpson was tired and acquitted（無罪釋放）on two courts of murder for June 12, 1994, slashing deaths of his ex-wife and her friend. His defense team was able to convince the jury that there was reasonable doubt concerning the validity of the State ‘s DNA evidence. The blood sample had allegedly been mishandled by lab scientists and technicians. We need to respect Authorities. Lecture 3 Legal System and Case Law Legal System - Operates within a defined geographical are where law created, interpreted and enforced. A collection of laws Processes for creating, interpreting, applying and enforcing laws. Institutions involved in such processes. Personnel involved in the processes Legislature and courts Legislators, judges, lawyers and police officers Civil Law Four distinct civil law Examples of the Area groups French France, the Benelux countries, Italy, Romania, Spain German Germany, Austria, Russia, Switzerland, Greece, Turkey, Japan, South Korea Scandinavian Denmark, Norway and Sweden Chinese Mainland China Common Law From England (also called English Law) Examples of Area: Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, New Zealand, South Africa, Canada (excluding Quebec), Hong Kong, the United States, and other places. Categorizing law - - - - - Common law systems and civil law systems Describe two legal systems. Follow the previous case. Common law and Equity Two historical sources of law Cares what is “fair” to the case Common Law and Statute Two sources of English law. CL: “Judge-made” VS Statute: “Enacted by Parliament 議會” Private Law and Public Law Public bodies WHO, governmental bodies. Private Law: regulates the relationship between ordinary citizens. Public Law: addressed to public bodies. Civil Law and Criminal Law Civil Law: regulates disputes between individuals. Criminal Law: regulate the behaviour of citizens. Principle in common law Principle of common law Strict application of the law Principle of Equity Justive and fairness Case Law Common Law System Legislation Source of law 1. Case Law When a dispute is taken to the courts to be resolved, the judge who hear the dispute will keep a record for that case The record is described as a judgment forms a part of the law 2. Customs 傳統 In Hong Kong, customs found based upon Chinese customary law Case: A man really wanted his son to get married at a young age so he required his son to get married at 26 and have a son at the age of 28. So he put in his will that if his son does not do so, as a punishment, he will 遺囑 deny his son’s right to his heritage Customs: Prefer male as the child Marry in young age This requirement is not enforceable. The word punishment is not appropriate: no crime in this case. In legal document, this won’t be acceptable. 3. Legislation Created by legislature. A state, an ordinances New principles of law can be formulated and enacted 頒布 without reference to existing principles in any modern society which is developing rapidly and needs to frequently review its laws. - Three reasons of an ordinance Codify existing case law Consolidate existing law Create new law Case Law - - Operates on the basis of the doctrine of precedent 遵循先例原則 Basis: similar cases should be treated similar, vice versa To follow a decision previously made Advantage Disadvantage Consistency Cumbersome Flexibility Difficult to access Judgement of case law Finding of fact Known to be consistent with objective reality and can be proven to be true with evidence. Witnesses 證人 are needed Statements of Law Statements of law made “by the way” Decision Lecture 4 Legal System Operation of the doctrine of precedent - If the new cases are identical/similar to the previous case, higher ranking court must be followed. - Decision from higher ranking court binding precedent The Court of Final Appeal 終審法院 The Court of Appeal 上訴法院 The Court of First Instance 初審法院 - If there are more than one binding precedent Points of law arise in a new case differ from those in previous cases may decide to distinguish the new case from the previous case Previous cases may still be persuasive precedents Case decided by the Court of First Instance are in any event only persuasive precedents A decision will be overruled if an appeal court comes to a different decision The legal system in Hong Kong - Separated with civil law matters and criminal law matters - Civil: divided depending on the nature of the claim and the amount of money involved - Criminal: divided depending on the severity of the offence Legal System in HK Civil law matters Lesser amounts: District Court Higher amounts: the Court of First Instances Criminal law matters Less criminal: the Magisrates Court - Summary offences 簡易程序罪行 The most serious: trial before a judge and jury in the Court of First Instance - Indictable offences 可公訴罪行 More serious: the District court - Indictable offences 可公訴罪行 - Magistrates’ Court 裁判法院 No jury 陪審團; only one magistrate Limited Powers Special magistrates: routine matters (e.g. Traffic offences); no imprisonment, fine up to 50000 HKD - Permanent magistrates: imprisonment up to 2 years, fine up to 100,000 HKD District Court 區域法院 In both civil and criminal jurisdiction No jury; only hear by a judge Limitations in civil: Claims for damages for breach of contract and torts, the amount claimed is between 75000 to 3 million Claims relating to recovery of land whose ratable value 應課稅值 is not more than 320,000 Claims relating to the administration of a deceased person’s estate, breach of trust, and other equitable concerns where the value of the interest is generally not greater than 3 million. In criminal jurisdiction: Cover charges relating to indictable offences transferred from magistrates’ court because of the seriousness of the case Max. prison sentence imposed: 7 years Lecture 5 Contract What is contract? - An agreement which contains an exchange of promises - Example: Your dog gets hurts and your friend help you to pay for the vet for $500 I owe my friend $500 as there is contract between me and my friend. Types of Contract - Bilateral Contract 雙方合同 Agreement between parties in which the offeror makes a promises and the offeree also makes a promise Example: Joey promises to paint Amy's house - Amy promises to pay joey $1000 fir the painting Unilateral contract 單方合同 Agreement between two parties, which the offeror makes a promise and the offeree renders (gives) a performance. Example: Amy promises to pay Joey $1000 as soon as Joey paints her house. As long as Joey accepts the offer by performance, there will be a unilateral contract between them. Ways of forming contracts - - Expressed contract 明示合同 Can be in written/Spoken words; prefer in written form Formal written contracts Informal written contracts Electronic means Implied contracts 默示合同 Daily life agreements from conduct or actions of the parties which involve no written/spoken words - In a form of actions Exceptions wills, trusts, powers of attorney, instruments requiring stamp duty, deeds, conveyances and other documents relating to land, mortgages and charges, oaths and affidavits (sworn or affirmed statements), statutory declarations, and negotiable instruments. Formal Contracts - In a formal deed or some “purpose-made” documents which is signed by the parties to the contract - Specialty contract Contracts that require to be in a form of a deed 契 Examples: A lease of property for a period of more than three years is required to be in the form of a deed. A conveyance for the transfer of land is in the form of a deed. If a person is to execute a deed under a power of attorney, his appointment must be by deed. (A power of attorney is a grant of power given by one person to another to create a deed on his behalf.) Advantage of deed An action for breach of the deed may be brought up to 12 years after the breach occurs. Otherwise, an action for breach of contract may be brought only up until six years after the breach occurs. Forming Contract Trust - Coordination Contract Trust Rely actions of others 1. Primitive trade 自由貿易 2. Trade with money 3. Trade with credit 4. Trade with contract Regulating Contract - - Contract law Contract law is for the most part found in the cases decided by the courts. The general principles of contract law are not contained in an ordinance. Codification 法典化 Certain aspects of contract law have been codified, and the principles established by the cases are now found in an ordinance. E.g.: the Sale of Goods Ordinance, the Partnership Ordinance. Electronic Transactions Ordinance The provisions concern the formation of contracts by electronic means, electronic records, digital signatures, and electronic contracts. Lecture 6 Intent & Offer Legally binding contract - In legal relationship 1. Commercial agreements Presumed that the parties intended to make a legally binding contract No need to prove they intended to make agreement which would be upheld by the civil courts 2. Social agreements Agreement between close relationship do not amount to legally binding contracts Except from the circumstances that they did intend to be legally bound by their agreement Offer - - Manifestation by an offeror that he is willing to enter a bargain, justifying acceptance by the offeree Offeror: person who offers the exchange Offeree: person who accepts by making a promise of his own/by actual performance Offeree accepts the offer as a form of contract Valid Offer Identify the parties Describe the subject of the agreement Include some sort of price term if applicable - Invalid Offer Joke Indicate a desire to enter in to a contract through some kind of invitation to negotiate Example: A price quotation/proposal of terms Advertisements Unless the language makes an express promise to adhere to specific terms Offer or invitation Both are law of contracts - If the offeree knows or has reason to know that the offer is a joke Preliminary negotiations 初步談判 - Specific and informative (5W+1H) If a statement Made to a specific person constitute an offer Made to a group of people constitute an invitation to make an offer Example: Coupon from the bank (i.e. to specific offer users) Offer Termination of an offer Rejection or counteroffer Lapse of time Revocation 撤銷 Death or incapacity 1. Rejection or counteroffer - Offeree reject/suggest another offer (counter offer) - 第一個 offer 之後嘅 offer 全部都係 counter offer 2. Lapse of time Amount of time should be specific/must be reasonable if unspecific 3. Death or incapacity An offer may be terminated by the death or legal incapacity of either party 4. Revocation 撒銷 the offeror may change his mind and decide to withdraw his offer Irrevocable offers- Unilateral contract will form an irrevocable option contract. (Typically, option contract are opened in a limited offer of time) Keep an offer open - If there is a legally binding contract to keep an offer open for a certain period of time, the offeror will be liable in damages for breach of contract. - If there is a second contract to ask the offeror to keep the offer open for a period of time, then during the period of the option, he cannot withdraw his offer, because he has promised not to. Lecture 7 Consideration Elements of Contract 1. Intention 2. Offer 3. Acceptance 4. Consideration Acceptance - the process of acceptance which brings an agreement into existence and fixes the terms of the contract. - The process of acceptance must conform with a number of well- established general rules: 1. The offeree must agree to all the terms of the offer. 2. Acceptance cannot be deemed or assumed. 3. Acceptance must be communicated to the offeror. - An acceptance may be given in writing, orally, or by conduct, but it cannot be assumed or be deemed. (Silence cannot amount to acceptance) - Must be communicate to the offeror As a general rule, acceptance must be received by the offeror. The contract is formed at the time and place the acceptance isreceived by the offeror. Mailbox rule/postal rule Acceptance by post may be effective at the time of posting Mailbox rule exception • The offeror can prescribe a time of acceptance that is not the moment of dispatch. • The mailbox rule also does not apply to unilateral contracts. • The mailbox rule does not apply to option contracts. Consideration 1. Benefits being exchange - Accepted offer it results in an agreement but does not result in a legally binding contract. - The offeror and offeree must promise some benefit to each other in order to make the agreement a contract. Rules relating to consideration • Consideration must move from the promisee. • Consideration must be legal. • Consideration must be something of value. • Consideration must be sufficient but need not be equivalent. • Consideration may be executed or executory, i.e., present or future, but it cannot be in the past. 2. Consideration must move from the promisee - receives a promise is the promisee, and in its literal sense this rule requires the person who accepts an offer to supply the consideration - requires an exchange of promises between the offeror and the offeree. (Two way) - A person who does not give consideration cannot sue on a contract. 3. Must be legal - The promises made by the offeror and offeree must not include any illegal act. 4. Must be something of value - The promises made must have some value, but the amount of value is only the concern of the offeror and offeree. A promise An action A forbearance 克制 5. May be executed or executory - an agreement is commonly made but it is not legally binding because the consideration for the agreement is past. 1) an act is done voluntarily and subsequently an agreement is made to perform that act in return for a promise. 2) a legally binding contract has been made and subsequently one of the parties tries to alter the contract by a promise of some variation or amendment. The new promise was not part of the original contract. Lecture 8 Complications of Considerations Rules of Consideration 1. from the promisee 承諾人 2. Must be legal 3. Must be something of value 4. Must be sufficient but need not be equivalent; Designed by two parties 5. May be executed/executory (Present or Future; but not in the PAST)、 - Comparison - Different Currency with same amount of money have consideration Pre-existing Legal Duty is already owed is insufficient for consideration Whenever the parties to a contract agree to vary its terms, there needs to be fresh consideration for the variation to be legally binding. - Promissory estoppel 不容反悔 (1) the promisor reasonably expects or should reasonably expect the promisee to rely on the promise; (2) the promisee in fact relies on the promise; and (3) as a result, the promisee suffers a substantial detriment. The court will provide a limited remedy for a breach by the promisor to prevent injustice. - Implied consideration (1) one party provides another with valuable services, property, or money; (2) the recipient has reason to know of this; (3) the circumstances reasonably indicate the services, property, or money was provided with the expectation of compensation; and (4) the recipient manifests assent, as by knowingly using or retaining the benefit of the services, property, or money or failing to object under circumstances in which silence would suffice as acceptance of an offer. - Deed of gift Formal contract; offer; acceptance; intent Usually, it involves transition of real property or other types of property. A contract entered into by deed does not require consideration. If a promise to give someone something is “signed, sealed, and delivered”, it is legally binding. Lecture 9 Enforceability Invalid Contract - no true consent to its formation. - Factors that invalidate a contract: - Lack of capacity Duress Undue influence Misrepresentation Violation of laws and public policy Consequences “Void”: there is no contract. Neither party can sue to enforce the contract or claim damages for breach of contract. No rights of ownership can pass and any goods which have changed hands can be recovered “Voidable”: it is valid and enforceable and rights of ownership may pass. However, the innocent party has the right to avoid the contract if he so chooses. If a contract is voidable and the innocent party chooses not to avoid the contract, he is still entitled to claim damages. 1. Lack of capacity to enter into a contract - Ages/inability to appreciate their own actions. Under 18/mentally ill/intoxicated by drug or alcohol - Minors - In contract law, a person under the age of 18 years is described as a minor or an infant. - Has a capacity to enter into contracts and to enforce his rights against adults. However, adults are restricted in enforcing contracts against minors - Exception: A contract is enforceable against a minor if the contract between the minor and an adult is for necessary goods. goods suitable for the minor’s condition in life and to his requirements at the time of sale and delivery - Mental disability 2. Duress 3. Undue influence
