Introduction to law
A beginners guide to understanding Law
The first book at uni they get to start learning to understand law to become a solicitor.
BASED ON UNIVERSITY TEXT BOOK
“Understanding Commercial Law
WHAT IS LAW.
There are various definitions and descriptions of “law”, in general,and “laws”, examples of the law in particular.
The law may be described as a collection of enforceable rules applicable to the behaviour of the citizens and institutions of an organised community,such as a nation.
THE MEANING OF THE WORD COLLECTION.
Collection: In the absence of agreement to the contrary,
It is the buyers job to collect the goods,not the seller’s job to send them.
Laws may be described as the large numbers of rules imposed upon and enforce among persons in society for achieving of peace and the resolution of disputes. ( The sum total of these laws is called “the law”.)
Many other definitions and descriptions can be found,but in general, legal commentators agree that the concept and existence of “law” is a characteristic of all human communities, past and present.
The laws of a sovereign nation-state, such as Australia, share the following factors:
1. They are made by human beings and are intended to regulate the behaviour of legal persons. (These terms are not synonymous: see Chapter 4.)
2. They are often expressed in language, direct or indirect, of command or prohibition,e.g.”Every person commits an offence against this Act whoin or within view of of any public place,uses,displays,destroys or damages the Australian flag in any manner with the intention of dishonouring it”:Flags,Emblems, and names
Protection Act 1981,s 11(1).
THE MEANING OF LEGAL PERSONS.
Business organisations consist of human beings,but there are a number of legal forms and structures under which they operate.
Notably,the law has adopted the divine of an artificial or fictitious personality for certain forms, where the organisation has a legal life of its own, separate from the natural (human) legal persons who are involved in it.
Persons who are involved in it.
A “legal person” is an “entity” ( a distinct being ) recognised by the law, able to exercise rights, and subject to corresponding duties, within the rules of a particular legal system. Such a person therefore has a legal personality.
3. The validity and enforceability of the laws are derived from the authority of the sovereign ruler (in Australia, the combination of the monarch and parliament).
4. Such authority enables the laws to be created, modified, or abolished at any time as the result of “due process”(the following of agreed, valid law-making procedures).
5. The laws may be applied formally in courts of law, and presided over by judges, who are salaried by the state. The judges, sometimes with the help of juries, attempt to ascertain whether the laws have been infringed or complied with, and make decisions accordingly.
6. Such decisions called judgements, are ultimately enforceable by the authority of the state,if necessary by physical coercion. To permit successful defiance of court orders would bring the law into contempt. The orders often involve the imposition of sanctions (such as imprisonment, or an order to be made compensation) upon parties to trials, action or appeals.
“Law” and “laws”: alternative usages,
These terms are sometimes used in connection with others aspects of human society and behaviour. Examples are so-called “laws” of religion, science, association, and morality. The differences between such “laws” and law as already defined are instructive.
Religious “laws” These rules,said to be derived from some deity, are confined to the followers of the particular religion. They often include internal sanctions for those who transgress. Where they conflict with the state laws, then state laws prevails. The “laws” of some religions, however, often overlap with ordinary secular law, and have historically been the origin of some of them. A comparison of the Ten Commandments with modern Australian law isa recommended exercise.
Why are laws obeyed ?
The majority of the members of an organised community which is not in a state of civil war obey laws because:
1. They generally approve of them; and/or
2. They fear the consequences of non-compliance with them.
Classifications of Law,
For the sake of convenience and specialisation, law has traditionally been divided into distinct sections or departments, each with its own characteristics. The most important division is that between the Criminal Law (breach involves punishment of the offender by the state), and the Civil Law (which involves the relationships of individuals). A broader classification involves the distinction between Public Law and Private Law. Public law is concerned with matters that affect the state as a community, while private law is concerned with matters that affect the rights and duties of individuals among themselves.
Australian Law today
INTERNATIONAL. ADMINISTRATIVE. CONSTITUTIONAL. CRIMINAL.
Australian Law today
CONTRACT. TORT. TRUSTS. FAMILY. PROPERTY.
Civil and Criminal Law.
Civil law is made up of all the different areas of private law. This type of law:
a) is concerned with laws which govern the relationships between individuals, as distinct from individuals and the state;
b) excludes law which define and control criminal behaviour; and
c) has been developed by common law and equity, and is also found in statutes. (examples include The law of contract, the law of tort and property law).
Civil Court proceedings.
If a citizen feels that he or she has a claim as a result of a breach of the civil law, then he or she may take the matter to Court.
Here are a few examples
a) Recovery of a debt
b) an action for breach of contract
c) damages claim for negligence
d) Recovery of goods or land
The function of a civil proceeding is to:
a) determine and declare the rights of the parties; and
b) where appropriate, provide a remedy or compensation in a civil proceeding.
1) The individual/legal person SUES another individual/legal person.
2) The person who brings the action is known as the plaintiff, or the applicant, in the case of Disputes Tribunal hearings
3) The person against whom the action is brought is know as the defendant, or the Respondent in the case of Dispute Tribunal hearings.
4) The Defendant either admits liability or defends the claim.
5) The burden of proof is on the plaintiff. This means that it is the plaintiff’s responsibility to prove his or her claim. It is only after the plaintiff has done this that the defendant must try to show an absence of liability. If the plaintiff cannot discharge the burden of proof then the claim will be lost.
6) The standard of proof is ” on the balance of probabilities” This refers to the amount or degree of proof or evidence that the plaintiff must produce to be successful. The “balance of probabilities” refers to the requirement that when the Court weights up the evidence of both parties,the scales must tip in the plaintiff’s favour if the plaintiff is to succeed.
7) The result or outcome of the action will be “judgement for the plaintiff” or “judgement for the defendant ”
8) The Court may grant a remedy.
SO LETS TAKE A BRIEF LOOK AT WHY WE ARE IN THE SITUATION THAT WE ARE IN.
Because we are “legally dead” our “Estate” is being administered by our public trustees.
It is the trustees duty while administering the estate to ensure that the estate makes a profit.
Whenever we operate in the public we are admitting to being the “Legal fiction”.
The rule of law states”that a person who acts as a corporation is treated as a corporation”.
Now that we know the difference between ” Public” and “Private” we will need a little understanding of “Contract” so that we can avoid unwittingly going back into the public.
The eight parts of a Lawful contract.
1) Parties competent to contract- The parties to a contract should be competent, being of the age of majority/consent,of sound mind, and not disqualified from contracting by any law to which she/he is subject. A flaw in capacity may be due to minority, lunacy, idiocy, drunkenness or status. The status of the parties should be of like kind, being artificial Legal Person and artificial Legal Person, or living Man/Woman and living Man/Woman, allowing two or parties but never a mixture of these kinds.
2) Free and genuine consent – The consent of the parties to the agreement must be free and genuine. The consent of the parties should not be obtained by misrepresentation, fraud, undue influence, coercion or mistake. If the consent is obtained by any of these means, then the contract is not valid or lawfully enforceable.
3) Full disclosure – when negotiating a contract, full disclosure is the act of providing all material information,or telling the “whole truth” about any matter which may influence the decision-making of the other party or parties before they decide to enter into a contract.
4) Sufficient consideration – The consideration is something of value possessed by the parties that is brought to the contract table. This something of value is bargained for and given in exchange for a promise or a performance. The parties must each receive a benefit and each suffer a detriment. To be enforceable, a contract must have sufficient consideration. A contract is uninforceable if it has insufficient or unequal consideration without agreement.
5) Certainty of terms – The Terms and Consideration of the contract must be fully disclosed and agree upon,and must be certain and fixed, i.e, not variable as with interest rates.
6) Meeting of the minds – A meeting of the minds ‘consensus ad idem’ occurs between the parties when they recognise each other, understanding their mutual obligations, and agree. This meeting of the minds can only occur between like kinds in status, Man/Woman with Man/Woman, or when these are “ACTING” as Legal Person with Legal Person. A corporation and another corporation may enter into contract by way of ‘accommodation parties’,and a sentient being and another sentient being may enter into a contract directly, but a corporation and a sentient being together cannot enter into a contract as they are not of equal status.
7) Signatures or autographs – Written contracts between artificial Legal persons must carry the wet ink signatures of the parties, because a wet ink signature is an” accommodation” from a living Man/Woman,declared or not. Written contracts between sentient beings must carry the wet ink autograph of the parties, and/or living identification such as a thumbprint. Living status is recognised by a thumbprint, or more often by an unambiguous declaration with the autograph,such as “authorised agent” written below.
8) Privity of contract – A contract exists only between the parties. No third-party can obtain rights contained within a contract, or buy or sell a contract, without the express permission of the original parties.
1. The “Public” is an entity called a legal fiction.
2. The “Private” is a Man/Woman.
3. Public is run by “Administrators“
4. Civil is private relations between Men,who contract or sue.
5. If you act as a corporation you will pay the price.