DIRECTORATE OF LEGAL STUDIES Chennai - 600 010 5 Year B.A. B.L., Course Semester System II nd Year III - Semester SI.No Subject Subject Code Page No. 1. English - II FQA 3 2. International Relations FQB 41 3. Law & Economics FQC 81 4. Law of Contract - I FQD 107 5. Family Law - I FQE 171 COURSE MATERIALS 2013-2014 Compiled by: Dr. N. Kayalvizhi M. L., Ph.D., Asst. Professor, Dr.Ambedkar Govt. Law College, Chennai - 600 104 First Compilation : Dec 2012 Second Compilation of Re-edition : Oct 2013 Copyright © Director of Legal Studies, Chennai - 600 010. For Your Information : The Registrar, THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY “Poompozhil”, 5, Dr. D.G.S. Dinakaran Salai, Chennai - 600 028. Telephone : (044) 2464 1212, 2464 1919, Tele - Fax : (044) 2461 7996 Email : [email protected] : [email protected] Website : http://www.tndalu.ac.in THE Directorate OF LEGAL STUDIES, Kilpauk, Chennai - 600 010. 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Telephone : (01416) 224 1744 Email : [email protected] Website : www.glcvellore.ac.in Printed at : Abna Traders, Chennai - 45, Cell : 98400 16816. Email : [email protected] 1. ENGLISH - II I. THE DIVISIONS OF THE LAW Law is the element of society and also an essential medium of change. A knowledge of law increases one’s understanding of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word as well as some understanding of social values. DISTINCTION BETWEEN CRIME AND CIVIL WRONG The distinction between crime and a civil wrong is in essence quite simple. The distinction does not lie in the nature of the wrongful act itself. In very many cases, the same act may be both a civil as well as a criminal wrong. For example if a cloak room employee runs away with a bag entrusted to him, he commits the crime of theft and two civil wrongs namely the tort of conversion and breach of contract. As a result two sorts of legal proceedings can be taken against him, a prosecution for the crime and a civil action for the tort and breach of contract. The above illustration clearly shows that the true distinction between a crime and a civil wrong resides not in the nature of the wrongful act but in the legal consequences that may follow it. In criminal proceeding there is a prosecutor prosecuting a defendant and the result of the same prosecution, if successful, is the conviction and the accused may be punished by one of a variety of punishments ranging from fine to death. In civil proceedings the person instituting a suit is called plaintiff and the opposite party is the defendant. The proceedings if successful, will result in judgment for the plaintiff by way of order for payment of compensation, specific performance, declaration of title, recovery of possession, injunction etc. THE CLASSIFICATION OF CIVIL WRONGS Civil wrongs are broadly classified into three categories namely the breach of contract, tort and breach of trust. Breach of contract implies failure on the part of one of the parties to perform his part of legal obligations arising out of the contract. In this context it is important to note that a contract need not be in a formal document. It can be oral also. Every time a transaction is made a contract is entered. Tort is a civil wrong independent of contract. It gives rise to an action for damages irrespective of any agreement not to do the act complained of. It includes such wrongs as assault, battery, false imprisonment, trespass, conversion, defamation, negligence and nuisance. A trust is an obligation enforced by courts. A trustee who fails to fulfill his obligation is liable for the breach of trust. In the case of the private trusts the beneficiaries may be determinate where as the beneficiaries under the public trust are indeterminate. For example, in case of a charitable trust there need not be any definite beneficiary but the property is held on trust for the public as a whole or for some section of it. Apart from these three classes of civil wrongs there is another type of civil obligation called the Quasi contractual obligation. In quasi contact, though the parties are not liable in contract, they are liable for injustice. For example, if ‘A’ pays some amount to ‘B’ by mistake thinking that ‘A’ owes the amount to ‘B’ it can be recovered as the law treats it as if B had contracted to repay it. 3 ENGLISH - II SUBSTANTIVE AND ADJECTIVAL LAW : A distinction cutting across between civil and criminal law is that between substantive and adjectival law. Substantive law lays down peoples rights, duties, liabilities, and powers. Adjectival Law relates to the enforcement of rights and duties. It is mainly concerned with procedural laws. For example, Civil procedure, Criminal procedure and Evidence. THE TITLE OF CASES. It is important to know the rules for naming of cases. Criminal trials are differently named based on the two main divisions of crimes as indictable offences and summary offences. Indictable offences are more serious offences triable in the crown court. Trials on indictment are in the name of the Queen or the King who is on the throne. Reg (Regina) or Rex respectively both conveniently abbreviate to ‘R’. Thus Reg V Sikes or Rex V Sikes may both be written R V Sikes. In some types of criminal cases the title of the cases will not contain Reg or Rex before V, but will contain the name of a private person. This happens when the case is tried summarily before magistrates i.e. justices of peace. Civil cases will usually be cited by the names of the parties (eg) Rylands V Fletcher. If the Queen or the King as representing the Government, is a party, she is, in civil cases called “The Queen” and similarly with the King, thus British Coal Corporation V The King; but ‘R’ may also be used, when an appeal is taken to the Court of Appeal (Civil Division) the name of the appellant is put first. This means that the names may become reversed, in some cases where a will is being interpreted, the name of the case is “In re (in the matter of) somebody or something; for instance “In re Smith”. Certain applications to the court are called “Ex Parte”. Ex P smith means on the application of Smith. In the probate cases i.e. cases concerned with the proof of a will, the title In Bonis i.e. in the Goods of- In bonis Smith may be used. COURTS WITH CIVIL JURISDICTION The Courts with original jurisdiction are the High Courts and County Courts. The High Court is divided into three divisions : The Queens division, the Chancery division and Family division. The First administers primarily the common law, the second equity and the third probate, divorce and admiralty cases. A civil trial in the High Court is before a single judge, generally sitting without a jury. The judges may sit in London or Provinces. High court cases outside London are often taken by Deputy High Court Judges or plain Barristers. The less important civil cases are tried in the county courts. Appeals from both the High Courts and the County courts lie to the Court of appeal. The Court of appeal generally sits with three members, and there will be several such courts in action at the same time. When an appeal is taken to the court of appeal either from the High Court or from the County court, a further appeal lies, with leave, to the House of Lords. However the system of two appeals is subject to criticism among the jurists. A civil case may go on appeal direct from the High Court to the House of Lords under the “Leap Frog” procedure introduced by the Administration of Justice Act 1960. This can happen with the consent of the parties and on certificate from the judges, if the case involves the interpretation of the legislation or is governed by a previous decision of the court of appeal or House of Lords which one of the parties wishes to overturn. COURTS WITH CRIMINAL JURISDICTION The crown court is the main criminal court in England. It was created by The Courts Act 1971. A criminal trial in the crown court is always by jury. The court is normally presided over by a circuit judge or recorder who controls the trial and directs the jury; but it may also be 4 ENGLISH - II constituted with a High Court Judge. Appeal from the crown in the criminal cases lies to the court of appeal (criminal division). The appeal may be on law or fact or against sentences, but only the defendant can appeal and not the crown.