Introduction to Business law reflect questions

Reflect questions for recall

The main differences between civil law and public law

Public law governs the overall relationship between the government and individual citizens, whereas criminal law is a specific subset of public law that deals strictly with conduct perceived as an offence against society or the state.

Criminal law is also narrower in scope when compared to public law. As criminal law defines an illegal action that breaks the law whereas public law involves constitutional law and administrative law.

Define Private law

Private law is between a claimant and a defendant. It can involve both a natural person and a legal person. It involves areas of law such as civil law, contract law, law of torts and property law etc.

Private law

Private Law is concerned with the rights and duties between individuals and covers areas of law such as contract, tort, property, company, and family law. The individuals may be private persons, companies, or even a state body such as a local authority if, for example, a citizen has a contract with that local authority.

Public law

Public Law involves the relationship between individuals and the state and is concerned with the decisions by, and control of, government bodies. Public Law is made up of Criminal Law, Constitutional Law, and Administrative Law.

Public law - administrative law

Administrative Law is concerned with the powers and duties of government bodies and ensuring that the government acts within its legal powers. Disputes may arise between a citizen and a government body; for example, if a citizen’s house has been compulsorily purchased by a government department in order to build a motorway, the citizen may take the government department to court, alleging that the action taken by the government department was outside the powers given to it by Parliament.

Public law - criminal law

Criminal Law makes certain types of behaviour against the law and gives the state power to prosecute persons who disobey the law. The term ‘person’ refers to both individuals (human beings) and legal persons such as companies. A legal person is an organization that has a separate legal identity from the persons running or owning the organization.

public law - constitutional law

Constitutional Laws are the laws relating to the British Constitution. An example of a Constitutional Law is the Dissolution and Calling of Parliament Act 2022 which provides for Parliament to be dissolved by the King on request from the Prime Minister.

Common law and its various meanings

The term ‘common law’ has several different meanings. It is usually used to mean the law that is not the result of legislation but is the law created by the decisions of the judges. When common law is given this meaning it encompasses cases that have used both, or either, equity and common law.

An alternative meaning of the term common law is when it is used to distinguish common law from equity, and refers to case law that has been developed through the old Common Law Courts as opposed to the old Chancery Courts.

An archaic meaning of the term common law is law that is common to the whole of England as opposed to local law. However, this is no longer the usual meaning of the term.

Finally, the term may mean the law that is not foreign law; in other words, the law of England, or of other countries (such as America) that have adopted English law as a starting point.

Judical precedent

Judicial precedent is where a Judge must follow the previous rulings which relate to a current case. Or at the very least use them as guidelines for the current case.

Rules of statutory interpretation - 1

The rules of statutory interpretation are how a judge interprets past cases:

Internal (intrinsic) aids: Aids to interpretation found in the statute itself.

• Long title of the statute: For example, the Sale of Goods Act 1979 provides that this is an Act “to consolidate the law relating to the sale of goods”.

• Key definitions with a statute: For example, section 2 of the Consumer Rights Act defines what constitutes a “consumer”; section 5(2) of the Animal Boarding Establishments Act (1963) states ‘In this Act animal means any dog or cat.’

• Rules of language: For example, if an Act prohibits ‘cats, dogs and other animals’ those ‘other animals’ would be interpreted to include domestic ones and not wild ones.

Rules of statutory interpretation - 2

External (extrinsic) aids:

• Government Reports

• Parliamentary Reports (Hansard) - Pepper v Hart (1993)

• Official Reports

• Dictionaries and relevant legal textbooks

• Interpretation Act 1978:

The Act sets out rules for the interpretation of acts of Parliament and secondary legislation. It provides consistency and fills in gaps where the Parliament has not defined terms. Examples include:

• Number: Words in the singular include the plural and vice versa

• Person: Includes both natural and legal persons

• Gender: He includes She and vice versa

Rules of statutory interpretation - 3

The Literal Rule

• Judges apply the exact grammatical and dictionary definition of the words as they were understood when the law was passed.

• Parliamentary Supremacy: It respects the role of Parliament as the supreme law-making body by assuming lawmakers meant precisely what they wrote.

• London & North Eastern Railway Co v Berriman (1946): A railway worker was killed while oiling tracks. A compensation rule applied to "relaying or repairing", but not "maintaining" (oiling). His widow received no payout because the literal rule excluded maintenance work.

• Judges rely solely on the literal interpretation without adding their own opinions or interpretation

Rules of statutory interpretation - 4

The golden rule

The Golden Rule of statutory interpretation allows judges to modify the literal, ordinary meaning of a word in an Act of Parliament to avoid an absurd, illogical, or unjust result.

Adler v George (1964) – A law prohibited obstructing Her Majesty's forces "in the vicinity of" a prohibited place. The defendant was actually inside the prohibited place. The court used the broad approach to extend "in the vicinity of" to include being inside, preventing an absurd loophole.

Rules of statutory interpretation - 5

The mischief rule

The Mischief Rule is a judicial tool used by courts to interpret ambiguous statutory language by focusing on the specific problem, or "mischief," that the law was created to fix.

Under the Street Offences Act 1959, it was a criminal offence for prostitutes to "loiter or solicit in a street or public place for the purpose of prostitution."

In this case, a group of women were soliciting men who were walking by on the street below. However, the women were not physically standing in the street; they were standing on a first-floor balcony and behind the windows of a house, tapping on the glass to get attention.

The mischief rule needed to be applied as under the literal interpretation no crime was committed but when looking at the spirit or intent of the law the women were found guilty.

Rules of statutory interpretation - 5

The purposive approach

The purposive approach to statutory interpretation requires courts to look beyond the literal wording of an act to identify and give effect to the underlying purpose or intent of the legislature.

Judges evaluate the statutory scheme, the historical context, and the "mischief" the law was designed to remedy.

Jones v Tower Boot Co [1997]: An employee faced severe racial harassment from coworkers. Under the Race Relations Act 1976, employers were liable for acts committed by workers "in the course of employment." The employer argued that since racial abuse was not part of the workers' actual jobs, it didn't happen "in the course of employment." The court used a purposive approach to reject this formalistic argument, ruling that Parliament's intention was to eliminate discrimination in the workplace, making the employer liable.

What does it mean when a court distinguishes an earlier decision

When a court distinguishes an earlier decision, it means the judge decides that the facts or legal context of the current case are different enough from the past case that the old rule does not control the new outcome.