Contracts (the UK) (в)

As the business world become ever more complex and interactional* and transactions* become larger and more complicated the role of the lawyer in preparing comprehensive and carefully drafted contract* clearly setting out the rights and obligations* of the parties becomes all the more important. English law is well suited to the governing law of such contracts because of its relative flexibility and freedom.

In the final analysis, all we may have to prove our rights is that piece of paper with the contract printed on it — for this reason, it is of great importance that the contract:

1. Accurately and clearly reflects what is the actual agreement between
the parties, and explicitly* sets out all rights, benefits and protections which
we believe we are given by the other side, rather than just leaving them to a
mutual "understanding" or mutual misunderstanding as it may later be
shown to be;

2. provides a mechanism (e.g. arbitration, force majeure*, etc.) for dealing
with any unlikely but foreseeable contingencies* which may arise;

3. does not avoid any unpleasant issues which the parties may not have
liked to talk about (e.g. what happens if one party goes bankrupt?);

 

4. deal with all technical issues (e.g. consideration in contracts for
common law jurisdiction (e.g. England, USA) choice of law article if the
parties are of different nationalities, suspension article* if government
approval is required etc);

5. is reviewed by lawyers from the jurisdiction of all applicable laws* for
comment on any anti-trust issues*, enforceability of warranty exclusion
article*, government approvals required, other formalities, etc;

6. does not contain provisions which are vague or imprecise*, or are of
such wide application as to become meaningless or which contains internal
inconsistencies.

Clearly in certain situations in most contracts, it is not going to be possible to set out every last detail, and consequently it is incuritable* that certain allegations are going to be expressed accurately to some kind of "reasonableness" or "materiality" test.

Notes

interactional — взаимодействующий transactions — сделки

comprehensive and carefuly drafted contracts — исчерпывающие и

тщательно подготовленные контракты rights and obligations — права и обязанности explicitly — точно, открыто

force majeure — форс-мажор; непреодолимые обстоятельства contingencies — непредвиденные обстоятельства, случайности suspension article — статья о приостановлении действия applicable laws — применяемые законы anti-trust issues — антитрастовые законы warranty exclusion article — статья об исключении договорных

гарантий

vague or imprecise — туманные и неточные incuritable — неисправимый

Ответьте на вопросы.

1. What are contracts?

2. Are contracts legal obligations?

3. What are the two most traditional prerequisites necessary to define
which agreements and promises are enforceable by court as
"Contracts"?

4. Which agreements are legally enforceable?

5. What does Common law system generally require to make a contact
enforceable?

6. How does English law differ from other legal systems in giving
individuals and companies freedom of choice?

7. Will an English court seek to impose its own notions of 'fairness' or
'reasonableness' on the terms of the contract? If not, why?

8. Name the reasons for having a properly drafted contract. Give your
comments.

9. Why does the role of the lawyer in preparing contracts become more
important?

 

10. What should be clearly observed in making a contract?

11. Give your comments on every point.

UnitFourteen

THE LAW OF TORTS*

Tort*: wrongful act* that causes injury* to a person or property and for which the law allows a claim under civil law, the law in the United States that governs the relationships between individuals* — for example marriage, contracts, or injuries. The civil law concerning torts attempts to remedy injuries* suffered* by individuals or corporations by forcing* the party who caused the harm* to compensate* the victim*. In contrast, criminal law governs the relationship between the government (state) and the individual and punishes* a person who acts in a way considered harmful to society* as a whole.

Both torts and contracts are governed by civil law, but the duty that exists between the person who commits a tort* and the person injured does not result from* an agreement or contract. In other words, a person does not have to form a contract* with another person in order to prevent that person from assaulting* him or her. Instead, society requires that individuals act in certain ways and requires them to provide compensation* if they injure someone because they failed to act in the required manner*.

In the 1990s lawsuits* based on tort made up nearly half of all lawsuits in the United States. Over 1.5 million tort claims are filed every year in the United States. The majority of tort cases involve automobile accidents*, medical malpractice*, or defective products*

Notes

law of torts — деликтное право

tort - гражданское правонарушение, деликт, проступок wrongful act — проступок, правонарушение, деликтный вред cause injury — причинять вред, наносить ущерб, телесное

повреждение govern the relationships between individuals — регулировать

отношения между частными лицами remedy injuries — возмещение ущерба (вреда) suffer injuries - пострадать от ущерба, вреда, телесного

повреждения force — принуждать cause the harm — наносить вред compensate — компенсировать, возмещать victim — жертва punish — наказывать

who acts in a way considered harmful to society — кто действует таким образом, который считается наносящим вред обществу commit a tort - совершать правонарушение result from — проистекать из form a contract — заключить контракт assault — нападать, словесно оскорблять, угрожать физическим

насилием

provide compensation — обеспечивать компенсацию in the required manner — требуемым образом lawsuit — судебный иск automobile accidents - автокатастрофы medical malpractice — преступная небрежность врача, профес*

сиональная некомпетентность врача defective products — некачественные товары

CONSTITUTIONAL LAW

Constitutional law, the law of the British constitution, is often said to be unwritten in the sense that there is no single document in Britain called 'The Constitution'. However, every British protectorate and colony has one, and so does nearly every country in the world. The reasons for this state of affairs are historical. There has been no fresh start after a revolution or other landmark in our history, unlike in the United States or Malaysia. Nevertheless, there are many documents from which the British constitutional law can be collected. There are Acts of Parliament, like the Bill of Rights 1689, the Act of Settlement 1701, the Act of Union with Scotland 1707 and the European Communities Act of 1972, all of which contain major rules of constitutional law. Rules of more detailed importance are to be found in such statutes as the Representation of the People Acts 1983 and 1985, the Peerage Act 1963, the Parliament Acts of 1911 and 1949 and the Local Government Act 1988,, among many others. It seems that every year statutes are made which add to the constitutional law.

Further to this the law is found in common law rales such as the fundamental rule which pronounces that Parliament is sovereign, a rule now affected by the European Communities Act 1972. Furthermore there is a collection of conventions which applies to the constitution and there are the residual powers* within the royal prerogative*. Finally there exists the law and custom of Parliament itself, concerning its functions, procedures, privileges and immunities*. This, then, is the subject matter of constitutional law.

Notes

the residual powers — оставшиеся полномочия

the royal prerogative - право прерогативы короны

immunity — неприкосновенность, иммунитет

ADMINISTRATIVE LAW

Administrative law is concerned with public authorities*. It comprises the law relating to the formation, powers and duties of such authorities and the procedures involved* when they are formed or where their powers are exercised*, or duties fulfilled. It is also concerned with the relationships between such public authorities, between the authorities and their employers and between them and the public at large*.

Administrative law can be seen as a network of controls over the use of public powers, but it also provides the means by which the workload* of public authorities can be successfully achieved. It provides the means for getting things done.

The public authorities in question* extend from the Crown through the nationalised industries, the Commission for Racial Equality, ACAS (the Advisory, Conciliation* and Arbitrian Service), the BBC and Independent Broadcasting. Authority, local government, and many others, including the maze* of administrative tribunals set up, among other things, to settle disputes about the use of public power.

Notes

public authorities — общественные власти

the procedures involved — задействованные процедуры

powers are exercided — полномочия осуществляются

at large - в целом

workload — объем работ

in question — зд. о которых идет речь, обсуждаемые

Conciliation — разрешительная комиссия

the maze — зд. сложная система

COPYRIGHT LAW

Copyright law protects original works of authorship* which are written down or recorded. The U.S. International Trade Commission* has defined "copyright" as "a form of protection provided by a national government to authors of original works of authorship, including literary*, dramatic, musical, artistic, and certain other intellectual works". As with other types of policies for intellectual property, the fundamental policy of copyright law* is to provide protection for works so that they can be distributed in the

public domain. In the United States, the copyright protection lasts for the life of the author, plus fifty years. Copyright protection applies to*: literary works, plays, computer programs, and other kinds of works of authorship. The owner of a copyright may place a copyright symbol on the work as a warning* to others that the work is protected. The symbol consists of the letter "C" with a circle around it*; ©. Following* the creation of the Copyright Act of 1976, most copyright law in the United States is governed by federal statute*. If copyright is violated, the owner of the right may seek damages for the copyright infringement*.

Example: Mrs. Author writes an original play and composes original music for the play. She applies for two copyrights*. One for her play, and one for the music that she created for her play. She now has two copyrighted works which are protected..

Notes

original works of authorship - подлинные авторские работы the U. S.International Trade Commission — Международная торговая

комиссия США

literary works — литературные произведения the fundamental policy of copyright law — основная задача (цель)

закона об авторском праве

copyright protection applies to — защита авторского права распро­страняется н? warning — предупреждение with a circle around it — обведенный кружком following (smth) - вслед (за) federal statute — федеральный закон

seek damages for the copyright infringement — требовать возме­щение убытков за нарушение авторского права apply for copyright — обращаться за получением авторского права