HTMG3041 Law Notes PDF

HTMG3041 LAW notes Week 1: Legal System What does the word “Law” mean? Rules with two particular characteristics: 1. Created by authority (**happened at the same time**) 2. If broken, authority will uphold or enfor...

HTMG3041 LAW notes Week 1: Legal System What does the word “Law” mean? Rules with two particular characteristics: 1. Created by authority (**happened at the same time**) 2. If broken, authority will uphold or enforce it In Hong Kong: - Laws created by HKSAR legislature - HKSAR courts uphold and enforce laws Courts and all relevant personnel are the judiciary. 法院和所有相關人員都是司法機關。 Laws are divided into TWO parts: - Civil Law 民事 (Standard of prove, only balance) - Criminal Law 刑事 [normally involve polices, gov’t] (forbidding certain conduct and punishing those who break the law, punishments are fine and imprisonment) Civil Law à Deals with private rights and obligations of persons à A person can be an individual or a company (in law) EG: this company owe me something (民事索償) Includes wide range of law: - The law of contract 契約法 - The law of tort 侵權法 - The law relating to wills 與遺囑有關的法律 - Property law 物權法 - Family law 家庭法 Purpose of bringing a civil claim before the courts is to uphold and enforce a person's rights and to recover the losses which a person may have suffered. 向法院提出民事索賠的目的是維護和執行個人的權利並挽回個人可能遭受的損失 General principle of the civil courts is to place the innocent party in the position such party would have been in if the other party had not defaulted. 民事法院的一般原則是將無過失方置於另一方沒有違約的情況下該方應處於的位置 Civil Law is not concerned with punishment. 民法不涉及懲罰 A civil claim which is brought to the courts is described as action or a suit. 向法院提出的民事索賠被稱為訴訟或訴訟。 The person who brings a civil claim to the court is the plaintiff and the part who is being sued is the defendant. 向法院提出民事訴訟的人是原告，被起訴的人是被告。 The plaintiff is required to prove his case on a balance of probabilities. 原告必須權衡可能性來證明他的案件。 Prove to the court that plaintiff’s claim is stronger than the defendant’s claim. 向法庭證明原告的主張比被告的主張更有力。 Standard of proof is lower that required for a criminal prosecution – beyond a reasonable doubt. 證據標準低於刑事起訴所需的標準—排除合理懷疑 Different Standard of Prove Civil Law – balance of probabilities Plaintiff 原吿（起訴人） Defendant （被告） The evidence which establishes that the plaintiff’s claim is more probable than the defence. Criminal Law- beyond a reasonable doubt Defendant （被告） Prosecution （控方律師） The evidence which establishes that the prosecutor’s case beyond a reasonable doubt 民事審訊 Civil Law 刑事審訊 Criminal Law - 原告人有責任證明申索成立 - 控方有責任證明被告有罪 - 舉證準則是「相對可能性衡量」 - 被告毋須證明自己無罪 “On the balance of probabilities” - 控方舉證準則是「毫無合理疑點」 （1） 證明事實版本「可能是真」 （1） 要令人肯定被告有罪 （2） 此標準較「毫無合理疑點」低 （2） 不肯定之處「疑點利益歸於被告」 Ÿ A person may be accused of a criminal offence and sued in the civil courts relating to the same incident （犯刑事罪行可以同時被民事起訴） Example：車禍---車撞到路人腳斷 - 疏忽駕駛 careless of dricing (criminal) - 疏忽導致侵權責任 tort of negligence (civil) ß only for compensation eg medical fee CRIMINAL LAW CIVIL LAW Behaviour an offence/crime a right/obligation Parties prosecution v defendant plaintiff v defendant Burden of proof beyond a reasonable doubt balance of probabilities 排除合理懷疑 相對可能性的衡量 Consequences punishment – fine/imprisonment compensation for the loss - damages Remarks: Business law mostly related to civil law (contract, private right and obligation) HKSAR Legal System (common law system) Ÿ Two primary sources of law: (1) case law: evolved over many centuries from the decisions made by judge 就是以個案判例的形式表現出的法律規範，以遵循先例的法律原則作為其建立的基礎 (2) legislation: made under the authority of the government Ÿ Common law systems operate in, for example, the United Kingdom, the United States, Canada, Singapore, Malaysia, New Zealand, Bermuda, the Cayman Islands, and Australia Other legal system – Civil code Ÿ A code, or some other form of legislation, is the only source of law. The judges are required to interpret the code, but their judgments are not a source of law. Doctrine of precedent Ÿ What is the meaning of "precedent"? 先例 - a decision about a particular legal case that makes it likely that other similar cases will be decided in the same way。 - The judgment on pension rights has established/ set a precedent Case Law Ÿ Judges who hear a dispute will keep a record of each case Ÿ That record is described as a judgment Ÿ The judgment is a statement of the reasons for the decision and will include: o findings of fact (robbery, murder…) o statements of law applied to the legal problems raised by those facts o statements of law made “by the way”the decision Ranking of courts Court of Final Appeal Court of Appeal Court of First Instance How to find an ordnance? 條例 Ÿ Hong Kong e-Legislation https://www.elegislation.gov.hk How to find a judgement? Ÿ Legal Reference System https://legalref.judiciary.hk/lrs/common/ju/judgment.jsp Operation of the “Doctrine of Precedent” 秉承先例 Ÿ The basis of the doctrine of precedent is that 'like cases should be treated alike, and dissimilar cases should be treated differently’. 先例原則的基礎是「同類案件應同等對待，不同案件應區別對待」 。 Ÿ To follow a decision previously made is the fundamental principle of precedent 遵循先例是先例的基本原則 Ÿ The operation of the doctrine of binding precedent is limited, however, to the ratio decidendi of previous cases. In other words, the ratio is the only part of the decision which is a binding precedent 條例有限，所以先前案例的決定比率會成為唯一的具約束力的先例（binding precedent） System of HKSAR courts (generally separates the cases): Ÿ Civil law matters Ÿ Criminal law matters Civil Law matters are divided depending on: Ÿ nature of the claim and amount of money involved o lesser amounts are dealt with by the District Court o higher amounts are dealt with by the Court of First Instance 高等法院 Criminal Law matters are divided depending on: Ÿ seriousness of the offence o lesser criminal offences are heard by the Magistrates' Court 裁判法院 o more serious offences are heard by the District Court o most serious offences go for trial before a judge and jury in the Court of First Instance. Ÿ Lesser criminal cases are described as summary offences (e.g. careless driving, littering) Ÿ More serious cases are described as indictable offences (e.g. robbery, murder) Week 2: Contract Law (Part 1) What is a contract? à In simple terms, it may be described as an agreement which contains an exchange of promises. 它可以被描述為包含交換承諾的協議. - Not necessarily need to be written down, can be a verbal agreement 口頭協議 à siblings, brothers and sisters, not consider as contract, need to be written down. Importance of contract law Ÿ Ensuring smooth operations Ÿ Protecting interest of all parties Ÿ Fostering trust Ÿ Facilitates trade and business Ÿ Business activities and new business ideas Three elements are required with respect to negotiating a contract. 1. An offer 2. Acceptance of offer 3. Consideration (*代價 something to forgo) What is an offer? What is an acceptance of offer? Someone said, “I can give you”, acceptance: “yes” → acceptance is required for the agreement. “YES” Offer VS an Invitation To Treat à If a statement is an offer, you have the option to accept it and reject it. à If a statement is an invitation to treat, you can choose to make an offer in response. EG How much do you want to pay for that… can choose to walk away or make an offer. “Bottled water for sale, $10”…. offer or invitation to treat? (before saying anything) [fixed item and price] → Invitation to treat, because if only got one, when 5 ppl bidding it, I cannot give the other 4. → I can choose who I sell the water to. General Rule: à one person, it is likely to be an offer à a group of people, it is likely to be an invitation to treat What about an advertisement offering to pay a reward for lost property (e.g. a watch, a necklace, etc)? Ÿ It will generally constitute an offer, and this is sometimes described as “an offer to the whole world” The distinction between an offer and an invitation to treat is not restricted to advertisements. à Goods displayed on the shelves of a department store or supermarket? If goods are displayed on the shelves of a department store or supermarket, the store is not offering to sell the goods; it is merely inviting its customers to make an offer to buy them. à When the customer takes the selected good to the cashier, such customer is offering to buy them (to see if the supermarket to accept the offer or not). Tenders - When a person wants to buy certain goods or wants certain work to be done, such person may advertise, and invite offers to perform such a contract. - Offers made in response to such an advertise are described as tenders for a contract. - Example: a property developer may advertise for tenders to construct a new office building. Any number of builders may tender (offer) to perform the contract, and the developer will then accept the offer they believe to be the best. Withdrawing an offer - Once an offer has been made, the offeror - that is, the person making the offer - may change is mind and decide to withdraw his offer à This process is called revocation of an offer 撤銷要約 - An offer may be withdrawn (revoked) at any time prior to acceptance, but in order to be legally effective, the withdrawal must be communicated to all persons to whom the conyract was made. The offeror may communicate the withdrawal (revocation) himself, or it may be communicated by some other reliable person. 要約在接受之前可以隨時撤回（撤銷） ，但為了具有法律效力，撤回必須傳達給所有接受撤回的人。 要約人可以親自傳達撤回（撤銷）的通知，也可以由其他可靠的人傳達。  If I paid for the second offer, you cannot sell it to others Duration of contract à Time is the money - An offeror may specify that his offer is open for a certain period of time - In Dickinson v Dodd, the offeror specified that his offer was open until Friday - In this situation, there are two offers: → an offer to sell the property (the first offer) → an offer to keep the first offer open for a period of time (the second offer) - An offeror is not, however, bound to keep his offer open for the period of time he has specified (i.e, the second offer) unless the offeree has accepted that offer - If the offeree makes a payment to the offeror for the second offer, there will be consideration for their agreement and, subject to their having the intention to create a legally binding contract and capacity to contract, a contract to keep the offer open for a period of time will result. Example - If X offers to sell his bicycle to Y for $5,000 and states, ‘the offer will remain open until next Sunday’ and Y pays X $10 to keep the offer open, then X is contractually bound to keep his offer open for Y to accept until next Sunday. - If there is a legally binding contract to keep an offer open for a certain period time, the offeror will be liable in damages for breach of contract if X agrees to sell the goods to someone other than Y within the period granted to Y for acceptance. - Even if there is no contract to keep an offer open, if the offer is for a specified period, it will lapse, i.e., become invalid, when the time limit expires. In the example given above, if Y does not contract with X to keep the offer open, the offer will automatically lapse on thev Sunday. - If the offeror does not specify the duration of his offer, it will lapse after a reasonable period of time; what is reasonable depends upon all the circumstances, including the nature of the goods (保質期) Acceptance of the offer - It is the process of acceptance which brings and agreement into existence and fixes the terms of contract (no matter anything said after that) - Statements which are made after an offer has been accepted cannot be terms of the original contract. The process of acceptance must confirm with a number of well-established general rules: - The offeree must agree to all the terms of the offer 受要約人必須同意所有要約的條款 - Acceptance cannot be deemed or assumed 不能視為或假定接受 - Acceptance must be communicated to the offeror 接受必須傳達給要約人 Week 3: Contract Law (Part 2) Ÿ consideration for an agreement Ÿ intention to create a legally binding contract Ÿ capacity to enter into a contract Ÿ terms of a contract Consideration Ÿ Offer accepted by another does not result in a legally binding contract Ÿ Agreement must constitute a “bargain” Ÿ Each party must promise some benefit to each other Ÿ If the offeror makes a promise to the offeree and nothing is promised in exchange, the offeror is not bound by his promise Concept of an exchange of promises is known as “consideration” Ÿ If A agrees to sell a bottle of water to B for $10: Ÿ → The promise to B is the benefit of the bottle of water. Ÿ → The promise to A is the benefit of $10. What is executed and executionary consideration? 已執行 vs 待執行 Bottled water example: Executed consideration Ÿ If A gives the bottled water and B gives $10 in return, both promises are executed Executionary consideration Ÿ If A states that the bottled water will be delivered 3 days later and payment must be made on delivery and B accepts this, both promises are executory Deed (遺囑 is one of the EG) Ÿ A specialty contract Ÿ Does not require consideration Ÿ If B promises to give A by deed, it is legally binding Ÿ Signing block: signed, sealed and delivered Well established rules about consideration Ÿ May be executed or executory, i.e., present or future, but it ‘cannot be in the past’ Ÿ Must move from the promisor Ÿ Must be legal Ÿ Must be something of value [I give you a watch, you take care of my grandma 3 times a week] (disregard the value, not relevant to law) Ÿ Must be sufficient but need not be adequate Past consideration is no consideration Ÿ Two situations (in the following slides) where an agreement is commonly made but not legally binding Ÿ Reason: the consideration for the agreement is past First situation: Ÿ An act is done voluntary Ÿ After that, an agreement is made to perform such act in return for a promise Example: o If B voluntarily promises to clean A's home and when B has finished, A promises to give B $10 o there is no contract between A and B o the act of cleaning was not performed in exchange for the A’s promise to give B $10 Second situation: Ÿ Where a legally binding contract has been made and subsequently one of the parties tries to change the contract by a promise of some variation or amendment. Example: o If A contracts to sell his mobile phone to B and subsequently promises B that he will replace the screen cover but fails to do so, then B cannot sue A on the promise. o The new promise was not part of the original offer and acceptance. o Exceptions: B gives some consideration for it or the promise is contained in a deed.