Civil law common law system. Учебно-методическое пособие

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КАФЕДРА ИНОСТРАННЫХ ЯЗЫКОВ Н.Б. Зайцева УЧЕБНО-МЕТОДИЧЕСКОЕ ПОСОБИЕ CIVIL LAW IN COMMON LAW SYSTEM

Под редакцией Заслуженного работника Высшей школы К.ю.н., профессора И. А. Горшеневой

ПОЯСНИТЕЛЬНАЯ ЗАПИСКА

В состав сборника включены аутентичные текстовые материалы и ряд упражнений, способствующих развитию навыков чтения литературы по специальности, а также формированию навыков иноязычного делового общения. Пособие состоит из 7 разделов (units). В первом разделе представлены общие сведения о гражданском праве в сравнении с другими отраслями

права,

а последующие

шесть разделов

посвящены его

институтам. Тематика и содержание текстов могут способствовать развитию познавательной

активности

обучающихся

профессиональных знаний.

2

и

расширению

их

CONTENTS

.

1 Civil law 2. Family law 3. Wills and Iheritance 4. Property Law 5. Housing Law 6. Contracts 7. Torts

з

UNIT 1 CIVIL LAW

It is interesting to know. Civil law may refer to: -

Civil law (legal system, a system of law based on the Corpus Juris

Civilis of Emperor Justinian (Roman Law); -

Civil law (area), a branch of continental law which is the general part

of private law; -

Civil law (common law), a branch of common law dealing with

disputes between individuals or organizations (as opposed to criminal law); -

Secular or civil law, law that is not religious law; Law that is not military law or martial law.

Civil Law (Common Law) Legal systems around the world vary greatly, but they usually follow civil Law orCommon law. In common law countries such as England, Wales and the United

States, the term “civil law” refers to non criminal law. It isoften

suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may this be distinguished from criminal proceedings whose purpose is to inflict punishment. Civil Law corresponds to these areas of Common Law:

1. Family 2. Property 3. Wills 4. Contracts 5. Torts

It is primarily concerned with the rights and duties of individuals towards each other. Special areas of private law which are not the parts of civil law: 4

-

Commercial law;

- Labour law; -

Conflict of laws.

Text 1 Pre-reading task Make a careful study of the words given below. They will help you understand the text: will - завещание; tort - гражданское правонарушение; to honor - зд. уважать, соблюдать (права, обязанности и т.д.); dispute - спор; to award - зд. выносить решение, присуждать; equity - справедливость, право справедливости; closure - прекращение прений; to acquit - оправдать, признать невиновным; deterrence - удерживание от совершения действий устрашением, неизбежность наказания; probate - доказывание подлинность завещания.

Read the text and find answers to these questions in it: 1. What branches of law is civil law compared with in the text? 2. Does an action in criminal law necessarily preclude an action in civil law in common law countries? Give reasons.

Civil Law in Contrast to Other Branches of Law P arti Civil law, as opposed to criminal law, refers to that branch of law dealing with disputes between individuals and/ or organizations, in which compensation may be awarded to the victim. For instance, if a car crashes victim claims 5

damages against the driver for loss or injury sustained in an accident, this will be a civil law case. In the common law, civil law refers to the area of laws that affect the legal status of individuals. Civil law, in this sense, is usually referred to in comparison to criminal law, which is that body of law involving the state against individuals (including incorporated organizations) where the state relies on the power given it by statutory law. Civil law may also be compared to military law, administrative law and constitutional law (the laws governing the political and law making process), and international law. Where there are legal options for causes of action by individuals within any of these areas of law, it is thereby civil law. Civil law courts provide a forum for deciding disputes involving torts (such as accidents, negligence and libel), contract disputes, the probate of wills, trusts, property disputes, administrative law, commercial law and any other private matters that involve private parties and organizations including government departments. An action by an individual (or legal equivalent) against the attorney general is a civil matter, but when the state, being represented by the prosecutor for the attorney general, or some other agent for the state, takes action against an individual (or legal equivalent including a government department) this is public law.

Part II The objectives of civil law is different from other types of law. In civil law there is the attempt to right a wrong, honor an agreement, or settle dispute. If there is a victim, they get compensation, and the person who is the cause of the wrong pays, this being a civilized form of, or legal alternative to, revenge. If it is an equity matter, there is often a pie for division and it gets allocated by a process of civil law, possibly invoking the doctrines of equity. In public law the objective is usually deterrence, and retribution. The victim or people secondarily

6

harmed by the wrong, do not get compensated, except with that vague notion called “closure”, and there is no pie for division. An action in criminal law does not necessarily preclude an action in civil law in common law countries, and may provide a mechanism for compensation, to the victim of crime. Such a situation occurred when O.J. Simpson was ordered to pay damages for wrongful death after being acquitted of the criminal charge of murder.

Practice Task 1. Match the branches of civil law with their definitions:

1. Law of Contract

a) determines the devolution of property on the death of the former owner and in certain other events

2. Law of Tort

b) defines the rights, duties and status of husband and wife, parent and child, other members of a household

3. Law of Property

c) determines whether a promise is legally enforceable and what are its legal consequences

4.

Law

of d) deals with civil wrongs for which the remedies are

Succession

common law actions for unliquidated damages

5. Family Law

e) determines the nature and extent of the rights which people may enjoy over land and other property

Task 2. Read the text “Civil law in contrast to other branches of law” again and find the English equivalents of the following: требовать

возмещения

убытков;

затрагивать

правовой

статус

физических лиц; в сравнении с; организация, обладающая правами юридического основание

лица;

иска;

право,

сторона -

выраженное

в законодательных

частное лицо;

урегулировать спор.

7

соблюдать

актах;

соглашение,

Task 3. Answer the questions to the text: 1. What disputes are solved in civil law courts? 2. What is the difference between civil law and criminal law? 3. What makes civil law and public law different? 4. What other branches of law may civil law also be compared to? 5. What makes civil law cases different from revenge?

UNIT 2 FAMILY LAW

Text 2 Pre-reading task Study the following words and collocations: child benefit - детское пособие; to promote - содействовать, способствовать; to transfer - передавать (права).

Then read the text and answer the questions below: 1. What is the main function of the family? 2. Are the laws concerning the family the same in different countries of the world?

Family Law Beyond the mere function of providing a new generation of children, the family is often promoted for its moral contribution to society. In some societies the family is thought to be so important that there is very little legal intervention in family life. In many Islamic countries, for example, fathers, brothers and sons are allowed considerable authority over the females in their family. But in many parts of the world the law now promotes the rights of individuals within the

family unit, and regulates family relations though legislation. Raised from the taxes of working population as a whole, child benefit is paid directly to the mother, and retirement pensions are paid to grandparents, so that they are less dependent upon financial support from a family member. In Sweden, parents can be prosecuted for physically punishing their children. In Britain, as in many countries, there are special family courts with very strong powers to control and transfer private property in the interests of children. In Britain, as in many countries, there are special family courts with very strong powers to control and transfer private property in the interests of children.

Text 3 Pre-reading task Study the following words: arrangement - соглашение, договоренность; spouse - супруг(а); divorce - развод; recipient - получатель; consummate - осуществить брачные отношения.

Read the text below and answer the questions: 1. Does marriage differ from other types of contracts? In what way? 2. Is the legal difference between the married and unmarried changing nowadays?

Marriage Law Marriage is a personal, social, religious, economic and legal relationship. In legal terms, marriage is a contract between two people who agree to live together as husband and wife. Marriage creates legal rights and duties for each partner. However, marriage is different from other contracts in several important 9

ways. The marriage contract involves three parties: the husband, the wife and the state. The law in most countries places more emphasis upon marriages legally registered than social arrangements whereby people live together. In Japan, some couples prefer not to register their marriage because the law requires one of them to give up his or her name in favor of the other. The birth and residence documentation of children bom to such marriages is different from that of other children and sometimes leads to discrimination. In Britain, children bom outside legitimate marriages have fewer rights to financial support from estranged fathers than legitimate children. In addition, if they are bom outside the UK, they are less likely than legitimate children to be granted British citizenship. Their fathers have no automatic right to have contact with them. Some welfare payments are calculated on a different basis according to whether recipients are married or not, and more procedures are available to a married woman than an unmarried one in seeking protection from domestic violence. However, in most industrialized countries, the legal differences between the married and the unmarried are decreasing. It is not surprising this should be the case in nation like the United States, for example, here 25 percent of babies are now bom to unmarried parents. In English law, some marriages maybe readily dissolved, or nullified - for example: if the couple never consummated the marriage, are blood relations, are under the legal age of sixteen, are both women, or, despite a surgical sex change, are both men. In other cases, a couple may seek a divorce. The procedure may be lengthy, especially if one spouse does not want to get divorced, or if there are children. In no case will English law allow divorce proceedings to start within a year of the marriage.

Text 4 Pre-reading task Make a careful study of the following words: 10

respondent - ответчик, особенно в бракоразводном процессе; custody - зд. опека, попечение; a lump sum - общая сумма; reconciliation - примирение.

Read the following questions and find the answers to them in the text below: 1. What courts deal with divorce proceedings in England? 2. Is it necessary to prove the reasons for divorce when petitioning for it in court?

Divorce Law Divorce proceedings in England take place in certain County Courts known as divorce county courts. Some matters are also dealt with in the Family Division of the High Court. It is necessary for one of the parties to convince the court that the marriage has broken down irretrievably - without any chance of reconciliation. To do this the person seeking, or petitioning fo r divorce, must prove one of five things: that the other party, or respondent, committed adultery (had sex with someone else); that the respondent’s behavior has been unreasonable; that the respondent deserted the petitioner at least two years previously; that the couple has lived apart for two years and both agree to a divorce; or that they have lived apart for five years. Even if the court is satisfied that there is enough evidence of one of the above, a divorce will not be issued until satisfactory arrangements have been made for any children of the marriage, including determining who is to have custody of the children, the rights of the children to maintain contact with the other parent, and financial arrangement for the children’s welfare. The High Court or divorce county court has wide powers to order both an ex-husband and an ex-wife to make financial provisions for the other and for their children. This may include periodic payments, a lump sum of cash, transfer li

of property into the other spouse’s name, or sale of property so that the money can be divided. When a couple separates, whether married or unmarried, the welfare of any children and the division of any property are the most important, and often the most difficult problems, to resolve. In the case of property, the courts have to find a balance between two principles. One is that any division should fairly reflect how much each party contributed to the property they held together. The other principle which courts must consider is the needs of the parties. It is no longer assumed that a woman who was financially dependent on her husband when they were married will remain so after they are divorced.

Text 5 Pre-reading task Study the following words and collocations: consent - согласие; at issue - подлежащий рассмотрению в суде; on behalf of - от имени; guardian - опекун, попечитель.

Read the text below and answer the questions: 1) Can you find any examples of discriminations in the text concerning the laws about protection of children? 2) Do legal systems in various countries treat children and adults differently?

Protection of Children In general, the welfare of children is the biggest concern of family law. Virtually all societies, and certainly all legal systems, treat children differently from adults. There are special courts to deal with young people who commit crimes. In economically developed countries, there are limits on the type and 12

amount of work a child is allowed to do. There are age limits on the rights and duties of citizens; however, these vary from country to country. A Japanese may not vote until he is twenty, but a German may vote at eighteen. A Briton may marry at sixteen with his parents’ consent, or at eighteen without it; a French girl may marry at fourteen, but a boy must wait until he is sixteen. In some parts of the United States you may drive a car at fifteen, but in others, not until eighteen. It is interesting that in many places a person may be sentenced to death at an age when he is not allowed to vote. Parents have a duty to make decisions, for example those concerning education, on behalf of their children. When parents are dead or absent, a legal guardian is appointed to make these decisions. Sometimes this is an adoptive parent - a person who legally adopts the as his or her own and has all the rights and duties of a natural parent. Sometimes, it is a local authority, as in the case of children who have been taken into care because their parents are ill, in prison or unable to take care of them.

Practice Task 1. Find in the text the English equivalents of the following: телесное наказание; пенсия по старости; раздельно проживающие отцы; насилие в семье; добиваться развода; совершить супружескую измену; финансовое обеспечение; заботиться о детях; условия развода; эмоциональная поддержка; вносить вклад; с согласия родителей; от имени своих детей; законный брак.

Task 2. True or false under English law: 1. Only family courts in Britain are directly relevant to family life. 2. Children born outside legitimate marriages have the same rights to financial support from their fathers as legitimate children. 3. Divorce may not be granted within a year of marriage. 4. After two years of living apart a couple may get divorced, even if one of them objects. 13

5. A divorce may be arranged without a lawyer.

Task 3. Answer the questions to the text: 1. In what ways do the UK laws favor marriage over unmarried relationships? 2. In what cases a marriage may readily be nullified? 3. Under which circumstances a divorce procedure may be lengthy? 4. What are the most important issues to resolve in court when a couple separates? 5. What are the two principles an English court considers when dividing family property during a divorce?

Task 4. Make a list of age limits in your country for such activities as marriage, voting, driving a car, smoking, buying alcohol.

UNIT 3 WILLS AND INHERITAN CE

Text 6 Pre-reading task Study the active vocabulary will - завещание; probate

-

утверждение

завещания,

доказывание

завещания; inherit - наследовать; testator - завещатель; estate - имущество, собственность; intestate - умерший, не оставивший завещания; law of succession - наследственное право. 14

законности

Read the first part of the text and answer the questions 1. Why is it important to make a will? 2. Does the testator necessarily leave the property to their relatives?

Wills and Inheritance Part I A will is a document that tells how a person wants his or her property distributed after death. Everyone who has money or property should consider making a will. A will insures that anything you own goes to whom you wish in the amounts you choose. Many people make a will before their death containing their instructions regarding what is to happen to their property when they die. In English law, the maker of a will is called a testator. The will need not be drawn up by a lawyer, but there are certain regulations about how it must be made. For example, it must be in writing, and there must be two witnesses who sign the will. Clearly such requirements are necessary since once the testator is dead, no one can ask him to explain his intentions. The testator may give away all of his property (his estate), both real and personal. He need not give it to a family member. However, under the 1975 Inheritance Act, English courts have some powers to modify the will if it is unfair to a spouse, child or other dependent. A will can be quite a simple document. Yet many people never make one - they die intestate. Sometimes this is because of carelessness. But often it is simply because they do not have a great deal of property and believe it is clear who will inherit that property after their death. In most countries, there are laws o f succession which clearly lay down who is entitled to the property of an intestate relative and in what order. Under English law, a surviving spouse is at the top of this order, followed by children, parents, brothers and sisters, grandparents and uncles, aunts and cousins. If there are no relatives at all the property passes to the State, but it is likely that the court will make some

provision for any non-relative who had been dependendent

of

the

dead

person.

Text 7 Active vocabulary codicil - дополнение к завещанию; partial intestacy - неполное завещание.

Read the second part of the text and answer the questions: 1. Why is it necessary to consult an attorney when making a will? 2. What is the difference between an executor and an administrator?

Part II A husband or a wife is required to provide for the other in the will. If they do not, the law usually gives the living spouse a share, usually one-third to one-half of the property. If a married woman dies and leaves all her property to a brother, her husband can still claim and receive a share of her property. The law also requires parents to provide for minor children in a will. However, once children reach the age of majority, there is no requirement to include them. Many rules and technical details are involved in writing a will. As a result, most people should consult an attorney. A good lawyer can usually draft a simple will and advise on tax- saving ways to divide a person's estate. Wills may be simple, or they may very detailed. A detailed will may contain instructions on what happens to every

item the person owns, exactly what

happens at the funeral, and many other things. People with young children often include a clause naming someone a guardian for their children. The courts are not required to follow this direction, but they usually do unless there is a strong reason not to or the named guardian is unwilling to take the children . Wills can usually be revoked by ripping them up. Wills can also be changed by adding a codicil or an amendment to the original will. 16

However, any significant change should usually be accomplished by destroying the old will and writing a new one. When

someone dies, the executor

or executrix

named in the Will

becomes very important. If there is no will this person is named by the court and is called an administrator. The executor or administrator usually arranges the funeral and the burial or cremation; locates the will and delivers it to the register of wills, who will probate it (verify and read it); takes charge of the deceased’s property; keeps records; pays income, estate and inheritance taxes; and, with court approval, gives out the property to the persons named in the will, called heirs.

Practice Task 1. Give the English equivalents of the following: составить

завещание;

распределить

имущество;

подписать завещание; намерения; небрежность; доля; пункт завещания; опекун; налог на

организовать похороны;

свидетель;

совершеннолетие; подоходный налог;

передачу имущества по наследству; налог на

наследство;

иждивенец.

Task 2. True or false: 1. The will has to be drawn up only by a lawyer. 2. There must be two witnesses to sign the will. 3. English courts don't have any powers to modify the will if it is unfair to a spouse, child or other dependant. 4. People don’t make a will only when it is clear who will inherit the property after their death. 5. If there are no relatives at all the property passes to the state.

Task 3. Answer the questions to the text 1. What are some regulations how to make a will? 17

2. How is the maker of a will called in English law? 3. What does the law of succession lay down? 4. What happens to the property if there are no relatives at all? 5. What clause must people with young children include in their will?

UNIT 4 PROPERTY LAW

Text 8 Pre-reading task Study the following list of words: real estate - недвижимое имущество; personal estate - движимое имущество; installment - очередной платеж; security - зд. залог; to rent land - зд. брать землю в аренду.

Decide why land is considered the most important from of property all over the world. Discuss your ideas in pairs. Read the text and see whether you were right.

Land Law In most legal systems a distinction is made between land and other kinds of property. Sometimes land is called real estate in contrast to personal estate or immovable assets in contrast to movable assets such as furniture and vehicles. Here “land” refers not only to a piece of ground, but to any building upon it. All over the world people think of land as the most important form of property. A subsistent farmer in a developing country needs secure right to use a piece of land in order to grow food for his family. A city dweller needs shelter from cold and heat

and theft. Many people spend all their working lives paying installments on a house or apartment so that they will own the place in which they live when they stop work and will have something of value to pass on to their children. Of course, it is business property - shops, factories, offices, hotels - that is the most valuable land of all. Land is not just a site tor dwellings or workplaces, but a commodity which can be sold, rented out or used as security in order to borrow money which can be used to buy shares or other pieces of land.

Text 9 Pre-reading task Study the words and collocations below: fee simple absolute in possession (freehold) - безусловное право собственности; term of years absolute - срочное безусловное право владения; leasehold - владения на правах аренды; to forfeit - терять утрачивать (о правах, имуществе).

Read the text and answer the questions: 1. What does the term “an estate” mean? 2. What is difference between people living in houses and appartments in England?

Estate in English Law In 1925, several laws were passed in England in an attempt to simplify the system of holding and transferring land. These laws recognized two estates in land. An estate is a right to possess land for a defined period of time, and the estates recognized are (1) “fee simple absolute in possession” and (2) “term of years absolute”. The first means that the landholder owns the land throughout his life unless he sells or gives it to someone else. Eventually, this land will pass to his heirs (people entitled to the property ot someone after he dies). The second is the right to hold land for a certain fixed period, after which 19

the land returns to the holder ot the estate “absolute in possession”. We often call the first estate a freehold and the second a leasehold, or lease. All land is ultimately held by a freeholder, but sometimes it is the freeholder who is using the land, and sometimes it is a leaseholder. In England a majority of people living in houses own the freehold, but people living in apartments usually own a lease. When they buy an apartment they will want to buy as long a lease as possible from the freeholder - for example, 99 years. Often the leaseholder (or lessee) has the right to sell his lease to someone else, but of course he can only sell the right to use the land for the number of years remaining on the lease. Until the lease ends, he has the right to possess the land exclusively: even the freeholder has no right to enter the land without the leaseholder’s permission. However, the contract he signed with the freeholder will require him to fulfil certain obligation, such as paying rent (ground rent) and keeping buildings in a good condition. The obligations, or covenants, which the leaseholder and freeholder owe to each other can be veiy complicated. For example, they must decide who is to pay if expensive repairs need to be done. Even a 99 year lease could be ended (forfeited) if the lessee breaks an important agreement such as rent payment. In other countries which inherited the English system of law, apartment owners usually hold a commonhold- a share in the freehold of the land on which the whole apartment building stands.

Text 10 Pre-reading task Make a careful study of the words and collocations below: easement - права из сервитута; rent-charge - арендная плата; legal mortgage - законное залоговое право; right of entry - право мирного завладения недвижимостью.

Read the text and answer the questions: 1. What does the word “mortgagee” mean? 20

2. Who can be a mortgagee?

Legal Interests As well as these two estates, or ways of holding your land, English law since 1925 has recognized four legal interests over land held by someone else. The first is an easement, such as a neighbour’s right to use a footpath over land, or your right not to have buildings or trees on your land block light to his windows. The second is a rent-charge - someone’s right to charge a landholder a periodical sum of money. The third is a legal mortgage - an interest in property given as a form of security to someone who has lent the landholder money. If the money is repaid the interest ends. However, if the landholder fails to pay his debt by a certain time, the money-lender, or mortgagee, may have the right to take the property from the borrower, or mortgagor. Mortgages are very important in land law because when most people bye an initial house or apartment they have to borrow a lot of money from a mortgagee such as a bank or a building society. The last legal interest is a right of entry. The right of a freeholder to enter a lessee’s property if he fails to pay rent is an example of a right of entry.

Text 11 Active vocabulary conveyancing - передача правого титула на недвижимость; title deed - документ о передаче правового титула.

Read the text below and answer the question: What area of Land Law is a minefield for solicitors?

Land Transfer Someone who buys land needs to know exactly what rignts and obligations are attached to the land. Although it is possible to deal directly with

21

the seller, most people employ a solicitor to handle the complicated business of land transfer, known as conveyancing. In fact, even after the simplification of 1925, which reduced the system to two kinds of legal estate and four kinds of legal interest, there still exist many kinds of “equitable” interest which the buyer and seller need to know about. For example, even if the freehold you want to buy is registered in the name of only one person, you should make sure the spouse of the freeholder does not have the right to continue living in the property after it has been sold. When investigating the rights attached to land, solicitors used to examine title deeds - documents recording transfers of the property over many years. In Britain there is now a land registry which makes investigation of title easier because it is a central register describing the land, the landholder, and third party rights. However, not all land in Britain has yet been recorded on the register. Even if land has been registered, the solicitor still has many things to check, such as possible plans of the local council to build noisy roads near the house. Any mistakes he makes could cost the buyer a lot of money. Conveyancing is one of the areas in which solicitors sometimes got sued by clients.

Text 12 Pre-reading task Study the following words: arrears - просрочка, задолженность; tort of nuisance - нарушения покоя; bylaw - подзаконный акт; appropriate - соответствующий, подходящий.

Read the text below and answer the questions: 1. Is the freedom to use private land in England limited?

22

2.

Are the land laws appropriate to individuals also appropriate in dealin

involving public land?

Regulation of Private and Public Land As well as laws to regulate relations between tenants and landlords of land, or between purchasers and vendors, there is a large amount of law regulating our usage of the land we own or occupy. There is an old saying: “An Englishman’s home is his castle” - no matter how many laws control our life in society, we are free to live on and use our private land as we wish. But in England, as in every country in the world, such freedom is limited.If we make too much noise, or pollute our neighbor’s air, we may face an action in the tort of nuisance. If we want to build something or extend an existing building, we may need planning permission from the local authority. Most countries have regulations about using and for business purposes. In England, for example, a private house cannot be turned into a store without permission, and the local authority will only give permission if they think the community needs such a store and that this business will not disturb the neighbours. There is also a large area of low concerned with publically owned landfor example, highways, pavements, parks. The owner of such land may be the state or local government authority. In many cases, the land laws appropriate to individuals are also appropriate in dealings involving public land; in addition, there is a large body of national legislation, and local legislelion (in England called bylaws) to regulate the use of such land.

Practice Taskl. Read the text again and find the English equivalents Гарантированное

право;

городской

житель;

занимать

деньги;

арендатор; доказать право на землю; наследник; свободный собственник;

23

наниматель; кредитор

по ипотечному залогу; стряпчий; основанный на

право справедливости; без разрешения; местные власти.

Task 2. True or false: 1. The same piece of land can have both a freeholder and a leaseholder at the same time. 2. Most English apartment dwellers own a lease rather than a freehold. 3. A leaseholder cannot sell his leasehold to anyone except the freeholder. 4. The leaseholder has no right to enter the land without the land without leaseholder’s permission. 5. Generally, a licensee has as much security as a lease.

Task 3. Answer the questions to the text: 1. Why is land law often old and complex? 2. What is the most valuable kind of land? 3. What is the difference between a freehold and a leasehold? 4. What rights does the leaseholder have? 5. What obligations is the leaseholder expected to fulfill? 6. What are the solicitor’s duties during the land transfer? 7. What is the difference between a short-term possession of land and a freehold or a lease? 8. In what situation may a bank take possession of someone’s house? 9. What is planning permission?

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UNIT 5 HOUSING LAW

Text 13 Active vocabulary housing law - жилищное право; landlord - зд. владелец дома (сдающий квартиры); tenant - съемщик (помещения), арендатор; lease - арендный договор; to damage - нанести ущерб; neglect - небрежность, отсутствие заботы о чем-либо; to evict - выселять; estate tax - налог на имение, поместье; provision - положение, условие (договора); controversial - спорный; escalation clause - пункт договора о повышении цены.

Read the text and answer the questions below. 1. When can landlords raise the rent? 2. Do all communities in England have rent control?

Renting a Home Many people rent their homes. A renter pays the owner a certain amount of money in return for the right to live there for a period of time. The person who receives rent money is called the landlord, and the person who pays rent money is called the tenant. The landlord-tenant relationship is created by a type of contract called a lease or rental agreement. A lease sets out the amount of rent that must be paid and the length of time the apartment may be rented. It also states the rights and duties of both landlord and tenant. 25

Before you rent an apartment or house, at least two things should be done to protect your interests. First, completely inspect the dwelling to ensure that it meets your needs. Second, because most leases are written to the advantage of the landlord, carefully read the lease. If you don’t understand or can’t read the lease, get help from someone else before signing.

Rights and Duties of Landlords and Tenants After a person signs a lease and moves into a rental home or apartment, both the landlord and the tenant take on certain rights and duties. Most rights and duties are set out in the lease. However, certain responsibilities exist without being stated in the lease. A tenant’s most important duty is paying the rent. Leases generally state the amount of rent to be paid and the date on which it is due. Most leases require payment on the first day of each month. If you and the landlord agree to a date other than the first, be sure that it is written into the lease. Historically, courts have required tenants to continue paying rent no matter what happened to the house or apartment. For example, if the apartment was damaged by fire, the tenant was still required to pay rent for the term of the lease. Landlords generally have a right to evict tenants who don’t pay the rent. In recent years, courts and legislatures in most states have ruled that in situations in which the apartment is made unlivable by fire, landlord neglect, or others causes, the tenant cannot be forced to pay the rent. Generally, landlords cannot raise the rent during the term of a lease. When the term is over, the rent can normally be raised as much as the landlord wants. Some leases, however, include provisions that allow for automatic increases during the term of the lease. Many landlords include such clauses to cover the rising cost of fuel and building maintenance. A lease with an escalation clause is obviously not favourable to a tenant. Another factor that can affect whether the landlord may raise the rent is rent control. Many communities - especially large cities - have rent control laws, which put a limit on how much existing rents can be raised. Cities with rent control laws use various standards to control the rise in rents. Some places limit rent increases to a certain percentage each year. In other places, rent increases are tied to the cost of living, the cost 26

of improvements in the building, or are allowed only when a new tenant moves in. Rent control laws slow down the rising cost of housing. However, there are many arguments for and against rent control, and wherever it has been tried, it has been controversial.

Text 14 Active vocabulary breach - нарушение (закона, обязательств); remedy - средство судебной защиты; to bring a suit - предъявлять иск; to complain —жаловаться.

Read the text and answer the question: What can breaches of a lease result in?

Landlord-Tenant Problems Landlords and tenants don’t always live up to their responsibilities. Even after a thorough inspection of the apartment and a careful reading of the lease, problems may arise. When either the landlord or the tenant fails to fulfill the conditions of the lease, there is a violation or breach of the lease. Some breaches of a lease are minor and easily corrected. Other breaches of a lease are more serious and may result in an end to the lease, eviction, or other court action. If the tenant is the cause of the problem, the landlord has certain remedies that can be used to solve the problem. These include evicting the tenant or bringing a suit to correct the problem. On the other hand, if the landlord is the cause of the problem, tenants also have certain things they can do. Some tenants think that once, they move into an apartment, there is not much they can do if things go wrong. Although this was perhaps once the case, in most states this is no longer true; tenants now have many rights. When problems arise, tenants may take many actions: complain to the landlord; complain to government agencies; organize a tenants’ group; withhold rent; sue that 27

landlord; move out.

Text 15 Pre-reading task Study the following words: loan company - кредитная компания; condominium - совладение; maintenance fee - эксплуатационные расходы; tax benefit - налоговые льготы.

Read the text and answer the questions: 1. What choice do people have when considering purchase of a home? 2. Do condominiums have any advantages as compared with other forms of ownership?

Buying a Home Many people never consider buying a home. They think homes are too expensive. Or they think home ownership involves too many responsibilities. But buying a home is easier than you may imagine. Each year millions of Americans buy homes. A few pay cash, but most use credit. They borrow money from banks, loan companies, government programs. In addition, even renters should understand the financial, legal, and other important issues involved in owning a home. These issues affect their landlord, and, therefore, indirectly affect renters. If you decide to buy a home, there are many things to consider. These include the type of area where you wish to live and whether you want to live in a house, an apartment, or some other type of dwelling. When considering purchase of a home, many people think not only of single-family homes, but condominiums, and cooperatives. A condominium is a form of ownership. Any type of building may be a condominium but most condominiums are attached units in apartment building or townhouses. Each resident owns an individual apartment or townhouse. The rest of the 28

property, including hallways, lobbies, elevators, grounds, and parking areas, are owned jointly by all the residents. A person who buys a condominium makes monthly mortgage payments and also pays a maintenance fee to take care of the jointly owned area. Condominiums have many advantages. The condominium owner has ecomic advantages of ownership - tax benefits, resale potential, and increase in value. However, like a renter, the owner of a condominium is also free of responsibility for maintenance and upkeep of the grounds or common areas. In addition, like apartment building, many newer condominiums offer extra facilities such as swimming pools, health clubs, or recreation areas. Another form of ownership is the cooperative. Cooperative ownership means land and building are owned collectively. Each resident buys shares in a business corporation and is given the right to occupy an individual apartment. Residents of cooperatives don’t own their apartment but own a share of the total building. Owners are subject to rules set by the community as a whole, and unlike condominium owners, residents of cooperatives may not sell their units without the approval of the other residents.

Practice Task 1. Find the English equivalents in the text Арендный договор (2 варианта); жилище; в пользу кого-либо; преследовать судебным порядком; занимать деньги; покупка; владение; автофургон; территории совместного пользования, прилегающие к дому или квартире; многоквартирный дом; 2-х, 3-х-этажный городской дом (как правило, частный); возможность перепродажи; зона отдыха.

Task 2. Answer the questions to the text: 1. What kind of relationship is created between the landlord and the tenant? 2. What should be done before you rent an apartment or house to protect your interests? 3. What is the most important duty of a tenant? 29

4. Can the tenant be forced to pay the rent in situation when the apartment is made unlivable (historically and the recent years)? 5. What right does the landlord have, if the tenant doesn’t pay the rent? 6. May the landlord raise the rent during the term of a lease? 7. What is rent control? 8. What things should be considered before buying a home? 9. Which forms of ownership are described in the text?

Task 3. Give the definition of the following terms in English: -

Rent control

-

Lease

-

Landlord

-

Tenant

-

Condominium

-

Cooperative

-

Mortgage payment

UNIT 6 CONTRACTS

Text 16 Active vocabulary breach of contract - нарушение договора; to charge - зд. назначать цену.

Read the text below and answer the questions: 1. Are all contracts written? 2. Where is the law regarding contracts to be found? 30

Different Types of Contracts Many people think of a contract as a written agreement between people starting the exact details of promises they have made to each other, for example, what kind of goods are to be supplied, how often and in what quantities, who is to pay for transport and unpacking, what prices are to be paid, etc. However, not all contracts are written. There are many kinds of unwritten agreements between people which the law of most countries describes as conracts. They may continue buying and selling things for years by relying on trust and common sense, and if sometimes there is a disagreement, they manage to deal with the problem simply by discussion. However, if the disagreement becomes so serious that they cannot resolve it, they may decide to take legal action. One of the most common kinds of legal action is to claim that a contract has existed and that one of them is in breach o f contract (has broken the agreement). To win such an action it is necessary to show that the agreement can indeed be described as a contract. The problem with unwritten contracts is that it may be very difficult to show evidence of the agreement you made. Of course, problems of evidence can arise even when there is a detailed written agreement. Indeed a court of law may decide that the contract consists not just of the written document you possess but includes things that were said but never written down. The contract may even include things that the contractors understood but never talked about. Sometimes an agreement turns out to be a contract even though the persons who made it didn’t realize this at the time. And sometimes people make agreements which they think are contracts, but when they try to take legal action the court declares that no contract was ever made. It is therefore important to know just what the law considers a contract to be. The law regarding contracts in general is to be found in judgements made by courts and even in legal textbooks. But there are statutes which clarify the law. For example, the Unfair Contract Terms Act, passed in Britain in 1977.

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Text 17 Pre-reading task Study the following words: an acceptance - принятие; valuable consideration - достаточное встречное удовлетворение; capacity - правоспособность, дееспособность.

Read the text below and answer the questions: 1. When is an agreement considered to be a contract? 2. Are there any special rules concerning contracts?

Essential Elements of Contracts English law textbooks often describe a contract as an agreement which is made between two or more parties and which is binding in law. In order to be binding in law the agreement must include an offer and an acceptance of that offer. The parties must agree to contract on certain terms, that is, they must know what they are agreeing to (but they need not know that their agreement can be described in law as a contract). They must have intended to be legally bound, there would be no contract if, for example, they were just joking when they made the agreement. And valuable consideration must have been given by the person to whom a promise was made. In this case, consideration is a legal word to describe something a person has given, or done, or agreed not to do, when making the contract. The principle behind this phrase is that the law will not enforce an empty promise. For example, if a man offers to wash my car for $10 and I accept, but he goes away and never washes it, I will probably not be able to make him keep his promise unless I have already paid the $10. This is because I have given no consideration: I have not done anything or lost anything because of his offer. However, even if I haven’t paid, I may still have given some kind of valuable consideration. For example, perhaps I left the car at home because of his offer 32

to wash it and took a taxi to work. In this case a court might consider that there was an enforceable contract. As a result, I would be able to compel the man either to wash the car or to pay me the taxi fare I had spent. One very important form of consideration is an agreement not to sue someone. For example, my neighbor makes so much noise that I cannot sleep at night. I have the right to take legal action against her (perhaps in tort) but I agree not to do so because she offers to take my mother on vocation to Hawaii. If she then fails to take my mother to Hawaii she is breaking a contract with me and I could choose to take action against her either for breach of contract, or for the original tort. In making my choice I would consider which action would be of most benefit to me. Most systems of law have similar requirements about offer and acceptance, legal intention and consideration. They also consider the capacity of the contractors, that is, whether they were legally entitled to contract. In English law there are some special rules if one of the contractors is a company, rather than an individual, under the age of 18, or insane. Legal systems have rules for interpreting contract in which one or more contractors made a mistake or was pressured or tricked into making an agreement, and rules for dealing with illegal contracts. For example, under English law a contractor cannot enforce an agreement against another party if the agreement was to commit a crime.

Text 18 Pre-reading task Study the words below carefully: damages - возмещение убытков; remoteness - отдаленность причинной связи; plaintiff - истец; specific performance - реальное исполнение; injunction - судебный запрет; 33

remedy - средство защиты права; to be binding upon smb. - быть обязательным для.

Read the text and answer the questions: 1. Under what conditions can monetary compensation be awarded? 2. In what area is contract law the most important?

Damages Once a court decides that there has been a breach of contract, it must then judge how the party in breach must compensate the other party. The usual award is damages - monetary compensation. The court must be satisfied that there was a contract, that one party is in breach, and that the other party has suffered some loss because of the breach. In addition to financial loss a plaintiff sometimes tries to claim damages for mental distress caused by the breach of contract. Such claims are less successful in Britain than in the U.S. A court will award damages only for loss closely connected with the defendant’s breach. If the court decides that the first claim was reasonable, but that the second clame was too remote, no damages are awarded. Remoteness is an important concept in both contract and tort. In deciding just how much in damages to award, English and American courts try to put the plaintiff into the same financial position that he would have been in if the defendant had carried out the contract properly.

Other remedies Instead of damages, a plaintiff sometimes asks the court to force the other contractor to carry out the contract. In English law this is called specific performance. Sometimes the court decides to award damages instead of specific performance, and sometimes it awards both. A plaintiff may also ask the court to award an injunction against the defendant, that is to order the defendant not to do something which would be in breach of contract. 34

Contract law is a central part of legal systems all over the world. It is especially important in international business, where the parties try to specify all the parts of their agreement in a clear written contract so that differences of law and custom between their countries can be avoided. It is sometimes said that some societies are much more “contractual” than others. For example, in the United States people are accustomed to signing written contracts connected with daily life. Some people even draw up a contract with a girlfriend or boyfriend when they start living together in the hope of reducing arguments if they part later. On the other hand, Japanese people rarely even sign contracts of employment when they take a new job, believing that custom and social obligation will be enough to resolve any differences. In some societies people are more likely to use lawyers and courts to sort out their disagreements, and they therefore feel the need to have precise evidence of their agreements in the form of written contracts.

Practice Task 1. Find in the text the English equivalents of the followings Сторона в договоре;

доверие и здравый

смысл;

нарушать

договоренность; сделка; предложение и принятие этого предложения; договор,

обеспеченный

правовой

санкцией;

преследовать

по суду;

судебное решение; материальный ущерб; привыкнуть к чему-либо.

Task 2. True of false: 1. Contracts must be written to be legal. 2. A spoken contract is less useful than a written one. 3. Contracts may include matters that were never discussed. 4. Under English law a contractor cannot enforce an agreement against another party, if the agreement was to commit a crime. 5. If there was a breach of contract, a plaintiff may seek only monetary compensation in court. 35

6. Contract Law is especially important in international business.

Task3. Match the word to its description:

1. capacity

a) a disadvantage suffered by someone because of a promise made to him;

2. consideration

b) the legal right to make a contract;

3. damages

c) a court order to carry out a contract;

4. injunction

d) compensation for breach of contract; e) an order to the defendant not to do smth which would be in breach of contract.

Task 4. Answer the following questions. 1. What are different types of contracts? 2. What is the problem with unwritten contracts? 3. Where is the law regarding contracts to be found? 4. What are essential elements of a contract? 5. In what ways may the party in breach be compensated? 6. What is specific performance?

Task 5. Name and explain three remedies a common law court may make to the victim of a breach of contract.

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UNIT 7 TORTS

Text 19 Pre-reading task Make a careful study of the words below: tort - гражданское правонарушение; to incur - подвергаться чему-либо; to deter -

удерживать от совершения каких-либо проступков

неизбежностью наказания; suit - иск, преследование по суду; standard of care - мера осторожности.

Read the text and answer the following questions: 1. What is the difference between Civil Law and Criminal Law? 2. How can you define the word “tort”? What is the person committing a tortuous action called?

Torts The word tort is derived from the French word of the same spelling which means “wrong”. Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and to deter others from committing the same harms.

The injured

person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. In contrast to criminal law (in which the offense is against the state and the state is the plaintiff), in tort law, 37

the offense is against a person and that person is the plaintiff. One who commits a tortuous act is called a tortfeasor. To behave in “tortious” manner is to harm another's body, property or legal rights, or possibly, to breach a duty owed under statute. For instance, Alice throws a ball and accidentally hits Brenda in the eye. Brenda may sue Alice for losses occasioned by the accident (e.g. costs of medical treatment, lost income during time off work, and pain and suffering). Whether or not Brenda wins her suit depends on if she can prove Alice engaged in tortious conduct. Here, Brenda would attempt to prove Alice had a duty and failed to exercise the standard o f care which a reasonable person would render in throwing the ball. One of the main topics of the substance of tort law is determining the standard o f care - a legal phrase that means distinguishing between when conduct is or is not tortious. Put another way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else. Among the types of damages the injured party may recover are -

Loss of earnings capacity

-

Pain and suffering Reasonable medical expenses.

They include both present and future expected losses. The equivalent of tort in civil law jurisdictions is delict.

Text 20 Pre-reading task Study the following words and collocations: negligence - небрежность; strict liability - объективная ответственность (независимо от наличия вины); damages - возмещение убытков; 38

injunctive relief - судебный запрет; trespass of land -

нарушение правил владения имуществом с

причинением вреда имуществу; trespass to chattels - присвоение движимого имущества.

Read the text and answer the questions: 1) What actions lead to damages in the tort of negligence? 2) What do intentional torts include?

Categories of Torts Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (e.g., causing an accident by failing to obey traffic rules); and strict liability torts

(e.g., liability for making and selling

defective products). Returning to the example with the ball, if Alice threw it at Brenda purposely, Brenda could sue for the intentional tort of battery (and the action might also, separately, be a crime against the state). If it was an accident, Brenda must prove negligence. To do this, Brenda must show that her injury was reasonably foreseeable, that Alice owed Brenda a duty of care not to hit her with the ball, and that Alice failed to meet the standard of care required.

Negligence The touchstone of tort liability is negligence. Negligent torts occur when the defendants' actions were unreasonably unsafe. The tort of negligence provides a cause of action leading to damages, or to injunctive relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims arising primarily from automobile accidents and personal injury accident of many kinds, including clinical negligence, workers’ negligence and so forth. 39

If the injured party cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them. In tort law injury is defined broadly. Injury does not just mean a physical injury, such as where Brenda was struck with a ball. Injuries in tort law reflect any invasion of any number of individual interests.

Intentional Torts Intentional Torts are those wrongs which the defendants knew or should have known would through their actions or inactions. They are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories including torts against the person: assault, battery, false imprisonment, intentional infliction of emotional distress and fraud. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognized include trespass to land, trespass to chattels, and conversion. Actions for trespass to land can arise from interfering with rights in real property, Trespass allows owners to sue for incursion by a person (or his structure, for example, an overhanging building) on their land conversion and trespass to chattels can protect interference with movable property.

Text 21 Pre-reading task Study the words below: incentive - побудительный мотив; nuisance - нарушение покоя, вред; defamation - разглашение сведений, порочащих другое лицо.

Read the text and answer the questions: 1. Is liability for defective products strict in most jurisdictions? 2. What are kinds of defamation? 40

Strict Liability Strict liability wrongs do not depend on the degree of carefulness by the defendant, but are established when a particular action causes damage. They are created by the legislature, not the courts. One example is in consumer protection, with the Product Liability Directive in the European Union, where business making defective products that harm people must pay for any damage resulting. Liability for defective products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the “cheapest cost avoiders”, because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects. There are also separate areas of tort law including nuisance, defamation, invasion of privacy, and a category of economic tort.

Nuisance Legally, the term “nuisance” is traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (e.g. indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors); and (3) to describe a legal liability that arises from the combination of the two. The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other landowners (i.e. private nuisance) or with the rights of the general public (i.e. public nuisance). The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. Free market environmentalists would like to expand tort damage claims into pollution (i.e. toxic torts) and environmental protection.

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Defamation Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This includes an interest in freedom from emotional distress, privacy interests and reputation. These are protected by a number of torts such as infliction, privacy torts and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about them. Defamation is tarnishing the reputation of someone; it is in two parts, slander and libel. Slander is spoken defamation and libel is printed and broadcast defamation, both share the same features. Defaming someone entails making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the US Constitution’s First Amendment, or the European Convention’s Article 10.

Text 22 Active vocabulary competition - конкуренция; to suffer - пострадать, понести убытки; tortious - деликтный, приносящий вред.

Read the text and answer the questions: 1. What does competition Law regulate? 2. Are the requirements of proof differ for different torts?

Economic Torts Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and was largely 42

submerged in the twentieth century by statutory interventions on collective labour law and modem antitrust or competition law.

Competition Law Modem competition law is an important method for regulating the conduct of businesses in a market economy. It is also called “anti-trust” law. It creates duties for undertakings, corporations and businesses not to distort competition in the marketplace. Cartels are forbidden on both sides of the Atlantic. So is the abuse of market power by monopolists, or the substantial lessening of competition through a merger, acquisition, or concentration of enterprises.

Remedies The main remedy against tortious loss is compensation in “damages” or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. Further, in the case of a continuing tort, or where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm.

Requirements of Proof The requirements of proof differ for each tort. Sometimes it is necessary to show a degree of carelessness, as in the tort negligence. In others, a defendant may be liable even if he was not at fault, such as the strict liability tort where an animal you keep on your land manages to escape and cause damage. In some torts it is necessary for the plaintiff to show that he has suffered actual damage or injury, such as the tort of nuisance, whereas in others no harm need be shown. To win an action in negligence, a plantiff must show that a duty of care existed between himself and the defendat at the time of the tort; that this duty of 43

care has been breached; and that damage or injury has been suffered because of this. Some duties of care have been long recognized by the law and do not require much proof, for example, the duty of a doctor to exercise a high degree of care in treating his patient. But other duties depend upon the situation and must be proven. In English law a general principle has been developed that we owe a duty to people closely affected by our actions to avoid causing harm which we could reasonably have foreseen. Using this principle, a large body of case law has been created to clarify the duty of care in different areas of life. In developing case law, the courts have also been guided by common sense and public policy. One aim is to allow people to get just compensation for harm suffered without letting them forget their own responsibility to take care of themselves. Another is to discourage a big increase in the number of civil actions because of the amount of time the courts would need to deal with this.

Practice Task 1. Read the text “Torts” again and find the English equivalents of the following: правонарушитель;

разумный

человек;

утрата

заработка;

умышленный; предвидимый; нематериальный, выраженный в правах; нападение;

нанесение

побоев;

мошенничество;

источник опасности

(неудобства) для какого-либо лица; источник опасности (неудобства) для всех окружающих; правопритязание.

Task 2. Match the words with their definitions: 1. tort

a) an activity or condition that a harmful or annoying to others;

2. standart of care

b) breach of a legal standart of care;

44

attacks against someone's reputation through the

3. negligence

written or spoken word; c) a civil wrong recognized by law as a ground for a

4. tortfeaser

lawsuit; 5. defamation

d) distinquishing between when conduct is or is not tortious;

6. nuisance

e) committer of the tort;

Tack 3. Answer the questions to the text “Tort”:

1. What does tort law define? 2. What in the primary aim of tort law? 3. What are the types of damages the injured party may recover? 4. What are the general categories of tort? 5. What do injuries mean in tort law? 6. What are strict liability wrongs created by? 7. In what ways is the term nuisance traditionally used?

Tack 4.

1. Explain the term “standart of care”. 2. Give example of: -

intentional torts

-

negligent torts

-

strict liability torts

3. Show the difference between: -

trespass to land and trespass to chattels

-

private nuisance and public nuisance

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