1-20 of 34 Results

  • Keyword: presumptions x
Clear all

Chapter

Cover Murphy on Evidence

5. Proof without evidence  

This chapter examines cases in which a court will, or may, find facts in issue or relevant facts established without requiring proof by means of evidence. Specifically, it considers cases in which: (a) facts are formally admitted for the purpose of the proceedings, i.e. are taken to be proved without the need for evidence; (b) notorious or readily demonstrable facts are noticed judicially by the court, i.e. are facts of which the court will acknowledge the truth without the necessity for proof; and (c) facts are presumed in favour of the party asserting them, i.e. where a party proves one fact (the primary fact) and a second fact (the presumed fact) will also be taken to have been proved, in the absence of evidence to the contrary.

Chapter

Cover The Modern Law of Evidence

4. Proof of facts without evidence  

Facts in issue and relevant facts are treated as established by the courts only insofar as they are proved by evidence. This chapter discusses three exceptions to this general rule: (i) some facts may be presumed in a party’s favour in the absence of proof or complete proof, including marriage, legitimacy, death, the regular and proper performance of public or official acts, sanity, and negligence; (ii) a fact will be treated as established where the court takes judicial notice of it either (a) without enquiry, in the case of facts that are beyond serious dispute, notorious or of common knowledge or (b) after enquiry (usually political facts, customs, professional practices, and historical and geographical facts); and (iii) a fact ceases to be in issue when a party has formally admitted it.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

6. Intention to create legal relations  

This chapter considers the final element of the formation of the contract: the intention to create legal relations. There is generally no difficulty in finding this requirement is fulfilled in commercial cases, but such intention is generally assumed to be absent in domestic or social agreements. The parties’ intentions may usually reflect these assumptions, but the issue of underlying policy is addressed. In commercial situations, issues of ‘intention to create legal relations’ are more likely to arise in relation to a clause which it is claimed is intended to show that there was no such intention in relation to the particular agreement.

Chapter

Cover Poole's Casebook on Contract Law

4. Intention to be legally bound and capacity to contract  

Robert Merkin and Séverine Saintier

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with intention to be legally bound and capacity to contract. In order to enforce any promise not contained in a deed, there must be an intention to create legal relations. This intention is traditionally determined using different presumptions for domestic and commercial agreements. In the case of domestic and social agreements, there is a presumption that there is no intention to create legal relations. In contrast, there is a presumption of an intention to create legal relations in commercial agreements. Both presumptions are capable of being rebutted on the facts, e.g. an honour clause in a commercial contract. The second part of this chapter examines capacity to contract and particularly the enforceability of contracts made by minors.

Chapter

Cover The Law of Trusts

10. Resulting trusts  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter considers resulting trusts. It first considers the history of resulting trusts. Then it discusses the two basic kinds of resulting trusts: presumed resulting trusts (PRTs) and ‘automatic’ resulting trusts (ARTs). The content of the presumption of resulting trusts and the presumption of advancement are discussed. Lastly, the nature of resulting trusteeship is considered.

Chapter

Cover Introduction to Business Law

5. Intention, Capacity, Consideration, and Privity  

This chapter examines issues relating to contract formation. It discusses the elements of an intention to create legal relations and the presumptions relating to commercial or business agreements and domestic agreements. It considers the law relating to capacity to contract, looking at the enforceability of different types of contracts made with minors. It considers the validity of contracts made with corporations and persons who may lack capacity through mental illness or intoxication. It also explains the importance of consideration in a contract, what constitutes consideration, whether consideration provided is sufficient, and who must provide the consideration. It discusses the law relating to part-payment of debts and promissory estoppel. Finally, the chapter considers the doctrine of privity of contract, and the exceptions to the doctrine, including the Contract (Rights of Third Parties) Act 1999

Chapter

Cover Poole's Casebook on Contract Law

4. Intention to be legally bound, formalities, and capacity to contract  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with intention to be legally bound and capacity to contract. In order to enforce any promise not contained in a deed, there must be an intention to create legal relations. This intention is traditionally determined using different presumptions for domestic and commercial agreements. In the case of domestic and social agreements, there is a presumption that there is no intention to create legal relations. In contrast, there is a presumption of an intention to create legal relations in commercial agreements. Both presumptions are capable of being rebutted on the facts, e.g. an honour clause in a commercial contract. The second part of this chapter examines capacity to contract and particularly the enforceability of contracts made by minors.

Chapter

Cover Concentrate Q&A Criminal Law

5. Sexual Offences  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, author commentary, and advice on study skills. This chapter presents sample exam questions on sexual offences and suggested answers. Students should be aware of the key provisions of the Sexual Offences Act 2003, and the presumptions as to consent contained in ss 75 and 76 of the Sexual Offences Act 2003. The concept of reasonable belief is central to this topic. The Act sought to remedy problems in the old law relating to consent and created a new definition of rape, as well as shifting the responsibility for obtaining consent to the defendant in some circumstances.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

11. Undue influence  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines undue influence in a contract, which is a vitiating factor and also a ground of restitution. It explains that undue influence is hard to define and can more easily be recognised when found than exhaustively analysed in the abstract. This chapter investigates how undue influence is proved by means of a rebuttable presumption based on a relationship of trust and confidence coupled with a transaction that calls for an explanation, and how the resulting presumption is rebutted. It then covers the remedy of rescission for undue influence. Finally it explores undue influence in three-party cases, where relief depends on whether the contracting party had notice, actual or constructive, of the undue influence and whether it had taken reasonable steps.

Chapter

Cover Concentrate Questions and Answers Family Law

8. Parenthood and Parental Responsibility  

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter focuses on legal parenthood and parental responsibility and contains two essay questions and two problem questions. The topics covered in this chapter are: presumptions of paternity and paternity tests; legal parenthood in assisted reproduction situations; the Human Fertilisation and Embryology Act 2008; legal parenthood in surrogacy situations; and parental responsibility. The topics covered in this chapter are complex as they raise legal, ethical, and moral issues.

Chapter

Cover Cassese's International Criminal Law

19. General principles governing international criminal trials  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

The Statutes of the International Criminal Court, and of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda enumerate a list of rights that mirrors many of the same rights as are found in international human rights instruments and domestic constitutions. These various rights may be distilled into six minimum principles: no implicit or explicit measure requiring self-incrimination; adjudication by impartial judges; a presumption of innocence and corresponding burden of proof on the prosecutor; prompt and detailed communication of the charges and sufficient time, opportunity, and resources to challenge those charges; trial without undue delay; and a public hearing. This chapter discusses the interpretation of these rights and principles before international criminal courts, and their application to selected practical issues.

Chapter

Cover Essential Cases: Contract Law

Balfour v Balfour [1919] 2 KB 571 including commentary on Merritt v Merritt [1970] EWCA Civ 6; [1970] 1 WLR 1211.  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Balfour v Balfour [1919] 2 KB 571. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law 5e

Balfour v Balfour [1919] 2 KB 571 including commentary on Merritt v Merritt [1970] EWCA Civ 6; [1970] 1 WLR 1211.  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Balfour v Balfour [1919] 2 KB 571. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Concentrate Questions and Answers Evidence

2. Burden and standard of proof: Presumptions  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

Chapter

Cover Evidence Concentrate

1. Introduction, principles, and key concepts  

This chapter introduces the principles and key concepts underlying the law of evidence, with an emphasis on criminal evidence. It reviews Article 6 of the European Convention on Human Rights (ECHR), now part of English law as a result of the Human Rights Act 1998 (HRA). It points to factors which are reducing adversarialism in English criminal trials. The risks, along with the advantages, of the increasing use of computer technology in presenting evidence, are illustrated by reference to the wrongful prosecutions of hundreds of Post Office counter staff for dishonesty offences. The chapter concludes by highlighting the importance of analysis of the relevance of the facts in a trial.

Chapter

Cover Evidence Concentrate

2. Burden of proof  

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 (HRA) on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examSination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. The leading cases on the standard of proof in civil cases are reviewed.

Chapter

Cover Evidence

14. Alternative Pathways to Proof  

To require evidence to be called to prove every single matter requiring proof in a trial would serve no useful purpose and lead to the unnecessary prolongation of trials. On occasion, therefore, a matter may be regarded as proved even though no evidence has been adduced to prove it in the normal way. Chapter 14 examines three devices used in the law of evidence to achieve this. These are formal admissions, judicial notice, and presumptions.

Chapter

Cover Administrative Law

3. The Status of Unlawful Administrative Action  

Mark Elliott and Jason Varuhas

This chapter examines the status of unlawful administrative action, and more specifically whether unlawful administrative action is void or voidable. It first considers the practical and theoretical arguments that address the ‘void or voidable’ question by focusing on the case of Boddington v. British Transport Police [1999] 2 AC 143, along with four post-Boddington decisions. It then discusses the nature of voidness, with particular emphasis on the presumption of validity and the principle of legal relativity. It also explores the divergent theoretical perspectives upon administrative law that underpin the different approaches that writers adopt to the status of unlawful administrative acts. Finally, it looks at voidness in relation to collateral challenge and suggests that the disagreements regarding the status of unlawful administrative action, at least to some extent, pertain not to what constitutes a desirable outcome but to the form of judicial reasoning that prefigures the reaching of the outcome.

Chapter

Cover Contract Law

4. Contracts and informal relations  

The intention to create legal relations

This chapter focuses on the requirement that the parties to a contract must have the intention to create legal relations for it to become legally binding. It considers how we decide whether the parties to a particular agreement had the intention to enter into legal relations, showing that English law operates by means of rebuttable presumptions. It then examines cases where the presumption is that the parties did not intend to create legal relations—that they intended their transaction to be merely friendly or social, rather than legal. It also discusses commercial transactions, where the presumption is reversed, and more specifically the types of commercial transactions that are structured to place them outside the bounds of legal enforcement. The chapter includes the case of Balfour v Balfour [1919] 2 KB 571 (CA).

Chapter

Cover Criminal Law Directions

4. Strict liability  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter discusses a special form of criminal liability: strict liability (including absolute liability). A strict liability offence is an offence which does not require proof of a fault element (i.e., where the prosecution need not prove at least one mens rea element). An absolute liability offence does not require proof of any mens rea elements. This chapter also evaluates the arguments for and against strict liability and discusses regulatory offences.