That's the process by which
3 ................
Well, there are essentiallyfive stages to a case involving a conflict of laws. 'Forum shopping? Is that like shopping around to get the best deal in a case?' 'Basically, yes.' Put simply,questions which arise in connection with the main claim.
4 ................
In theory, the outcome of a case will be the same, no matter which court in
which country finally accepts the case.
A key element in this may be the rules on renvoi.
30 aLabel the functional groups in the box above with these headings.
0 giving examples C giving further details 0 rephrasing C simplifying
b What other phrases can be added to each of the categories?
Speaking 2 : Definitions/Role-play: explaining legal terms to non-lawyers
31 Work with a partner.
Student A:Turn to page 116. Student B:Turn to page 117.
32 Work with a partner.
Student A:Turn to page 116. Student B:Turn to page 117.
Writing: Follow-up letter
33 Write a follow-up letter to the client summarising your interview and advising on
how best to proceed. Include the following:
0 the facts of the case
0 any possible legal issues that might arise
C the stages involved in a case involving conflict of laws
o what your client should now do
C what you will do next.
Explain any difficult legal terms using plain language.
Language Focus
1 CollocationsComplete the phrases using the adjectival form of words from the box.
advise bmd custom enforce government intellect
1............ buidwjg......... source of law
2 standards
3 international law
4.................................. practices
5 organisation
6.................................. property rights
2 VocabularyComplete the sentences using words from the box.
bilateral inter-state non-governmental supranational
1 Finland and Sweden have concluded a........... btt^eraL.......... agreement on
economic co-operation in international emergency situations.
2 A................................ organisation is a legally constituted organisation created
by private persons or organisations with no participation or representation of any government.
3 The EU is a................................. organisation that creates, implements and
enforces substantive policies for its members.
4 The International Court of Justice has been criticised for its failure to resolve
................................ disputes.
3 Explaining legal termsMatch the halves of these sentences, which contain phrases for explaining legal terms to non-lawyers.
1 A customs union is, put a whichrights are granted to an
2 A legal framework is, ininternational body by the signatory
nations to the agreement.
3 A charter is an agreement by
b words,it deals with such questions as
4 'Conflict of laws' refers to which law applies in the case at hand.
the body of law dealing with
disputes between private c slmply' a group of nations who wish t0
persons who live in different remove customs barriers between them"
jurisdictions; in other d essence,a broad system of rules.
|
Comparative law
|
io6
THE STUDY OF LAW
Lead-in
People who describe and analyse the legal systems of the world divide them into various categories, or families. Although different classification schemes exist, the following systems are commonly distinguished: civil law,common law(often grouped together as Western law], religious law (e.g. Hindu law, Islamic law and Jewish law], Chinese law and socialist law.In addition, some legal systems can best be described as mixed (or pluralistic) systems.
1 Discuss these questions.
1 What do you think is meant by a mixed system? Do you know any systems that might belong to this group?
2 Which system does your jurisdiction belong to?
3 What is the legal system of the vast majority of English-speaking jurisdictions?
Reading i: Comparative law
2 Read the overview of comparative law below and answer these questions.
1 Why is comparative law growing in importance?
2 What is the HCC, and what is its goal?
3 What is the best-known convention produced by UNIDROIT?
Comparative lawis the study of differences and similarities between different jurisdictions, including civil-law systems, common-law systems and religious(or theological) legal systems.
Comparative law has become of increasing practical importance for two reasons. First, the globalisationof world trade means that commercial lawyers are often required to work with colleagues and clients from unfamiliar jurisdictions. The second reason is the increasing harmonisation(or unification)of laws between previously separate jurisdictions, as with the European Union and the Union of South American Nations.
Comparative law is closely related to private international law and the harmonisation of law. Private international law concerns the applicability of laws in situations involving other jurisdictions. Harmonisation of law developed out of a need to simplify these rules, both at a national level (e.g. the US Uniform Commercial Code) and between sovereign states (e.g. EU law).
Another key aspect of comparative law is the idea of uniform law.There are two main sources of international uniform law: The Hague Conference on Private International Law (HCC) and the International Institute for the Unification of Private Law (UNIDROIT). The Hague Conference, a global intergovernmental organisation with over 60 member states, is the leading organisation in the area of private international law. An increasing number
of non-member states are also becoming parties to the Hague conventions. The statutory mission of the HCC is to work for the progressive unification of private international law in a wide range of areas, from commercial law to international civil procedure and from child protection to matters of marriage and personal status. This involves finding internationally agreed approaches to issues such as jurisdiction of the courts, applicable law and the recognition and enforcement of judgments.UNIDROIT also has about 60 member states and was established to research the needs and methods for modernising, harmonising and co-ordinating private, especially commercial, international law. Its most notable convention is the Uniform Law on the International Sale of Goods, 1964.
Key terms: Expressions used in comparative law
3 Explain what is meant by these expressions in your own words.
1 applicability of laws
2 international civil procedure
3 enforcement of judgments
4 progressive unification of law
Reading 2: Course reader
As part of the curriculum of a Masters Program in Comparative Law at an American university, students take a course in which they learn about the differences between civil law and common law.
4 Read the extract below from the course reader (a collection of texts selected by the instructor) and answer these questions.
1 Where did civil law originate?
2 What is the role of precedent in common-law systems?
3 What does the term stare decisis mean?
4 Which two terms are given in contrast to the term unenacted law, in the final paragraph?
I
Civil law may be defined as that legal tradition which has its origin in Roman law, as codified in the Corpus Juris Civilis (the Justinian Code), and as subsequently developed in continental Europe and around the world. Civil law is highly systematized and structured, and relies on declarations of broad, general principles.
Common law is the legal tradition that evolved in England from the 11th century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific situations arising in disputes that the courts have adjudicated. The common law is usually much more detailed in its prescriptions than the civil law. It is the foundation of private law, not only for England, Wales and Ireland, but also in 49 U.S. states, nine Canadian provinces, and in most former colonies of the British Empire (many of which now form part of the Commonwealth of Nations).
Common-law and civil-law legal traditions share similar social objectives (individualism, liberalism, and personal rights). Because of this functional similarity, they are often referred to as the Western law family.
Unit 10 Comparative law I 107
A major difference between common-law and civil-law systems is the heavy reliance on case law in common-law systems. In such systems, me courts interpret statute law through the development of case law. Judicial interpretation of statute is binding until challenged by a higher court. Under the doctrine of stare decisis, lower courts are compelled to follow decisions rendered in higher courts. Thus, precedent is at the core of common-law legal systems. Additionally, the courts in common-law systems are able to develop existing law or legal principles in the gaps left by statute. In arriving at a decision in a case, a court will first determine whether there are any applicable statutory provisions. It will then look to see how these provisions have been interpreted (if at all) in earlier cases, and will apply any binding precedent. If there is no previous case law on the statute, the court will place its own interpretation on the statute. If no statutes apply, the court will look to previous case law. In a common-law system, the legislature can overturn previously developed case law through new legislation.
Although codified law (mainly in the form of statutes) is paramount in both legal traditions, it differs in its importance. In civil-law jurisdictions, priority is given to enacted law over unenacted law. Codes provide the core body of law and are supplemented by decisions in individual cases. Conversely, the opposite is true in the common-law tradition, in which precedent is the major source of law.
5 Find words in the text that mean the same as the underlined words below.
For each pair of synonyms, say which word is more formal.
1 Although civil law originated in Roman law, it was later developed around the world, mainly in Europe.
2 The common law concept of stare decisis forces lower courts to accept decisions of the higher courts.
3 In accordance with the principle of stare decisis, decisions made in higher courts are binding.
4 In both common law and civil law alike, statutes are of greatest importance, even though their functions are different.
6 You have been asked to give a short oral presentation about important
differences between common law and civil law. Using information from the extract
above, complete this table.
| Common law Civil law | ||
| Origin | ||
| Countries found in | ||
| Importance of case law | ||
| Importance of enacted law |
Language use: Explaining, comparing and contrasting
7 Underline the words and phrases used for contrasting and for expressing
similarity in Reading 2. Then write them under the correct heading. The first
one has been done for you. There may be more than one possible answer.
Contrasting:... Is mudi more detailed Ukui ...
Expressing similarity:
8Complete these sentences using the words and phrases for expressing
similarity and contrast from Exercise 7.
1 Civil law and common law.................................. their origins. Common law
was developed by custom, beginning before there were any written laws.
................................ , civil law developed out of the Roman law of Justinian's
Corpus Juris Civilis.
2 In civil-law systems, court-made law is almost unknown,.....................................
in common-law systems, where large areas of law are created and shaped by court decisions.
3 ................................. civil law and common law, statutory law is of enormous
importance.
4 ................................. common law and civil law concerns the method of
argument. In the civil law, the principal method of argument is by deduction from general principles or from statutes towards particular cases.
................................ , in the common law, the principal method of analysis
is induction (reasoning from detailed facts to general principle) and analogy (drawing a comparison in order to show a similarity).
9 Present the information from Exercise 6 to an audience, using the expressions
for comparison and contrast from Exercise 7.
istening i: Legal translation
Discuss these questions.
1 What kinds of problem can occur when a legal text is translated?
2 How do you think these problems could best be avoided?
3 Why would a practising lawyer need to be aware of these problems?
^Ho.i Listen to the first part of an excerpt from a lecture held by a guest speaker from Mexico, who has been invited to talk to law students at a US university about legal translation. Apart from language proficiency, what else do legal translators need in order to work effectively?
4z 10.2 Listen to the second part of the lecture. What is meant by the term false friends?
* 610.2 Listen again and answer these questions.
1 What is the first category of words she distinguishes?
2 How should a translator deal with the words in the second category?
3 What problem is posed by the third category? How should it be dealt with?
Do you know any legal terms in your own language that are particularly difficult to translate into English? What makes them so difficult to translate?
Language skills: Finding and choosing legal terms
15 Students of comparative law, as well as practising lawyers, often encounter
unfamiliar terms from other legal systems. Discuss these questions with a
partner.
1 Where can you look for information about unknown legal terms in English?
2 What do you do when you encounter an unfamiliar legal term in English that has no equivalent in your language?
16 Consider this list of sources of information about a legal term. What are the
advantages and disadvantages of each? Discuss your views with a partner.
0 Law firm's glossary of legal terms on its website
C Online legal dictionary
0 Legal dictionary in book form
C Glossary of terms on the website of an international organisation
0 Google's definition of a term (results of define: + term search)
0 Finding the term in the context of its use in a document online
17 Look up the following difficult-to-translate English legal terms and try to find an
equivalent in your own language. Make notes about the sources you looked at
and then tell a partner what your solution is and how you found it. Whenever
possible, use the words and phrases for contrasting and expressing similarities.
example: TVie English concept o-f 'good -faith' Is similar to what we call
................................ , but It differs In tHe following ways ...
1 equitable remedy
2 promissory estoppel
3 misdemeanor1
4 (past) consideration
5 the Lord Chancellor
LAW IN PRACTICELead-in
As trade becomes increasingly globalised, lawyers often find that they need to be familiar not only with their own jurisdictions, but also with the jurisdictions of their international colleagues and clients.
18 Make a list of the three countries whose legal systems you know the most
about. How did you learn about these jurisdictions? How sure are you that the
information you have is correct?
(UK) misdemeanour
Listening 2: In-company course
Gareth teaches an in-company ILEC course to a small group of judges working in Liechtenstein.
19 4;10.3 Listen to the first part of the discussion during one of Gareth's classes
with the judges. Which of these different meanings of the term equity is the
closest to that described by Beate, one of his students?
a the difference between the market value of a property and the claims held
against it b the ownership interest of shareholders in a corporation c a system of courts that developed alongside the law courts in England
20 4 i 10.3 Listen to the first part of the discussion again and answer these
questions.
1 Why does the subject of equity come up?
2 Why is Beate able to talk about equity?
3 Why was equity developed?
21 ^cio.4 Listen to the second part of the discussion and decide whether these
statements are true (T) or false (F).
1 The position of Lord Chancellor was removed by the Constitutional Reform Act 2005.
2 Damages is an example of an equitable remedy.
3 If applying the rules of equity would lead to a different resuit than applying the strict legal rules, equity takes precedence.
4 Equity is administered by the Court of Chancery.
22 ^ 610.5 Listen to the third part of the discussion and decide whether these
statements are true (T) or false (F).
1 The German concept of Treu und Glauben is similar to the English 'clean hands' doctrine.
2 The French doctrine of the abuse of rights is similar to the English concept of equity.
Look at the audio transcripts for the whole discussion (pages 138-139) and find phrases used for describing a legal system.
[Speaking i: Describing, comparing and wtrasting
24 Choose an aspect of your jurisdiction and explain it to a partner. Where possible, your partner should contrast that either with another aspect erf the same legal system or with the closest equivalent in a foreign jurisdiction. ■ Use the language of describing, comparing and contrasting during your discussion.
e Cambridge International Legal English Certificate (ILEC), an internationally recognised test of legal
■psh. It is designed for lawyers and law students requiring English language skills to work effectively
Ee international legal environment. Unit 10 Comparative taw
Reading 3: Asset protection
Liechtenstein is one of many jurisdictions that have established themselves as tax havens.
25 Discuss these questions.
1 What constitutes a tax haven?
2 What other countries can you think of that are also considered to be tax havens?
3 What is the difference between tax avoidance and tax evasion?
4 What do you think the term asset protection might refer to?
26 Read the first paragraph of the text on page 113. Which of these descriptions best
describes the text?
a A letter of advice from a lawyer to a businesswoman seeking to reduce her tax burden b A memo written by a junior lawyer to a senior lawyer contrasting different forms of
charitable foundation c A summary of various means of safeguarding money from creditors, taken from a
website for businesspeople and lawyers
27 Read the whole text quickly and choose the correct word to complete each of these
definitions.
1 The Stiftung / Anstalt / founder is a type of civil law foundation used to hold assets, property or shares.
2 The Stiftung / Anstalt / trust is a hybrid entity often used as a holding company for overseas subsidiaries.
3 The assets of a Liechtenstein-based foundation are held on behalf of the Council of Members / beneficiaries / creditors.
4 Behaviour that is illegal because it does not obey or respect the rules of a law court is referred to as contempt / holding / interpretation.
Text analysis: Discourse markers for text cohesion
In the letter on page 113, one of the lawyer's main objectives is to present complicated information in a clear way. In order to achieve this, he uses various words and phrases at the beginning of sentences to show the relationship between ideas. These discourse markers act as 'lexical signposts', guiding the reader through the text and making it easier to understand.
In this sentence from the letter, the discourse marker signals that further information about a previous idea is being given:
Furthermore, Liechtenstein law may not protect the settlor from a U.S. court's finding of contempt.
The word furthermore, which here means 'in addition', shows that an idea introduced in the previous sentence will now be further developed. In this case, the general idea being expressed is that the asset protection methods discussed in the text may not offer 100% security from legal challenges.
28 Look at the highlighted discourse markers in the letter and decide which of the
following four functions each discourse marker fulfils. List any other similar words
or phrases you know.
C Giving extra information: -furthermore C Introducing the result of previous information C Comparing, contrasting and qualifying 0 Emphasising
Dear Ms Radford
Asset protection entities in Liechtenstein
Your instructions to me were to provide a summary of the structures available in Liechtenstein to facilitate your need to insulate future liabilities. I have now had the opportunity to research this and can provide you with the following details.
Although there are a number of civil-law entities available for asset protection purposes, the most popular structures for U.S. planners arc two trust-like entities, the Stiftung and the Anstalt1, created under the law of Liechtenstein.
The Stiftung is a type of foundation, commonly used to hold assets, fixed property or shares. It is created by a founder, from whom it has a separate legal identity. A Stiftung is not subject to any form of income tax, capital tax, transfer tax or inheritance tax in Liechtenstein. Its assets must be segregated from any personal assets, and are generally not available to the founder's creditors. The bylaws of such entities are typically not filed in any public registry. Consequently, it is very difficult to get information about a Stiftung registered in Liechtenstein.
Notably, the Stiftung cannot be used solely for commercial purposes. Instead, it is designed to act as a private foundation. For asset protection purposes, it is better if the Stiftung is created for the promotion of some important interest (such as to further education or medical research) because there may be less chance that contributions to it made for asset protection purposes will be considered fraudulent by any investigating authorities.
While a Stiftung may have beneficiaries, including the founder, it cannot have any shareholders. That said, named beneficiaries are not recommended, as they can give the Stiftung the appearance of a foreign asset-protection trust. Because of this, the Stiftung should be limited by its terms to supporting the purpose for which it was created. Despite this limitation, there are methods to utilize the assets of a Stiftung to endow private scholarships, etc.
Besides the Stiftung. the most important entity for tax purposes in Liechtenstein is the Anstalt, a hybrid of a company limited by shares and a foundation. Such entities are commonly used by foreign companies as a holding company for overseas subsidiaries. The Anstalt has no members, participants or shareholders, but can have beneficiaries. The principal practical difference between an Anstalt and a Stiftung is that, unlike a Stiftung, an Anstalt can conduct all kinds of business activities.
The civil-law basis of these entities, and the fact that they usually do not have identifiable beneficiaries, make them very difficult for U.S. creditors' attorneys to conceptualize, and thus attack. Nevertheless, it must be noted that a U.S. judge could simply treat them as foreign asset-protection trusts and order that their assets be repatriated. Furthermore. Liechtenstein law may not protect the settlor from a U.S. court's finding of contempt.
1 The terms Stiftung and Anstalt are both German nouns and, as such, begin with a capital letter.
peaking 2: Advising on asset protection
29 You are commercial lawyers specialising in asset protection. You have been asked to advise an American client on the asset-protection entities available in Liechtenstein. Discuss the advantages and disadvantages of the various entities with a partner and decide how to advise your client.
riting: Letter summarising options
Your client is concerned that the asset-protection entities in Liechtenstein might prove difficult and expensive to administer. Using the notes on page 115, write a letter to your client outlining the Panamanian foundation, another popular form of asset protection. Use discourse markers to explain, compere and contrast the foundation with other forms of asset protection.
Unit 10 Comparative law
Language Focus
1 Word formationComplete this table by filling in the correct forms of the words listed.
| Verb Noun Adjective | ||
| globalise | global | |
| harmony | ||
| enforceable | ||
| unified | ||
| applicability |
SynonymsMatch each word or phrase (1-5) with its synonym (a-e).
1 conversely
2 later
3 paramount
4 compel
5 unify
avery important bforce
con the other hand dsubsequently eharmonise
CollocationsMatch the verbs in the box with the nouns they collocate with Gudgment or law); some of the verbs collocate with both nouns.
VKjfy fcVtafc towwawsa modernise recognise render
1 a judgment: apply, ...
2a law:
4 Discourse markersComplete this text using the words and phrases from the box.
however in addition notably therefore thus
This essay discusses changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include
greater attention to other disciplines, 1)........ wbably..... economics and behavioural
sciences, and the contributions they make to a fuller understanding of the legal
system. 2)....................... , law schools are increasingly exploring the ways in which the
law in textbooks may differ from the law in action. 3)....................... nearly every law
school is investigating the consequences of legal rules through clinical legal education, which provides a real or simulated laboratory experience for law students. The most
widespread change, 4)....................... , may be the breaking down of traditional artificial
classifications of subject matter, which attempt to provide the advanced student a method for organising his or her knowledge about the legal system.
5)....................... , comparative law courses have been developed in an attempt to
inspire students to think creatively about legal problems by providing new insights into the legal system.
© Hugh J. Ault and Mary Ann Glendon, I'he importance of Comparative Law in Legal Education: United States Goals and Methods of Legal Comparisons, 27 J. Legal Educ. 599-608 (1975-1976)
Unit to, Exercise 33
The Panamanian foundation
• Liechtenstein Anstalt and Stiftung are relatively expensive to form and maintain. The Panamanian foundation is comparatively inexpensive.
• Another advantage is that Panama is in the same time zone, making administration of the foundation from the United States easier.
• The time difference between the USA and Liechtenstein may prove frustrating to creditors in communicating with their local counsel. However, it would probably be more immediately frustrating to the client and planner attempting to form and then administer the entity from the USA.
• For these and other reasons, Panama copied much of Liechtenstein's Stiftung legislation, giving us the option of the Panamanian foundation.
• The Panamanian foundation can hold title to assets in its own name like a corporation. It can also make discretionary payments to the founder or beneficiaries, like a trust.
• The foundation is mostly controlled by its bylaws, which do not have to be registered or publicly disclosed (as with the Stiftung).
• Panama has a three-year statute of limitation for fraudulent transfer challenges to contributions to the foundation. If gifting is utilised to fund the foundation, creditors have three years to attempt to void the gifts. After these three years, the assets are probably safe from creditors.
• The foundation assets may not be applied towards the debts of either the founder or any beneficiary.
• As with the Stiftung, probably the best use of the Panamanian foundation is not to hold assets, but rather to own an entity that is used as a management company. The management company would be owned by a Panamanian charity, with three Panamanian residents as members of the foundation's council. Therefore it is very difficult for a creditor to claim that the US owner of the asset being managed has any ties to or control over the foundation.
ole cards
Tudent A
Unit 7, Exercise 31
You are a property lawyer and receive a call from a foreigner interested in buying property in your jurisdiction. Prepare to take the call by reviewing the language from your presentation (Exercise 14) and the telephone conversation between Marta Cervera and Jana Fialova (Listening 2 and 3). Try to anticipate the kind of questions you will be asked and make notes on your answers.
Unit 8, Exercise 35
You have just been fired without notice from your position as Scandinavian Sales Director of a large educational publishing company. During your exit interview, your boss claimed that your sales had been repeatedly below target for the past 13 months. However, you are certain that you have only missed your target three times. You know of at least three colleagues who have missed their xargets more often than you, and that this has been attributed to a general fall in sales across Europe. In fact, one of these colleagues was recently promoted, after only five months with the company, to a position you had hoped to get. The company said it had no choice as someone had been found who could do a much better job and was ready to start immediately. You decide to consult a lawyer.
Prepare for the meeting. Think about the kinds of question you may be asked. During your meeting, focus on both concrete facts and your own personal opinions.
-
| Unit 9, Exercise 31 | |
| Explain these terms to Student B using some | of the language from the interview |
| (Listening 2). | |
| 1 nationality 3 competent | 5 expat (= expatriate) |
| 2 dual citizenship 4 forum shopping | 6 cause of action |
Unit 9, Exercise 32
You are a lawyer specialising in claims related to damage caused to computers as a result of bad programming. You have been contacted by the owner of an online discussion group concerning problems that some of the group members have been experiencing with their anti-virus software. Conduct a lawyer-client interview with the owner of the online discussion group, using the WASP approach in Unit 3. Look at these notes on conflict of law to help you.
0 Choice of law and statutory interpretation are an issue when, for example, a class of injured litigants from different jurisdictions sues a Californian company in a California federal district court. In order to make class certification more likely, this multi-jurisdiction class will want the law of one jurisdiction to apply. Consequently, you might advise your client to bring suit under a Californian consumer protection statute.
0 A class action suit on behalf of claimants from different jurisdictions is likely to raise conflict of law issues. A defendant might challenge a class suit on the basis that the laws of each represented jurisdiction must be applied to the class's claims, and that the class should not be certified because the suit will be unmanageable.
0 A judge's first step will be to examine the law of the state in which the defendant is based for evidence that the legislature intended for its laws to apply to extraterritorial litigants whose only connection to the state is that they were injured by a product manufactured there. The rest of the case would proceed as outlined in Listening 2.
Student B
Unit 7, Exercise 31
You are interested in buying property in another country and phone a lawyer who has been recommended to you by a colleague. Prepare for the call by reviewing the language from your presentation (Exercise 14) and the telephone conversation between Marta Cervera and Jana Fialova (Listening 2 and 3). Write down the questions you need to ask.
Unit 8, Exercise 35
You are a lawyer specialising in employment law. You are due to meet a new client who has just been fired without notice from a well-paid position in publishing. Prepare for your meeting by noting down the kinds of question that you will need to ask your client to establish the facts, to find out what the client hopes to achieve and to be able to offer the best advice possible. During your meeting, try to get your client to stick to the concrete, provable facts of the case as much as possible using the language from Exercise 33.
| Unit 9, Exercise 31 | ||||
| Explain these terms to Student A using some | of the 1 | anguage from the interview | ||
| (Listening 2). | ||||
| 1 joint purchase (of land) | 3 domicile | 5 cross-border | recognition | |
| 2 residence | 4 renvoi | 6 adjudicate | ___ J |
Unit 9, Exercise 32
You are the owner of an online discussion group. One of the recent discussion threads concerns problems that group members have been experiencing following the most recent upgrade to their anti-virus software. Several of them have lost data following this upgrade, although are unsure as to whether this was caused by the software itself or by viruses the software may have let in. The software was written by Redfern, an American company based in California. When one member of the group contacted Redfern, she was told that there was no problem with the software. She was also told that even if there had been a problem, Redfern wouldn't be liable to claimants from outside California. The potential claimants, 20 in total, come from four different US states, three EU member states, Egypt, South Korea, Pakistan, Venezuela and South Africa.
You have suggested that all those who have experienced problems should join together and try to claim damages in a class action suit against Redfern, and have arranged a meeting with a lawyer. Prepare for your meeting by familiarising yourself with the facts >f the case. Be ready to provide your lawyer with any further background information thatmight be needed.
Additional material
Contract law
The facts of the case
Your law firm has asked you to review the following case in preparation for a meeting with a client. Read this description of the facts of the case. What is the legal issue here?
Deep Blue Pools Ltd began as a small business in 1997, manufacturing and installing high-quality swimming pools for private residences. It has since developed a reputation for excellence and has received a number of lucrative contracts, generating substantial income for the company.
Last year, Gainsborough Construction Ltd contracted with Deep Blue Pools to build one swimming pool for each of the ten luxury properties it is currently building in south-east England. Deep Blue Pools was paid a total of £265,600 for the work.
Sometime after their installation, it became clear that each pool was shallower than the depth of 2.4m specified in the contract (by 25 to 50cm at different points). Deep Blue Pools claimed that each pool was still safe for diving and there would be no loss of enjoyment.
Gainsborough Construction is claiming £312,680 to demolish and rebuild the pools to the proper depth (cost of cure1), arguing that it is entitled to its exact preference concerning the pools' depth. Gainsborough Construction also claims that Deep Blue Pools deliberately misled them as to the size of the pools provided in order to reduce costs.
Deep Blue Pools says that the amount claimed is wholly disproportionate to the disadvantage suffered by Gainsborough Construction, and that the houses are no less valuable. Deep Blue Pools also claims that Gainsborough Construction has no real intention of effecting a cure, and that any damages awarded would be an unfair 'windfall2'.
| Task 2: Writing Write a letter of advice to one of the parties (your choice), in which you outline the legal issues raised by the case, refer to relevant statutes or related cases and provide your opinion as to the likely outcome of the case. |
Task i: Speaking
Divide into two groups, with one group representing Gainsborough Construction and one group representing Deep Blue Pools.
1 Prepare for negotiations with the other party. You should:
0 identify the legal issues of the case and determine arguments for your side;
O list the strengths and weaknesses of your side of the case;
0 list the strengths and weaknesses of the other side of the case;
C decide which parts of the relevant legal documents most strongly support
your case and can be used to argue against the other party's case; 0 make notes for the negotiation: What are your goals? What are you willing
to give? What are you not willing to give?
2 Pair up with a representative of the other party and attempt to negotiate a settlement.
3 Report the results of your negotiations to the class.
1 See Text 2 on the opposite page.
2 an unexpected profit or gain
Relevant legal documents
Text r. Sale of Goods Act 1979, Section 53 (1-3)
{\.\ Where, there \s a. breach of vra.tta.nty1 bv the seller, or where the buyer elects (or is comyelled^ to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may—
(a) set up against tiie seller the breach of warranty in diminution2 or extinction of the price, or
(b) maintain an action against the seller for damages for the breach of warranty.
(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
(3) In the case of breach of warranty of quality such loss is prima facie3 the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had fulfilled the warranty.
1 In some jurisdictions, contract terms are classed as either warranties or conditions. The breach of a warranty can give rise to
a claim for damages, but not to a right to treat the contract as terminated. The breach of a condition can give rise to a claim for
damages and also gives the the right to treat the contract as terminated.
2 the act of decreasing or lessening something; reduction 3 at first sight; accepted as correct until disproved