Advocates in England and Wales
In England and Wales Advocates and Proctors practiced civil law in the admiralty and ecclesiastical courts in a similar way to Barristers and Attorneys or Solicitors in the common law and equity courts.
Advocates, who formed the senior branch of the legal profession in their field, were Doctors of Law of Oxford or Cambridge and Fellows of the Society of Doctors' Commons.
Advocates lost their exclusive rights of audience in probate and divorce cases when the crown took these matters over from the church in 1857, and in admiralty cases in 1859. The society was never formally wound up, but their building was sold off in 1865 and the last advocate died in 1912.
Barristers were admitted to the Court of Arches of the Church of England in 1867. More recently, Solicitor Advocates have also been allowed to play this role.
A Barrister also termed as Barrister-at-Law or Bar-at-Law is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialize in courtroom advocacy, drafting legal pleadings, and giving expert legal opinions. They can be contrasted with solicitors – the other class of lawyer in split professions – who have more direct access with clients, and may do transactional-type legal work. Barristers are rarely hired by clients directly but instead are retained (or instructed) by solicitors to act on behalf of clients.
The historical difference between the two professions – and the only essential difference in England and Wales today – is that solicitors are attorneys, which means that they can act in the place of their client for legal purposes (as in signing contracts) and may conduct litigation on their behalf by making applications to the court, writing letters in litigation to the client's opponent, and so on. A barrister is not an attorney and is usually forbidden, either by law or professional rules or both, from "conducting" litigation. This means that, while the barrister speaks on the client's behalf in court, he or she can do so only when instructed by a solicitor or certain other qualified professional clients, such as patent agents.
Many countries with common law legal systems, such as New Zealand, allow for the roles of barrister and solicitor to be combined into one person. In countries with civil law or other kinds of legal systems, the legal profession is often separated into divisions but these divisions rarely shadow those of barristers and solicitors.
Essentially, barristers are the lawyers who represent litigants as their advocate before the courts of that jurisdiction. They speak in court and present the case before a judge or jury. In some jurisdictions, they undertake additional training in order to hone their skills with evidence law, ethics, and court practice and procedure. In contrast, solicitors generally engage in preparatory work and advice, such as drafting and reviewing legal documents, dealing with and receiving instructions from the client, preparing evidence, and managing the day-to-day administration of a matter. Solicitors can provide a crucial support role to a barrister when in court, be it in managing large volumes of documents in the case or even negotiating settlements outside the courtroom while the trial continues inside.
Other differences include the following:
· A barrister will usually have rights of audience in the higher courts, whereas other legal professionals will often have more limited access, or will need to take additional qualifications to do so. In this regard, the profession of barrister corresponds to that part of the role of legal professionals found in civil law jurisdictions relating to appearing in trials or pleading cases before the courts.
· Barristers usually have particular knowledge of case law, precedent, and the skill of "building" a case. When a solicitor in general practice is confronted with an unusual point of law, they sometimes seek the "opinion of counsel" on the issue.
· In most countries, barristers operate as sole practitioners, and are prohibited from forming partnerships or working as a barrister as part of a corporation (although, in England and Wales, the Clementi report has recommended the abolition of this restriction). However, barristers normally band together into "chambers" to share clerks (administrators) and operating expenses. Some chambers grow to be large and sophisticated, and have a distinctly corporate feel. In some jurisdictions, some barristers are employed by firms of solicitors, banks or corporations as in-house legal advisers.
· Solicitors work directly with the client and are responsible for engaging an appropriate barrister; whereas barristers generally have little or no direct contact with their 'lay clients', particularly without the presence or involvement of the solicitor. All correspondence, inquiries, invoices, and so on, will be addressed to the solicitor, who is primarily responsible for the barrister's fees.
· In court, barristers are often visibly distinguished from solicitors by their apparel. For example, in Ireland, England and Wales, barristers usually wear a horsehair wig, stiff collar, bands and a gown. As of January 2008 Solicitor advocates have also been entitled to wear a wig, but will wear a different gown.
Стрепетова Вероника
A contract is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between or among them. The elements of a contract are "offer" and "acceptance" by "competent persons" having legal capacity who exchange "consideration" to create "mutuality of obligation."
Proof of some or all of these elements may be done in writing, though contracts may be made entirely orally or by conduct. The remedy for breach of contract can be "damages" in the form of compensation of money or specific performance enforced through an injunction. Both of these remedies award the party at loss the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract, although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration.
Contract law varies greatly from one jurisdiction to another, including differences in common law compared to civil law, the impact of received law, particularly from England in common law countries, and of law codified in regional legislation. Regarding Australian Contract Law for example, there are 40 relevant acts which impact on the interpretation of contract at the Commonwealth (Federal / national) level, and an additional 26 acts at the level of the state of NSW. In addition there are 6 international instruments or conventions which are applicable for international dealings, such as the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention)
Third parties
Main article: Third party beneficiary
The doctrine of privity of contract means that only those involved in striking a bargain would have standing to enforce it. In general this is still the case, only parties to a contract may sue for the breach of a contract, although in recent years the rule of privity has eroded somewhat and third party beneficiaries have been allowed to recover damages for breaches of contracts they were not party to. In cases where facts involve third party beneficiaries or debtors to the original contracting party have been allowed to be considered parties for purposes of enforcement of the contract. A recent advance has been seen in the case law as well as statutory recognition to the dilution of the doctrine of privity of contract. The recent tests applied by courts have been the test of benefit and the duty owed test. The duty owed test looks to see if the third party was agreeing to pay a debt for the original party[needs elaboration] and whereas the benefit test looks to see if circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. Any defense allowed to parties of the original contract extend to third party beneficiaries.[74] A recent example is in England, where the Contracts (Rights of Third Parties) Act 1999 was introduced.
Formalities and writing
An unwritten, unspoken contract, also known as "a contract implied by the acts of the parties," which can be either implied in fact or implied in law, may also be legally binding. Contracts implied in fact are "real" contracts, that is, of no different remedy than "benefit of the bargain," as mentioned above. However, contracts implied in law are also known as quasi-contracts, and the remedy is quantum meruit, the fair market value of goods or services rendered.
Oral contracts are ordinarily valid and therefore legally binding. However, in most jurisdictions, certain types of contracts must be reduced to writing to be enforceable. This is to prevent frauds and perjuries, hence the name statute of frauds. For example, an unwritten contract would be unenforceable if for the sale of land.
Contracts that do not meet the requirements of common law or statutory Statutes of frauds are unenforceable, but are not necessarily thereby void. However, a party unjustly enriched by an unenforceable contract may be required to provide restitution for unjust enrichment. Statutes of frauds are typically codified in state statutes covering specific types of contracts, such as contracts for the sale of real estate.