The Criminal Justice System

LAW
Introduction
What is law?
Law is a set of rules to govern the conduct of people in a civilized society. Everyone must abide the same rules. Today we live in a complex society and laws are more complex and sophisticated.
Criminal law and civil law
A crime is a offense against the state.To prevent our society against antisocial behavior criminal law is created, the police enforce these criminal laws. Then society will prosecute that person for that crime. Other crimes involve other enforcement agencies but again it will be the community or society which punishes the offender and which pays for the detection and prosecution of the offender. The prosecution of a criminal conviction must establish to essential elements: prohibited act and guilty mind.
Both elements must have been violated to create criminal liability. There are statutory offenses whereby the requirement of a guilty mind has been dispensed, these crimes are known as strict liability.
Civil law governs the relationship between individual members of the community. This law does not involve the police, individuals should solve out their differences. To help them society set out a set of rules and also courts to apply those rules for the resolution of differences. Those differences are for example defamation of character, trespass on land, wrongful dismissal of an employee and divorce.
Punishments are designed to penalize a wrongdoer and deter others from committing crimes. A person can insure against committing a civil wrong but not agains committing a crime.
How are laws made?
1. The common law-made by judicial decisions
A strong central government set up a national courts system. New laws are published by the Incorporated Council of Law for England and Wales. The title of commercial law reports use the names of the contestants in the court case and the year of the case. Criminal reports use the name of the prosecutor. Civil cases show the names of the contestants known as the plaintiff and defendant, or, in Scotland, the pursuer and the defender.
2. UK legislation- made by parliament
It is the power of the Queen in the Parliament and it takes precedence over the common law, so legislation can change the common law. There are two types of UK legislation which become law by different process:
Act of Parliament - also known as statutes
House of commons elected part of the parliament
House of Lords; persons selected by birthright, position, appointment.
Statutory instruments - also known as delegated legislation laws as part of government policy law at the instigation of an individual member of Parliament
3.
European law- law resulting from our membership of the European Union
Enforcement of laws
The UK has a hierarchy of courts: courts of first instance and appeal courts. The court system has two categories. First the civil court system: one party commence proceedings, in the case of High court cases is this done by a writ. Second the criminal law system: proceedings are commenced on behalf of the state for example the Crown Prosecution Service.
How laws apply
I. Judicial precedent
A decision in a common case sets a precedent which is followed in subsequent cases. This system requires two features:
1. Hierarchy of court
The higher up the court system decision is made, the more authority the decision has. Decisions made by the House of Lords are important but the magistrates’ court decisions are not important.
2. Law reporting system
There is a reliable written record of the reasons needed for decisions to be judicial precedent.
II. Judicial interpretation of legislation
The task of deciding what the legislation means is called interpreting the legislation this is done by the court. It is their job to apply the set of rules to a particular case.
Some aspects to civil law
I.
Contract
A contract is an agreement which has legal consequences.
Every contract has more than one party
The parties intent that their agreement creates a legally binding relationship
Their must be a consideration: both parties must give something; money/good/service
II. Tort
A tort is a civil wrong where one person’s conduct causes harm to another - it is not based on the contractual relationship. Examples of classifications are: defamation, trespass and negligence.

criminal law
Civil law
Concerns
Offences against the state
Disputes between private individuals
Purpose of the action
To preserve order in the community by punishing offenders and deterring others
To remedy the wrong which has been suffered
The parties
A prosecutor and defendant
A plaintiff sues a defendant
Where the action is heard
The criminal courts i.e. magistrates’ court or Crown Court
The civil courts i.e. county court or High Court
Standard of proof
The prosecutor must prove his case beyond a reasonable doubt
The plaintiff must establish his case on the balance of probabilities
Decision
A defendant may be convicted if he is guilty and acquitted if he is innocent
A defendant may be found liable or not liable
Sanctions
Imprisonment, fine, community service
Damages, injunction, specific performance, rescission
Examples
Murder, theft, drunken driving, applying a false trade description of goods
Contract, tort, property law

Law and settlement of disputes
Social structural arrangements within a social group will contain dispute-settling, as well as dispute-prevention mechanisms. Most disputes are settled by informal means but the more complex and technologically developed societies contain formal institutions and agencies whose purpose is the resolution of disputes.
The prevention and settlement of disputes in modern society
Due to the growth of disputes there are agencies created for the implementation of state interventionist policies. These dispute-solving mechanisms are not ordinary courts of law but rather specialized tribunals. One major device for dealing with disputes, is insurance, you can insure against any eventuality. Next to tribunals two alternatives to resolve disputes are arbitration and dispute avoidance.
Business disputes: avoidance and arbitration
As said before the court is not preferable to solve contractual disputes. Because litigation is expensive. Therefor the basic rules of contract are replaced by specialized and technical statutory provisions requiring corresponding specialism in dispute-prevention and settlement devices and techniques.
If a party is unable to fulfill the contract trough no fault of their own (an act of god) this is called a force-majeure. There could be a clause in the contract that which states that one or other party may terminate the contract with agreed provisions as to which party shall bear financial losses. This would be a dispute-prevention of avoiding expensive, time-consuming litigation.
If the parties cannot agree on the applicability of a force-majeure the dispute will to be referred to arbitration. Arbitration is an informal, private and speedy alternative to court hearing. The arbitration must follow a fixed and recognizable system of law mostly the law of England. There are alway gaps in the contractual provision which may be filled by the general law of arbitration. But the arbitration may never exclude the jurisdiction of the ordinary courts. The court has the power to set an arbitration aside if there was any error of fact.
Businesses use conciliation and arbitration schemes to satisfy a complaining customer, those schemes cannot exclude the right of a customer to take legal action against a retailer but most of the times they won’t because of the compromising solution.
Private international laws issues: conflicts of laws
Jurisdiction
Jurisdiction means the power to hear a dispute, personal and subject matter jurisdiction are needed.
I. Personal jurisdiction
The court gets personal jurisdiction if the defendant is in the country plus “service of summons”. “in rem jurisdiction” is when a property is in country the can seize that property and solve the dispute even when the owner is not in that particular country.
II. Subject matter jurisdiction
The court must have the power granted to the court by its country’s laws concerning jurisdiction. So a criminal court cannot hear a civil case. “Forum non conveniens” means that the case is more convenient at a court elsewhere.
International contract solutions
I. Which court in which country should hear the dispute
National laws are divergent to decide this. The most viable solution is to introduce a Choice of Forum clause in an international contract. Parties may agree which court in which country will hear the dispute. Courts will accordingly determine their jurisdiction on the case.
II. Which law should govern the dispute
The court hearing the case will attempt to decide which legal system has the closest connection to the transaction, this could be the law of another country. An agreement in a international contract about which law will be applied is called a Choice of Law clause.
III. Recognition and enforcement of judgments
If according to the English law someone in Russia owns you money, the Russian Law will only help you if they accept the judgment given by the English court. They will accept it when they agree that the English court had jurisdiction. The European Union accepts the jurisdiction of a member of their Union automatically.
IV. Arbitration Clause
Parties to international contacts often decide to agree that any disputes will be handled by arbitration instead of litigation in a court. This agreement clause is known as an “arbitration clause”.
Common sources of law affecting business
1. Constitution: A document which includes the body of fundamental principles according to which a state or country is governed.
2. Legislation= statues: Laws passed by legislature. A legislature is the main law-making body of many countries.
3. Administrative law: The body of law developed by administrative agencies to implement their powers and duties in the form of rules, regulations, orders and decisions. An administrational agency is a governmental body charged with administering and implementing particular legislation.
4. Civil Code/ Commercial Code: A specific code is systematic collection of all the laws in a given area of law, only in civil law system countries. e.g. Burgelijkwetboek.
5. Case law: The aggregate of reported court cases as forming a body of jurisprudence or the law of a particular subject as evidenced of formed by the adjudicated court cases, in distinction to statutes, administrative law or other sources of law.
6. Common law: Law that not has been developed by legislatures or administrative agencies or civil codes but is based on the judgements of courts recognizing and affirming and enforcing usage and customs.
7. International law: The law governing relations among countries, often affecting private parties.
8. European law: The body of treaties and legislation which take precedence over the national law and binding on national authorities.
Titles of parties to a legal action
I. Civil proceedings
Person who is bringing the legal action=plaintiff -v- person who is being subjected to the legal action = defendant
II. Criminal proceedings
Person who is bringing the legal action = prosecutor and the person who is being subjected to the legal action = defendant. If the action is successful the result = conviction
III. Appeals
When a decision is made one party will be determined, he has the opportunity to appeal against the decision. Then the case will be presented to a court of higher standing.
Pursuing a legal action
A legal action may be pursued for many reasons:
Enforce someone the do something he should have done but he has not
Prevent someone from doing something he intends to do
Stop someone doing something he is already doing
Punish someone for a wrong they have done
Obtain compensation
Contracts
A contact is an agreement which has legal consequences. To have legal consequences the agreement must include necessary elements as the intention to be legally bound and may not be vitiated by any other factors. Most countries require a written contract of a special formal written called a “deed”.
Necessary elements
I. Intention to be legally bound by the agreement
Each part really intends to make a binding contract. So he knows, if he doesn’t fulfill his part the other party may sue him in court. Or if the contracts says so bring the case to an arbitrator.
II. Offer and acceptance
1. Offer: an expression of willingness to make a contact on certain terms.
Their is no special form needed. The offer will lapse:
After a reasonable time
If expressly open for a certain amount of time
Death of either party
Rejection of the offer
Counter-offer is made
2. Acceptance: an expression of willingness to accept the therms of the offer. And must be accomplished while the offer is still available.
Must be made while the offer is still open
Must be identical to the offer in its term
Must be unconditional
Occurs
In civil law: the acceptance must be received by the offeror
Common law (UK): “postal rule exception” acceptance is made when the letter is send.
III. Difference between an offer and an invitation to make an offer=invitation to treat
Ads in newspapers are invitations because they do not provide promises of fact, and ads are made to the world at large, not someone in specific.
IV. Standard form contracts and acceptance
Standard form contact is a pre-printed standard form which a business always uses in a particular situation with a particular sort of offeror. This limits liability and is easy to use over and over.
V. Potential problems caused by using standard form contracts
They consist “legalese” (complex legal wording). When both parties use standard form contracts you get a “battle of the forms”, there is a conflict between the therms of the contracts. Then you cannot get an identical acceptance to an offer and their contract could be invalid, it is up to the law to decide that.
VI. Consideration
Something of value. Mainly common law countries require this (ENG, USA, Canada), civil law countries doesn’t. (NL, GER) An offer to make a gift in ENG is not enforceable if the promisor refuses to give the gift. Except: if the offer is in a written form called a deed. Or promissory estoppel: if the plaintiff can prove that he relied on the promise and “changed position” based on the promise.
VII. Capacity to contract
The parties who are supposedly making a contract must be legally capable of doing so. (not drunk) Minors can avoid the contracts they make unless the contracts are for “necessities of life”
Vitiating factors
These are factors which can make the contract void, voidable and unenforceable.
I. Forms
If a contract requires a special form and that form is not used the form is unenforceable.
II. Mistake
The result of a mistake is that the contract is void like it never existed, goods or money must be returned.
III. Misrepresentation
The effect is that the contract is voidable by the person who was misled. A misrepresentation is a false statement of fact made by one party which induces the other party to enter into the contract. The misrepresentation is not a part of the contract, if it is the the injured party can sue for breach of contract/ breach of warranty. There are three types:
1. Fraudulent misrepresentation: The person making the statement knew it was false (intentionally lied)
2. Negligent misrepresentation: The person carelessly made a false statement.
3. Innocent misrepresentation: The person was not fraudulent or careless
IV. Duress
The contract becomes void of voidable. Economic duress has two ingredients:
1. There must be a coercion overbearing the will of the victim, causing the victim to enter into the agreement.
2. The pressure must be illegitimate or even unlawful
V. Illegal agreement
The contract is void, money transferred under the contract will not be recoverable with the help of the law.
VI. Undue influence
The contract will be unenforceable and set aside. Indue influence occurs when a person seems to be influenced by another party and therefor is not able to exercise a free and deliberate judgment.
Contents of contracts
I. Express terms and implied terms
Express terms are expressly stated orally or in writing. Implied terms: the law will add or change some terms which were not put in the contract or stated the opposite of what the law demands.
II. Conditions
The terms in a contact can be either conditions or warranties. Conditions are the most important terms in a contract. If the a condition is breached the injured person can end the contract and sue for breach of contract.
III. Warranties
Warranties are the least important terms in a contract. The injured party can only get damages but he cannot cancel the contract.
IV. Exemption clause/ Exclusion clause/limitation liability clause
This clause is an attempt to limit liability and legal responsibility for injury. The exemption clause to prevent liability must be part of the contract. Exemption clauses are bounding even if the customer did not read the contract.
Discharge of contracts & privity of contracts
Termination of contacts
I. Both parties agree to en the contract
If both the offeror and offeree agree to end the contract and both agree to release ech other from any not yet completed promises of the contract.
II. Breach of a condition
This ends the contract, releasing the innocent party from what they had promised to do.
III. Frustration
One party cannot perform the contract because of circumstances beyond his control “act of god”.
Performance
Both parties have done what they agreed to do in their contract.
I. Partial performance is no performance
If their is a small part left undone this will result in a lack of performance.
II. Substantial performance
The above rule is not fair. Substantial performance occurs if most of the work promised is done. The remedy is quantum meruit payment.
III. Series of installments or smaller deals
If the contract is phased in several smaller installments with several payments, then if the installments are not totally performed, the promisee is still paid for each completed separate installment.
IV. Prevention of performance by other party to the contract
If you call of a deal when someone already prepared for the job he can sue you for money for the preparation.
V. Acceptance of part performance
If one party has partly performed and the other party accepts the performance, the she must pay at the contract rate for what she has accepted.
Remedies for breach
I. Damages
Damages are normally an award of money with as goal to put parties into the position they would have occupied had the contact been performed.
II. Classification of damages
1. unliquidated damages: This means that the amount of damages was not agreed upon by the parties prior to forming the contract, the court or arbitrage will determine the amount of money.
2. Liquidated damages: This is an amount of money which the parties of the contract agree, in advance, should be paid by the wrongdoer. The court may decide if the amount is reasonable.
III. Injunction
This is an order by the coourt to a person or business ordering them to stop doing some particular action.
IV. Specific performance
This is a remedy for breach in which the court orders the breaching party to actually do what the contract says they must do.
V. Rescission
This is remedy in which the court order that both parties each restore each other to their pre-contract position. It is an unmaking of the contract or an undoing of it from the beginning, and not merely a termination of the contract.
VI. Quantum meruit payment
This is an order by a court that a person be paid as much as his services were worth.
VII. Rectification
This is a remedy in which the court orders a change to the written contract to make it fit what the parties actually agreed they would do.
Short comparison of contracts and contract law in common law and civil law countries
I. Common law countries
The law of contracts is found in statutes, case law and custom/usages of trade.
II. Civil law countries
The law of contract is found in the civil / commercial codes. Case law is not as important although it interprets their codes. Statutes are not so imprtant as the code. Civil law contracts are not as detailed as common law contracts.
Privity of contract and possibilities of direct action by consumer
I. Definition of privity of contract
The rights and duties created by a contract are confined to the parties of the contract.
II. Applying the concept of privity to the sale of goods
Only the buyer can sue in court using the law of contract if the good or product is defective. If the goods contain a defect basing a suit on contract law: the buyer sues the retailer, who the sues the wholesaler, who then sues the manufacturer.
III. Possible problems
For the consumer rights may be empty rights if the reatiler does not have enough money to pay damages. And the buyer cannot sue the wholesaler or manufacturer using contract law. Thereby the retailer is responsible even if he is blameless, the retailer may sue his immediate supplier in contract. The the supplier, the wholesaler may sue the next person in the chain. This chain of responsibility may be broken in two ways: When a part of the chain is insolvent. Or a reasonable exemption in part of the chain.
Possibilities for direct action by the consumer, including the recipient of a gift against the manufacturer of a product
I. Tort law
Claim on the legal basis of negligence or strict product liability. Even by a gift tort law can be used.
II. Specific consumer protection laws
Gives consumers more rights that they have under the traditional law of contract and tort. Also, these consumer protection laws often contain criminal penalties.
III. Collateral contact
1. Advertising and sales by manufacturer’s representatives
If promises of fact are made to specific persons in advertising and sales talk
2. Manufacturer’s guarantees and warranties
Under certain circumstances, if manufacturer’s warranties and guarantees accompany the product. A warrenty states that the manufacturer will repair of replace defective goods within a certain period of time. There is such a contact if the consumer knew about the guarantee before the product was bought and consideration must be present.
Tort
“A tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”
I. Tort and crime
The objectives of proceedings in tort are; compensation and reparation, while criminal wrongs primarily have punishments as their aim. Although a tort is a civil wrong, not all civil wrongs are torts.
II. Tort and contract
Duties of a tort a fixed by law and is towards persons generally whereas by contract the duties are fixed by the parties themselves and to a specific person.
III. Types of Tort
Negligence, defamation, nuisance, trespass of the person and land.
IV. Function and purpose of Tort
The law of tort is concerned with situations where the conduct of one party causes harm to the interests of other parties. The aim is to compensate for those who suffered harm.
Tort of negligence
I. Definition
The tort of negligence protects individuals from harm from others unintentional but careless conduct. Persons are liable for negligence if:
1. Legal duty of ordinary care: the wrongdoer owed a duty to the injured party.
2. The duty of care owed to the injured party was breached through some act or omission (failure to act) on the part of the wrongdoer. You should act as a reasonable person. Cost-benefit analysis: Predictable injury, was it easy to prevent the injury, does society need this service/product.
3. Causation; There is a causal connection between the wrongdoer’s negligent conduct and the resulting harm to the injured party. Cause in fact: the event would not have occurred without the wrongdoer. Proximate cause: The person’s liability is limited to consequences that bear some reasonable relationship to the negligent conduct.
4. The injured party suffered actual harm or damage recognized as actionable by law as a result of the negligent conduct.
II. Actionable injury
Personal injury is always actionable. Economic injury is only recoverable in certain situations.
Defenses to a negligence action
A injured party could be denied for compensation if the wrongdoer has a valid defense, although all the required elements of negligence are established.
I. Assumption of the risk
If the injured party has voluntary assumed the risk of harm arising from the negligent or reckless conduct of another will not recover compensation for such harm. Because this created a defense for the wrongdoer. The requirements of this defense are: The injured party knew/should have known about the risks and voluntary assumed that risk.
II. Contributory negligence (UK version)
The defendant argues that the plaintiff was also careless, and that the injury to the plainliff waws caused at leas in part by the plaintiffs own carelessness.
Strict liability
Is liability without fault. The plaintiff can recover compensation for loss or damge without having to prove negligence or intent on the part of the defedant. Elements th plaintiff must prove: Abnormally dangerous activity or situation exists that is under the control of the defendant. And as a result of that the plaintiff has suffered allowable injury.
I. Strict product liability
All European Community countries had to incorporate the doctrine of strict product liability into their own national laws.
Strict product liability under the consumer protection act (UK) The EC council of ministers adopted a directive on strict product liability all EC member states were committed to implementing changes into their national law to bring their national tort laws into line with the EC directive.
The EC member states had to adept the consumer protection act. A regime of strict liability for personal injury caused by defective products. It was no longer needed to prove negligence. If: He has suffered allowable damage, the product was defective and the damage was caused by the defective product. Important foactors: the purpose of the product, the intrauctions or warnings, what expected could be done with the product, time product was supplied by producer.
II. Regarding attempts to exclude or limit liability
Liability cannot be limited or excluded by any contract term or notice. Possible defenses:
1. Contributory negligence can be used with a view to reducing any award of damages.
2. The product was not supplied in the course of a business or for profit (gift)
3. The defect did not exist in the product at the time of the injury
4. The person being sued did not supply the product to another
5. “developments risk” The state ad scientific an technical knowledge at the releveant time was not such that a producer of products might have expected to have discovered the defect while they were under his control.
6. If a component is involved, that was comprised in another product and that the defect is wholly attributable to the design of the total product.
7. That the defect is attributable to compliance with UK legislation or EC obligations.
Dutch contract Law
Basic principles
1. Liberty of contract; parties are free to enter into any agreement with any person.
2. Binding Force of contracts; The parties are bound by the agreement. Exemptions: mandatory provisions of law, good morals or public order, reasonableness and fairness.
3. Consensualism; Most cases contacts are not subject to special formalities. Except if a written document is required by law.
Formation of contracts
I. There are four requirements for the existence of a legally enforceable contract:
1. Mutual assent: Offer and acceptance.
2. Capacity: The following persons have no capacity to contract: Minors, individuals who are under guardianship.
3. Certainty of terms: The obligations that the parties assume, must be definable.
4. No violation of law, goos morals or public order: contract is contrary to a mandatory legal provision or if the contents or purpose are contrary to good morals or public order. Formal contracts require a written document in order to be valid. The absence of consideration may have legal effects: tax consequences, the transaction is subject to nullification.

II. Defect of the will
Mistake: absence of a correct understanding of matters, a causal link between the mistake and the conclusion of he contract, or the presence of one of the following circumstances: the other party provided incorrect or incomplete information and mutual mistakes.
Duress: A threat by a person to inflict any damage. The duress much be such that a reasonable person would be influenced. The dures must be of an unlawful character. A causal link between the duress and the conclusion of the contract.
Fraud: Use of a fraudulent act. the other party intentionally provided incorrect information. The other party intentionally failed in its duty to speak. A causal link between the fraud and the conclusion of the contract. Fraud is a tort.
Abuse of circumstances: special circumstances such as dependency or inexperience. Abuse of those circumstances; another person promotes the conclusion of the contract although he knows the act is influenced. Causal link between the circumstances and the conclusion of the contract.
Performance of contracts
I. Civil code
The civil law provides that a contract not only has the legal consequences agreed upon between the parties, but alse those which according to the nature of the contract arise out the law, custom or the reequirements of reasonableness and fairness.
II. Interpretation of contracts
If the parties do not agree on the content of a contract the interpretation becomes relevant.
III. Reasonableness and fairness
Is the principle of good faith and is very important in determining the obligations of the parties under a contract.
IV. Unforseen circumstances (imprevision)
A circumstance is not provided for if both of the following requirements have been met: ar the time of the conclusion of the contract the circumstance has not yet occurred and the parties did not provide for this circumstances.
V. Estoppel and Waiver
Grounds for estoppel exist where a person by his own behavior wholly or partially gives up a right. One has to judge on the basis of reasonableness and fairness wether or not previous behavior prevents the exercise of a right. Estoppel must be distinguished from a waiver of a right. In the case of waiver the right is lost by an agreement between the creditor and debtor, whereas in the case of estoppel a right is lost by actual behavior of the creditor.
Breach of contract: force majeure
Civil code uses the term “(non)imputable shortcoming” if: There is untimely, improper or non-performance of an obligation and is not justified by a suspension right. The claim must have matured.
I. Default (imputable shortcoming)
In case of a permanent impossibility to perform, the contractual obligation is converted into an obligation to pay damages by operation of law. A demand for specific performance is not possible. In the case of a temporary impossibility to perform, default (verzuim) is a requirement for the right to damages.
II. Notice of Default
A debtor is in default if he receives a notice of default by means of a written summons, in which he is given a reasonable term for performance and the performance is not done within this term. If the debtor is only temporarily prevented from performing or if it appears from his attitude that summons would be useless, the notice of default can take the form of a written notice indicating that he will be held liable for the non-performance. Default can occur without notice: If a time period set for a performance expires without the obligation having been perfomed. The obligation arises from a tort or has as its purpose the compensation of damages based on breach of contract and the obligation is not immediately performed. Or if the creditor can deduce from a statement of the debtor that the debtor will not perform the obligation.
III. Force majeure (non-imputable shortcoming)
A shortcoming cannot be imputed to the debtor if it is not due to his fault and he does not bear the risk by virtue of the law, a legal act or generally prevailing views. The term fault includes both negligence and intent.
Remedies
1. Specific performance
2. specific performance and supplemental damages
3. damages
4. suspension of performance
5. dissolution of the contract
6. dissolution of the contract and supplemental damages
Specific performance
At the demand of the creditor, a court may order specific performance by a debtor under a contract, unless the law, the nature of the obligation or a legal act provides otherwise. The law provides otherwise in cases of so-called “natural obligations”, or moral obligations, i.e. obligations that are not enforceable by law, as, for instance, obligations arising from games or bets. Accordingly, in cases of force majeure, since this almost always implies temporary or permanent impossibility of performance, a demand for specific performance will not be allowed
Standardized terms
Standardized terms are defind as: One or more written provision, drafted in order to be included in a number of contracts with the exeption of core provisions. A provision is a core provioson if in its absence the contract would not exist because of insufficient certainty of terms.
Enforceable clauses depends on the nature of the party:
Large entrepreneur: the party is a legal entity that has published its annual accounts or has fifty or more employees. Provisions related to standardized terms do not protect large entrepreneurs.
A standardized term is voidable: if the enforcing party did not offer to the other party a reasonable possibility to be informed of the standardized terms. the standarized terms are unreasonable for one of the parties because of difference in nature. furthermore, the provisions containing the so- called black list and grey list set forth specific rules relating to the enforceability of standardized terms in consumer contracts
The black list contains provisions that are deemed unreasonably onerous when contained in contracts with consumers and are, therefore, always voidable. Such terms includes: exclusion or limitation of the right to dissolve in case of breach of contract; deviation from the legal right to suspend performance; consent in advance to an assumption of debt or contract; too great a shortening of the statute of limitations; third party indemnification provisions; price increase provisions; certain evidence provisions; requirements as to form; exclusive settlement of disputes by binding decision of the user of the terms for by a binding advice of a third party.
The grey list contains: list contains a number of terms that are presumed to be unreasonably onerous, provisions that grant the right to the user to make a performance different from what the other party could expect or different from what was promised; too great a possibility to withdraw from the contract; exclusion of liability clauses; deviation from the legal right to set-off; provisions that grant on irrevocable power of attorney to the user.
European Union Law
Future of the European Union
More and more countries joined, and the Union reached its current size of 27 members on 1 January 2007.
Every European Country may apply for membership if it respects the EU's democratic values and is committed promoting them. But there are membership criteria:
Political : It must have stable institutions guaranteeing democracy, the rule of law and human rights
Economic: It must have a functioning market economy, and be able to cope with competitive pressure and market forces within the EU
Legal: It must accept established EU law, and practice the major goals of political, economic and monetary Union.
The institutions of the European Union
1. The European Council
2. Council of the European Union/ Council of ministers
3. The European Commission
4. The European Parliament
5. The court of justice of the European Union ( CJEU)
1. The European Council
What: Supreme political decision making body.
How composed: the Heads of State or Government of the member states and the president of the European commission.
Functions: defines the general political objectives and directives of the EU.
Became an institution: since the treaty of Lisbon ( 1 December 2009).
Meets: twice every 6 moths, but the president can convene a special meeting if it is needed.
Decides by: Consensus (eensgezindheid), except if the treaties provide otherwise. Sometimes decisions are made by unanimity or by qualified majority.
The presidents of the European Council and Commission, and the High Representative for Foreign Affairs and Security Policy do not have a vote
President: elected by qualified majority, for a term of 2.5 years (renewable once).

Council of the European Union/ Council of ministers
What: Central decision-making authority and the effective legislative body of the EU.
How composed: The Council of the EU is made up of one minister from each Member State chosen on the basis of the subject under discussion. The Members of the Council of Ministers are the specialized ministers of the member States
Functions: Make laws together with the Parliament. In most cases, the Council can only legislate on the basis of proposals submitted to it by the European Commission. It can ask the Commission to submit any proposals it may deem appropriate.

Meets: The EU's 27 Member States take it in turn to chair the Council for a period of six months each. During this six-month period, the Presidency chairs meetings at every level, proposes guidelines and draws up the compromises needed for the Council to take decisions.
Decides by: Decisions in the Council of the EU are taken by qualified majority as a general rule. The bigger a country’s population, the more votes it has, but in fact the numbers are weighted in favor of the less populous countries. When the Council votes, 'qualified majority voting' applies. A qualified majority is reached when: a majority (sometimes even two thirds) of the 27 EU countries vote in favour at least 255 of the possible 345 votes are cast
Furthermore, a member country can ask for a check to see whether the majority represents minimum 62% of the total population. If this is not the case, the proposal cannot be adopted
In votes concerning sensitive topics - like security and external affairs and taxation - decisions by the Council have to be unanimous. This means that one single country can veto a decision.
From 2014 a system known as 'double majority voting' will be introduced. For a proposal to go through, it will need the support of 2 types of majority: a majority of countries (at least 15) and a majority of the total EU population (the countries in favour must represent at least 65% of the EU population).
The European Commission
What: The Commission has the 'right of initiative' – it can propose new laws to protect the interests of the EU and its citizens. It does this only on issues that cannot be dealt with effectively at national, regional or local level (subsidiarity principle).
Since the entry into force of the Treaty of Lisbon, a million citizens may also sign a petition inviting the Commission to submit a proposal. This is the citizens' right of initiative
How composed: The 27 Commissioners, one from each EU country, provide the Commission’s political leadership during their 5-year term. Each Commissioner is assigned responsibility for specific policy areas by the President.
Functions: The Commission represents and upholds the interests of the EU as a whole. It oversees and implements EU policies by:
1.managing the EU's budget and allocating funding
2.proposing new laws to Parliament and the Council
3.enforcing EU law (together with the Court of Justice)
4.representing the EU internationally, for example, by negotiating agreements between the EU and other countries.
Some functions explained:
1. Managing the EU's budget and allocating funding: With the Council and Parliament, the Commission sets broad long-term spending priorities for the EU in the EU 'financial framework'. It also draws up an annual budget for approval by Parliament and the Council, and supervises how EU funds are spent
3. Enforcing EU law: As 'guardian of the Treaties', the Commission checks that each member country is applying EU law properly. If it thinks a national government is failing to apply EU law, the Commission first sends an official letter asking it to correct the problem. As a last resort , the Commission refers the issue to the Court of Justice. The Court can impose penalties, and its decisions are binding on EU countries and institutions
4. Representing the EU internationally: The Commission speaks on behalf of all EU countries in international bodies like the World Trade Organisation. It also negotiates international agreements for the EU such as the Cotonou Agreement (on aid and trade between the EU and developing countries in Africa, the Caribbean and the Pacific).
President: The President is nominated by the European Council. The Council also appoints the other Commissioners in agreement with the nominated President.
The appointment of all Commissioners, including the President, is subject to the approval of the European Parliament. In office, they remain accountable to Parliament, which has sole power to dismiss the Commission ('motion of censure'. ). ‘Commission’ can be used to refer to the 27 individual Commissioners, the permanent staff or the institution as a whole.
The European Parliament
What: The Parliament is one of the EU’s main law-making institutions, along with the Council of the European Union ('the Council').
How composed: Directly elected by EU voters every 5 years, members of the European Parliament (MEPs) represent the people.
The number of MEPs for each country is roughly in proportion to its population. Under the Lisbon Treaty no country can have fewer than 6 or more than 96 MEPs.
The current numbers in the Parliament were set, however, before the coming into force of the treaty. The numbers will be adjusted for the next mandate of the European Parliament. For example, the number of MEPs for Germany will thus be reduced from 99 to 96, whilst for Malta this number will increase from 5 to 6.
MEPs are grouped by political affiliation, not by nationality.
Functions:
1. Debating and passing European laws, with the Council
( Ordinary legislative procedure" )
2. Scrutinising other EU institutions, particularly the Commission, to make sure they are working democratically
3. Debating and adopting the EU's budget, with the Council.
The court of justice
What: The Court of Justice, which sits in Luxembourg is the supreme judicial body of the European Union
How composed:The Court of Justice has one judge per EU country. The Court is helped by eight ‘advocates-general’ whose job is to present opinions on the cases brought before the Court. They must do so publicly and impartially. Each judge and advocate-general is appointed for a term of six years, which can be renewed. The governments of EU countries agree on whom they want to appoint.
To help the Court of Justice cope with the large number of cases brought before it, and to offer citizens better legal protection, a ‘General Court’ deals with cases brought forward by private individuals, companies and some organisations, and cases relating to competition law.
Functions: Interprets EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between EU governments and EU institutions. Individuals, companies or organisations can also bring cases before the Court if they feel their rights have been infringed by an EU institution .
The Court gives rulings on the cases brought before it. The five most common types of cases are:
1.requests for a preliminary ruling – when national courts ask the Court of Justice to interpret a point of EU law
2. actions for failure to fulfil an obligation – brought against EU governments for not applying EU law
( Can be started by the commission or a member country)
3. actions for annulment – against EU laws thought to violate the EU treaties or fundamental rights
4. actions for failure to act – against EU institutions for failing to make decisions required of them
5. direct actions – brought by individuals, companies or organisations against EU decisions or actions
Sources of European Union Law
Three sources:
1. Primary law
2. Secondary law
3. Supplementary law
1. Primary law
Primary sources, or primary law, come mainly from the founding Treaties, namely the Treaty on the EU and the Treaty on the Functioning of the EU
2. Secondary law
Secondary law comprises unilateral acts and agreements.
Unilateral acts can be divided into two categories:
1. Those listed in Article 288 of the Treaty on the Functioning of the EU: regulations, directives, decisions, opinions and recommendations
Regulations: Regulations are designed to achieve uniformity of law among the Member States. They are of general application and have direct force of law in Member States without the need for further legislation
Directives: Directives seek to harmonize the law of Member States. They are instruct to member states to bring their laws into line by a certain date. The States themselves are free to choose the methods by which the changes are implemented
2. Those not listed in Article 288, '' Atypical'' acts such as communications and recommendations, and white and green papers
3. Supplementary law
Besides the case law of the Court of Justice, supplementary law includes international law and the general principles of law. It has enabled the Court to bridge the gaps left by primary and/or secondary law.
International law is a source of inspiration for the Court of Justice when developing its case law. The Court cites written law, custom and usage. General principles of law are unwritten sources of law developed by the case law of the Court of Justice. They have allowed the Court to implement rules in different domains of which the treaties make no mention.
Principle of precedence
According to the precedence principle, European law is superior to the national laws of Member States. The precedence principle applies to all European acts with a binding force. Therefore, Member States may not apply a national rule which contradicts to European law.
As with the direct effect principle, it is not inscribed in the Treaties, but has been enshrined by the Court of Justice of the European Union (CJEU). The CJEU enshrined the precedence principle in the Costa versus Enel case of 15 July 1964.
With European law becoming superior to national law, the principle of precedence therefore ensures that citizens are uniformly protected by a European law assured across all EU territories
Principle of direct effect
The principle of supremacy of EC law over national law is closely bound up with the allied principle of direct effect and principle of precedence. The principle of direct effect (or immediate applicability) enables individuals to immediately invoke a European provision before a national or European court. This principle only relates to certain European acts.
There are two aspects to direct effect: a vertical aspect and a horizontal aspect. Vertical direct effect is of consequence in relations between individuals and the State. This means that individuals can invoke a European provision in relation to the State. Horizontal direct effect is consequential in relations between individuals. This means that an individual can invoke a European provision in relation to another individual
Right of establishment: It is allowed to set up a business from one country in a other EU country

Copyright
Copyright: protects ownership of original literary/artistic/dramatic work recorded in any tangible form.
Copyright is regulated by the Copyright, Designs and Patents Act 1988 (CDPA 1988). Copyright includes: original literary, dramatic, musical and artistic work sound recordings, films, TV and radio broadcasts and cable programmes typographical arrangements of published works
Original: this means not copied rather than unique. The issue of originality concerns the way an idea is expressed rather than the idea itself.
Literary: this includes anything written spoken or sung, if recorded in some tangible form. It covers tables, computer programs etc.
Artistic: again the scope is wide
To attract copyrights the item must be in a tangible form.
The rights of the copyright owner
Copyright owners have exclusive rights to copy, adapt or present the work publicity.
Infringement of copyright
Direct infringement: any exercise of the owner's exclusive rights by a third party without lawful authority
Secondary infringement: occurs if the copyright is exploited commercially, and includes importation or sale of infringing items.
Licensing
The copyright owner, or a collecting organization may grant permission to do something which would otherwise be an infringement. The licensee may be required to pay royalties for this privilege.
Sanctions
Breach of copyright entitles the owner to take civil action.
Rights in performances and recordings
Breaches arise from the illicit copying of existing recordings
Copyright and internet users
If you are the proprietor of a website, you will have copyright in the design of the website and materials on it, provided that these are you own original work. But you may be infringing the rigs of others if you reproduce their materials on your site without a license. Downloading can be infringing of copyright.
Protection for design owners: the design right and registered designs
The design right
The design right: protects ownership of an original design for a three-dimensional functional item excluding surface decoration. The design right attaches automatically to any sufficiently original design, and gives similar protection to copyright.
Ownership of the design right enables the owner to control the use of the design for manufacturing purposes. Nobody else may make items to that design without the owner's consent. The intention of the Act is to ensure a limited protection for owners of sufficiently original design for items capable of mass production.
CDPA defines design: the design of any aspect of the shape or configuration of the whole or part of an article. Only designs for three-dimensional articles are covered. Like the law of copyright, just ideas are not covered. The person who creates the design is first owner provided that the design was not created in the course of employment or in carrying out a commission( otherwise they will be first owner).
The right lasts for a maximum of 15 years from the end of the year when the design was created in tangible form. During the last five years of the right, anybody is entitled to a license. The crown may without a license use the design to supply articles for the use of the defense and health services.
Registered design: protects ownership of original design of three-dimensional items with individual character and capable of being produced industrially or as a handicraft.
Some designs may qualify to be registered under the Registered Designs Act 1949 (RDA). In order to be registered the ''design'' must relate to a ''product'', which is ''new'' and has ''individual character''.
Design: To be registered the design must therefore be visible to the user when the product is being used.
Product: This includes any industrial or handicraft item, except a computer program. It covers three-dimensional designs such as lamps etc, or one-dimensional designs such as patterns for wallpaper, floor covering or clothing fabrics.
New: The design must differ materially from any existing publicly available design.
Individual character: The overall impression of the design on the user of the product must be different from that of any similar publicity available design.
The design for a spare part must be for a product which is capable of standing alone. The product must not rely in its shape or configuration on another item. Only the owner can apply for registration. Applications are filed with the Designs Registry, a branch of the Patents Office. The procedure is complex, so the owner of the design may use the services of a design agent to prepare the application. Registration generally takes about six months. It must be completed within a maximum of 15 months from the time of application. A fee (currently 60 pounds) is payable for registration. A design will be registered for 5 years, which rust from the date of registration. This may be renewed for up to five times.
Patent: protects ownership of original invention of a product or process. Patents are regulated by the Patents Act 1977(PA). The registration of a patent enables an inventor to obtain a monopoly over its exploitation. The invention may be a device or a process. The criteria for registration:
1. The invention must be new
2. It must be an inventive step
3. It must be capable of industrial application
Duration of patents
Patent rights exist for up to 20 years. Renewal fees are payable. Falsification on the register and false claims that a patent exists or has been applied for are criminal liable.
Trade marks: protects distinguishing marks used to advertise goods and services. Trade marks are used as a marketing strategy to enable providers of goods and services to ensure that their products are immediately clearly recognizable by their potential consumers.
The marks capable of registration
The Trade Marks Act defines a trade mark as any sign capable of being represented graphically which is capable of distinguishing the goods or services of one undertaking from another. It is possible to register letters, numbers and even shapes of goods.
A mark must be distinctive, it may be verbal or non-verbal in form.
Verbal marks include the following:
1. Names of people
2. Names of products (no clear and ordinary meaning to the average person)
Non-verbal marks include: emblems symbols other pictorial representations
A trade mark must be sufficiently distinctive to enable the public clearly to identify the origin of the product and not confuse it with others. Trade marks can not be against the public interest or morally offensive. Trade marks can not be identical or too similar to an earlier trade mark.
The registration process
The applicant for registration must own the mark, there is no nationality or residence qualification. Application is made to the Trade Mark Registry. It must include representation of the mark and state the product to which it may apply. A fee is payable. If the application is acceptable, the registrar must publish notice of the application to enable interested parties to raise objections. If there are no objections, the registrar will on payment of a fee register the trade mark.
The registration lasts 10 years, and renewal is possible every 10 year.

Like other intellectual property, a trade mark is part of the proprietor's personal property. It is transferable, and infringements are not allowed.
Remedies for infringement of statutory intellectual property rights
1. Injunction
2. Damages ( for consequential losses)
3. Account of profits
4. Seizure, delivery up or destruction orders