2. Personal property

2019 ◽  
pp. 20-44
Author(s):  
Eric Baskind ◽  
Greg Osborne ◽  
Lee Roach
Keyword(s):  
Basic Principles ◽  
Personal Property ◽  
English Law ◽  
The Law ◽  
The Difference ◽  
Bundle Of Rights ◽  
The Way

This chapter is intended to provide an introduction to the concepts that underpin the law as it relates to property other than estates and interests in land. The issues in the chapter are complex and there remain numerous troublesome areas where the law is far from clear. The chapter begins by considering some basic principles and outlining the way in which English law categorizes property before moving on to consider how ownership is best thought of as a bundle of rights over something that the law recognizes as something which can be owned. Two of the three types of proprietary claim to personal property are discussed here—ownership and possession—followed by a discussion of the nature of legal ownership, including co-ownership, along with the difference between legal and equitable ownership.

scholarly journals REKONSTRUKSI IJTIHĀD DALAM ILMU UṢŪL AL-FIQH

Al-Ahkam ◽  
2012 ◽  
Vol 22 (2) ◽  
pp. 161
Author(s):  
Rokhmadi Rokhmadi
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Basic Principles ◽  
The Law ◽  
The Way

<p>Al-Qur’an and Sunnah, needs of understanding and extracting optimally, so that the contents of law can be applied for the benefit of people. The way- to understand and to extract the contents in these two sources- called <em>ijtihād</em>. Thus, <em>ijtihād</em> is needed on <em>istinbāṭ</em> of law from many arguments of the texts (<em>naṣ</em>), eventhough it is <em>qaṭ’ī</em> in which the uṣūliyyūn have agreed that it is not the area for re-extracting to the law (<em>ijtihādiyyah</em>). The problem in this case is that even a <em>qaṭ’ī</em> argument according to the most of uṣūliyyūn has not been <em>qaṭ’ī</em> argument in the other <em>uṣūliyyūn</em> opinion. Reconstruction of <em>ijtihād</em> becomes an alternative, with some considerations: <em>First</em>, weight and tightening the requirements to become a mujtahid, which is almost impossible controlled by someone at the present time; <em>Second</em>, the increasing complexity of the problems faced by the ummat which is very urgent to get the solution; <em>Third</em>, let the period without <em>ijtihād</em> (vacuum of mujtahid) is contrary to the basic principles of Islamic law are always <em>sāliḥ li kulli</em> <em>zamān wa makān</em>. This paper present to discuss further about the urgency of the reconstruction of <em>ijtihād</em> in the challenge of modernity.</p><p>***</p><p>Al-Qur<ins cite="mailto:hasan" datetime="2015-02-17T11:11">’</ins>an maupun <ins cite="mailto:hasan" datetime="2015-02-17T11:11">s</ins>unnah sangat membutuhkan pemahaman dan penggalian secara optimal agar isi kandungan hukumnya dapat diterapkan bagi kemaslahatan umat. Cara untuk menggali dan mengeluarkan isi kandungan yang ada dalam kedua sumber tersebut dinamakan <em>ijtihād</em>. <em>Ijtihād</em> sangat dibutuhkan pada setiap <em>isti<ins cite="mailto:muthohar" datetime="2015-01-29T05:30">n</ins><del cite="mailto:muthohar" datetime="2015-01-29T05:30"></del>bāṭ </em>hukum dari dalil <em>naṣ</em>, sekalipun dalil <em>naṣ</em> tersebut bersifat <em>qaṭ'ī</em> yang oleh para <em>uṣūliyyūn</em> sudah di­sepakati tidak menjadi wilayah untuk dijitihadi lagi. Permasalahannya adalah bahwa sesuatu dalil <em>naṣ</em> yang sudah bersifat <em>qaṭ'ī</em> sekalipun oleh sebagian besar <em>uṣūliyyūn</em>, belum tentu dipandang <em>qaṭ'ī</em> oleh sebagian <em>uṣūliyyūn</em> yang lain. Rekonstruksi <em>ijtihād</em> menjadi se­buah alternatif, dengan beberapa pertimbangan: <em>Pertama</em>, berat dan ketatnya persyaratan-persyaratan menjadi seorang mujtahid, yang hampir tidak mungkin di­kuasai oleh seseorang pada masa sekarang; <em>Kedua</em>, semakin kompleksnya per­masalah­an yang dihadapi oleh ummat yang sangat mendesak untuk mendapatkan solusi; <em>Ketiga</em>, membiarkan satu periode tanpa <em>ijtihād</em> (kevakuman mujtahid) adalah bertentangan dengan prinsip dasar hukum Islam yang selalu <em>sāliḥ li kulli zamān wa makān. </em>Tulisan ini hadir untuk mendiskusikan lebih jauh tentang urgensi rekonstruksi <em>ijtihād</em> dalam menghadapi tantangan modernitas.</p><p>***</p><p>Keywords: <em>ijtihād</em><em>, qaṭ'ī, ẓannī</em><em>, uṣūl al-fiqh</em></p>

15. Good faith

Contract Law ◽  
2018 ◽  
Author(s):  
Mindy Chen-Wishart
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Diverse Range ◽  
General Duty ◽  
English Law ◽  
The Law ◽  
The Difference

English law does not currently recognise a general duty of good faith, but this position is increasingly being challenged. In addition, good faith informs a diverse range of legal doctrines and principles. This chapter addresses the following: the meaning of good faith; good faith in current contract law; and the nature of good faith. It further considers whether English law should recognise a general good faith doctrine and the difference this might make to various aspects of the law.

Part VII Security, 32 Security Over Intangibles

2018 ◽  
Author(s):  
Smith Marcus ◽  
Leslie Nico
Keyword(s):  
Personal Property ◽  
English Law ◽  
The Law

This chapter studies security over intangibles. Security over pure intangibles can only be created by way of mortgage or equitable charge. However, before examining the particular practical demands that are made of the law of security, it is necessary to begin with a consideration of the various forms of security over personal property recognized by English law. English law recognizes four forms of consensual security over personal property: the pledge; the lien; the mortgage; and the charge. Of these, the pledge and the lien are classified as possessory securities, while the mortgage and the charge are non-possessory securities. This distinction is of great importance, for a possessory security cannot be asserted over choses in action, for the simple reason that it is not possible to take physical possession of intangible property.

Arbitration and Literature

2020 ◽  
pp. 894-909
Author(s):  
François Ost
Keyword(s):  
Law And Literature ◽  
State Courts ◽  
Literary Fiction ◽  
Court System ◽  
Literary Works ◽  
The Law ◽  
The Difference ◽  
To Receive ◽  
The Way

This chapter discusses the representation of arbitration in literature. Arbitration seems to receive little attention in literary works, as opposed to justice and the judge, which form the heart of the ‘law and literature’ movement. This disparity is likely due to the collective fascination with the judge as the embodiment of justice. The air of mystery that often surrounds arbitration can also be explained by the difference between the way in which it is presented in fictional texts and in modern law. Literature does not usually apprehend arbitration in the strict understanding of a private judge chosen by the parties, who adjudicates on a dispute by rendering a final and binding award which he cannot enforce without the assistance of state courts. Yet literature’s approximations in the treatment of arbitration are precisely what makes them interesting, in that they shed a welcome light on a justice that is both broader and more perennial than the justice that is rendered within the strict boundaries of the traditional court system. Works of literary fiction also provide many valuable stories about the value and reach of decisions rendered by arbitrators.

11. Untrue statements

Contract Law ◽  
2019 ◽  
pp. 305-335
Author(s):  
TT Arvind
Keyword(s):  
Information Asymmetry ◽  
Basic Principles ◽  
English Law ◽  
The Law

This chapter examines how English law deals with the problem of untrue statements through the doctrines of misrepresentation and unilateral mistake. It begins with an overview of contractual transactions involving at least some measure of information asymmetry and proceeds by considering the basic principles of the law of misrepresentation. It then considers the three elements of false statements: the absence of general duties to disclose relevant facts, an objective approach to construing ambiguous statements, and a distinction between statements of fact and statements of opinion. It also discusses the remedies available to the representee in the case of misrepresentation, along with two types of unilateral mistakes recognized in law: unilateral mistakes as to identity and unilateral mistakes as to terms. The chapter concludes with an analysis of misleading selling practices and statutory remedies which are available to victims of misleading selling practices under the law of unfair commercial practices.

Redemption of Security Interests under Israel Law

1975 ◽  
Vol 10 (1) ◽  
pp. 81-101 ◽  
Author(s):  
Joshua Weisman
Keyword(s):  
Supreme Court ◽  
The Body ◽  
Supreme Court Justice ◽  
Secured Transactions ◽  
English Law ◽  
The Law ◽  
The Right ◽  
The Way

The English “Equity of Redemption” was applied by the courts in Israel long before the enactment of the Security Interests Law, 1967. The courts did not hesitate to transplant this doctrine of English law into the body of Ottoman law which was then applicable in Israel in the field of secured transactions. Yet, the extent to which this symbiosis succeeded had still to be examined, and many questions relating to the right of redemption were still unanswered when the decision was taken to prepare the new Security Interests Law. In the new Law the right of redemption was expressly recognized. The influence of English law on this subject was so marked that on one occasion a Supreme Court Justice characterized the right of redemption provided by sec. 13(a) of the Law, as “actually only legislating the equity of redemption of English law”. It is the purpose of this article to examine the way in which Israel law formulated its “equity of redemption”, to analyze it, to point out its main features and expose its shortcomings.

Conflict of law 1921–1971 the way ahead

1972 ◽  
Vol 31 (1) ◽  
pp. 67-120 ◽  
Author(s):  
K. Lipstein
Keyword(s):  
General Principle ◽  
Legal Basis ◽  
Conflict Of Laws ◽  
Sixth Edition ◽  
Foreign Law ◽  
Long Time ◽  
English Law ◽  
The Law ◽  
Conflict Of Law ◽  
The Way

(1) Legal BasisWhen the first issue of the Cambridge Law Journal appeared in 1921, the English rules of the conflict of laws were those stated and reformulated by Dicey and by the editors of Westlake and Foote. Their progress between 1858 and 1912 had been charted by Dicey himself in a survey published in 1912. The legal basis for the application of foreign law in England was and remained Lord Mansfield's pronouncement in Holman v. Johnson: “Every action here must be tried by the law of England, but the law of England says that in a variety of circumstances … the law of the country where the cause of action arose shall govern.” Dicey never waivered in his adherence to this rule of English law, but he supplemented it with an argument drawn from the doctrine of acquired rights which bedevilled English lawyers for a long time, until in 1949 the editors of the sixth edition of Dicey took what they believed to be a bold, but substantially honest, step by restricting the concept to its proper boundaries and thus by depriving it of its capacity to serve as a general principle of the Conflict of Laws.

scholarly journals OF IMPLICATION, INSINUATION AND INCITEMENT R v Jones [2010] 3 All ER 1186 (CA)

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
Shannon Hoctor ◽  
Samantha Krause
Keyword(s):  
South African ◽  
Common Law ◽  
English Law ◽  
The Law ◽  
The Way

Can the crime of incitement be committed by insinuation? Can a conversation about growing tomatoes by implication actually be aconversation about the crime of producing cannabis? These are the questions which arise from the recent English case of R v Jones ([2010] 3 All ER 1186 (CA)). Although the English law relating to the way in which encouraging crime is criminalised has recently changed, the similarities between the previous (common-law) position in England (which was the law to be applied in Jones) and the current South African law make for a useful comparison between these systems, and it is to this that we now turn.

Context and Space as the Tools to Legitimize and Produce Violence

2021 ◽  
pp. 303-323
Author(s):  
Ahmet Faruk Çeçen
Keyword(s):  
Time Perception ◽  
Power Relations ◽  
Structural Violence ◽  
Equal Treatment ◽  
The West ◽  
Legal Structures ◽  
East And West ◽  
The Law ◽  
The Difference ◽  
The Way

Hassan thought the reason of the never-ending clash between East and West is the difference between their varied time perception. Albeit accepting many of Hassan's claims, the author believes the difference between their time perception cannot be the sole reason of the conflict. Examining the conflict through power relations and seeing violence as a tool of it, the study aimed to show how structural violence helps sustaining global, national, local, and domestic economic, social, and cultural inequalities. As far as we know, the legal structures that sustained state-mandated overt discrimination have been dismantled in the West, meaning the equal treatment of all races and religions under the law. However, it is obvious that there are structural obstacles preventing the law from being practiced the way it is intended. Through the concepts ‘context' and ‘space', the researcher will try to explain how discriminative practices are sustained, produced, legitimized, which pave the way for the conflicts to go on (e.g., East and West).

Sign in / Sign up

Export Citation Format

Share Document