scholarly journals A Major Misunderstanding of Minors' Contracts? Enforcement and Restitution Under the Minors' Contracts Act 1969

2009 ◽  
Vol 40 (4) ◽  
pp. 721
Author(s):  
James Gilbert
Keyword(s):  
Credit Union ◽  
Judicial Discretion ◽  
Judicial Interpretation ◽  
The Law

The Minors Contracts Act 1969 divides minors' contracts into two categories – those which are presumptively enforceable against the minor in the absence of unconscionability or oppression, and those which are presumptively unenforceable with an allowance for the exercise of judicial discretion to order remedies of enforcement, compensation or restitution depending on the fairness and reasonableness of the contract. This article focuses on judicial interpretation and application of the law with respect to the latter category, particularly in the case of Wine Country Credit Union v Rayner. It argues that the decision in Rayner to deny the possibility of a restitutionary or compensatory order in favour of the plaintiff lender was incorrect and contrary to parliamentary intention, and that reform of the law relating to minors' contracts is necessary to avoid a repeat of those errors.

scholarly journals Formalism and realism as a style of judicial interpretation: theoretical-applicable aspect

2020 ◽  
Vol 11 (11) ◽  
pp. 117-121
Author(s):  
Kopytova O.
Keyword(s):  
Social Relations ◽  
Judicial Discretion ◽  
Judicial Interpretation ◽  
Morality Policy ◽  
Written Text ◽  
Realistic Approach ◽  
Course Of Action ◽  
Incorrect Conclusion ◽  
The Law ◽  
Theory Of Law

The article is devoted to revealing the features of formalism and realism as styles of judicial interpretation. It is proved that the effective and enforceability of the law as a whole depends on the effective enforcement. Judicial enforcement is the last stage of enforcement as a whole. The court, through judicial enforcement, reveals the content of a rule of law in its course of action, completes it or establishes its true meaning through interpretation. It is argued that the use of formalism and realism as styles of judicial interpretation leads to the formation of two independent styles of justice. It is stated that, in the practical plane, the distinction between formalism and realism looks so that the judge should start from the written text of the act, applying the priority of the principle of legality. The will of the "author of the text" is also taken into account. Formalism, given the rapid nature of social relations and therefore the change in legal reality, is generally associated with the risk of making unfair judgments. Judicial realism, on the contrary, considers it possible for judges to appeal to considerations of morality, policy and the like. It is proved that a realistic approach is necessarily linked with voluntarism that exists in "hard" and "soft" forms. This gives you the opportunity to be a realistic approach, radical or moderate. If the judge is empowered to set the contents (meaning) of the text that is interpreted, it is absolutely arbitrary – arbitrary, that is, without any connection with the semantics of the text, then voluntarism is evident in "hard" form. Judicial realism is able to use strong arguments, and is therefore able to meet the requirements of justice and (or) the effective court decisions in the socio-economic and political circumstances change rapidly. Popular here is the application context of the application of the law. These approaches in the theory of law also called static and dynamic (one that fits right to life) ways of interpretation. At the same time, we must not forget about the possibility of a miscarriage of justice during the administration of justice. It is a properly defined legally significant circumstances in connection with this incorrect conclusion of the court made on the basis of given factual circumstances. A realistic approach is necessarily linked with voluntarism that exists in "hard" and "soft" forms. This gives you the opportunity to be a realistic approach, radical or moderate. If the judge is empowered to set the contents (meaning) of the text that is interpreted, it is absolutely arbitrary – arbitrary, that is, without any connection with the semantics of the text, then voluntarism is evident in "hard" form. Example of rigid forms of realism may be the use of judicial discretion when the court and not the legislator is actually created a new rule of conduct. Key words: judicial interpretation, judicial enforcement, formalism, realism, styles judicial interpretation, voluntarism.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

scholarly journals Tendencies of Development of Legislative Regulation Appeal in Civil Process

2020 ◽  
Vol 15 (4) ◽  
pp. 42-48
Author(s):  
E. Yu. Boyko
Keyword(s):  
Judicial System ◽  
Judicial Discretion ◽  
Civil Process ◽  
Legislative Regulation ◽  
The Law ◽  
Court Of First Instance ◽  
Court Of Appeal

The article is devoted to the directions of improvement of appeal proceedings in the civil process, identified in the analysis of legislation and practice of its application, in connection with the reform of the judicial system. The author not only considers the questions of implementation of the court of appeal of its powers, justifies the need for disclosure of criteria allowing the direction of the court of appeal the case for a new trial in the court of first instance, the limits of choice in the exercise of judicial discretion outside of the petition of appeal, the improvement of term of making a petition of appeal, eliminate of the term “appeal determination”, enshrined in the law of procedure of familiarization with the act court of appeal and its further complaints, but also indicates ways of solving them.

scholarly journals Family Reform and Judicial Discretion of the judge to resolve family disputes: الإصلاح الأسري وسلطة القاضي التقديرية لحل النزاعات الأسرية

2020 ◽  
Vol 4 (10) ◽  
Author(s):  
Fawzieh Salem Mubarak Busboos
Keyword(s):  
Central Place ◽  
Judicial Discretion ◽  
Great Care ◽  
The Family ◽  
Islamic Jurisprudence ◽  
Personal Status ◽  
Solid Foundation ◽  
The Law ◽  
Rule Out

Family reform and judicial discretion of the judge to resolve family disputes are one of the most important ways to protect the continuity and cohesion of the family، Islam has given the family a central place in society and has given it great care in terms of its foundation on the requirements of religion as well as in terms of its continuity on a solid foundation of intimacy and compassion. Islam as a realistic religion didn't rule out exposing this family for a series of conflicts that threaten its stability. Therefore، Islam urged to reform between the spouses whenever there is a disagreement between them. Islam gave the judge a judicial discretion in resolving family disputes. Jordanian Personal Status Law didn't deviate from what is prescribed in Islamic jurisprudence، where the judge was given a judicial discretion in resolving family disputes، A judicial discretion is the freedom that left by the law to a judge either expressly or implicitly، This is in order to choose the most appropriate and the closest solution among other solutions. We have concluded that one of the most important factors for the success of the judge in reducing family disputes is providing appropriate conditions for effort and reform attempts.

LIMITS OF JUDICIAL DISCRETION IN ASSESSING THE LEGAL BEHAVIOR AND LEGAL EFFECTIVENESS

2021 ◽  
Vol 10 (6) ◽  
pp. 84-100
Author(s):  
N.V. ZAYTSEVA
Keyword(s):  
Civil Society ◽  
Law Enforcement ◽  
Legal Regulation ◽  
Current Level ◽  
Judicial Discretion ◽  
Social Phenomenon ◽  
Formal Approach ◽  
The Will ◽  
The Law ◽  
The One

The article is devoted to the study of the concept of legal effectiveness in the context of the goals and purpose of law in general and separately in the private law relations. Since the law is a complex social phenomenon, the author paid special attention to the issues of refraction of normative tasks through the prism of judicial discretion. Law enforcement practice, on the one hand, shows the viability of a particular norm and its compliance with the current level of development of civil society, however, it can also distort the spirit of the law, which will not allow achieving the necessary legal result. Judicial discretion regarding the interpretation of certain legal elements and in assessing the behavior of participants in legal relations can lead to the transformation of legal relations, which does not allow to realize the goals set by the subjects. It is noted that the regulation of the limits of judicial discretion would help to ensure effective legal regulation. Assessing the behavior of participants due to the lack of mechanisms for proving the actual intentions of the parties is difficult for most countries of the continental legal system; therefore, a formal approach prevails and qualifies the will of the parties recorded exclusively in writing.

One Parent, Three Parents: Judges and Ontario’s All Families Are Equal Act, 2016

2019 ◽  
Vol 33 (3) ◽  
pp. 298-315
Author(s):  
Robert Leckey
Keyword(s):  
Assisted Reproduction ◽  
Early Treatment ◽  
Automatic Recognition ◽  
Judicial Discretion ◽  
Family Diversity ◽  
Major Reform ◽  
The Law

Abstract This article studies judges’ early treatment of a new law on parentage and assisted reproduction. During decades of legislative inaction, Ontario’s judges adapted the law to evolving familial practices, at times boldly. A legislative overhaul in 2016, aiming to recognize all children’s families equally and inclusively, raised the question whether judges would adopt a more restrained role post-reform. In two early cases, where the new conditions for automatic recognition of a parental arrangement were unmet, the judges emphasized the intention of involved adults. Closely reading the legislation, the article presents bases for deciding the cases otherwise and for reducing their potential to incentivize litigation. Where the legislature has set out a broad range of accessible paths to parentage, even judges who champion family diversity may have reasons to stick to those paths. For legislative drafters, the difficulty of anticipating the variety of contemporary forms of family may counsel against purporting to limit judicial discretion. Ontario’s experience also favours including transitional measures in major reform.

The Israeli judiciary-centered constitutionalism

2020 ◽  
Author(s):  
Ariel L Bendor
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Ad Hoc ◽  
Judicial Discretion ◽  
The Law ◽  
Israeli Supreme Court

Abstract The article argues that over the years a series of gradual developments has taken place in the judicial review policies of Israel’s Supreme Court, whereby the Court expanded its ad hoc discretion in determining the constitutional limits that apply to primary legislation. Israeli constitutionalism has become judiciary-centered. The article suggests that judicial discretion that the Israeli Supreme Court tends to exercise in constitutional matters is of two types: substantive judicial discretion, which concerns the interpretation or application of the law; and adjudicative discretion, which includes both the discretion to deny in limine petitions in which the Court does not deem it necessary to grant relief according to considerations such as standing or delay; and the Court’s discretion in the manner of the hearing. The article suggests three illuminations of Israeli judiciary-centered constitutionalism: expenditure of the justices’ awareness of their discretion; the decline of the rules structuring judicial discretion; and a re-rise of the justices’ recognition of legitimacy of adjudicative discretion due to the expansion of substantive judicial discretion.

scholarly journals Judicial Discretion as a Result of Systemic Indeterminacy

2020 ◽  
Vol 33 (2) ◽  
pp. 369-395
Author(s):  
Sebastián A. Reyes Molina
Keyword(s):  
Decision Maker ◽  
Fundamental Question ◽  
Judicial Discretion ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
General Sense ◽  
The Third ◽  
The Law ◽  
Legal Constraints

The topic of ‘judicial discretion’ has been at the center of the debate on legal interpretation in the philosophy of law.1 In a general sense, ‘discretion’ here refers to the exercise of a judgment by a decision-maker due to the lack of legal constraints affecting one’s ability to decide a case. The most fundamental question on this topic is ‘do judges have discretion when interpreting the law?’ There are three kinds of answers to this query. One kind of answer states that judges never have discretion.2 Another kind of answer states that judges always have discretion in interpretation.3 The third kind of answer states that judges sometimes have discretion when interpreting the law, and sometimes they do not.4

Descent into Murder: Provocation's Stricture—The Prognosis for Women Who Kill Men Who Abuse Them

2007 ◽  
Vol 71 (4) ◽  
pp. 342-361 ◽  
Author(s):  
Susan Edwards
Keyword(s):  
Battered Women ◽  
Attorney General ◽  
Self Control ◽  
Judicial Discretion ◽  
Reasonable Person ◽  
Women Who Kill ◽  
The Law ◽  
Definition Of ◽  
Mandatory Sentence ◽  
New Framework

This article considers the ruling in Attorney-General for Jersey v Holley1 and its impact on limiting the ambit of the defence of provocation by restoring to the reasonable person a normative capacity for self-control. In particular, the implications of this limitation on legal outcome in cases where women kill men who abuse them are explored. The inevitable demise of provocation as a defence, which follows from the ruling in Holley, is of particular concern as is the new framework for sentencing in convictions for murder2 which in removing judicial discretion from the sentencing decision prohibits judges from tempering the harshness of the mandatory sentence. This new murder/sentencing regime will undoubtedly result in injustice, especially in those cases where battered women kill, which, although deserving of mitigation, nevertheless fail to satisfy the strictures of provocation's requirements post Holley, thereby resulting in an increase in convictions for murder. The Law Commission's report on Murder, Manslaughter and Infanticide3 recommends a new framework for murder and manslaughter, including a new definition of provocation and also a new direction in the murder sentencing framework. This area of the law is still far from fixed.

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