A Sketch of the Off ences Committed under the Provoked Temporary Insanity in Common Law Countries

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 158-166
Keyword(s):  
Common Law ◽  
Legal Regulation ◽  
Causal Link ◽  
Theory And Practice ◽  
Law System ◽  
Starting Point ◽  
State Of Mind ◽  
Actus Reus ◽  
The Common ◽  
Temporary Insanity

● In common law countries, which as a rule do not have codified criminal legislation, or where it exists, offences committed under the provoked temporary insanity are not treated as a separate type of wrongdoing (delictum sui generis). Criminal theory and practice considers them as a particular example of privileged homicide related to manslaughter but not the murder. ● Actus reus of offences committed under the provoked temporary insanity (as a kind of privileged homicide) consists of following objective elements: a) conduct, result (i.e. death), causal link between them and any other facultative element; b) provocative behavior committed by the victim; c) causal link between the victim’s behavior and the perpetrators provoked conduct (double causation). ● Mens rea of the offences in question pertains to both subjective elements characteristic to manslaughter: a) recklessness and b) extreme temporary emotional excitement, which might be either explained or justified on rationale basis. The verification of rationality depends on the “reasonable man” standard and how would he behave in the same situation. ● As a starting point, for the classification of mental element traditionally is applied M’Naghten case. Although it focuses on the perpetrator’s capacity to understand wrongfulness of conduct, to be responsible for his crimes, it can be directly applied to the offences, committed under the provoked temporary insanity considered as a serious situational disorder of activity of psychic or state of mind. ● Legal regulation of an offences committed under the provoked temporary insanity is entirely differently constructed within the common law countries in comparison with other legal systems, including Georgian Penal Code. The common law approach is hard to be considered as a successful one, as it is not always efficient in terms of theoretical and practical considerations. ● The main shortcoming of common law system is related to its ambiguity, derived from abundance of value judgments, tests, fictions and criteria.

Juridical Review of The Provision of Catering Services In Theory And Practice And Problematic at PT. Well Harvest Winning Alumina Refenery Site Kendawangan, Ketapang Regency, West Kalimantan

Authentica ◽  
2020 ◽  
Vol 3 (1) ◽  
pp. 1-31
Author(s):  
Limas Mentari Putri
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Theory And Practice ◽  
Main Function ◽  
Legal Certainty ◽  
West Kalimantan ◽  
Law System ◽  
The Common ◽  
Civil Law System ◽  
Contractual Agreement

Traditional Covenant Law theory has characteristics emphasizing the importance of legal certainty and predictability.  The main function of one of the contracts is to provide certainty about the binding of an agreement between the parties so that the principles of good faith in the civil law system and promissory estoppel in the common law legal system. which in this article the author will discuss PT ADEN's contractual agreement with PT Well Harvest Winning Refinery Alumina in the catering contract for employees of PT Well Harvest Winning Alumina Refinery which discusses whether the agreement made between the customer and the catering party has qualified the validity of the agreement and the issues contained in the valid agreement.Keywords: Treaty Law Theory, Civil Law, Agreement.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

Is there a Duty to Prevent Harm in Tort? A Common Law Perspective

2021 ◽  
Vol 12 (2) ◽  
pp. 116-145
Author(s):  
Paula Giliker
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Tort Law ◽  
Public Authority ◽  
Public Authorities ◽  
Statutory Duty ◽  
Starting Point ◽  
Private And Public ◽  
Legal Position ◽  
The Common

Abstract In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.

scholarly journals GOOD FAITH IN FRANCHISE CONTRACT

2020 ◽  
Vol 5 (19) ◽  
pp. 118-127
Author(s):  
Nurli Yaacob ◽  
Nasri Naiimi
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Law System ◽  
Freedom Of Contract ◽  
Term Contract ◽  
The Common ◽  
Definition Of ◽  
The Right

Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.

British Virgin Islands

2020 ◽  
Author(s):  
Arabella di Iorio
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Common Law ◽  
Virgin Islands ◽  
British Virgin Islands ◽  
Law System ◽  
The Common ◽  
Eastern Caribbean ◽  
Common Law System ◽  
Trust Law

The legal system of the British Virgin Islands is a common law system based on the English model, comprising statute law and binding case precedents. The principles of English common law and equity apply in the BVI (subject to modification by BVI statutes) pursuant to the Common Law (Declaration of Application) Act (Cap 13) and the Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80) respectively. The general principles of trust law are based on English law.

Canada—Nova Scotia

2015 ◽  
Author(s):  
Alex Ruck Keene ◽  
QC Alison Scott Butler
Keyword(s):  
Nova Scotia ◽  
Civil Rights ◽  
Federal Government ◽  
Common Law ◽  
Civil Law ◽  
Political Rights ◽  
Canadian Charter ◽  
Law System ◽  
The Common ◽  
Civil Law System

Canada is a federation composed of ten provinces, including Nova Scotia (‘NS’), and three territories. The common law applies in Canada, with the exception of the province of Quebec, which uses a civil law system. There is a federal government; as a province, NS also exercises constitutional powers in its own right. Federal legislation includes provisions relating to adults within the scope of this work. The Canadian Charter of Rights and Freedoms also guarantees certain political rights to Canadians and civil rights to everyone in Canada, and contains rights that impact upon capacity law.

Legal aspects of fitness for work

2013 ◽  
pp. 21-41
Author(s):  
Gillian S. Howard
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Legal Aspects ◽  
Employment Law ◽  
England And Wales ◽  
Law System ◽  
Lower Courts ◽  
The Common ◽  
The Uk ◽  
The Right

The English legal system is based on the common law. The common law system in England and Wales developed from the decisions of judges whose rulings over the centuries have created precedents for other courts to follow and these decisions were based on the ‘custom and practice of the Realm’. The system of binding precedent means that any decision of the Supreme Court—the new name for the former House of Lords (the highest court in the UK)—will bind all the lower courts, unless the lower courts are able to distinguish the facts of the current case and argue that the previous binding decision cannot apply, because of differences in the facts of the two cases. However, since the UK joined the European Union (EU), the decisions of the European Court of Justice (ECJ) now supersede any decisions of the domestic courts and require the English national courts to follow its decisions. (Scotland has a system based on Dutch Roman law, and some procedural differences although no fundamental differences in relation to employment law.) The Human Rights Act 1998 became law in England and Wales in 2000 (and in Scotland in 1998) in order to incorporate the provisions of the European Convention on Human Rights into UK law. The two most important Articles applicable to employment law are Article 8(1), the right to respect for privacy, family life, and correspondence, and Article 6, the right to a fair trial.

4. Strict liability

2020 ◽  
pp. 41-48
Author(s):  
Jonathan Herring
Keyword(s):  
Criminal Liability ◽  
Common Law ◽  
Strict Liability ◽  
Mens Rea ◽  
Essential Information ◽  
Starting Point ◽  
Actus Reus ◽  
Fault Liability

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the crime of strict liability. A strict liability offence is one which does not require mens rea in respect of at least one element of the actus reus. Strict liability is often referred to as no-fault liability. Strict liability is very rare at common law. Where a statute is silent as to mens rea, the judge must interpret the provision to decide if the offence has mens rea (the starting point) or is one of strict liability. There is a debate about whether the imposition of criminal liability in the absence of proof of fault can be justified.

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