- E.g lunatic steals purse, attracts not wrongdoing or fault because lunatic, but still doesn’t mean he gets to keep my purse.
- More info can be found from Dentist Calgary NW
- Thus there has been created an entire body of law of rectification and unjust enrichment. Existence of this comes when men cannot through some reason pattern their actions after law, but to preserve integrity of a system of legal relations set by advertence there is need for supplementary system of rules for healing the effects of inadvertence (close parallel to retroactive laws). Just like retro laws ok to cure in a general prospective system, same with inadvertence. If always inadvertence, bad, but like this, to cure, workable.
- But this curing cannot explain all instances where legal liability arises without fault. :
- Strict liability! Often justified by economic principle that the foreseeable social costs of an enterprise ought to be reflect in the private costs of conducting that enterprise.
- What we want with SL, is not that it cease commanding the impossible, but that it define as clearly as possible the kind of activity that carries a special surcharge of legal responsibility. Can easily expand this concept, in some countries it exists for all automobile related incidents.
- BUT: don’t extent SL to all acts, would lose connection between cause and effect (poet writes sad poem, man kills himself, who caused it)?
- Mixed legislative motives for SL, like inducing more care.
- Most serious infringement of principle that law should not command the impossible: creating SL in criminal liability. – possession of narcotics, gamblings, drugs.
- They serve to convenience the prosecutor, there apparent injustice is removed by the selective enforcement. Because it is only the villains who are pursued in practice. And when absolute liability is coupled with drastic penalties, position of prosecutor is further improved. Deterrent effect or grateful when let off.
EU Law Preliminary Functions
Development of EU law (direct effect, supremacy)
Maintenance of institutional balance
Enhancement of individuals’ interests (obl. to refer for court against whose decision there’s no nat. remedy)
Legal integration – uniformity/consistency of EU law
ECJ: “veritable cornerstone of the operation of internal market” – plays a fundamental role in ensuring
Treaty law retains its Comm. Character w/a view to guaranteeing EC law has same effect in all MS.
Types of questions referred – Asked by Notary public London firm
(i) Treaty interpretation (Art 267 (1)(a))
– used to make judgments on supremacy & DE
– ECJ merely interprets Treaty – no judgment on nat. law validity
– If incompatibility found, obl. on nat. court to redress situation
(ii) Validity & interpretation of EU institutions, bodies etc. acts (Art 267(1)(b))
Chalmers: 2 striking features
a) nat. courts monopoly over disputes involving points of EU law to be decided on nat. law, facts &
application of EU law
b) Nat. courts act as gatekeepers to ECJ – no direct right of access to private parties
ECJ: 3 stages of EU legal order
(i) EU is autonomous legal order
(ii) Requiring MS courts to interpret EU law uniformly
(iii) By providing for direct relation b/w MS courts and ECJ, Art 267 enables this uniformity
Who can refer
(1) Body or tribunal – determined by ECJ on the basis of broad definition: factors
a. established by law
b. compulsory jurisdiction
c. decisions of judicial, not admin, nature
i. external – no intervention/pressure liable to jeopardise judgment
ii. internal – impartiality
Ref can be made only if there’s a pending case b/f nat. court which leads to decision of judicial nature
o Cartesio – ref couldn’t be made b/c court was discharging admin function which didn’t resolve dispute
In the interest of uniformity, ECJ can rule on issues of validity & interpretation arising out of procedure
of bodies to which govt. has assigned some adjudicatory function
o Broekmeulen– Dutch Appeals Comm. hearing appeals from a body resp. for admission of docs
Chalmers: rationale: any body deciding on EU law rights should be able to refer – if not, Cs would have to
challenge through another body, adding to expense & delay, dis-incentivising parties from referral but could
open floodgates whereby undertrained actors would overload the court.
AG Colomer: definition is too wide; the strategy behind 267 was to create a conversation b/w ECJ & nat.
courts – independent parts of executive not intended to be part of it. Practical consequence: allows bodies
w/no legal training to formulate ref + admin actors have a chance to disrupt domestic judicial hierarchy and
system of precedent by referring something they disagree with
(2) With discretion/ obligation to refer
Art 267(2) – discretion (any court or tribunal)
Art 267(3) – court/tr. against whose decision there’s no remedy in nat. law(unless CILFIT satisfied/issue
What bodies are covered?
a. abstract theory – bodies whose decisions are never subject to appeal
EU LawPreliminary Reference Short
b. concrete theory – bodies whose decisions aren’t subject to appeal in that case (Costa v ENEL)
o Costa v ENEL – magistrate, whose decisions were normally subject to appeal, could refer to ECJ b/c in
that case sum of money too low for appeal to be made in nat. law.
somewhat distorting to nat. judicial hierarchy – lower court can refer even in the face of
decision by a higher court …
≥ NB: nat. court not obliged to raise matters of EU law on own volition but it can’t be prevented from doing so
by a rule of national law
≥ NB: no obl. for nat. court/tr. to refer just b/c parties ask for it
The Land Register of Scotland superseded the Sasine Register, introducing a map-based system of registration.
It is well established that a real right in heritable property is only created through the registration of the deed purporting to the transfers of ownership. Many aspects of the registration process have been left to the discretion of the keeper of the Register of Scotland. Uptake of the Land Register of Scotland has been slow, with roughly 75% of land in Scotland yet to be entered onto the register. This can be due to many reasons namely that a lot of property has not changed hands since 1979.
The 2012 Land Registration Act brings reforms to present conveyancing practice in Scotland, which notably include: The rectification of title.
Prior Position before Reforms to Land Register Act – 1979
Rectification was set out in section 9 of the 1979 act, however the definition of inaccuracy has been singled out as being impractical and too vague.
There was no clear definition within the act as to what amounts to an inaccuracy in relation to rectification of title. Rectification is predicated on an inaccuracy, however there is no definition in statue of what an inaccuracy amounts to which was pointed out by Gretton in 1986.This is further evidenced in Brookfield Developments Ltd against The Keeper of the Registers of Scotland 1989 in which a wide of definition of inaccuracy was held. This illustrates there was no set definition.