LETS – Frequently Asked Questions
Answers to the questions our lawyer-linguists have received most often over the years.
What are common law and equity?
The term common law is confusing as it has a different meaning depending on the context. The term can refer to: (1) the law that is not established by legislation (also known as “statutory law”) but by judges when they decide cases (also referred to as “case law”), (2) the law that is not equity (see below), and (3) the law of countries following the common law tradition such as England and the US (in contrast to e.g. Roman law or French law), and in this sense it includes the whole of the law, including legislation and equity.
Equity is the name given to the set of rules which traditionally supplemented common law where its application operated harshly, so as to achieve what is sometimes referred to as “natural justice.” Nowadays, equity has merged with the common law to become a branch of the law, dealing with, notably, trusts and certain remedies such as injunctions.
What is the difference between a barrister and a solicitor?
In the UK, the legal profession is divided into two kinds of lawyers: solicitors, who generally advise clients and prepare legal documents, and barristers (called advocates in Scotland) who argue cases in court. In cases where a trial is necessary, a client has to hire a solicitor, who will advise them and then retain a barrister on their behalf. Solicitors have traditionally dealt with any legal matter other than conducting proceedings in court, although nowadays solicitors may appear in the lower courts and also if they have higher “rights of audience” (i.e. the right to appear in court on behalf of another person) in the higher courts. Barristers, who have a general right of audience in all courts, represent clients in court and provide specialist advice on complex legal matters. The easiest way to distinguish the two is to look at how they dress – barristers are the ones wearing wigs and gowns (yes, even in the 21st century), whilst solicitors will invariably be decked out in a dark suit.
What is a deed?
A deed is a written document which is required by law to be executed in a particular way in order to be enforceable (traditionally “signed, sealed and delivered” but these days often by no more than the simple signature of one person). Documents required to be executed as deeds may include certain agreements (such as a transfer of real estate), or where there is a lack of consideration (see “What is consideration?” below), such as the confirmation or creation of a right or interest (such as a power of attorney), and the confirmation or creation of a binding obligation (such as a guarantee). If the formal requirements for execution are met, a deed is enforceable regardless of a lack of consideration, which is usually required for a contract to be enforceable.
What is a trust?
A trust is a legal device used to set aside money or property of one person (the settlor) for the benefit of another (the beneficiary). For example, a trust may arise where assets are left in a will to children who are too young to legally own the assets. A trust is not a legal person – the settler transfers property (such as shares or real estate) to trustees who own the trust property as far as third parties are concerned and have a duty to manage the trust property for the benefit of the beneficiaries. In this way, a trust permits the separation of legal ownership and beneficial interest.
What is consideration in a contract?
In the context of contract law, consideration is a vital element required to form a contract (along with offer, acceptance and an intention to create legal relations). As a general rule, a contract is not enforceable if there is no consideration. It is something done or given, or the promise to do so, by one party to the contract in exchange for the act or promise of the other party. The idea is that, in order for a party to enforce a promise, they must have given some quid pro quo for it. Consideration is, therefore, payment in any form under a contract (such as cash, shares, property, bananas, etc.).
What is the difference between a power of attorney and a proxy?
A power of attorney is authorisation to act on another person’s behalf and in their name in a legal or business matter. The person granting the power of attorney is known as the grantor and the person authorised to act is the agent or attorney-in-fact. The power granted may be very wide in scope and may include the power to sign documents on behalf of the grantor, deal with their financial affairs and property, etc.
A proxy commonly refers only to authorisation to vote on another’s behalf and is therefore more limited in scope than a power of attorney. For example, a shareholder entitled to attend and vote at a company meeting may appoint a proxy to attend and vote in their place or a student backpacking around the world may appoint his or her mother to vote in a general election on his or her behalf (note that a proxy is also the person to whom authorisation is granted).
What are liquidated damages?
Liquidated damages are a fixed or determined sum agreed by the parties to a contract to be payable on a breach of contract by one of the parties to compensate the injured party (also known as the “non-breaching party). The purpose of liquidated damages is for the non-breaching party to avoid the costs which arise in the difficult task of proving the amount of the loss actually incurred. If a liquidated damages payment constitutes a penalty, it will be void, so it is important to draft the liquidated damages clause in the contract such that it compensates the injured party for anticipated loss caused by the breach and does not serve as a penalty. Therefore, for example, the amount of damages stipulated in the contract should be reasonable, and not extend far beyond that which would normally compensate the anticipated loss. It should be noted that, in all other cases where the court quantifies or assesses damages or loss, the damages are known as unliquidated damages.
What is due diligence?
Due diligence (or DD) is the process by which a buyer of a company or business (known as the “target”) investigates the target to assist the buyer in deciding whether or not to go ahead with the proposed acquisition and on what terms (in particular to determine the price). Lawyers will often be instructed to review the target’s documentation relating to, generally, agreements with third parties, loans it has taken out, real estate it owns, environmental matters, intellectual property rights it owns, details of employees and pension schemes, taxation matters and public filings. DD is not very popular amongst lawyers since it can become repetitive and may involve long hours in dingy basements (known as “data rooms”) trawling through copious amounts of documents. Luckily, these days, virtual data rooms are commonly used, whereby documents relating to the target can be retrieved online from the comfort of one’s office desk. This doesn’t seem to have appeased the lawyers though…
Do the words within couplets such as “null and void” and “due and payable” have distinctive meanings?
The short answer is no. Using both words is an unnecessary lawyerism since both words mean exactly the same thing. The couplets came into being in England in the 11th century following the Norman conquest. Since the Normans spoke French, English courts were held in French, but most people in England still spoke English, so lawyers started using both the English and French words in order to be understood. Many of the couplets such as those above are still commonly used in legal drafting, but the fact is that they are redundant, and in these days of plain English in the legal world, it is preferable to use one word rather than two. It’s all King Harold’s fault really…
What is the difference between a contract, agreement, deed and gift?
An agreement ranges in meaning from mutual understanding (not necessarily enforceable by law) to a binding obligation. Whereas, a contract, used especially in law and business, is a binding agreement between two or more persons that is enforceable by law.
A deed is a legal document signed and sealed and delivered to effect a transfer of property and to show the legal right to possess it.
A gift is an intentional and gratuitous transfer of real or personal property by a donor with legal capacity who actually or constructively delivers the property to the donee with the intent of giving up dominion over the property and investing it in the donee who accepts it; broadly : a voluntary transfer of property without compensation.
What is the difference between best efforts and best endeavours?
The term “best efforts” is used in American English and “best endeavours” is used in British English. To use your best efforts/endeavours is to make a usually earnest attempt to do something.
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