Cuadernillo Lectocomprensión Nivel III Derecho

8/18/2019 Cuadernillo Lectocomprensión Nivel III Derecho

1/123

Facultad de Derecho Facultad de Derecho Facultad de Derecho Facultad de DerechoUniversidad de Buenos Aires Universidad de Buenos Aires Universidad de Buenos Aires Universidad de Buenos Aires

Programa de

Lecto-comprensión

Inglés Inglés Inglés InglésNivel III

2009


2/123

Programa de Lecto-comprensión: Inglés Nivel III 2

ÍndicePágina

Texto 1 : “The Australian Jurisdictions”.............................................................................. 3

Texto 2 :

Lectura A: “Abortion” ............................................................................................. Lectura B: “The Abortion Act 1967” ..................................................................

78

Texto 3 : “The Law of Succession” ......................................................................................... 12

Texto 4 : Lectura A: “Three Wise Men to Curtail President” ....................................... Lectura B: “The Governor-general” ....................................................................

1720

Texto 5 : “Succession on Intestacy” ...................................................................................... 22

Texto 6 : “Legislative Powers” ................................................................................................ 27

Texto 7 : “The Law of Torts” ................................................................................................... 32

Texto 8 :

“Insolvency and Bankrupcy” .................................................................................

38

Texto 9 : “U.S. Constitution: Second Amendment” ........................................................ 42

Texto 10 : “Miscellaneous Torts” ............................................................................................. 46

Texto 11 : Lectura A: “Dolphin Telecom Files for Creditor Protection” ...................... Lectura B: “Egghead.com to File for Bankruptcy ” ........................................

5051

Texto 12: “The Starting-point” ................................................................................................ 57

Texto 13 :

“Equal Protection” ....................................................................................................

61 Texto 14 : “Criminal Law and Cyber Crimes” ..................................................................... 66

Texto 15: “Knife Crime is Epidemic, Top Judge Claims” ................................................ 70

Texto 16 : “Can 'Cannon' be confused with 'Canon'?” ................................................... 73

Texto 17 : “Juristic Persons” ...................................................................................................... 77

Texto 18: Lectura A: “How to cope with an evil twin: resolving enterprise namedisputes” ...................................................................................................................... Lectura B: “Cybersquatter Targets MP Keith Ashfield” .............................

8287

Texto 19: “Learned Hand. Jurisprudence” ........................................................................... 88

Texto 20 : “Doe V. Mann” . ........................................................................................................ 96

Texto 21 : Lectura A: “Air Canada Fined $1M in Disclosure Case” ............................ Lectura B: “Securities Fraud” ..............................................................................

101102

Texto 22: Lectura A: “Latest Legal News from the Criminal Courts of Los Angeles, California and the U.S.” ........................................................................ Lectura B: “Bulk Cash Smuggling into or out of the United States” ......

108114

Texto 23:

“Mopping up mobbing-legislate or negotiate?” ..............................................

117


3/123

Texto 1 : “The Australian Jurisdictions”Fuente: Gillies, Peter: Business Law, 7th Edition, The Federation Press, Sydney: 1995.


The Australian Jurisdictions

1 INTRODUCTION

1.6 The Australian Jurisdictions

A “jurisdiction” is said to exist in the law when a discrete territorial area isgoverned either generally or at one governmental level, by a legislature, whichlegislature creates laws for it. As part and parcel of this law creation, the5legislature will create a hierarchy of courts to apply this law.

In the case of a unitary state, such as Britain, the whole country represents a single jurisdiction although given the tradition of an independent court hierarchy in eachsub-unit, or “country” of Great Britain, along with certain distinctive statutes, on

one view England and Wales represent a jurisdiction, Scotland another one and10Northern Ireland the third. Scotland indeed has gone one step further and has itsown common law different in marginal ways to the English. It should be notedthat the House of Lords, through its Judicial Committee –the ultimate court ofappeal in Great Britain- represents a unifying influence in relation to the commonlaw in Britain. New Zealand, a pure example of a unitary state, is one jurisdiction.15

In Australia (as in other federations like the United States and Canada), there are anumber of jurisdictions. The basic jurisdictions are the States and Territories (theAustralian Capital Territory and the Northern Territory are the major territories).

The States and Territories have their own legislature and it makes State orTerritorial law. The common law is also applied at State and Territorial level. Each20

jurisdiction has its own court hierarchy, one culminating in the High Court as theultimate (and unifying) court of appeal in Australia. At the State and Territoriallevel, then, there are eight jurisdictions.

The ninth jurisdiction is of course the Commonwealth, whose territorial areadraws in all of the areas occupied by the States and Territories. The25Commonwealth Parliament is a parliament of relatively limited powers, namely,those allocated to it under the Australian Constitution. These powers are,

however, in the aggregate broad and the Commonwealth Parliament has created avast collection of statutes. Collectively these make up federal law. To administerthis federal law the Commonwealth has (through legislation) set up a federal court30hierarchy. To some extent these courts are State and Territorial courts exercisingfederal jurisdiction under the authority of a federal statute, that is, they are in thephysical sense State or Territorial courts, but when hearing the case under federallaw they function as a federal court – they wear a federal hat. The Commonwealthhas also in recent times created some exclusively federal courts, such as the35Federal Court itself and the Family Court. The ultimate court in the federalhierarchy is (again) the High Court, being the ultimate appellate court inAustralia.


4/123



The courts are further discussed in chapter 3.A simple illustration of concurrent jurisdiction of the State/Territorial and federal40hierarchies may be noted. Mr and Mrs X live in a State. Mr X steals from a phone

box. He will be prosecuted under a federal law and tried in a court exercisingfederal jurisdiction (a State or Territorial local court exercising federal jurisdiction). Mrs X wants a divorce. She institutes proceedings under the FamilyLaw Act 1975 (Cth), a federal statute, in the Family Court, a federal court. Quite45independently, Mrs X enters into a contract to buy a car and hands over a largedeposit to a dealer. The dealer refuses to supply the car and refuses to remit thedeposit. Mrs X can sue in contract – a common law action instituted in theappropriate State court. Mr X gets into a brawl at work. He sues his workmate forthe tort of battery – again a common law remedy in a State court. 50

Actividades

1) Responder:

(a) ¿Cuál es el alcance del término “jurisdiction” en el primer párrafo?

(b) ¿Cuál es su alcance para el caso de Gran Bretaña?

(c) ¿Cuál es el tribunal que en Gran Bretaña decide sobre una apelación en últimainstancia?


5/123



(d) ¿Cuáles son las unidades que en Australia se denominan “jurisdiction”?¿Cuántas hay en total?

(e) ¿Cuál es el tribunal que en Australia decide sobre una apelación en últimainstancia?

2) Marcar para cada tipo de caso el sistema judicial por el que tramita en Australia,según los ejemplos del texto.

Tipo de proceso Justicia del estado/territorio Justicia federal

Causa penal

DivorcioIncumplimiento decontrato

Acción civil por lesiones

3) ¿Cuál es la referencia de las siguientes palabras en el texto?

Palabra Renglón Referencia

“it”

“broad”

“these”

“they”


6/123



4) Indicar la opción correcta.

(a) La palabra “discrete” se entiende como:

1- sutil

2- independiente

3- discreto

(b) El término “court hierarchy” hace referencia a:

1- organización de la justicia

2- organización jerárquica

3- nivel judicial

(c) La palabra “ultimate” se entiende como:

1- fundamental

2- de mayor importancia

3- de última instancia

(d) El término “Commonwealth”, en por lo menos una de sus acepciones en eltexto, significa:

1- el poder británico

2- el estado independiente

3- el gobierno federal


7/123

Texto 2: Lectura A: “Abortion”Fuente: Leonard, Robin & Elias, Stephen: Nolo's Pocket Guide to Family and Divorce Law. 4ª Edición.Nolo Press. Berkeley, Ca.:1996.Lectura B: “The Abortion Act 1967” Fuente: Curzon, L. B.: Criminal Law. 7ª edición. The M+E Handbook Series. Pitman Publishing,Londres: 1994


Lectura A

Abortion

Abortion is the medical termination of pregnancy, either elective (by choice) ortherapeutic (to save the mother's life). Since the 1973 landmark U.S. Supreme Courtcase, Roe v. Wade (410 U.S. 113), every woman has had the legal right to an electiveabortion during the first three months of pregnancy (called the first trimester). Butthe U.S. Supreme Court decision of Webster v. Reproductive Services (492 U.S. 490)5

has permitted the states to erode that right in many ways.States may now pass laws prohibiting public facilities or employees fromperforming elective abortion, even if paid for by private funds. States may also banthe use of public funds for family planning programs that include abortioncounseling and referral. Since the early 1980s, neither the federal government nor10the states have had to fund non-therapeutic abortions for indigent women, thoughsome states, such as California, have chosen to do so.

States may also ban or limit abortion at any time after viability (when the fetusmay survive outside the mother's womb), and may require testing as early as 20weeks into pregnancy to determine viability. Viability is the point at which the law15

begins to protect a fetus as a potential human life. As medical technologyadvances, the moment of viability is occurring earlier and earlier.

In response to Webster v. Reproductive Services, many state legislatures are now battling over abortion. Some states impose obstacles to obtaining electiveabortions, such as delays in scheduling the procedure and requiring anti-abortion20counseling.

In 1990, the U.S. Supreme Court in Ohio v. Akron Center for Reproductive Health (110S.Ct. 2972) declared that women under the age of majority can be required to notifyone of their parents before obtaining an abortion. The Court held that these laws

do not infringe on the U.S. Constitution's right to privacy, as long as the state has25

set up an alternative procedure where a court can waive parental notification. If astate has adopted a privacy right greater than the federal one, the parentalnotification law still may be declared invalid. In states with parental notificationlaws, many are not enforced while the state constitutional challenges make theirway through the courts.30

In 1992, the U.S. Supreme Court reaffirmed its decision allowing a woman the rightto choose to have an abortion before the fetus is viable without undue interferencefrom the state in Planned Parenthood of Southeastern Pennsylvania v. Casey (112 S.Ct.2791). The court did hold, however, that a state's requirements of a 24-hour waitingperiod and parental consent to a minor's decision to have an abortion were35constitutional.


8/123



Lectura B

The Abortion Act 1967

Medical termination of pregnancy

The situation is governed by the Abortion Act 1967, as amended by HumanFertilisation and Embryology Act 1990. Under s. 1(1): 'Subject to the provisions ofthis section, a person shall not be guilty of an offence under the law relating toabortion where a pregnancy is terminated by a registered medical practitioner if5two registered medical practitioners are of the opinion formed in good faith -

(a) that the pregnancy has not exceeded its 24th week and that the continuance ofthe pregnancy would involve risk, greater than if the pregnancy were terminated,of injury to the physical or mental health of the pregnant woman or any existingchildren of her family; or10

(b) that the termination is necessary to prevent grave permanent injury to thephysical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of thepregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from15

such physical or mental abnormalities as to be seriously handicapped.'

Other relevant matters

The following points are of importance.

(a) Treatment for termination of the pregnancy must be carried out in a hospitalvested in the Minister of Health or the Secretary of State under the NHS Acts: s.201(3)(b).

(b) In the case of an emergency in which termination is immediately necessary soas to save the life or to prevent grave and permanent injury to the physical healthof the pregnant woman, subsection (3) and that part of subsection (1), relating tothe opinion of two medical practitioners, shall not apply: s. 1(4).25

(c) In the case of a woman carrying more than one foetus, anything done with theintent to procure her miscarriage of any foetus is authorised by s. 1 if the groundfor termination of the pregnancy specified in subsection 1(d) applies in relation toany foetus and the thing is done for the purpose of procuring the miscarriage ofthe foetus, or any of the other grounds for termination of the pregnancy specified30in s. 1 applies: s. 5(2).

(d) The question of whether a medical practitioner has acted 'in good faith' in

deciding to terminate a pregnancy is for the jury to decide on the totality of theevidence: R.v. Smith (1973).


9/123



(e) Under the 1967 Act, s. 4, no person shall be under a duty to participate in any35

treatment under the Act to which he has a conscientious objection, but this mustnot affect his duty to participate in any treatment considered necessary to save thelife or prevent grave permanent injury to the physical or mental health of apregnant woman.

(f) In Royal College of Nursing v. DHSS (1981), the House of Lords held that a40pregnancy is 'terminated by a registered medical practitioner' within s. 1(1) whenthe termination is prescribed and initiated by him and he remains in charge whilequalified nursing staff carry out his instructions as a team effort.

(g) It should be noted that there is now a fixed time limit for abortions under the1967 Act, s. 1(1)(a) of 24 weeks. In the case of abortions under s. 1(b), (c), (d), there is45

no time limit.

Actividades

1) Responder las siguientes preguntas.

(a) ¿Desde qué óptica tratan los textos el tema del aborto?

(b) ¿De dónde surge la posibilidad de que a una mujer se le practique un aborto encada país?

(c) ¿Qué tipo de aborto trata cada texto en particular?


10/123



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. En caso de ser

falsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) En los Estados Unidos, para que una mujer pueda optar por un aborto existeun límite de doce semanas de embarazo.

Verdadero Falso

Sería verdadera de la siguiente manera:

(b) En Inglaterra, la ley impone ciertas condiciones para que la práctica deabortos por parte de médicos matriculados no encuadre como delito.

Verdadero Falso


(c) En los Estados Unidos, el máximo tribunal, a partir del fallo en Ohio v. AkronCenter for Reproductive Health, dictaminó que las mujeres están obligadas a dar

aviso a uno de sus padres antes de que se les practique un aborto.

Verdadero Falso



11/123



(d) En Inglaterra, no existe límite de tiempo para practicar un aborto si es que la

continuidad del embarazo importare un riesgo mayor para la salud física ymental de la mujer que la interrupción del embarazo.

Verdadero Falso



12/123

Texto 3: “The Law of Succession”Fuente: Harpwood, Vivienne; Alldridge, Peter: GCSE Law. 4ª Edición. Blackstone Press Limited: Londres,1995. Págs. 256-7.


The Law of Succession

The law has developed rules to govern the disposition of a person's property on hisor her death. Every person who dies will either die 'testate' (that is, having validlyexecuted a document called a will), or 'intestate? (that is, not having executed sucha document). By making a will the deceased exercises the maximum possiblecontrol over who is to inherit from him or her. It also serves to prevent argument5

between survivors and in large estates to minimise liability to tax. The rules ofintestate succession represent a guess by the legislature as to whom the deceasedwould have wished to have his or her property.

Valid Wills

Subject to the provisions of the Inheritance (Provision for Family and Dependants)10Act 1975, a person may dispose of any property which remains after the lawfuldebts of his or her estate have been paid, in any way at all. But in order to do thisthe person must execute a valid will.

Eighteen is the minimum age at which anyone can make a valid will, except for 'asoldier being in actual military service, or any mariner or seaman being at sea',15who may make them under age 18. Soldiers and seamen may also execute oralwills, but otherwise a will must be (Administration of Justice Act 1982 s. 17):

(a) a document in writing; and

(b) 'signed' by the testator (the person making the will); and(c) signed by two witnesses.20

'Signing' can include making a mark where the testator cannot read or write, but inthe case where the testator cannot read there must be evidence that he or she had

been properly informed of the contents of the will. The will must be signed by thetestator or by someone acting under his or her direction. Someone else may signwhere, for example, the testator is too weak physically to do it but is nonetheless25compos mentis (in one's right mind).

The function of the witnesses is to witness the signature only, not to attest toanything concerned with the contents of the will. So it is not necessary that awitness should read (or even see) the body of the will, nor know that it is a willwhich is being witnessed.30

If a 'will' is not executed in this form then it will not be validly executed, and on thetestator's death his or her property will pass according to the rules for intestacy. Ifone of the witnesses is also a beneficiary (i.e., a person receiving a gift under thewill), then the gift to that beneficiary will fail and the property concerned will passas though the deceased had died intestate in respect of that property.35

Once a will has been validly executed, it is said to be 'ambulatory'. That is to say, itdoes not have an immediate effect, and is only 'activated' by the death of the

testator. In between the time of the execution of the will and the death of thetestator, the will may be (a) 'revoked' (cancelled), or (b) altered, by the testator.


13/123



Revocation40

This may come about in three ways:

(a) By executing a document in the same form as he or she would have to employto make a valid will: thus if the testator could validly make a will orally, therevocation may be made orally (Wills Act 1837 s. 20). This revoking document isoften itself a new will. It is sensible (though not formally necessary) to begin a will45with a clause revoking any former wills.

(b) By marriage: by s. 18 of the Wills Act 1837 any will which is made before thetestator's marriage is automatically revoked by that marriage (save where the willis made specifically and explicitly with that marriage in mind). However, divorcedoes not revoke a will made in favour of the spouse.50

(c) By destruction: under s. 20 of the Wills Act 1837 a will may be revoked 'by

burning, tearing or otherwise destroying [the will] by the testator, or by someperson in his presence and by his direction, with the intention of revoking [it].' It isnot enough that the will actually is destroyed. It must be shown to have been donewith the intention of revoking the will. If the document is destroyed without the55required intention, then a copy is admissible in evidence of its contents.

Alteration

Wills may be altered before or after execution.

(a) Before execution: it is perfectly possible to alter a will before execution (i.e.,

before signature, etc.). Such a will is valid in the form it took when it was actually60 executed.

(b) After execution: a will may be altered by the execution in the correct form (i.e.,properly signed and witnessed) of an additional part called a codicil. If a codicil isinconsistent with the terms of the original will, the codicil, representing the laterexpression of the wishes of the testator, will prevail. Likewise, a later codicil will65prevail over an earlier one.

A will can also be altered upon its own face (for example, in a bequest of money, by crossing out one figure and inserting another). However, the amendment musthave the requisite formalities (signature by or on behalf of the testator and

witnesses), and is only effective if the position prior to the alteration is completely70obliterated (Wills Act 1838 s. 21).

Declaration Of Intent

A will is a declaration of intent only; the execution of a will does not interfere at allwith the general power of an owner of property to dispose of the property duringhis or her own lifetime. If there is a specific bequest of property in a will and that75piece of property has been given away or sold by the testator during his or her life,then the gift fails.


14/123



Actividades

1) Responder:

(a) ¿Qué requisitos debe reunirse para redactar un testamento válido?

(b) ¿Qué se entiende por el carácter modificable de los testamentos?

2) Decidir si las siguientes afirmaciones son verdaderas o falsas. En caso de serfalsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) Las normas que rigen la sucesión intestada resultan ser una interpretación dela voluntad de los causantes que no dejan testamento.

Verdadero Falso



15/123



(b) Las normas que rigen la sucesión intestada resultan ser una interpretación dela voluntad de los causantes que no dejan testamento.

Verdadero Falso


(c) Un beneficiario que a su vez sea testigo queda anulado como testigo.

Verdadero Falso


(d) Si una persona cree que firma un contrato en calidad de testigo, cuando enrealidad se trata de un testamento, entonces el testamento no es válido.

Verdadero Falso



16/123



(e) La existencia de un testamento no paraliza la libre disposición de los bienesen vida de quien lo hubiere suscripto.

Verdadero Falso


3) Completar con información del texto sobre:

(a) Revocación

(b) Modificación


17/123

Texto 4 : Lectura A: “Three Wise Men to Curtail President”Fuente: internet: http://www.theaustralian.news.com.au.Lectura B: “The Governor-general”Fuente: internet: http://en.wikipedia.org/wiki/Governor-General_of_Australia del 07/04/08.


Lectura A

Three Wise Men to Curtail PresidentBy Benjamin Haslem, High Court correspondent 19 Jul 01

Former High Court chief justice Gerard Brennan has dropped his opposition to apopularly elected head of state, proposing a council of three wise men to curtail thepower of a president to sack the prime minister.

Delivering a lecture at the Australian National University last night, Sir Gerard saidthat under his proposed republican model, the president – popularly elected or5otherwise – would have to convince a constitutional council it was necessary toexercise the reserve powers and sack the government.

Sir Gerard’s proposal marks a big shift in his thinking – in the lead-up to the 1999republic referendum he warned that a popularly elected president would destroy

the Westminster system of responsible government.10

The shift comes as the Australian Republican Movement has dropped its oppositionto a popularly elected president.

Sir Gerard said the main problem with an elected president was that they wouldhave an electoral mandate and would be free to use the reserve powers held atpresent by the governor-general.15

“The president, armed with the authority of a popular mandate, might exercise orimpair the powers of the prime minister and government”, Sir Gerard said in hislecture. “There would be two hands on the tiller of national interest.”

The constitutional council could consist of three former governors-general or

presidents, or three former High Court chief justices or justices.20If the president ignored the council’s decision, the sacked prime minister could goto the High Court.

The reserve power, used as a check against unlawful conduct by a government,could be retained with a constitutional council.

Some republican advocates pushing for an elected president have suggested25spelling out the reserve powers in the constitution.

But Sir Gerard said it was “difficult to spell out conventions prescribing theoccasions for exercise of reserve powers”.

His comments were welcomed by ARM chairman Greg Barns.

“Like the ARM, Sir Gerard is recognising there’s a number of Australians who want30to see a popularly elected president”, Mr Barns said.

But Australians for a Constitutional Monarchy national convenor David Flint saidSir Gerard’s model would never be adopted.

“In a referendum, people won’t put up with it because if we’re to become a republic– and I stress if – they want to choose the president, and any proposition that the35president would have even less powers than the governor-general won’t wash”,Professor Flint said.

Popular election advocate Ted Mack agreed, labelling Sir Gerard’s model “aClayton’s president” with less power over executive government.

George Winterton, law professor at UNSW and a republican, said the constitutional40council was “not a bad idea” but questioned whether Australians would support itsmake-up.


18/123



Actividades

1) Responder:

(a) ¿Qué postura tiene actualmente Gerard Brennan?

(b) ¿Qué postura sostenía anteriormente?

(c) ¿Por qué cambió de opinión?

(d) ¿Por qué cree que es necesario que se controle al presidente?

(e) ¿Quiénes podrían, en su modelo, controlar al presidente?


19/123



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. Justificar lasrespuestas indicando el renglón de referencia.

(a) Esta es la primera vez que se discute un modelo republicano en Australia.

Verdadero Falso

Justificación:

Renglón de referencia:

(b) La propuesta de Gerard Brennan es que el presidente provenga del votopopular.

Verdadero Falso

Justificación:


(c) Quines están a favor de un modelo republicano y un presidente electoproponen que la constitución haga expresa referencia a los poderesreservados.

Verdadero Falso

Justificación:


3) Identificar personas u organizaciones y sus posturas frente a la propuesta deGerard Brennan y de un presidente electo:


20/123



Lectura B

The Governor-generalThe Governor-General of the Commonwealth of Australia is the representative inAustralia of the monarch of Australia (currently Elizabeth II, Queen of Australia).He or she exercises the supreme executive power of the Commonwealth. Thefunctions and roles of the Governor-General include appointing ambassadors,ministers and judges, giving Royal Assent to legislation, issuing writs for elections5and bestowing honours. The Governor-General is President of the FederalExecutive Council and Commander-in-Chief of the Australian Defence Force. Allthese things are done and all these posts are held under the authority of the

Australian Constitution. Further, the Governor-General acts as vice-regalrepresentative to the Australian Capital Territory.10

The Constitution provides that a "Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth ..." The Constitution grantsthe Governor-General a wide range of powers, but in practice he or she follows theconventions of the Westminster system and (with rare exceptions) acts only on theadvice of the Prime Minister of Australia or other ministers. Even in the15appointment of the prime minister, the Governor-General rarely exercises anydiscretion, usually appointing the leader of the largest party or coalition of partiesin the House of Representatives.

Method of appointment

In practice, the selection of a governor-general is a matter for the Prime Minister of20Australia, who may consult privately with staff or colleagues, or with the monarch.The person would also be approached privately to see if they are willing to acceptthe appointment.

The Prime Minister then provides the nomination to the monarch.

Tenure25

The constitution does not set a term of office, so a Governor-General may continueto hold office for any agreed length of time, however a typical term of office is fiveyears. At the end of this period, a commission is occasionally extended by a shortperiod.

A Governor-General may be recalled or dismissed by the Queen before their term30is complete. By convention, this may only be advised by the Prime Minister. ThePrime Minister has the option of naming an immediate replacement or letting thevacancy provisions take effect.

As no Australian Governor-General has ever been dismissed, it is unclear howquickly the Queen would act on such advice. The constitutional crisis of 197535

prominently raised the possibility of the Prime Minister and the Governor-Generalattempting to dismiss each other at the same time.


21/123



Reserve powers

In the United Kingdom, the reserve powers of the Crown are not explicitly stated

in constitutional enactments and are the province of convention, but in Australia,40 the powers are explicitly given to the Governor-General in the Constitution but it istheir use that is the subject of convention.

The reserve powers are:

• The power to dissolve (or refuse to dissolve) the House of Representatives.• The power to dissolve Parliament on the occasion of a deadlock.45• The power to withhold assent to Bills.• The power to appoint (or dismiss) Ministers.

These powers are generally and routinely exercised on Ministerial advice, but theGovernor-Generall retains the ability to act independently in certain circumstances,as governed by convention.50

Actividades

1) Responder:

(a) ¿Cuáles son los poderes reservados que existen en Australia?

(b) ¿Cómo se designa al “Governor-general”?

(c) ¿Cómo se designa al primer ministro?

(d) ¿A cuál de los poderes reservados se hace referencia en la Lectura A?


22/123

Texto 5: “Succession on Intestacy”Fuente: Forsyth, T. A.: A Brief Outline to the law relating to Trusts, Wills, Executors and Administrators.3ª Edición. The Dunmore Press Limited: Palmerston North, Nueva Zelanda: 1994..


Succession on IntestacyChapter 8

When a person dies without leaving a valid will, she is said to die ‘intestate’. An‘intestacy’ will also result when the deceased has left a will but all the gifts fail as,for example, when the beneficiaries have all predeceased the testator.

There will be a partial intestacy when the deceased has left a will, but has failed todispose effectively of the whole of the estate. This will occur when the testator has5left specific gifts, but has not included a residuary clause to cover those assets notspecifically bequeathed and gifts that fail, or when the residuary disposition itselffails. In such cases, the deceased will be deemed to have died intestate for that partof his estate not effectively disposed of under the will.

When a person has died intestate, either wholly or partially, her assets must still be10disposed of. The law at present in force in New Zealand governing succession onintestacy is contained in the Administration Act 1969 which, in Part III, sets out therules of intestate succession.1

For the purposes of these rules:

A. In similar manner to what we saw in subsection 6.1.1 (General administration)15in connection with grants of Letters of Administration, a ‘spouse’ does not qualifyas such when a separation order is in force.2

B. ‘Personal chattels’ do not correspond exactly with ‘personal property’. Not onlydo ‘personal chattels’ exclude leaseholds, but they also exclude any chattels(including cars) used principally for business purposes, and money and securities20for money (for example, mortgages and company shares).

C. ‘Issue’ means children of the intestate, plus the children of any child who haspredeceased the intestate, such grandchildren (or great grandchildren, as the casemay be) taking per stirpes the share that their parent would have received.

The main rules of intestate succession are:25

1. The spouse of the intestate gets the personal chattels,3

plus $90,000.2. The spouse of the intestate also gets one-third of the balance of the estate. Theother two-thirds goes to the issue of the intestate.

3. If the intestate left no issue, the spouse gets two-thirds of the balance of theestate. The other one-third goes to the parents (or surviving parent) of the intestate.30

1 Where a Maori has died intestate, and the estate includes a beneficial interest in Maori freehold land, see s 109of the Maori Land Act 1993.

2 Even though such a ‘spouse’ is not entitled to succeed under the rules of intestate succession, he or she can still bring a claim under the Family Protection Act 1955 (see subsection 1.5.2).

3

Remember that, if personal chattels are subject to a hire purchase agreement, the spouse will (as betweensuccessors) take them free of liability for instalments due or to become due.


23/123



4. If the intestate left no issue and no parents, the balance of the estate goes to thespouse.

5. If the intestate left no spouse, the whole of the estate goes to the issue.

6. If the intestate left no spouse and no issue, the whole of the estate goes to theintestate’s parents (or surviving parent).35

7. If the intestate left no spouse, no issue and no parents, the whole of the estategoes to the brothers and sisters of the intestate or, if a brother or sister haspredeceased the intestate, to his or her issue. (You can see that the words in italics4 are significant because, if their parent has predeceased the intestate, it brings innephews and nieces. The corresponding thing applies in 8.(c) and (d) below to40

bring in cousins).

8. If the intestate left no spouse, no issue, no parents, no brothers or sisters, and no nephewsand nieces, the estate is divided into two halves to cater for the mother’s and father’s

sides of the family, respectively:

(a) The first half of the estate goes to the maternal grandparents (or surviving one),45while

(b) The second half of the estate goes to the paternal grandparents (or survivingone).

(c) However, if the intestate did not leave a maternal grandparent, the first half ofthe estate goes to the maternal uncles and aunts or, if a maternal uncle or aunt has50predeceased the intestate, the share goes to his or her issue and, likewise

(d) If the intestate did not leave a paternal grandparent, the second half of theestate goes to the paternal uncles or aunts or, if a paternal uncle or aunt haspredeceased the intestate, the share goes to his or her issue.

9. (a) If, in addition to the foregoing defaults, the intestate left no maternal55grandparents, no maternal uncles or aunts, and no cousins on that side of thefamily, the first half of the estate goes to the other side of the family and isdistributed, along with the second half, in accordance with 8.(b) and (d) above and,likewise

(b) Vice versa, in the case of the second half of the estate, if the intestate left no60paternal grandparents, no paternal uncles or aunts, and no cousins.

10. If nobody qualifies under 1.-9. above, the estate goes to the Crown as bonavacantia (literally, ‘goods without any apparent owner’). The Act provides that theCrown may, out of the whole or any part of the property, provide for anydependants of the intestate (whether kindred or not) and other persons for whom65he might reasonably have been expected to make provisions (such as a de factospouse5).

4 Which have their foundation in s 78(3) Administration Act 1969.5 The Courts have not yet recognised the right of a de facto spouse to bring a claim under the Family Protection

Act 1955.


24/123



Actividades

1) Responder:

(a) ¿En qué circunstancias se afirma que una persona falleció intestada?

(b) ¿En qué casos se afirma que dicha situación es parcial?

(c) ¿Cómo define la “Administration Act 1969” la palabra descendencia?

(d) ¿Por qué hay dos referencias a la “Family Protection Act 1955”?


25/123



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. Justificar lasrespuestas indicando el renglón de referencia.

(a) Cuando el causante no deja descendencia ni padres que lo sobrevivan, elcónyuge excluye a todo otro familiar.

Verdadero Falso

Justificación:


(b) Cuando el causante no tiene cónyuge supérstite, los padres excluyen a todootro familiar.

Verdadero Falso

Justificación:


(c) Los sobrinos del causante lo suceden cuando éste no tiene cónyuge,

descendencia ni padres que lo sobrevivan.

Verdadero Falso

Justificación:



26/123



(d) Los primos maternos del causante tienen derecho a sucederlo en los bienessiempre que no exista cónyuge, descendencia, padres, hermanos, sobrinos,abuelos maternos ni tíos maternos que lo sobrevivan.

Verdadero Falso

Justificación:


(e) La Corona tiene derecho a los bienes del causante cuando nadie lo sucede.

Verdadero Falso

Justificación:



27/123

Texto 6 : “Legislative Powers”Fuente: http://law.jrank.org/pages/12516/Legislative-Powers.html.


Legislative Powers

GOVERNMENTAL STRUCTUREDuring the short period of governance under the Articles of Confederation theUnited States learned a valuable lesson. In order for a democratic government tofunction there must be a central governing body and that body must be granted aminimum amount of authority. After the Revolutionary War there was justifiable5concern regarding the structure of government and, in particular, how muchpower would be allocated to the central government. Under the Articles thefounders satisfied their fear of tyrannical government by denying the centralgovernment rudimentary authorities such as the power to raise or collect taxes, thepower to coin money, and the power to provide for the common peace and defense10

of the nation. The weakness of the federal government became manifest in Shay'sRebellion in which the federal government proved incapable of quelling a smalluprising of farmers seeking compensation for war debts.

CONGRESSIONAL POWERS

One of the intentions of the founders in designing a new constitution was to ensure15that the federal government had sufficient power to run the country. The delicatetask they faced was that of striking a compromise between federal power andindividual and states' rights. One of the strategies the founders employed to

maintain this balance was to use ambiguous wording in the various provisions ofthe document. They realized that they could not possibly anticipate every conflict20that would arise over the issue of power. The founders therefore structuredgovernment in such a way that competing forces would work against each other toresolve conflicts over power. Although the founders realized that many of thespecific conflicts over power would be resolved as they arose, they were forced todefine the basic powers of government. The Constitution enumerates, or explicitly25defines, the legislative powers granted to the legislative branch in Article I, Section8. Here Congress is granted the power to tax, regulate commerce, provide acommon currency, and raise and support an army and navy. The Constitution alsogrants Congress the power to enact laws "necessary and proper" to execute its

constitutional authority. This is known as the "elastic" or "necessary and proper"30clause. It is perhaps the most controversial of the enumerated powers granted toCongress as it renders a subjective range to legislative power.

Apart from the Constitution, the powers of the legislative branch have beendefined, in large part, by the Supreme Court. Though it is often presumed that theConstitution granted the Supreme Court the power to review legislative statutes35for their constitutionality, the power of "judicial review" was in fact claimed by theCourt in Marbury v. Madison (1803). It was here that Chief Justice John Marshallheld that it is the power of the Supreme Court to determine whether acts passed byCongress and the president were consistent with the Constitution. The issues that

the Supreme Court has been called upon to resolve concerning the parameters of40legislative power center around the relationship between Congress and the states,and the relationship between Congress and the president.


28/123



LEGISLATIVE POWERS AND THE STATES

The landmark case which essentially determined whether Congress would have45constitutional authority to govern the various states of the union was McCulloch v.

Maryland (1819). On the surface the Court was to determine whether Maryland hadthe power to tax a national bank. However, Chief Justice Marshall, who is to theSupreme Court what George Washington is to the presidency, chose to address the

broader issue of legislative versus state power in historic opinion. Marshall's50opinion would set the precedent for defining the range of the "necessary andproper" clause of Article I, Section 8 of the Constitution. In effect, Marshall ruledthat when state and federal laws conflicted, states must defer to the federal statute."The government of the United States, though limited in its powers, is supreme;and its laws, when made in pursuance of the Constitution, form the supreme law55of the land" (McCulloch). This ruling served to clarify what had been presumed to

be the implied range of legislative power vis-a-vis the states outlined in theConstitution.

The Court has elsewhere upheld congressional rule over state law in South Carolinav. Katzenbach (1966). Here Southern states headed by South Carolina challenged the60power of Congress to enforce provisions of the Voting Rights Act of 1965 whichwas designed to eliminate discrimination against black voters. In the Civil War,amendments to the Constitution authorized Congress to enforce the amendments"by appropriate legislation." In this case the Voting Rights Act was an"appropriate" means of enforcing the prohibition of discrimination against voting65qualifications on the basis of race provided by the Fifteenth Amendment. South

Carolina requested that Nicholas Katzenbach, the United States Attorney Generalat the time, be prohibited from enforcing sections of the Voting Rights Act on thegrounds that it violated the Tenth Amendment. The Tenth Amendment states thatthe powers not delegated to the federal government "are reserved to the states."70South Carolina claimed that Congress had legislated in an area, election laws, thathad been reserved to the states. The Supreme Court ruled that the Voting RightsAct was an "appropriate" means of enforcing the provisions of the FifteenthAmendment. This decision made it clear that the legislature's power to enforceConstitutional Amendments would take precedent over state's rights.75

The balance of power between the federal and state governments has also been

affected by policies made "outside" the Constitution. The arrangements thatCongress makes with other countries through treaties can significantly imposeupon state power. The question of whether this is constitutionally justified has

been a subject of legal controversy. Congressional authority over arrangements80made with foreign nations through treaties with regards to state authority wasaddressed by the Court in Missouri v. Holland (1920). In 1916the United States hadentered into a treaty with Great Britain designed to save certain species of birdsfrom extinction.


29/123



Actividades

1) Responder:

(a) ¿A qué aprendizaje refiere el primer párrafo?

(b) ¿Dónde se centró la atención con posterioridad?

(c) ¿Cómo se evitó la posibilidad de un poder tiránico?

(d) ¿Qué meta se proponía la nueva constitución y qué acciones presuponía lapropuesta?

(e) ¿Cómo se evitó el conflicto de los derechos individuales con los demásderechos?


30/123



(f) ¿Qué se comprendió con claridad al momento de redactar el documento?

(g) ¿Qué estructura propusieron los padres fundadores para el gobierno?

(h) ¿Qué alcance queda establecido en la Constitución respecto de las facultadesdel Legislativo?

(i) ¿Qué hito marcó la decisión judicial en el caso Marbury v. Madison?

(j) ¿Quién fue John Marshall y por qué se incluye su nombre en el artículo?

(k) ¿Cuáles fueron los fundamentos utilizados por Marshall?


31/123



2) Resumir el contenido de los tres párrafos sobre "LEGISLATIVE POWERS ANDTHE STATES" y asignarle un título a cada uno.

Párrafo 1

(renglones45 - 58)

Título:

Contenido:

Párrafo 2(renglones

59 - 75)

Título:

Contenido:

Párrafo 3(renglones

76 - 84)

Título:

Contenido:


32/123

Texto 7: “The Law of Torts”Fuente: Willes, John A.: Contemporary Canadian Business Law: Principles and Cases, 4ta Edición,McGraw-Hill Ryerson Limited: Toronto, 1994.


Part II

The Law of Torts

Tort Law defined

The term tort is a legal term derived from the Latin word tortus meaning a“wrong.” Its use in law is to describe a great many activities that result in damageto others with the exception of breach of trust, a breach of duty that is entirelycontractual in nature, or a breach of a merely equitable obligation.1 The term has5

been used in English law for many hundreds of years to characterize a wrongcommitted by one person against another, or against the person’s property orreputation, either intentionally or unintentionally. It also generally covers caseswhere a person causing an injury has no lawful right to do so. Unfortunately, the

term is not capable of precise definition, because the area of the law that it10encompasses is so broad that to determine its limits with any degree of precisionwould be an impossible task. We can, however, identify many of the moreimportant areas of tort law and examine those which have a direct bearing onordinary personal and business activities.

The Development of Tort Law 15

Some of the earliest laws made by the community or the early judges pertained toactions that are now the subject of tort law. Indeed, most of our more familiarcriminal law was once tort law, and many criminal actions today still have a

concurrent tort liability attached to them. Assault causing bodily harm, forexample, is an act covered by the Criminal Code, where the Crown would proceed20against the person who committed the assault. Under tort law, the victim of theassault would also have the right to seek redress from the accused for the injury

by way of civil proceedings for assault and battery.

In the past, no distinction was made between acts that were criminal, and acts thatwere civil in nature. Both were treated as torts in the sense that compensation25would be due to the victim or the victim’s family. This is not so today. Because somany torts in the past have now become crimes, modern legal writers, particularlythose in the United States, distinguish the two classes by referring to crimes as

“public wrongs” or “wrongs against society,” and the remainder of tort law as“private wrongs” or “wrongs against the individual.”30

The earliest tort cases tended to reflect the injuries that a plaintiff of that era mightsuffer: violent assault and battery, the seizure of one’s goods, or the slander ofone’s name. Today, the scope of the law of torts has broadened to the point whereit encompasses a great many areas of human endeavour. Yet, for all of itsapplications, to modern-day activity, many of the principles and concepts date35

back to much simpler earlier times when the courts first saw the need to remedy awrong.

1 Osborn, P. G., The Concise Law Dictionary, 4th ed. (London: Sweet & Maxwell, 1954), p. 334.


33/123



Tort law, by and large, is an attempt by the courts to cope with the changes thattake place in society, and to balance as best they can individual freedom of actionwith the protection or compensation for the inevitable injury to others that the40exercise of such freedom occasionally produces. The development of the law of

torts is essentially the development of the principles and legal fictions used by thecourts to effectively maintain some sort of equilibrium between these twoindividual desires in an ever-increasingly complex society.

Tort situations might arise in the course of a number of business activities. It45would, for example, arise where a business person negligently produces a productthat injures the user or consumer. It would also occur where a surgeon carelesslyperforms an operation on a patient, causing the patient further unnecessary painand suffering or permanent injury.

While many areas of the law affect business, the law of torts and the law of50contract are the two major areas of importance in terms of rights of the partiesarising out of business transactions or business activity. As a very general rule,contract law applies to business activities where the parties have voluntarilyagreed to their rights and responsibilities which the courts will enforce throughcivil action. In the case of tort law, a party affected by a business activity which55causes injury need not necessarily be associated in the business transaction oractivity, and in many cases may be a complete stranger to the transaction, but,nevertheless, injured by it. In this instance, tort law may provide a remedy, and ina sense, has a much broader application than contract law.

Many common business torts relate to carelessness resulting in injury or loss to a60client or customer, but some torts may arise out of deliberate acts. For example, for

a person to deliberately enter on the private property of a landowner is the tort oftrespass, and to deliberately threaten and then strike someone a blow with yourfist would be an assault and battery. Because business persons are oftenresponsible for the actions of their employees in the course of carrying out their65duties, liability for any tort committed by an employee in the course of businessmay fall on the employer as well. In the chapters in this part of the text, the law oftorts and its impact on business activity is explored under the general headings ofintentional and unintentional torts.

Actividades

1) Responder:

(a) ¿Cuál es el uso jurídico del término “tort”?


34/123



(b) ¿Qué uso se le dio durante siglos en el Derecho Inglés?

(c) ¿Qué clasificaciones distingue la doctrina actual?

(d) ¿Qué finalidad persigue la justicia al entender en causas vinculadas a la

materia?

(e) ¿Qué situaciones pueden dar lugar a responsabilidad en materia civil?


35/123



(f) ¿Qué se dice respecto de los empleadores en el último párrafo?

2) Decidir si las siguientes afirmaciones son verdaderas (V) o falsas (F). En caso deser falsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) Según el Código Penal, las amenazas de daño físico que finalmente sematerializan dan a la víctima la posibilidad de iniciar la causa penal.

Verdadero Falso


(b) Siempre existió una diferenciación entre actos de naturaleza penal y aquellosde naturaleza civil.

Verdadero Falso



36/123



(c) Un ejemplo de responsabilidad en el área “tort law” estaría dado por elempresario que fabrica un producto que provoca un daño al consumidor.

Verdadero Falso


(d) En líneas generales, el derecho contractual rige las actividades comercialespor medio de las cuales las partes han pactado de conformidad derechos yobligaciones para los que en caso de incumplimiento la rama “tort law”prevé algún tipo de resarcimiento.

Verdadero Falso


(e) Los actos típicos que generan responsabilidad en esta materia sonexclusivamente de carácter voluntario.

Verdadero Falso



37/123



(f) En el ámbito comercial, las personas que sufren un daño, muchas veces notienen vínculo alguno con quienes lo provocan.

Verdadero Falso



38/123

Texto 8 : “Insolvency and Bankrupcy” Fuente: Mulholland, R. D., Business Law Today. 4ª Edición, The Dunmore Press, Palmerston North, NuevaZelanda: 1995. Págs. 405-7.


Insolvency and Bankruptcy

Objects of the law

In former times the non-payment of one's legitimate debts was regarded, not onlyas immoral, but as criminal. It was thus regarded as proper that appropriate action

be taken against such persons and, until the eighteenth century physicalpunishments, such as being placed in the pillory and having one's ear cut off, were5frequently carried out against debtors. Even well into the nineteenth century, asthe readers of Dickens will be well aware, the debtors' prison was a feature ofEnglish life.

Not only was the physical person of the debtor at the mercy of his creditors, butthe property was at the disposal of the moneylenders to deal with as they pleased.10This meant that there was no thought of equity between the various creditors. Theclaims of the most rapacious among the creditors were likely to be satisfied at theexpense of those who were more hesitant in their conduct. The creditors actedindividually to satisfy their debts, and there was no thought of collective action on

behalf of all creditors so that the assets of the debtor could be equitably divided15among them.

It was not until the United Kingdom Bankruptcy Act 1883 that the contemporarylaw evolved. The New Zealand Bankruptcy Act 1908 was based upon the English

legislation, and that was superseded by the Insolvency Act 1967, which is now inforce. The 1967 Act is substantially a code of the contemporary law.20

The broad objects of the law may be set out as follows:

(a) To provide justice to the debtor by allowing this person to be extricated from astate of indebtedness, but at the same time permitting the retention of suchminimum by way of property as to enable restart in life.

(b) To provide justice for all the different creditors so that the property of the25 bankrupt which is available for distribution is equitably divided with no creditor being favoured, without good reason, at the expense of the others.

(c) To eliminate the element of criminality from bankruptcy proceedings.(d) To provide a machinery whereby an insolvent party can satisfy debts withouthaving to go through the procedure of bankruptcy. This machinery was novel to30the 1967 Act.

(e) To provide a way out of an impasse which arises when creditors are pressingfor payment and the debtor, even if he or she is a model of honesty and has the

best will in the world, is quite unable to pay the debts.

The law relating to insolvency and bankruptcy serves an important function in the35commercial community by providing an ultimate guarantee for every debt. The

advancement of credit is a vital feature of our business life, and without theexistence of a rational system to underpin the repayment of debts the propensity toadvance credit would be substantially reduced. This is despite the fact that no


39/123



creditor, when making a loan, relishes the thought of having to sue to recover the40money.

The law provides for an Official of the court, known as the Official Assignee to

administer the estate of the bankrupt. This absolves individual creditors of theneed to take personal direct action to enforce their claims, and provides for theimpartial administration of the estate of the bankrupt by an official vested in the45law and practice of the particular situation. Both the debtor, creditors, and thoselikely to do business with the debtor, now have a clear set of rules which theyknow will be strictly adhered to. The result is that all parties know precisely wherethey stand.

Bankruptcy and insolvency50

There is a clear division between bankruptcy and insolvency. Bankruptcy is a legalstate which develops upon a debtor once a particular procedure, set out in theInsolvency Act 1967, has been executed. Bankruptcy is thus a legal status. A partywho is adjudged a bankrupt in accordance with the provisions of the InsolvencyAct is under a legal disability, especially with regard to his contractual capacity.55The bankrupt remains in that state until formally discharged from it, again inaccordance with the requirements of the Act.

Insolvency is the state of being unable to pay one's debts. Legally, it is quitedifferent from bankruptcy. It does not derive from any statutory fiat but is aphenomenon of commercial life. There is no legal disability attaching to60

insolvency. Although it may be imprudent from a financial point of view to do business with a person in difficulty with debt, no specific legal consequence islikely to flow from such dealings.

Debt itself has become a highly structured and institutionalised practice and willnormally result from a contract between the debtor and the creditor. The contract65will usually provide for the contingency of the debtor defaulting. The creditor may

be able to pursue a private remedy against the debtor in accordance with thecontract. However, should that creditor or some other creditor have the debtoradjudged bankrupt, all private contracts between creditor and debtor will be setaside and the provisions of the Insolvency Act will apply.70

Merely being in debt is not, of itself, sufficient to have a party declared bankrupt.For bankruptcy proceedings to be commenced, it is necessary that not only shouldthere be a debt owing but there should be a manifest indication that it will not bepaid. The law has provided for this by stipulating a number of 'available acts of

bankruptcy'. Although these are set out in the Act the expression 'act of75 bankruptcy' is not itself defined in the Act. An 'act of bankruptcy' may be definedas an act done by the debtor, or permitted to be done by the debtor which indicatesthat the debt is unlikely to be paid. The existence of one or more of these acts of

bankruptcy is a fundamental condition for the commencement of bankruptcy. Noperson can be declared a bankrupt unless one of these acts has taken place.80


40/123



Actividades

1) Responder:

(a) ¿De qué manera respondían antiguamente los deudores por las deudasimpagas?

(b) ¿Qué beneficios trajo la ley actual para los deudores?

(c) ¿Cómo se benefician los acreedores?

(d) ¿Qué otras ventajas tiene la ley actual?


41/123



2) Completar el cuadro con información del texto comparando los conceptos de:

Bankrupcy Insolvency

(a)Naturaleza del

concepto

(b)Efecto(s) sobre el

deudor

(c)Facultad(es) delos acreedores

Si No Si No

(d)¿Incluye al otro

término?(Justificar)

Justificación: Justificación:


42/123

Texto 9: “U.S. Constitution: Second Amendment”Fuente: http://caselaw.lp.findlaw.com/data/constitution/amendment02/.


U.S. Constitution: Second AmendmentSecond Amendment - Bearing Arms

Amendment Text - AnnotationsA well regulated Militia, being necessary to the security of a free State,the right of the people to keep and bear Arms, shall not be infringed.

Annotations

In spite of extensive recent discussion and much legislative action with respect toregulation of the purchase, possession, and transportation of firearms, as well asproposals to substantially curtail ownership of firearms, there is no definitiveresolution by the courts of just what right the Second Amendment protects. The5

opposing theories, perhaps oversimplified, are an ''individual rights'' thesiswhereby individuals are protected in ownership, possession, and transportation,and a ''states' rights'' thesis whereby it is said the purpose of the clause is to protectthe States in their authority to maintain formal, organized militia units.1 Whateverthe Amendment may mean, it is a bar only to federal action, not extending to state2 10or private3 restraints. The Supreme Court has given effect to the dependent clauseof the Amendment in the only case in which it has tested a congressionalenactment against the constitutional prohibition, seeming to affirm individualprotection but only in the context of the maintenance of a militia or other suchpublic force.15

In United States v. Miller,4 the Court sustained a statute requiring registrationunder the National Firearms Act of sawed-off shotguns. After reciting the originalprovisions of the Constitution dealing with the militia, the Court observed that''[w]ith obvious purpose to assure the continuation and render possible theeffectiveness of such forces the declaration and guarantee of the Second20Amendment were made. It must be interpreted with that end in view.'' 5 Thesignificance of the militia, the Court continued, was that it was composed of''civilians primarily, soldiers on occasion.'' It was upon this force that the States

1 A sampling of the diverse literature in which the same historical, linguistic, and case law background is the basis for strikingly different conclusions is: Staff of Subcom. on the Constitution, Senate Committee on the

Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates,Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and theConstitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P.Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, GunControl, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99Yale L.J. 637 (1989).

2 Presser v. Illinois, 116 U.S. 252, 265 (1886). See also Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin,165 U.S. 275, 281-282 (1897). The non-application of the Second Amendment to the States is good law today.Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

3 United States v. Cruikshank, 92 U.S. 542 (1875).

4 307 U.S. 174 (1939). The defendants had been released on the basis of the trial court determination thatprosecution would violate the Second Amendment and no briefs or other appearances were filed on their behalf; the Court acted on the basis of the Government's representations.

5 Id. at 178.


43/123



could rely for defense and securing of the laws, on a force that ''comprised allmales physically capable of acting in concert for the common defense,'' who, ''when25called for service . . . were expected to appear bearing arms supplied by themselvesand of the kind in common use at the time.''6 Therefore, ''[i]n the absence of anyevidence tending to show that possession or use of a 'shotgun having a barrel of

less than 18 inches in length' at this time has some reasonable relationship to thepreservation or efficiency of a well- regulated militia, we cannot say that the30Second Amendment guarantees the right to keep and bear such an instrument.Certainly it is not within judicial notice that this weapon is any part of the ordinarymilitary equipment or that its use could contribute to the common defense.''7

Since this decision, Congress has placed greater limitations on the receipt,possession, and transportation of firearms,8 and proposals for national registration35or prohibition of firearms altogether have been made.9 At what point regulation orprohibition of what classes of firearms would conflict with the Amendment, if atall, the Miller case does little more than cast a faint degree of illumination toward

an answer.

6 Id. at 179.

7 Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), thecourt, upholding a similar provision of the Federal Firearms Act, said: ''Apparently, then, under the SecondAmendment, the federal government can limit the keeping and bearing of arms by a single individual aswell as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has anyreasonable relationship to the preservation or efficiency of a well-regulated militia.'' See Lewis v. UnitedStates, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the ''Second Amendment guarantees no right tokeep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of

a well regulated militia'''). See also Hickman v. Block, 81 F.3d 98 (9th Cir.) (plaintiff lacked standing tochallenge denial of permit to carry concealed weapon, because Second Amendment is a right held by states,not by private citizens), cert. denied 117 S. Ct. 276 (1996); United States v. Gomez, 92 F.3d 770, 775 n.7 (9thCir. 1996) (interpreting federal prohibition on possession of firearm by a felon as having a justificationdefense ''ensures that [the provision] does not collide with the Second Amendment'').

8 Enacted measures include the Gun Control Act of 1968. 82 Stat. 226, 18 U.S.C. Sec. Sec. 921-928. The SupremeCourt's dealings with these laws have all arisen in the context of prosecutions of persons purchasing orobtaining firearms in violation of a provisions against such conduct by convicted felons. Lewis v. UnitedStates, 445 U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S.563 (1977); United States v. Bass, 404 U.S. 336 (1971).

9 E.g., National Commission on Reform of Federal Criminal Laws, Working Papers 1031-1058 (1970), and FinalReport 246-247 (1971).

Actividades

1) Predicción: observe el texto, ¿a qué cree que se refiere?


44/123



2) Comprensión de texto: indicar con una "X" la opción que mejor refleja loexpresado en el texto.

(a) Las teorías opuestas establecen:

(1) que sólo los particulares pueden poseer armas y transportarlas contrala posibilidad de que sólo las fuerzas armadas puedan hacerlo,

(2) que la tesis de los derechos de las personas se contrapone a la tesisde los derechos de los Estados.

(3) la regulación de la compra, posesión y transporte de armas de fuegocontra la no regulación.

(b) De acuerdo con el fallo en el caso “US vs Miller”, el significado de las fuerzasarmadas es:

(1) únicamente civiles

(2) todos los hombres capaces

(3) únicamente militares

(c) No hay pruebas suficientes para determinar que la posesión o uso de un armacon un cañón de 18 pulgadas de largo

(1) tenga relación con la preservación de las Fuerzas Armadas

(2) tenga relación con el derecho de los individuos a portar armas

(3) no sea parte del equipo militar tradicional

(d) En virtud del fallo “US vs Miller”, el Congreso ha

(1) reducido los límites a la recepción, posesión y portación de armas defuego.

(2) aumentado la cantidad de armas de fuego permitidas

(3) aumentando los límites a la recepción, posesión y portación de armasde fuego.


45/123



(e) De acuerdo a la nota 4 el acusado fue liberado

(1) en virtud de que la determinación del tribunal violaría la Segunda

Enmienda

(2) en virtud de que la Segunda Enmienda es contradictoria

(3) en virtud de que no violaría la segunda enmienda


46/123

Texto 10 : “Miscellaneous Torts”Fuente: Business and Commercial Law. Abdul Kadar, Ken Hoyle & Geoffrey Whitehead Butterworth-Heinemann Ltd. 1993.


26

Miscellaneous Torts

26.1 Introduction Besides the torts already dealt with there are one or two other torts which may beimportant to businessmen. They may be described as economic torts, in that theireffect is to harm the plaintiff economically. They may be listed as:

(a) Conspiracy.5

(b) Deceit, or fraud.

(c) Malicious or injurious falsehood.

26.2 ConspiracyThis tort is committed when two or more persons intentionally and without lawful

justification combine together to injure the plaintiff, or do unlawful acts that result10in injury to the plaintiff. To succeed in an action the plaintiff must prove that thepredominant purpose of the defendants was to combine together unlawfully tocause him economic damage. If, however, the defendants had combined togetherto further their own interests, e.g. to defend the interests of union members, andeconomic damage was a consequence, no action for conspiracy will succeed. In15Crofter Hand-Woven Harris Tweed Co. Ltd v. Veitch (1942) it was held that theaction of the members of a union to refuse to load cheaper tweed made frommainland yam in order to protect the members' interests was not a conspiracy toinflict damage on the plaintiffs. If the overall objective of a combination is to putforward or defend the trade of those who enter into it then no wrong results20despite damage to the plaintiff (Sorrell v. Smith (1925)).

26.3 Deceit or Fraud (for Contractual Misrepresentation see page 141)

This tort is committed when a person acts to his detriment relying on a fraudulentmisrepresentation of another. The essential requirements of deceit are as follows:

(i) A false representation is made. This must be a statement of fact.25

(ii) The person making the representation knows it to be false or does not believeit to be true or is reckless about it, not caring whether it is true or false.

(iii) The misrepresentation is intended to be acted upon.

(iv) The person to whom the misrepresentation is made has acted upon it.

This tort has reduced in importance since recognition by the House of Lords of a30duty of care for negligent misstatements in Hedley Byrne & Co. Ltd v. Heller andPartners Ltd (1963) - see page 339. In addition to recovering for financial loss, aplaintiff may recover for physical injury (Burrows v. Rhodes (1899)). As regardswhat constitutes false misrepresentation, Lord Herschell's definition of fraud inDerry v. Peek (1889) is important: 'Fraud is proved when it is shown that a false35

representation has been made (1) knowingly, or (2) without belief in its truth, or(3) recklessly, careless whether it be true or false.' Hence it is not fraud if theperson making the representation honestly believes it to be true.


47/123

Texto 10 : “Miscellaneous Torts”Fuente: Business and Commercial Law. Abdul Kadar, Ken Hoyle & Geoffrey Whitehead Butterworth-Heinemann Ltd. 1993.


The tort of deceit has sometimes been used to evade S.4 of the Statute of Frauds(which requires guarantees to be evidenced in writing). By alleging that an oral40representation about credit was made fraudulently, and suing in tort for deceit,the requirement about written evidence was evaded. S.6 of Lord Tenterden's

Act, the Statute of Frauds Amendment Act, 1828, prevents an action for deceit overa character reference designed to secure credit unless the fraudulentmisrepresentation is in writing, signed by the person concerned.45

26.4 Injurious Falsehood

Whereas in deceit and defamation damage is done to a plaintiff's reputation, ininjurious falsehood a tort is committed against the plaintiff's business interests. Aninjurious falsehood is a false statement, made maliciously about a plaintiff's

business interests whereby other persons are deceived, thereby causing damage to50the plaintiff. The word 'maliciously' means 'from an improper motive'. Types of

injurious falsehoods are as follows:(a) Slander of title and goods. This arises when doubts are cast through the actionof the defendant on the plaintiff's title to real or personal property, patents andcopyrights, the quality of his goods or products (Wren v. Weild (1869)). According55to S.3 of the Defamation Act, 1952, no special damage need be proved by aplaintiff in an action for malicious falsehood. Puffs and mere sales talk in g

Cuadernillo Lectocomprensión Nivel III Derecho

Documents

Transcript of Cuadernillo Lectocomprensión Nivel III Derecho