CLOE I 2012-2013 Course instructor: Roxana-Cristina Petcu, PhD LECTURE IV - THE PROCEDURE IN ENGLAND AND THE UNITED STATES

ENGLISH PROCEDURE English law is primarily based on case law and attaches great importance to procedural rules. Initially, common law was made up of a number of procedures (or forms of action) which had to be carried out to their completion before judgment could be rendered. But the substantive principle upon which the decision was grounded was often uncertain. What the plaintiff was supposed to do was to select the right form of action (writ) by which the court could be seized and to convince the court that it had jurisdiction in the matter. Thus, the procedure began by a writ, which in medieval times was a summons sent to the defendant ordering him to appear before a judge. It was not easy to obtain a writ, as it was a privilege, not a right. In order to obtain a writ from the Lord Chancellor against the payment of fees, the plaintiff first had to prove that the facts of the case corresponded to a typical case (breve) listed on a list of typical cases (brevia de cursu) for which it was possible to obtain a writ. If the case did not coincide with one of the established cases, the plaintiff was left remediless. After obtaining the writ, the plaintiff had to follow a very rigid and formalistic procedure: the slightest error in the procedure, the slightest mistake, resulted in the action being dismissed. Today, English procedure is more flexible and less complicated. The issue of a writ has become a mere formality and nowadays anybody can obtain a writ (an initial form of action) for any case. The modern writ is only a standard form. Nevertheless, procedure still plays an important role in English law. THE MAIN FUNCTION OF THE COURT The main and proper function of a court is adjudication that is why the judges, as a collective body, are called the judiciary. Yet, there are two aspects of government, besides the judicial, which are important, namely the legislative (the making of the law) and the executive (the administrative aspect, the way the laws are put into practice). This is the principle of separation of powers formulated by the French jurist Montesquieu in his famous book LEsprit des Lois (1784). He is the first who formulated the idea that it is desirable that these powers be held and exercised by separate persons or bodies. Why it is so important is absolutely obvious the separation of powers is a shield against despotism. This doctrine was very popular in the 18 th and the 19th centuries, but time and experience have shown that a strict separation would hamper effective government; therefore, a whole system of responsible government has been developed in defiance of the doctrine. This system of responsible government controls the relationship between the Legislature and the Executive. Secondly, it is not always practical to assign any particular activity to any one of the three categories of powers, so the Legislature, the Executive and the Judiciary often perform in practice acts which ought to in strict theory be performed by one or the other of their neighbours. Thus, sometimes, officials of the executive often have to make decisions that border on the judicial and the courts have some administrative duties to perform. (for instance, the administration of the estates of the deceased, the supervision of the guardianship of minors). In fact, in almost all cases that come to be tried, there are some matters which have to be settled and which fall under the category administrative (in divorce cases, the division of the matrimonial property between the spouses and the welfare of the children). The cases which courts have to try may be roughly divided into two main types civil cases and criminal cases. In a civil action one party (the plaintiff) makes a claim against or seeks a determination of his rights in respect of another party (the defendant). The duty of the court is to determine and declare the rights of the parties and where necessary to grant remedies for securing them. The aim of the criminal process is two fold: on the one hand, to determine whether an offence has been committed and on the other hand, to make such orders as may be necessary for the punishment or reformation of the offender. So, the aim of the criminal process is not to give relief to an injured party, although, in the case of theft, for instance, finding relief may give rise to an independent civil suit. THE LEGAL PROCESS

There are two ways of solving the dispute between two parties:

1. the judge (the court) takes the initiative and examines the parties and their evidence. This method
is called inquisitorial

2. the judge (the court) calls upon the parties to take the initiative and present their cases in front of
the court. This is the adversarial method. The parties, through their champions (their counsels) fight a battle based on the presentation of evidence. The role of the judge or of the jury is to decide upon the evidence which party has the better cause. This method of proceedings is adopted both in civil and criminal cases (where the prosecutor does not appear as an inquisitor, but as an adversary of the defence). RULES OF PROCEDURE These are the rules which determine the course of the action. Procedural rules are treated as the servant and not the master of substance, despite their importance in the past, and they are much more flexible. They govern matters such as: how the case is to be presented it what court the case shall lie when the case is to be tried ENGLISH CIVIL PROCEDURE It is quite difficult to outline all the different varieties of procedure, because, for inatnce, in the Chancery Division or the Family Division or the proceedings in bankruptcy have special rules. What can, up to a point, be regarded as standard, is the course of proceedings in an action in the Queens Bench Division. (deliver a cominica, a notifica) PRETRIAL PROCEDURE (procedura preliminara)

The writ of summons - the plaintiff (usually through his representative) starts an action by obtaining a writ of summons. Th writ is a printed document containing blank spaces for the inclusion of appropriate details, such as the date, the parties names and the defendants address, which are filled in by the palintiffs solicitor. This document simply summons the defendant in the name of the Crown to come and answer allegations made by the palintiff. The writ of summons marks the substance of the case so as to warn the defendant of what the palintiff claims aginst him. Indorsements on the writ The writ is endorsed by a brief statement made by the palintiff, sufficient to give the defendant notice. The statement includes the presentation of the claim the plaintiff makes or relief he requires. The plaintiff also fills in his address and the name or firm and place of business of his solicitor. Yet, it is in no way a an irrevocable formulation like the writ in the past. Issue of the writ It is the plaintiffs solicitor who takes two copies of the writ to the Action Department of the central Office of the Supreme Court in London or to an appropriate District Regsitry. The solicitor signs one copy, pays the fee, the Court Officer stamps and files the signed copy, the seals the other copy and marks it with the year, the initial letter of the plaintiffs name and a number. The sealed and numbered copy are known as the original writ. Service of the writ ( The plaintiffs solicitor serves the writ personally on the defendants solicitor. Personal service means showing him the original writ and leaving him a copy. Appearance - Within 14 days of receipt of the writ the defendant must file an acknowledgment of service together with a notice of intention to defend (it he intends to do so). If the defendant intends to defend, he may enter an appearance in person or by his solicitor. He can do that by either (a) handing in the appropriate forms , duly completed, at the Central Office, Royal Courts of Justice in London or (b) sending them to that office by post. By entering an appearance, the defendant recognizes the jurisdiction ot the court. If the defendant does not enter an apprearance within 14 days after service of writ, the plaintiff may enter judgment against the defendant in default of appearence (poate obtin eo hotarare impotriva paratului pentru neprezentare). Pleadings / statements of case the next stage in the proceedings is the echange of pleadings. Pleadings are documents usually drafted by counsel and contain a statement in summary form of the

material facts, statement which is as brief as the nature of the case admits. These documents which state the facts and not the law and are viewed by both parties. Here are the types of pleadings: 1. the statement of claim delivered to the defendant or his representative on behalf of the plaintiff and it is the summary of the material facts upon which the plaintiff proposes to base his case. It also states the damage the plaintiff has suffered and the relief he claims.The statement of claim must be served either with the writ of summons or within 14 days after. 2. defenc delivered by th defendant within a limited time, generally 14 days. In his defence, the defendant must deal with every material fact alleged. He is deemed to admit every fact which he does not traverse). Together with the defence, the defendant may also deliver any counterclaim he might have (a claim against the palintiff). 3. other pleadings the reply delivered by the plaintiff in which he answers any new facts raised by the defendant, the rejoinder delivered by the defendant or the surrejoinder delivered by the plaintiff. Subsequrnt pleadings may follow, if necessary, to clarify the formulation of the issue. In practice, it happens very rarely. However, if one of the parties does not make his meaning clear, the other party, subject to some limitations, is entitled to demand further and better particulars, in other words written explanations or amplifications of any statement made. 4. the interlocutory stage - these are proceedings between the pleadings and the trial. Applications to the court in interlocutory matters must be made to some officials of the court known as masters ( for the Supreme Court in London) and as District Registrars (in the provinces). These officals have many powers, such as (a) order a party at the request of the other party to answer upon oath written questions called interrogatories. These answers may help shorten the evidence required at the trial, (b) order discovery of documents - at the request of one party order the other party to set out in an affidavit (sworn and written statement) a list of relevant documents which he has in his possession. Unless the party opposes, the opponent may inspect and take copies of these documents. It is a way for each party to determine on which basis the other party will argue his case. Yet, some of the documents may be protected by a privilege, meaning that there may be private confidential documents that the other part may not see. At the same time there be documents covered by public interest immunity. (c) may sanction amendments of the pleadings or (d) order the dismissal (respingerea actiunii) of the case for want of prosecution (undue delay by the palintiff in prosecuting the claim renuntarea la actiune). Summons for directions Within a month after the close of the pleadings, the palintiff takes out a summons for directions before the master. Now, the court decides if further plaedings are necessary. If no applications have been made during the interlocutory stage, the master makes various orders of the kinds already mentioned and gives directions for the trial. The directions will include the determination of the place and mode of trial, whether in London or elsewhere or whether in fron of a judge alone or in front of a judge and a jury. Interim remedies sometimes along time may elapse between a claim is first filed and when the judge finally hears the case. So, interim remedies may be ordered. They include: 1. interim payment this ia a payment made before the trial to a person claiming money. In this way, it is possible to prevent hardship on a claimant, as the length of time between starting a civil action and the final judgment can be considerable. 2. freezing injunction this stops a party removing or disposing of assets before trial. It is meant to prevent the situation arising that event if the court finds for the claimant, the defendant no longer has any assets available to pay the claimants award. 3. interim injunction a temporary court order requiring a person to do someting or prohibiting a person from doing something until the end of the trial 4. serach order this authorizes someone to search and seize items and documents relevant to the claim or the defence, if there is a real danger that the other party would otherwise conceal or destroy evidence. Setting down - after the summons for directions, the palintiff sets down the case for trial and notifies the defendant. The case is set down in a succession of lists until finally it goes into the daily cause list (lista dosarelor zilnice). Judgement can then take place. Summary judgment in England either a claimant or a defendant can apply for a summary judgment. It is a relatively quick procedure which enables a judge to strike out either tje whole claim or defence or part of it. If the whole claim or defence is dismissed, the case ends here and judgment is given immediately either in favour of the claimant or the defendant. It allows the judge to dismiss weak cases

without wasting time when it is clear that either the claimant or the defendant has no real chance of success at trial. THE TRIAL In a high Court action the parties usually appear by cousel, though they may appear in person. The trial develops as follows: 1.The palintiffs cousel opens with a speech in which he outlines the case and lays the issues before the court. 2.he then calls his witnesses and examines them in chief 3.each witness may be cross-examined by the defence to test the accuracy of the evidence given in chief by the witness and also to put to the plaintiffs witness any points that his evidence is likely to contradict 4.then the witness is re-examined by the plaintiffs counsel to re-establish belief in that evidence which was seriously challenged in cross-examination 5. if the plaintiffs evidence discloses there is no cause of action, the defendant will be able to successfully submit for no-case 6. if the plaintiffs evidence discloses there is cause of action, the defendants case will proceed. 7. if there is oral evidence on the defendants side, his counsel may outline the case and call his witnesses whose evidence is taken in the same way as the plaintiffs 8. then the defence cousel makes a closing address followed by the closing address of the palintiffs counsel. 9. if the defence calls no oral evidence, the plaintiffs counsel makes his closing address before the defence counsel, so the defence has the advantege of the last word. 10. finally, the judge gives his judgement (extemporary judgement) or he may reserve it for consideration (reserved judgement). If there is a jury (which is very rare in civil cases) the judge sums up the evidence to the jurors and directs them upon the relevant law, as the actual determination of the issue upon the facts is theirs. THE APPEAL In England, if the judge has found against you, you need the courts permission to bring an appeal in a civil case. An appeal is heard by the next court up in the hierarchy. A court that can hear appeals is called an appellate court. The party bringing the appeal is called an appellant and the other party is the respondent. A difference should be made between appeal and cassation. There are countries where both appeal courts and cassation courts exist (Romania, the Netherlands).An appeal court acts as if the case had not been heard before. It hears disputes about the facts of the case or points of law or both. It may substitute it decision for that of the court of first instance. A cassation court deals with a point of law only. It does not review facts. If it thinks that a lower court misinterpreted the law, it must send the case back to the same or a different lower court, so that the case can be heard again, bearing in mind the decision on the point of law made by the court of cassation. The traditional model for this type of system was developed in France and it has influenced a number of civil law systems. COSTS It is a simple fact of life that litigation is expensive. Costs are awarded at the discretion of the court. In England, the so-called cost-shifting rule applies whoever lost the case has to pay not only his own costs, but also the costs of the other side. In the USA this rule does not apply. There is a practice known as the American rule, by virtue of which the parties pay their own costs, whether they win or lose. LEGAL FEES

If your client is poor, he may qualify for legal aid. English lawyers may also enter into conditional fee agreements with their clients. This is similar to the no win, no fee approach to litigation so common in the USA. In the US, conditional fees are known as contingency fees. ENFORCEMENT OF JUDGMENTS The winning party, who has been awarded a money judgment by the court, is called a judgment creditor. The party against which this judgment is enforceable is called the judgment debtor who has to pay the legal costs of both parties. The winning party may get his money back as follows:

seizure of goods if necessary, the court makes use of a writ of execution that authorizes the authorities to seize the goods of the debtor and sell them. The judgment creditor is paid his court award out of the proceeds of the sale. The debtor is allowed to keep certain personal items and other items necessary for his work. Third party debt order enables the judgment creditor to divert money that would normally have been paid by a third party to the judgment debtor.

The Americans use garnishment and wage garnishment for these orders. ENGLISH CRIMINAL PROCEDURE Criminal proceedings generally arise with the arrest of the offender without a warrant or with the laying of an information. An information is a statement made usually by the police to a justice of the peace accusing some person of a crime. After the information has been laid the justice must, if he decides to act upon it, determine how the presence of the defendant is to be secured for the trial. He may decide to issue either a summons or a warrant. A summons is issued in cases where the offence is not serious and the offender is likely to appear if required. A warrant is a written command, usually addressed to the police, ordering the person to whom it is addressed to secure the offender. Once a charge has been made prosecution is the responsibility of the Crown Prosecution Service under the direction of the Director of Public Prosecution. This service is staffed by professional crown prosecutors (barristers or solicitors). The trial may take 3 possible forms depending on the nature of the offence. There are three main categories of offences: - minor / summary offences, which are triable summarily - serious offences which are triable upon indictment by a jury - either way offences , which, in point of seriousness, fall between the 2 prior categories, so are triable either summarily or by indictment SUMMARY OFFENCES Such offences are tried summarily before magistrates. The procedure is as follows: 1. the clerk to the justice reads out the charge and calls the defendant (the accused) to plead to it 2. if the accused pleads guilty he may be convicted and sentences without any delay 3. if he pleads not guilty or if he refuses to answer, the trial will proceed. 4. like in a civil case, the prosecution may open the case, outlining it to the court 5. the prosecution calls the witnesses to substantiate the facts 6. the onus of proof is on the prosecution 7. if the prosecution has a case, the defence will call his witness. 8. if the accused has given evidence himself, and another witness has been called, the defence counsel may address the court 9. if the defence addresses the court the prosecution has the right to address the court too, before the defence. 10. the court considers the decision 11. if the accused is found guilty, punishment has to be considered

12. the prosecution may assist by calling evidence as to the good character of the accused and by making a speech in mitigation 13. if the offence is triable either way and has been tried summarily and the information received as to the character of the accused is such that greater punishment should be inflicted that the court has the power to do, the defendant may be removed in custody so that the case may be considered by the crown Court 14. formerly, even in the case of a summary trial, the defendant had to appear in person 15. now, in case of a summary offence carrying a maximum penalty of 3 months or less, he may avoid appearance by sending the court a written notification that he wishes to plead guilty. INDICTABLE / ARRESTABLE OFFENCES When an individual is charged with a more serious crime, process may begin by laying the information before a magistrate who will then issue either a summons or a warrant for arrest. If the person concerned has been arrested, he must be brought before a magistrate within 24 hours so that he may be granted bail or remaded in custody. He may only be remanded in custody for 8 clear days. Indictable/arrestable offences carry a sentence of at least 5 years imprisonment. They include: -murder, burglary, theft, criminal damage, rape, unlawful possession of drugs, taking a motor vehicle, going equipped for theft, indecent assault on a female, corruption smuggling - attempting, conspiring, inciting, abetting, counseling or procuring any of the above SERIOUS ARRESTABLE OFFENCES - treason, murder, manslaughter, rape, kidnapping, incest with a girl under the age of 13, buggery with a boy under the age of 16 or with a person who has not consented, gross indecency, explosive and firearms offences, some sexual offences, death by reckless driving, hostage taking, hijacking - an attempt or conspiracy or treat to commit an arrestable offence that may lead to the following consequences: 1. serious harm to the security of the state or the public order 2. serious interference with the administration of justice or with the investigation of offences or of a particular offence 3. the death of a person 4. serious injury to any person 5. serious financial loss to any person A first step of the proceedings upon indictment is to determine whether the evidence is strong enough to commit the defendant (committal proceedings proceduri privind arestarea) for jury trial. It is the task of the examining justices. PRELIMINARY EXAMINATION 1. the prosecutor outlines the prosecution case 2. the prosecutor calls the witnesses who gave their evidence and might be cross-examined as usual 3. their evidence is written down, signed by the witnesses and countersigned by one of the justices 4. the records of the evidence obtained in this way are known as depositions 5. then the court decides if the prosecution has been able to establish a prima facie case or not 6. if yes, the charge is read out to the defendant 7. the defendant receives a written statement of charge an indictment 8. the defendant is asked if he wants to make a statement (he is not obliged to do so). 9. if he makes a statement, it is taken down in writing and might be given in evidence in trial 10. if the defendant has legal representation, his counsel may address the court 11. finally, the defendant will be sent to the Crown Court for trial The indictment is a document which contains a concise statement of the nature of the offence or offences charged; it is usually drawn by counsel who is assisted in this task as he has access to the depositions of the prosecution witnesses.

PROCEDURE IN FRONT OF THE CROWN COURT

1. the accused is arraigned, namely the clerk of the court reads out the indictment and asks the defendant
whether he pleads guilty or not.

2. if he pleads guilty, the proceedings are similar to the summary proceedings 3. if he pleads not guilty, a jury must be called and sworn (generally 12 jurors)
4. thereafter, the procedure is again similar to summary procedure. Nevertheless, there are two differences: (a) the prosecutors right of reply is exercised at the close of the evidence for the defence and before the closing speech by or on behalf of the defendant and (b) the judge must sum up the evidence for the jury and direct them upon the law 5. the jury considers their verdict. Generally, the verdict must be unanimous, but sometimes a majority verdict is acceptable. It is a majority of 10 that is acceptable. 6. after the verdict is give, the proceedings are similar to summary proceedings

EITHER WAY OFFENCES Such offences may, at the magistrates discretion, be tried either way, that is summarily or upon indictment. Yet, if the offender is below 18 years of age, a summary trial is the rule. If the offender is more than 18 years of age, the magistrate decides upon the course of action based on the degree of seriousness of the case, likely severity of the punishment, etc. If the magistrate decides for a summary trial, then he must inform the defendant that he has the right to opt for a jury trial and must obtain his consent before proceeding to try him summarily. If the defendant agrees, the summary trial proceeds as described above. If he does not consent to be tried summarily, the court will inquire into the information with a view to committal. If the magistrate decides that the case is more suitable for jury trial, then the defendant has no choice but to accept it. EVIDENCE Evidence is the means by which facts are proved. The rules of legal evidence are rules of law concerned with the proof of facts in a court of law. These rules are designated to determine four main problems: 1. 2. 3. 4. who is to assume the burden of proving the facts what facts must be proved what facts must be excluded from the cognizance of the court how proof is to be effected

THE BURDEN OF PROOF The principle is he who asserts must prove, in other words, in a civil case it is the plaintiff and in a criminal case, the prosecutor. They are the ones who must present the court with facts which substantiate their claims. The facts must be such that in a civil case the court can regard then as proved upon the balance of probabilities and in a criminal case beyond reasonable doubt. In a criminal case the presumption is that a defendant is innocent until proven guilty, that is until prosecution has established his guilt. Nevertheless, during the course of the trial, if the defendant has any special excuse or means of rebuttal he must prove it, that is he must produce evidence to support it, so the burden of proof lies with him. Yet, even if the burden of proof lies with the defendant, all he has to do is establish his point upon the balance of probabilities, while the prosecutions burden is beyond any reasonable doubt throughout the process. Secondly, it is the business of the court to decide upon all the evidence, both the evidence presented by the prosecution and the evidence presented by the defence. Thirdly, the prosecution must establish every item of the charge in order to obtain a verdict. But, as already stated, during the course of the trial, the onus shifts between the two parties. In the end, the prosecution must provide the final/legal evidence.

FACTS TO BE PROVED Generally speaking, a proponent must furnish evidence of all the material facts upon which he relies to establish his case, but there are exceptions to this rule:

1. there are certain classes of facts which need not be proved because the court is entitled to take judicial
notice of them, in other words the facts are too notorious to require proof (egg. Events which happen in the course of nature, Acts of Parliament, public matters affecting the government of the country) (If A alleges that B is the father of her child and it is proved that B was in some remote part of the world at the time of the conception, the court will not require proof of the fact that B could not have been the father, as the period of conception is a notorious fact) 2. certain facts are established that may give rise to a presumption that other facts follow. Presumptions may be: (a) irrebuttable by law (irrefutable) (egg. A child below the age of 10 is incapable of committing a crime) (b) rebuttable presumptions of law (egg. A child between 10 and 14 is incapable of a criminal intent, but this may be rebutted by proof); (c) presumptions of fact (reasonable inferences arising, as a matter of fact, from given facts or circumstances (egg. Circumstantial evidence probe circumstantiale which can be rebutted by evidence which is sufficient to refute them). 3. In civil cases, in order to obviate the necessity of proving facts which are not in dispute, formal admissions may be made by the parties prior to or during the trial. These admissions may be made in the pleadings or orally in court. FACTS TO BE EXCLUDED English law only permits proof of facts which are in issue and of facts which are relevant (pertinent) to the issue. The facts in issue are the facts which are in dispute upon the pleadings in a civil action or the facts in the indictment in a criminal case. Relevancy refers to any fact which is logically probative of or which serves to explain a fact in issue. Nevertheless, there are classes of facts which are not admissible:

1. in civil actions, the parties are not permitted to give evidence of their good character that is their
general reputation for good character as it may give rise to prejudice. 2. sometimes, it may appear relevant to prove that on certain occasions, a person alleged to have conducted himself in a certain way had indeed conducted himself in that way upon other occasions. (egg. He has used deception before to obtain an advantage). The problem is that in law evidence of conduct on other occasions is not admissible, because the object of a trial is to ascertain the truth or falsity of the allegations made and not that the defendant is likely to have committed the fact. CATEGORIES OF EVIDENCE The law recognizes three kinds of proof: (a) proof by oral evidence; (b) proof by documentary evidence; (c) proof by real evidence. ORAL EVIDENCE

evidence given by witnesses, usually upon oath or affirmation. The witness informs the court of the facts as he perceived them. Expert witnesses they are experts, men of science who play an important role in an adversary system (egg. doctors called to state the cause of a disease) Hearsay evidence it is abolished in civil proceedings.

DOCUMENTARY EVIDENCE -evidence contained in documents.

1. there are two classes of documents private and public. Public documents consist of publications made for public reference (public statutes, public registers, maps). Private documents are documents made for private use. 2. all private documents must be proved before their contents may be given as evidence, that is they must be shown genuine. (not forgeries). (By the author of the document or a witness, or by testifying to the authenticity of the makers handwriting) 3. in civil actions no documents which are required by law to be stamped should be allowed to be produced unless and until they are properly stamped 4. private documents must be produced in the original. Nevertheless, authenticated copies of public documents are admissible. Sound recordings are admissible, on condition that the voices are properly identified. REAL EVIDENCE

the inspection of the court of physical objects (the site of an accident, a knife, injuries that the plaintiff alleges he has suffered, photos, and tape recordings).

EVIDENCE IN CRIMINAL TRIALS - confessions of guilt (unless obtained by oppression, such as torture, inhuman or degrading treatment, the use of treat or violence)

AMERICAN PROCEDURE CIVIL PROCEDURE IN American civil procedure, there is a marked distinction between pre-trial procedure and the trial itself. In the pre-trial proceedings the issues of facts are defined and the adversaries are given notice of them. Rulings before a trial are made by a judge without a jury At the trial these issue are heard by the court and determined. The trial, where the judge sits with or without a jury, consists of one continuous hearing in open court. The parties to litigation are almost always represented by lawyers PRETRIAL PROCEEDINGS 1. the action begins with the pleadings. 2. the first step is the complaint which states the nature of the plaintiffs claim and his demand for relief 3. a summons is sent to the defendant, informing him that an action n is entered against him and calling upon him to answer the complaint 4. if the defendant does not want to be judged by default, he must enter an appearance by sending an answer or response to the complaint 5. the plaintiff can send a reply to the answer 6. the aim of the pleadings is that the parties should develop a single precise issue of fact and of law. 7. if the parties fail to do so, the judge may call a pretrial conference, attended by both parties, to try and limit the issues and obtain admissions that will avoid unnecessary proof. Many conferences may result in the settlement of the case without trial 8. if the case is not settled before trial, the plaintiff requests the clerk of the court to put the case on the list (calendar/docket) to await trial. THE TRIAL

1. the trial is held before a single judge, with or without a jury. In a civil case the standard of proof is
preponderance of evidence that is the claimant (plaintiff) must be able to prove all the elements required for his claim. If he cannot, the court must find for the defendant.

2. if the plaintiff seeks money damages, there is a right to jury trial, but usually both parties prefer a trial by a judge 3. the first step in the trail is the statement by both parties of their side of the case 4. the plaintiff presents his evidence (oral and written) 5. the defendants lawyer is permitted to cross-examine the witnesses of the plaintiff 6. the defendant presents his evidence in the same manner 7. cross-examination by the lawyer of the plaintiff 8. both parties make their closing arguments before the court 9. the judgment takes place (by judge or by both jury and judge). The judgment assesses the amount of damages to be paid by the losing party and generally requires the losing party to pay the costs of justice 10. either party may appeal from the judgment to the Court of Appeal 11. there is no new trial, no jury, no witnesses in the appellate court 12. the appellate judges examine the minutes of the case in the first instance court and the briefs written by the appellant and the respondent in support of their cases 13. the appellate court usually examines only problems of law and does not question the issues of fact as established by the jury or judge of the lower court 14. if the appellate judge finds there was no error by the first instance judge, they affirm the judgment. 15. if they find an error, they can reverse the judgment in favour of the appellant or they can order a new trial by the lower court

CRIMINAL PROCEDURE The law of criminal procedure is largely statutory in form and varies considerably from one state to another. The procedure varies not only with the jurisdiction but also with the seriousness of the case. 1. petty offences are tried summarily 2. serious crimes involve formal proceedings Like in English law, American criminal procedure is essentially accusatory, as the prosecutor takes the leading role. The prosecutor is an elected official or a political appointee, so he has extraordinary powers and almost entire discretion. Yet, the accused is protected against abuse by the prosecutor or the police by constitutional safeguards. The accused is entitled to demand the reversal of a conviction for the slightest departure from the requirements of a due process. The American criminal procedure follows the same steps as the English procedure and also involves trial by a judge sitting with a jury. The jury renders the verdict of guilty or not guilty, while the judge imposes the sentence. The sentence may vary from a simple fine to imprisonment or even death. In Britain the death penalty has been abolished, while in most American state death can be imposed for the more serious crimes.

CIVIL LIBERTIES IN BRITAIN Civil liberties in Britain are not protected by any official declaration of the rights of the individual or by any specific statute. They are protected by tradition and case-law. England was the first country in Europe to establish protections for individual rights against the arbitrariness of the Monarchy (Magna Charta 1215). But these guarantees concerned only freemen (noblemen and burgesses) at a time when 8/9 of the population were serfs. No other text was passed afterwards to repeat and enlarge its provisions. There is no equivalent to the ten Amendments of the American Constitution. The main liberties of the individual in Britain are: 1. personal freedom (which includes freedom from arbitrary arrest and arbitrary imprisonment) 2. freedom of expression 3. freedom of assembly or association 4. freedom of thought (including religious freedom) 5. equality

1. PERSONAL FREEDOM Everyone is entitled to personal freedom. This implies two things first, that no one can be lawfully arrested except upon specified grounds (without an arrest warrant), and secondly, if anyone is arrested or detained otherwise than on specified grounds, the writ of habeas corpus may be invoked to set him free. The Habeas Corpus Act (1679) provided the procedure of the writ of habeas corpus as a means to protect the individual. Under this Act, anybody (the prisoner, a relative, a friend) may request a writ of Habeas Corpus in favour of the prisoner if he thinks he has been arbitrarily imprisoned. The request goes to a High Court judge and has precedence over any other judicial case. It there are reasonable grounds, suggesting that the prisoner has been arrested abusively, the judge must grant the writ of Habeas Corpus without any delay. Once the writ is issued the gaolers must come to court and produce the prisoner and explain why they have detained him. If the explanations appear unsatisfactory, the prisoner must be released immediately. a) ARREST AND DETENTION The principal grounds of arrest and detention recognized by law are the following: arrest and detention in pursuance of criminal law detention of mentally disordered people detention by order of the court or of either House of Parliament, upon the ground of contempt

UNDER THE CRIMINAL LAW lawfully effected by anyone authorized to make it by a warrant lawfully issued and signed by a judge, naming the person to be arrested arrest without a warrant (summary arrest) in the case of arrestable offences and also where there are general grounds for arrest

Arrestable offences

offences for which the sentence is fixed by law (murder), offences for which a person (not previously convicted) may be sentences for a term of 5 years and certain other specified offences it is provided that any person may arrest without a warrant anyone in the act of committing an arrestable offence or anyone whom he has reasonable grounds of suspecting to be committing an arrestable offence. A constable can do the same, also if he has grounds to suspect that an offence has been committed or if the person is about to commit an offence

General grounds for arrest

the name of the person concerned is unknown to the constable the constable has reasonable grounds for doubting whether the name furnished by that person is his real name the fact that the person has failed to furnish an address for service the constable has reasonable grounds for believing that arrest is necessary to prevent the person from causing physical harm, damage to property, an affront to public decency or an obstruction of the highway the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person arrest for fingerprinting if all the following conditions apply: 1. the person has been convicted of a recordable offence, and 2. the person has never been in police detention for the offence, and 3. fingerprints were not taken, and 4. within one month of conviction the person was asked to a police station to be fingerprinted and had not done so within seven days

Bail When a person has been arrested arbitrarily (without a warrant), the prisoner may apply for bail. It the police refuse to grant bail, they must take him to a magistrates court, where he can apply for bail, within 24 hours of the arrest. If the magistrates court refuses to grant bail, the magistrates must inform the prisoner of his right to appeal and apply for bail in the High Court. Bail in refused in major criminal cases if there is a risk that the criminal shall perpetrate other crimes or that he may try to evade justice and flee from the country. COMMITTAL FOR CONTEMPT There may be contempt of court or contempt of Parliament. Contempt of court It is intended to safeguard the proper administration of justice by prohibiting or punishing conduct which prejudices or abuses it. There are two types of contempt: 1. civil contempt failure to confirm with an order of a superior court (egg. refusal to obey an injunction); commitment to prison or fine or sequestration of assets. The Crown may not grant a pardon in respect of civil contempt 2. criminal contempt interference with the due administration of justice. It gives rise to criminal proceedings. It takes several forms: (a) contempt in the face of the court (the behaviour of people in court violent, unruly, insulting behaviour); (b) publications prejudicial to a fair criminal trial; (c) publications prejudicial to a fair civil proceedings; (d) scandalizing the court- challenge the integrity or impartiality of a judge. Nevertheless, the legal, social or social merits of a decision is not contempt. Contempt of Parliament Both the Commons and the Lords have the powers to commit for contempt anyone, whether a member or not, who, in their opinion, obstructs them in the conduct of their proceedings.

2. FREEDOM OF EXPRESSION British citizens are free to express any opinions, provided that these are not defamation or libel, prejudicial to another person and provided their opinions do not contravene the law relative to sedition, racial hatred and obscenity. 3. FREEDOM OF ASSEMBLY AND OF ASSOCIATION Provided that British citizens do not contravene the law, they may assemble and form associations. The only limitation to freedom of assembly is that assemblies must be peaceful and must not result in trespassing, obstruction of public ways or breach of the peace. The organizers of public meetings may be prosecuted for 5 main crimes: 1. rioting 2. violent disorder 3. affray 4. threatening behaviour 5. disorderly conduct

Citizens may associate freely, provided the aims of the association are not illegal, provided that the association is nor paramilitary and does not involve wearing uniforms and provided it does not imply membership of IRA or giving support to IRA. 4. FREEDOM OF THOUGHT AND RELIGION Freedom of thought and religion for Catholics and Jews are granted by law (the Catholic Emancipation Act 1829; the Jewish Emancipation Act 1860 restored and respectively extended full citizenship to these categories of citizens). Non-Christians can be sworn in as MPs (the Parliamentary Oaths Act 1866). 5. EQUALITY Equality has become a headstone of the constitution, just like liberty. The global movement if support of equality also gave rise to legislation in Britain in the fields of: - equal pay for men and women who are engaged upon like work, sex discrimination prohibits imposing requirements or conditions upon people based on sex or less favourable treatment on the grounds of sex, or discrimination by marital status in the area of employment(married / unmarried) - race relations racial discrimination (colour, race, nationality or ethnic or national origins). CIVIL LIBERTIES IN AMERICA The Constitution of the USA, signed in 1787, contained no guarantees of basic human rights. So, in 1789 Congress proposed the first 10 Amendments to the Constitution (the Bill of Rights) because most of them are concerned with the rights of the individual against the federal government. The amendments were ratified in 1791. After the Civil War several other Amendments were passed (egg. Amendment 14 abolishes slavery and ensures the freedom of Blacks). Amendment 14 provides that no state shall deprive any person of life, liberty or property, without due process of law. Due process of law implies not only a fair procedure, but also that the legislation enacted by the states relative to the powers of the police should be reasonable. Amendment 14 also protects: - freedom of speech - freedom of assembly - freedom of expression - religious freedom - the rights of minority groups Amendment 14 prohibits - the establishment of state religions - the police to detain a suspect after his arrest. The suspect must be brought without unnecessary delay before a magistrate, who will conduct the preliminary investigation, to determine whether there are sufficient grounds to detain the suspect. If there is a prima facie case against him, most of the time, the suspect will be released on bail pending trial - forbids racial segregation by the states in public school and other public facilities

LEGAL ENGLISH WORKSHOP IV (Applied Modern Languages MA Programme) Fall semester, 2012-2013 Course instructor: Roxana-Cristina Petcu, PhD

I. Fill in the blanks in the text below using the terms in the list: enforce the judgment; form of defense; allocated to a regime or track; claims; case management conferences; the particulars; witness statements; judgment; settle their differences; initiated; stay in proceedings; claim form; review the process; writ of summons; multi track regime; specified or unspecified monetary sums; inspection; acknowledgement of service; plaintiff; fast track; admit a claim; procedural judge; issued; monetary value; given in favour of the claimant; served on; disclosure; make an order; small claims; defendant; get a time extension; form of admission; filing a reply; counterclaim. Most ___are ____by the use of a ____called a____. The claim form can be used for different types of claims, for example _____, or for the ____ to ask the court to _____. Once a claim has been ____, a copy is ____, that is delivered to, the ____ with a response pack inviting them to either _____, using a _____, or to defend it, using a____. The response pack also contains an _____ form to confirm receipt of the claim, and a _____ form for the defendant to use if they wish to claim against the claimant. A defendant must respond within 14 days of service of _____of the claim. If the defendant does not respond, ____ may be _____. The defendant may be able to _____ for _____ on defense by using the part of the acknowledgement of service form which states an intention to defend the claim. Cases are _____by a _____ according to their _____. Claims of 5,000 or less are allocated to a _____track while claims up to 15,000 are allocated to a ____. More complex claims with a greater value are allocated to a _____. Fast track directions include _____, where the claimant tells the defense of any relevant documents in their possession. This is followed by _____, initiated by a written request by the claimant to lok at relevant documents held by the defense, and exchange of_____. The multi track regime is intended to be flexible and does not have a standard procedure. In all regimes, parties are encouraged to _____ and for this purpose a _____, that is a temporary halt, may be agreed. ______are conducted by telephone and give parties the opportunity to ____ and make decisions. If a defendant is ordered to pay by a judge and fails to do so, the claimant can ______in the Magistrates Court. II. Match the words in list A and the words in list B and make word combinations; translate them into Romanian. A. admit; agree to; allocate to; enforce; file; issue; review; serve; set; settle B. a timetable; a stay; a claim; the process; the judgment; a claim; a claim on; a regime; differences; a reply III. The following are the stages of the civil procedure in England. Arrange them in the correct order. Cross-examination by the plaintiffs lawyer; order for costs; reexamination of the plaintiffs witnesses; closing speech for the defense; reexamination of the defendants witness; judgment; examination-in-chief by the defendants lawyer; opening speech of the lawyers; examination of the witnesses called to support the plaintiff; cross-examination by the defendants lawyer; closing speech for the plaintiff; examination of the witnesses called to support the defendant; examination-in-chief by the defendants lawyer. IV. Look at the sentences below and choose the alternative which best fills the blank spaces: 1.The small claims track is designed for cases with a financial value of up to 5000. The aim is to deal with smaller disputes in a relatively informal and therefore less time-consuming manner. Various procedural rules, such as the rules ______ , do not apply to the small claims track, and the parties are encouraged to appear without legal representation. A.disclosure; B.admission; C.exposure; D. divulgence

2. The right to appeal is limited to situations in which there was s serious irregularity in the proceedings, or the court made a _______ of law. A. fault ; B. mistake; C. slip: D. error 3. . The plaintiff fills in a claim _____, in which he must give details of the court in which he wants to bring action, and of the parties involved. A. document; B. protocol; C. form: D. procedure 4. The plaintiff must also provide the defendant with the ______ of the claim,. A. details; B. points; C. particularities; D. particulars 5. If the defendant admits the palintiffs claim is justified, he can file an _______ . A.acknowledgment; B. affirmation; C. admission; D. allowance
V. Look at the list of legal terms below. Match each of these terms with its definition.

1. adversarial proceedings; 2. affidavit; 3. cassation; 4. burden of proof; 5. class action; 6. deposition; 7. fast track; 8. freezing injunction; 9. litigation; 10. judgment debtor; 11. perjury; 12. privilege; 13. settlement; 14. statements of case; 15. witness summons A. witness can be compelled to attend a trail; B. proceedings involving a real dispute between two opposing parties who are responsible for finding and presenting evidence: C. the collective term for all the documents exchanged between parties before the trial; D. a sworn written statement made by a witness; E. parties avoid going to trial by reaching an agreement on the claim; F. a court only competent to make decisions upon a point of law. In the English system there are no such courts; G. the right of a party to refuse to produce documents or answer questions on the ground of some special interest recognized by law: H. the claimant must prove all the elements required for his claim against the defendant; I. telling lies in court while under oath; J. American term which refers to bringing a lawsuit on behalf of a whole group of individuals who have been affected; K.the one against whom a money judgment has been ordered; L.evidence given by a witness before an examiner prior to the trial; M.where a dispute is taken in court. N. track used for claims for a value above that of small claims; O. order of an English court to stop a party removing or disposing of assets before trial.
VI. Find the terms that best cover the meaning described in the definitions below:

1. the English version of the American contingency fee, which is based on a no win, no fee approach to litigation; 2. English rule stipulating that whoever loses the case has to pay not only his costs, but also the costs of the other side; 3. a claim brought by a defendant in response to the plaintiffs claim in the same proceedings; 4. evidence given by a witness who is a specialist in a certain subject; 5. term still used in th USA where a writ allows a judgment creditor to seize the property of the judgment debtor which is possession of a third party; 6. payment made before the trial to a party claiming a money judgment; 7. where the defendant has failed to serve a defense in the required time; 8. an English legal term which indicates that one must be allowed by the court to appeal a civil care; 9. authorization allowing the representatives of the plaintiff to enter the defendants premises to search for and seize evidence; 10. to delete a claim/cancel an action VII. Look at the terms below. They all use the word criminal. Match each term to its definition: 1.Court of Criminal Appeal; 2. criminal contempt; 3. criminal negligence; 4. criminal court; 5. criminal forfeiture; 6, criminal law; 7. criminal lawyer; 8. criminal procedure; 9. criminal record; 10. habitual criminal; 11. criminal liability; 12. war criminal A. a barrister or solicitor who specializes in felonies and misdemeanours; B. a person charged with or convicted of crimes against humanity; C. previous crimes of which an individual has been convicted; D. rules governing the investigation of crimes; the arrest, charging, and trial of accused criminals; and the sentencing of those convicted; E. one of the highest courts of law which hears cases sent up of review; F.disorderly behaviour, disrespect, or disobedience of a judges orders, particularly during a trial; G. a person who repeatedly commits offences; H. where an individual fails to exercise a duty of care and the resulting action leads; I. the branch of law which deals

with felonies and misdemeanours; J. study of mental processes and behaviour of persons who commit crimes; K. a court with jurisdiction to hear felonies and misdemeanours; L. responsibility for committing a crime (excluded persons include minors and the insane) VIII. Match the terms denoting crimes to their definitions then divide them into 2 categories, as violent and non-violent crimes: 1.assault; 2. drug dealing; 3. money laudering; 4. battery; 5. homicide; 6. manslaughter; 7. fraud; 8. murder; 9. armed robbery; 10. sexual assault; 11. burglary; 12. theft; 13. parking; 14. speeding A. a generic term for the killing of another person; B. any instance in which one party deceives or takes unfair advantage of another; C. attempt to use illegal force on another person; D. attempt to use illegal force on another person in the absence of consent to sexual relations; E. attempt to transform illegally acquired money into apparently legitimate money; F. driving a vehicle in excess of the permitted limit; G. leaving ones vehicle in an area or for a duration in contravention of the law; H. possession of and/or trading in illegal substances; I. taking the property of another without right or permission; J.the actual use of illegal force on another person; K.the crime of breaking into a private home with the intention of committing a felony; L. the unlawful killing of a person with intent; M. the unlawful killing of a person without malicious intent and therefore without premeditation; N. the unlawful taking of anothers property using a dangerous weapon; IX. The following are stages in the criminal procedure. Put them in the right order: Judgement of judge; crime reported; appearance in court; investigation by the police; acquittal of the accused; charge of the suspect; conviction of accused; investigation of suspect; decision of jury; interrogation of accused ; sentence by judge; apprehension of suspect; appeal against judgement; remand in custody; interrogation of witnesses; release on bail. 1. Crime reported; 2. investigation by the police; 3.investigation of suspect; 4.apprehension of suspect; 5.charge of the suspect; 6.remand in custody; 7.release on bail; 8.interrogation of accused; 9.interrogation of witnesses; 10.appearance in court; 11.decision of jury; 12.Judgement of judge; 13.conviction of accused; 14.acquittal of the accused;5. sentence by judge; 16.appeal against judgement; X. Match the steps identified above to their correct definitions: A. the police free the person alleged to have committed a crime on condition that the accused appears in court at a future date; B. the jury panel make a decision whether they believe (beyond reasonable doubt) that the accused committed the crime of which he is accused; C. the judge decides punishment; D. the police carry out a systematic examination of the person who may have committed a crime; E. the police reveive information that a crime may have been committed; F. the police make a claim of wrongdoing against a person alleged to have committed a crime; G. the police carry out further questioning of a person alleged to have committed a crime; H. the defendant is found not guilty of the charge; I. the accused comes to court to face charges; J. the police carry out a detailed enquiry into the alleged crime; K. after being found guilty, the accused cringes an action to clear his name or to reduce the sentence; L. the police arrest the person who is alleged to have committed a crime: M. the police detain the person who is alleged to have committed a crime; N. the judge makes a judicial decision; O. the polixce collect evidence against the accused from those who can give evidence; P. the defendant is found guilty. XI. The terms below denote a range of sentences that may be imposed. Match each sentence to its definition: 1.bond; 2.capital punishment; 3.jail; 4.parole; 5. imprisonment; 6.probation; 7.concurrent sentence; 8. binding order; 9.suspended sentence; 10. peace bond; 11. community service; 12. determinate sentence; 13.prison; 14.good behaviour A. when 2 or more terms of imprisonment are served together; B. a place for long-term incarceration; C. a place of confinement for time periods longer than those usual for a police station lock-up and shorter than those usual for a prison; D. unpaid work undertaken pursuant to a court upon conviction for an offence in lieu of a sentence of imprisonment; E. a release from prison, before a sentence is finished, that depends on the person keeping clean

and doing what he or she is supposed to do while out. If the person fails to meet the conditions, the rest of the sentence must be served; F.conduct required for criminals to get out of jail early or other privileges while in prison; G. a sentence that the judge allows the convicted person to avoid sentencing; H.a document that promises to pay money if a particular future event happens, or a sum of money that is put up and will be lost if that event happens; I. an act by which the court requires a bond or bail money; J. the sentencing of a criminal to a period of time during which they will be deprived of their freedom; K. a bond, required by the judge of a person likely to breach the peace, to guarantee the persons good beheviour for a period of a time; L. an exact prison term that is set by law, rather than one that be shortened for good behaviour; M.a kind of punishment given out as part of a sentence, which means that instead of jailing a person convicted of a crime, a judge will order that person reports to an office regularly and according to a set schedule; N. the most severe of all sentences: that of terminating somebodys life. XII. Identify the agencies, organizations and individuals involved in the administration of criminal law: 1. interrogate suspects and witnesses; 2. sometimes conducts the investigation in cases of serious criminal offences; 3. carry out arrests, searches and seizures; 4. conducts the case in court on behalf of the police; 5. has the right to remain silent; 6. is innocent until proven guilty; 7. assists the suspect in gathering exonerating evidence; 8. protects the suspect from violations of his rights at the hands of law-enforcement personnel; 9. presides over the court; 10. decides on the sentence to be imposed; 11. decides whether the accused is guilty or not. 1. the police; 2. the police; 3. the magistrate; 4. the prosecutor; 5. the suspect; 6. the suspect; 7. the defence counsel; 8. the defense counsel; 9.the judge; 10. the judge; 11. the jury XIII. All the terms below are derived from the term appeal. Match each term to its definition: 1.appeal; 2. appellate; 3. appealable; 4. leave to appeal; 5. appellant; 6. court of appeal; 7. appellee; 8. appeal bond A. permission of the court to institute appeal proceedings from a single judge or lower court to a full court or higher court respectively; B. the person against whom an appeal is taken; C. to ask a more senior court or person to review a decision of a subordinate court or person; D. a court to which appeals are made on points of law resulting from the judgment of a lower court; E. describes a judgment which can be appealed against; F. money put up by someone appealing a courts decision. The money is to pay the other sides costs in case the person appealing fails to go forward with an honest appeal; G. a party who appeals against a judicial decision which is not in that partys favour; H. refers to a higher court that can hear appeals from a lower court XIV. Now complete the following text about appellate procedure using the terms above: ________ procedure consists of the rules and practices by which a _______ reviews trial court judgments. The procedure focuses on several main themes: a) what judgments are ________ , b) how an _________ is to be brought before the court; c) what will be required for the reversal of the lower court; d) what procedures the parties must follow. Often an _______ will be put to pay the other sides costs in case the appeal fails. Normally ________ will be requested by the ________ , who is seeking a review of the decision of a subordinate court or person. The other party, the _______ , is usually, but not always, the winner in the lower court. XV. Translate into Romanian: A. The death penalty. Reasonable doubt. Troubling questions surround a capital case in Georgia IN 1989 Troy Davis and two friends were hanging out in Savannah, Georgia. They saw a homeless man leaving a shop and started to bully him. An off-duty policeman heard the commotion and intervened; he was shot and killed. Though no gun was found, the state produced nine witnesses who said that Mr Davis was the culprit. He was convicted of the murder and sentenced to death in 1991. It seemed a straightforward case. Americans particularly revile cop-killers and here was a parade of people saying that Mr Davis had shot a policeman. But after the trial, no fewer than seven of the nine recanted. Several of them said they had felt subjected to pressure by the police. Others thought someone else was the killer. The homeless man said he could not remember, and anyway he

had been drinking. This was hardly the clear-cut result a state wants to have when it is handing down a death sentence, and legal wrangling has been going on ever since 1991 in state and circuit courts. Much of the debate is over procedure: judges who have ruled against Mr Daviss various appeals argue that you need lots of new evidence to revisit a case, not a gaggle of shifty witnesses. The result is a hideous mess. An execution date was set for July 2007. The day before the sentence was to be carried out, the state issued a stay. In March 2008 Georgias Supreme Court ruled that Mr Davis should not get a new trial and another execution date was set. On September 23rd Mr Davis was again awaiting death. The prison prepared a last meal of macaroni, cornbread and salad, but he turned it down. The reprieve came with less than two hours to go: the United States Supreme Court had granted a stay. Three weeks later, the court decided not to hear Mr Daviss case. A third execution date was set for October. Three days before it arrived, yet another stay was granted. On December 9th the circuit court will consider whether Mr Davis can continue with his appeal or whether he has to die. Even people who support the death penalty are crying foul. William Sessions, a former head of the FBI, says that because there was no physical evidence in the case, Mr Davis deserves another day in court. He may have killed a policeman, but Georgia needs to do more to prove it.
B. Death penalty. A pointless extinction The Supreme Court's ruling upholding lethal injections has resolved nothing

ACROSS America, those states that still impose the death penalty have been rushing to resume executions following the Supreme Court's ruling on April 16th upholding the use of lethal injections. More than 40 executions had been put on hold until the court decided. But the end of the seven-month de facto nationwide moratorium is unlikely to produce a bloodbath. Rather, as Justice Clarence Thomas grumbled, the seven-to-two ruling is sure to engender more litigation...[because] we have left the states with nothing resembling a bright-line rule.This is because the court's decision was based on lethal injections as administered in just one state, Kentucky. Of the 36 states that retain the death penalty, 35together with the federal governmenthave adopted lethal injections in the belief that this is the most humane method of execution. (Nebraska used to use the electric chair until its Supreme Court ruled in February that this was unconstitutional.)Although at least 30 states use the same threedrug procedure as Kentucky, the standards, protocols and therefore the risk of a botched execution differ. This leaves the door open to further objections that lethal injections in other states violate the eighth amendment's ban on cruel and unusual punishment. So rather than a mad rush to the death chambers, there is likely to be a gradual resumption in executions, accompanied by many more legal challenges. This week the Supreme Court rejected lethal-injection appeals from Alabama, Mississippi and Texas, clearing the way for them to set new execution dates for inmates who had earlier been granted last-minute reprieves by the court. Last year 42 executions were carried out in America, down from 53 the previous year and a peak (since the Supreme Court allowed executions to be resumed, in 1976) of 98 in 1999. Last year's total was kept artificially low by the court's decision in September to hear the Kentucky case, bringing all executions to a screeching halt. But the downward trend in capital punishment is clear. Death sentences have been falling steadily, down from a peak of 326 in 1995 to an estimated 110 last year.Announcing the Supreme Court's judgment, John Roberts, the chief justice, said that to constitute a cruel and unusual punishment, the execution method had to present a substantial or objectively intolerable risk of serious harm; avoidance of all pain was not required. Justices Thomas and Antonin Scalia set the bar higher, arguing that the method would have to be deliberately designed to inflict pain to be unconstitutional. Justice Stephen Breyer felt it was sufficient to show a significant risk of unnecessary suffering. But whatever their interpretation of the eighth amendment, seven justices agreed that Kentucky's method was lawful.While concurring, Justice John Paul Stevens declared that he no longer believed the death penalty itself to be constitutional. Having voted in 1976 to uphold capital punishment, he now agreed with the late Justice Byron White (in Furman v Georgia, 1972) that its imposition represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. Justices Stephen Breyer, David Souter and Ruth Bader Ginsburg are believed to think the same.Thirty years ago, only 16 countries had abolished the death penalty; now more than 90 have. In the developed world, only America and, occasionally, Japan still use it. (Taiwan and South Korea have it on their books, but no longer impose it.) In December, the UN passed a resolution, backed by 104 states, calling for the first time for a worldwide moratorium on capital punishment. Even China, the world's most avid executioner, is seeking to limit the death penalty and make it more humaneby using more lethal injections. C. Choosing judges. Wanted: better judgment, fewer crowd-pleasers and lickspittles Should judges be elected or appointed? In the case of international courts, this age-old conundrum has a new twist

BARACK OBAMA wasnt the only person selected by American voters this month. They also cast ballots for thousands of state-court judges, after expensive, rancorous campaigns. No other nation in the world chooses judges by this stirringly democratic method, as Sandra Day OConnorthe first woman to sit on the Supreme Courthas noted. In her view, that is because most countries know youre not going to get fair and impartial judges that way.Barring a few Swiss cantons, the elevation of judges by popular vote is indeed rare. But in international tribunals, from the International Court of Justice (better known as the World Court) to the European Court of Human Rights, judges are typically electedalbeit by national representatives, not popular franchise. And as with the American system, there is no guarantee that such ballots will produce individuals who are qualified or honest. As a result, decisions affecting millions of lives can be taken by questionable people: government hacks and lickspittles, with little or no judicial experience, who have demonstrated their loyalty to their governments by defending the unconscionable, as one human-rights lawyer puts it. Among the five judges elected earlier this month by the UN General Assembly and Security Council to the 15-judge World Court was a nominee from Somalia, a country listed by Freedom House, an American think-tank, as among the worst of the worst in respect of civil and political liberties. Of course, bad countries can produce fine individuals; but some find it troubling that the court, which rules on disputes between states, now includes three judges from countries rated by Freedom House as not free (China, Russia and Somalia) and another three from countries deemed partly free (Jordan, Morocco and Sierra Leone).Critics of the court have tried to draw a link between its dubious membership and its more controversial decisions. Soon after the courts advisory opinion of 2004 on the wall erected by Israel in the West Bank, calling the barrier a breach of humanitarian law, Eric Posner, a law professor at the University of Chicago, made a withering attack. Blasting the court as irrelevant and increasingly ignored, he blamed partial judges for its decline. He claimed that 90% of the time they vote for their home stateor else line up with nations of a similar stripe: the rich with the rich, the authoritarian with the authoritarian. Of course, his points do not prove that the court was wrong about the wallbut they do challenge its role as a moral arbiter.Getting a seat on a UN-backed international tribunal, with a salary of around $170,000 a year, is a tempting prospect in poor countries where judges earn barely a tenth of that. Small wonder that some governments promote candidates as a reward for services rendered. (One member of a war-crimes tribunal turned out to have few qualifications other than being the cousin of his countrys president.) But stereotypes can mislead: many judges from poor places are outstanding, while those from rich lands can be dreadful.The 47 judges of the European Court of Human Rights, one for each member of the Council of Europe (not to be confused with the European Union), are elected by the councils parliamentary assembly. The only requirement is that candidates be of high moral character and either have the qualifications required for high judicial office in their own country, or are lawyers or academics of recognised competence. This is not a high hurdle for candidates from excommunist countries whose legal systems are still tainted. Many nominations reflect cronyism, not legal expertise and the European Courts rulings are binding on all member states.Similarly vague qualifications are asked of the 18 judges of the International Criminal Court, along with a need to reflect the worlds main legal systems and a desire to achieve an equitable distribution by geography and sex. Appointed usually for nine years, ICC judges must be elected by a two-thirds majority of the courts 108 member states. All but two of the present bench are from lands deemed free (including some poor ones); none is from a not free country.As the ICC has yet to start its first trial, it is too early to judge its judges. But in America, where some 60% of state appellate judges and more than 80% of state trial judges face contested elections, noisy political contests certainly contribute to an endemic lack of confidence in the judiciary, at least at state level. (Federal judges are not elected.) Most states allow candidates to raise funds, often running to millions of dollars. According to one poll, 70% of Americans think campaign contributions sway judges decisions. At least international courts are not plagued by angry electoral battles. Indeed, given the hurdles faced by such tribunals, it is amazing how well most of their judges do their job. But they might work even better were they to adopt the merit-based model now being set up by the UNin the first overhaul of its own internal justice system (which deals with discipline and grievances) in more than 60 years. Some 50,000 UN staff around the world will be affected.Following a report by a panel of experts who called the present peer-review system outmoded, dysfunctional and ineffective, Ban Ki-moon, the UNs secretarygeneral, has named a five-member Internal Justice Council, including three distinguished external jurists. Its job is to advise on suitable candidates for a new, two-tiered, independent system, staffed by professional judges with at least ten years experience. Although the council was asked to pay due regard to geography, this is no longer a deciding factor.In response to press advertisements (another novelty) as well as through the UNs own website, 237 applications were received from 55 countries. The 41 top candidates went to The Hague for an interview and two-hour written exam, before a final list of 25 names was drawn up, roughly two for each available post. Twothirds of the finalists come from countries with sophisticated judicial systems. That should cut the risk of lamentable choices when the General Assembly elects the new judges next month. XVI. Translate into English:

A. Judecatoarea din dosarul Csibi Istvan si-a catalogat colegii drept o haita Judecatoarea Tribunalului Bucuresti Simona Iordanescu a formulat cerere de abtinere in dosarul 11431/3/2008, in care omul de afaceri harghitean Csibi Istvan este cercetat pentru infractiuni economice. In cursul zilei de ieri au judecat doi magistrati, unul pentru judecarea cauzei de fond, iar un altul pentru solutionarea exceptiilor ridicate de avocatul lui Tanko Robert, cercetat in acelasi dosar, Mariana Stefan. Judecatoarea din dosarul omului de afaceri Csibi Istvan, Simona Iordanescu, a sustinut, ieri, in sala de judecata ca ceilalti magistrati sunt o haita si ca ii este telefonul ascultat 24 de ore din 24. Judecatoarea Simona Iordanescu, nemultumita ca i s-a respins cererea de abtinere in dosarul in care Csibi Istvan este judecat pentru instigare la delapidare, la spalare de bani si la fals in inscrisuri sub semnatura privata, intr-un caz in care sunt implicate alte 16 persoane si 17 societati, a transformat sala de sedinta intr-un circ. Magistratul a spus ca numai un handicapat mental putea sa dea o asemenea decizie. Sa intre sa judece cine in dosar, pisica?, a intrebat retoric judecatoarea. Apoi a sustinut ca a fost lucrata din interior, sugernd avocatilor apararii ca si ei sunt lucrati din exterior in legatura cu implicarea lor in dosarul lui Istvan. In momentul in care acest dosar mi-a fost repartizat, o colega mi-a spus ca ai fost potcovita cu Csibi Istvan. Asta inseamna ca mie trebuie sa mi se faca ceva. Trebuie sa intelegeti cu ce ma lupt eu. Fiind sagetator, care e jumatate om, jumatate cal, deci centaur, nu m-a jignit, a spus magistratul. Apoi judecatoarea a spus ca a descoperit ca i s-a respins cererea de abtinere, adica bomba, abia joi, cnd s-a intors din concediu medical ca sa judece dosarul, pentru ca nu e genul puturos. Simona Iordanescu a mai spus ca a revenit la serviciu pentru a le arata lor ct este de puternica si ca nu se sperie ca dosarul va cadea pe umerii ei. Am zis ca si moarta vin la serviciu si le-am aratat ca pot.() Ce porcarii se fac aici!, a spus magistratul. In ton cu atmosfera din sala de judecata, Csibi Istvan a zis ca i se insceneaza lucruri in penitenciar ca sa cada, sa spuna ceva. Istvan a vorbit despre teroarea securista a DNA, lucru cu care magistratul a fost de acord, aratnd ca stie despre ce este vorba si spunnd ca ii este ascultat telefonul 24 de ore din 24. Judecatoarea a mai spus ca singurul ei defect este ca la locul de munca vine sa munceasca, si nu sa se imprieteneasca cu colegii si sa mearga cu ei in concediu, pentru ca este satula de ei. In momentul in care nu esti in haita, devii incomod, a afirmat magistratul. Mai mult, atunci cnd avocatul s-a referit la starea de arest a lui Csibi Istvan si a sugerat ca, in final, Curtea de Apel decide, judecatoarea a replicat ca la aceasta instanta sunt judecatori care au fost promovati stie ea cum, in urma cu doua saptamni, de la Tribunalul Bucuresti. In acest moment, Csibi Istvan, avocatii si alti participanti la sedinta de judecata au izbucnit in aplauze si ovatii. Instanta urmeaza sa pronunte asupra cererii lui Csibi Istvan de a fi judecat in libertate, dezbaterile urmnd sa fie reluate in 15 ianuarie. Este inadmisibil ca o cerere de abtinere a unui judecator sa fie admisa partial atta vreme ct Codul de procedura penala prevede fie admiterea cererii in totalitate, fie respingerea ei. Se intmpla acum pentru prima data cnd o cerere de abtinere a unui judecator se admite partial, a declarat Mariana Stefan (foto) pentru Gardianul. Avocata a mai adaugat ca judecatorul a sugerat, la termenele anterioare, ca a primit amenintari de la persoane necunoscute pentru a nu dispune punerea in libertate a omului de afaceri Csibi Istvan. A existat o adevarata dezbatere in sala de judecata intre mine si judecatorul Simona Iordanescu in ceea ce priveste situatia cu care se confrunta ca judecator in acest dosar. Arat ca magistratul Simona Iordanescu este un judecator integru, cu o vechime de peste 30 de ani, si este posibil sa fie amenintata, tinnd cont de interesele economice si politice ale judetul Harghita, astfel inct sa se doreasca ca omul de afaceri sa ramna in continuare arestat, a mai adaugat avocata Mariana Stefan. Dosarul de la Tribunalul Bucuresti este un dosar disjuns din dosarul fostului PNA, in care avocatul Mariana Stefan a obtinut punerea lui Csibi Istvan in libertate, in anul 2006. Este arestat pentru aceleasi fapte, pentru care Tribunalul Suceava si Curtea de Apel Suceava l-au achitat pe Csibi Istvan si Tanko Robert, numai ca li s-au dat o alta incadrare juridica, pentru ca infractiunile cercetate sa fie de competenta DIICOT, nu numai a DNA, a conchis Mariana Stefan.

B. 1. Violul este o infractiune care se pedepsete cu cel puin 5 ani de nchisoare. 2. Incendierea n scopuri criminale este considerat o infraciune la fel de grav ca i furtul. 3. Poliia bnuiete c face trafic de droguri. 4. Poliia l va interoga pe suspect mine diminea. 5. n Anglia, amprentele digitale se iau la secia de poliie. 6. Autoritile din Romnia sunt din ce n ce mai ngrijorate de creterea numrului de infraciuni comise de minori. 7. Actul introductiv pentru instan l citeaz pe prt s compar n instan. 8. Orice dosar penal comprut n faa unui tribunal al Coronei presupune participarea unui juriu fornat din 10 pn la 12 jurai. 9. Trdarea este cea mai grav crim comis mpotriva statului.

10. Citaia este un ordin emis de o instan de a se prezenta n faa instanei respective n calitate de martor. CLOE I 2012-2013 Course instructor: Roxana-Cristina Petcu, PhD LECTURE V - THE LAW OF TORTS, THE LAW OF CONTRACTS Now we shall move into the field of private law which is administered by the civil courts and is concerned with rights and duties of individuals between each other, rather than rights and duties vis--vis the State. THE LAW OF TORTS IN ENGLAND The word tort derives from the Latin tortus, meaning crooked or twisted, and the Norman French tort meaning wrong. In English law, the word tort is used to denote certain civil wrongs as distinct from criminal wrongs. THE NATURE OF TORTS To understand what a tort is, torts must be distinguished from crimes, breaches of contract and breaches of trust. CRIMES A crime is a wrong which, by means of punishment or otherwise, is inhibited by the State. In case a crime is committed, the object of the criminal proceedings is primarily to punish the offender. Although a private person may prosecute another for a criminal offence, the police are most of the time the prosecutors. If the accused is found guilty, the court will award a proper punishment. BREACHES OF CINTRACT ( A breach of contract is a civil wrong, but it is different from a tort. In a contractual relationship, contractual duties are imposed on the parties by the parties themselves. BREACHES OF TRUST In order to speak of trusts, we must refer to the meaning of the term use, which is said to derive from the Latin opus (help, need). A use arose in medieval time when a person conveyed property of any sort to another upon the understanding that the other was to hold that piece of property on behalf of the donor or on behalf of a third party. Clearly the person who held the use was in a position of confidence that he might abuse, so the rights of the third party required protection. The common law courts refused to recognize uses and failed to offer any protection, but the Court of Chancery acted as a court of conscience and intervened to force holders of uses to administer the property for the benefit of the third party according to the terms of the grant. In time, this interest came to be covered by the Chancellors equitable jurisdiction, so trusts are dealt with in equity. The holder of the use came to be known as a trustee and the person on whose behalf the use is held came to be known as the beneficiary. So, a trust is an equitable obligation bonding the trustee to deal with property over which he has control (which is called trust property) for the benefit of the beneficiaries. In such a case, a breach of trust may give rise for compensation for damage suffered. TORT A tort is a civil wrong which entitles a person who is injured by the act committed to claim damages for his loss, whether purely as reparation or as a way of making the defendant understand the anti-social nature of his act. The object of proceedings in tort is not punishment, but compensation or reparation to the plaintiff for the loss or injury caused by the defendant, i.e. damages. In tort, the duty to refrain from committing torts is imposed by the general law of the land, independently of the wishes of the plaintiff or of the defendant. In very many cases, a crime or a breach of contract may include a tort element. In case of tort, liability arises from the breach of a duty primarily fixed by law. It is a duty towards persons generally.

As a general rule, when a person suffers unlawful harm at the hands of another, an action in tort for that damage or injury arises. For instance, if A, by his negligence, collides with Bs car parked on a road and causes damage to it, B may take action in court. The law of tort does not regard the motives of an act, it is merely concerned with the effects of the injurious conduct, which means that a good motive will not be a lawful excuse to commit tort. Conversely, a bad or malicious motive will not make a lawful act unlawful. In some cases, harm may be done by one person to another, but the law provides no remedy this is damnum sine injuria (damage without legal wrong). On the contrary, there may be a wrong without loss or damage (injuria sine damno). Such cases are exceptions to the rule that there must be damage or injury in order to bring an action. Therefore, it is important to mention that tort does not simply consist in the infliction of an injury, but in the infliction of a legally recognized injury. Torts are divided into two main classes: trespasses and actions on the case. A trespass is a direct and forcible injury. It is the most dramatic and obvious of all wrongs and it was the earliest tort which the law recognized and remedied. Actions on the case are actions for damage caused otherwise than directly and forcibly. They were called actions on the case because they were originally granted in circumstances in which there had been no remedy but the plaintiff could show that, upon the facts of the case, he had suffered a damage as the result of some acts or omission of the defendant. Examples of trespasses A walks over Bs land; A hits B; A kicks the paint off Bs car, etc Examples of actions on the case A accidentally leaves a mat on a slippery floor where B is likely to walk and B slips on the mat and is injured; A negligently permits a fire that has arisen on his land to spread and to damage Bs crops. GENERAL DEFENCES TO ACTIONS IN TORT In case a person is sued for tort, mistake, either of law or fact, is no defence. For a mistake of law, the principle ignorantia legis non excusat (ignorance of the law is no excuse). For a mistake of facts, there are execeptions to the rule, as some reasonable mistakes of facts may be accepted as an excuse. Nevertheless, in the case of trespass, the trespasser may be sued even though he sincerely believed that the land he entered belonged to him or that he had a right of entry. The person who is sued for tort may resort to various types of defence: - he may deny the facts alleged by the plaintiff - he may argue that the victim was consenting and cannot sue on the tort. This argument is called volenti non fit injuria (no injury can be done to a willing person). It is the principle of the assumption of risks. It is a principle of general application. It applies not only in cases where people agree to run the risk of injury, but also in cases where the law presumes that they have consented to do so. - in some cases, damage done intentionally may be excused if it was done out of necessity (eg. when a person causes damage to another persons property to prevent fire from spreading) - an inevitable accident, namely an accident that could not be avoided by taking all the ordinary precautions - if damage or injury was done by a person trying to defend himself or another person against unlawful force, the defendant shall not be liable provided he used force in proportion to the harm threatened. There are three points to be mentioned in connection with assumption of risk:

1. no one will be allowed to consent to run the risk of illegal harm. (eg. the rule does not apply in the case of
a boxing match conducted with bare fists). 2. mere knowledge of a risk need not necessarily amount to consent to run it. (eg. a worker drilling rock while a crane is carrying loads of stones over his head. There is a danger that a stone might drop on him due to the negligent way in which the crane is operated. In case he is hurt, his knowledge of the danger does not imply that he consents to run the risk of injury). 3. where a person creates a dangerous situation and another tries to avert the danger (eg. a cart is left unattended in the street, a boys throws a stone at it, the horses gat scared and bolt away, a policeman runs

to stop the horses and is injured. The policeman can claim and recover damages from the owner of the cart for injuries received while stopping the horses as the incidents occurs in a public street and children are in danger). The rule of assumption of risk applies to cover people who run risks in the protection of the property (as well as of the persons) of others, provided that they bear any special relationship to the owner of the property (eg. master servant relationship. If there is a fire caused by the negligence of the master and the servant is injured while trying to rescue his master, after the incident the servant is entitled to claim against his master). CAPACITY OF THE PARTIES IN A TORT ACTION Generally, anyone of full age can sue and be sued in tort. - the Crown may be sued for torts committed by its servants or agents - corporations can sue and be sued for torts committed by themselves, their servants and agents, because a corporation, even if regarded as an abstraction, is an employer of its agents, and employers may be held vicariously responsible for the torts of their agents acting within the course of their employment. - Minors as a general rule, minors enjoy no special exemption from tortuous liability and they have full capacity to sue in tort. Nevertheless, infants and minors are not liable for breach of contract as they have no capacity to contract. - Persons of unsound mind are in general liable for the torts they commit, but, if a person is so insane that his actions are involuntary, he will escape liability. - Spouses cannot sue each other in tort, except for the protection of their own property - Judges cannot be sued in tort for the acts done in their judicial capacity - Foreign sovereigns and diplomats cannot be sued in tort during the terms of office LIABILITY FOR TORT The defendant shall only be liable in tort if the damage is not too remote from the original wrong. Under the test of directness, a defendant is liable for all damage which is the direct consequence of his act, whether such damage is or not foreseeable by a reasonable man. Under the test of reasonable foresight, the defendant is only liable for the damage which a reasonable man should have foreseen. Intended damage is never considered too remote. VICARIOUS LIABILITY (RASPUNDERE PENTRU UN TERT) In some cases, a person who did not commit the tort himself is held liable for the torts of another. Employers (formerly called masters) are held vicariously responsible for torts committed by their employees (formerly called servants) in the course of their employment, that is they are liable for the wrong committed by the servant even though the tort is one which they have not ordered or authorized. Before vicarious responsibility can be imposed upon a defendant, it has to be shown that: (i) the person who committed the tort was the defendants servant, and (ii) that the servant was, at the time when the tort was committed, acting within the course of his employment. A servant is any person who works for another and is subject to the control of that other as to the manner in which he shall do his work. The term servant includes any person under a contract of service: domestic servants, chauffeurs, clerks, labourers. Independent contractors (electricians, carpenters, dressmakers, etc, who come at peoples houses) are not regarded as servants because they are under the control of the master as to what they must do but not as to the manner in which the work is performed. Nevertheless, legal practice has interpreted and modified the definition of servant, as, nowadays, for instance, hospital authorities are held vicariously responsible for the negligence of nurse, radiographers, etc, while companies are made liable for the torts committed by their executives. THE SURVIVAL OF ACTIONS

The death of either of the parties may affect the right of action in tort. At common law the general rule was expressed by the maxim actio personalis moritur cum persona (a personal action dies with the litigant), in other words, whether the plaintiff or the defendant died, the right of action died with him. Yet, since the Law Reform Act 1934, this rule no longer exists, so the right to action survives both in favour of the estate of a deceased plaintiff and against the estate of a deceased defendant, with some exceptions, for instance, actions for defamation do not survive. CATEGORIES OF TORTS The law of torts is case law par excellence, which means that there are numerous examples, classes and categories out of which the most important ones shall be presented in what f0llows. NEGLIGENCE For the purpose of the law of torts, the term negligence is used in a dual sense: (i) on the one hand, it may signify the attitude of mind of a party committing a tort ( for example trespass committed out of carelessness) and, (ii) on the other hand, the independent tort which signifies the breach by the defendant of a legal duty to take care not to injure the plaintiff or cause him loss. If such a duty is broken, and the plaintiff can show that he has been injured or that he has suffered a loss as a result of the breach he will have a right to action against the defendant. In front of a court of law several factors have to be taken into account for the plaintiffs case of negligence to be established: - that there is a duty of care - that the duty of care has been broken - that the injury resulted or was caused by the breach of duty - that the defendant owed a duty, that he breached the duty and that the plaintiff was damaged in some way as the result of the breach THE DUTY OF CARE The most important duties of care are: - as to highways (it applies to railways, shipping at sea and canal navigation) - employers liability (employees must be provided with reasonably safe machinery, etc.) - duty of care of professional persons (doctors, dentists, solicitors, etc) - duty of care of carriers to passengers and goods - duty of care of schools to children - duty of care of police to the public For a person to be held liable for negligence the harm inflicted must be reasonably foreseeable and the circumstances must be such that there is a close and direct relationship between the parties. BREACH OF DUTY The essence of a claim in negligence lies in the assertion that, in all the circumstances, the defendant has omitted to take reasonable care to avoid the injury complained of. Therefore, one might think that every claim should be decided on its merits and that there would be no need of prior enquiry as to whether a duty of care has arisen. Negligence in its legal sense means failure to take such reasonable care as a reasonable man placed in the position of the defendant ought to have taken. Obviously, it is for the court to decide, on a case by case basis, what is reasonable, what a reasonable man means, etc. CAUSATION In all cases of torts the element of causation is usually assumed either to exist or not to exist, in which latter case there is no liability. But in cases of negligence, the causal element creates difficulty. Where it is doubtful that the defendant caused the loss the burden of proving that he did lies on the plaintiff.

DAMAGE - physical injury - mental suffering - damage to property BURDEN OF PROOF The plaintiff is the one who has to adduce sufficient evidence to establish a prima facie case of negligence. Yet, there are cases in which res ipsa loquitur (the thing speaks for itself). This means that the facts are such that they point so strongly to negligence that the court may find in the plaintiffs favour unless the defendant can provide some explanation to rebut the presumption of negligence (eg. a barrel of flour falling upon the plaintiff from an open door in the upper floor of the defendants warehouse). TRESPASS Trespass is the most ancient and the most common type of tort. It is a direct and forcible injury. There are three forms of trespasses: 1. Trespass to the person assault, battery and false imprisonment. - Assault is the fact of using or threatening unlawful personal violence against another person, even though the victim does not suffer any actual injury. Words do not constitute assault. - Battery is the fact of using force against the person of another hostilely. The charge of battery is usually combined with that of assault and is known as assault and battery. - False imprisonment is the fact of inflicting bodily restraint on another unlawfully, even though there is no actual damage. 2. Trespass to land- is committed when a person enters upon land in the possession of another without lawful justification or remains upon it after his authority to be upon it has been revoked. It may also be committed by merely throwing or putting things upon the land. It may also take three forms (entry upon the land, remaining upon the land, throwing a material object upon the land). There need not be any actual damage to the land for the plaintiff to take action. 3. Trespass to goods covers three things detinue, conversion and wrongful interference with goods. Detinue is the unlawful act of holding goods that belong to another possessor. Conversion is the wrongful dealing with a persons goods in a way that constitutes a denial of the owners rights. Wrongfully taking possession of goods, disposing of them, destroying them or refusing to give them back are acts of conversion. Nowadays detinue and conversion are regarded as equivalent. Wrongful interference is any unlawful act of direct interference with goods in the possession of another which results in damage to goods or in interest in goods. Generally speaking, wrongful interference is physical, such as touching or removing the goods. NUISANCE The word nuisance is coonected with the latin nocumentum (harm). Nuisances are divides into two main classes: (i) public nuisances and (ii) private nuisances.

1. Public nuisance a crime indictable at common law and it is also restrainable by injunction. It is an
unlawful act which endangers or interferes with the lives, safety or comfort of the public generally or of a section of the public, or by which the public or a section of the public is obstructed in the exercise of a common right (obstructing highways and rendering them dangerous). If a person suffers special damage as the result of a public nuisance, over and above the damage caused to the public at large, he may bring action in tort against the person who caused the nuisance. 2. Private nuisance an unlawful interference with a mans use of his property or with his comfort or convenience. It is a wrong which incommodes a person and it also embraces certain injuries and inconveniences caused to users of highways.

Nuisance is not actionable per se, some damage must hace occurred to the plaintiff to enable him to sue. The basic rule is that one should live and let live and that one should use his property so as not to cause harm to others. DEFAMATION It may be broadly defined as the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally. It is divided into two main categories, libel and slander. Libel is defamatory matter published about a person in some permanent form. Slander is the publication of defamatory matter in a transient form, normally under the guise of an oral statement. Libel is actionable per se, without proof of special damage, while slander is only actionable if the plaintiff can show that he has actually suffered damage. Libel is a crime, as well as a tort, whereas slander is only a tort (except for words spoken directly to create a breach of the peace or which are blasphemous, obscene, or reflect upon the due administration of justice). Special defences to an action for defamation: (i) justification - the defendant proves that the statement was substantially justified (true). (ii) Privilege a defamatory statement made upon a privileged occasion is not actionable because the occasion needs total freedom of speech (parliamentary or judicial proceedings, when giving a reference to a prospective employer (iii) Fair comment in the public interest, criticism and statements of opinion should be free as long as it is fair, especially when made upon a matter of public interest (the behaviour of public men, ministers, local officials performing public functions, the work of artists and authors).

PRODUCT LIABILITY A manufacturer could be liable to the consumer for defects in his products. The liability arises when the damage is caused wholly by a defect in a product. The liability may be imposed on the producer of the product or on any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product has held himself out to be the producer of the product. CONSPIRACY It is an agreement between two or more people to injure a third party so as to cause damage to the person against whom the conspiracy is aimed. The execution of the agreement is tortuous in itself, provided that loss is suffered. (business partners, economic interests) INTERFERENCE WITH CONTRACTUAL RELATIONS The tort of deliberately inducing a beach of contract between two parties, thereby causing damage to one of the parties (the plaintiff). REMEDY IN THE LAW OF TORTS The two principal remedies available to a plaintiff in an action in tort are damages and injunctions, that is orders of the court to restrain the commission of continuance of the tort. TYPES OF DAMAGES general damages (damages at large which are not susceptible to exact calculation; eg. for loss of a limb) special damages (damages awarded for such losses medical expenses, loss of earnings prior to trial) nominal damages - the plaintiff proves that his rights have been infringed but he is unable to prove any actual damage substantial damages they are assessed by reference to the actual loss, whether physical or non-physical however great or small compensatory damages

aggravated damages the act committed causes greater than normal injury to the feelings of the plaintiff. In such a case exemplary/punitive/vindictive damages are awarded aimed at punishing the defendant rather than compensating the plaintiff.

TYPES OF INJUNCTIONS mandatory injunctions (orders of the court commanding something to be done) prohibitory injunction (orders of the court prohibiting or forbidding something)

LIMITATION The law prescribes a period of 6 years from the date on which the cause of action accrued as the normal period within which actions founded upon tort must be brought. There are variations depending on the specific nature of the tort. THE LAW OF TORTS IN THE US In the US torts cover a variety of civil wrongs, other than breach of contract. These wrongs interfere with person, property, reputation and commercial or social advantage. Some acts, such as assault, may be both a crime punishable by the state in criminal prosecution and a tort for which the victim can sue the defendant in damages before the civil courts. CATEGORIES OF TORTS Torts can be divided into two main categories depending on whether the result was intended or was caused by negligence. Yet, there are some injuries, resulting from defamation and from highly dangerous activities which involve absolute liability, whether they were intentional or negligent.

intentional torts are those causing interference with person or property and were adopted from English law assault, battery, conversion, false imprisonment and trespass. There are cases of intentional torts were the interference is less tangible, such as infliction of mental anguish, injurious falsehood, malicious prosecution invasion to the right of privacy torts inflicted through negligence eg. automobile accidents involving personal injuries

PROCEDURE AND PREVAILING RULES The jury is almost universally employed in tort damage actions, especially in personal injury litigation. In the US the rules that prevails is the rule of contributory negligence which allows the defendant to avoid all liability, even though he has been negligent, by proving that the plaintiffs own negligence contributed to his loss. THE LAW OF CONTRACTS IN ENGLAND THE NATURE, FORMATION AND VALIDITY OF A CONTRACT 1. THE NATURE OF A CONTRACT The duties embraced by the law of torts are imposed by the general rules of law and they are owed to all and sundry. Contractual duties are imposed and defined by the contract itself and they are owed to the other party to the contract. Thus, contractual obligations are a kind of law peculiar to the parties and only enforceable by means of an action for damages or otherwise between the parties. A contract is a legally binding agreement. Am agreement occurs when two minds meet upon a common purpose. This meeting of minds is called consensus ad idem (consent to the matter). The essence of contractual liability rests upon the notion that someone who suffers a loss in reliance upon the promise of another ought to receive compensation for the loss. Types of contracts

(i) specialty contracts contracts by deed or contracts under seal used for various transactions such as conveyances of land, a lease of property for more than 3 years, articles of partnership, settlements. Such contracts are signed, sealed and delivered. A specialty must be registered by a solicitor (ii) simple contracts informal contracts which may be made in any form, orally, in writing, by telephone, by telegram or by any implication from conduct (eg. a person who takes a seat in a bus is entering into an implied contract to pay his fare). 2. THE FORMATION AND VALIDITY OF A CONTRACT Contractual obligation (excluding the case of a specialty) starts by the acceptance, by word or conduct of an offer. One party is called the acceptor (offerree / promisee) and the other party is the offeror (promissor). An offer may be made to a private person or to the world at large. In order to form a valid simple contract the following elements are necessary: (i) intention to create binding legal relations (animus contrahendi ) (ii) offer and acceptance one party makes an offer and the other party must show unreserved acceptance of that offer. Silence is not considered an acceptance (iii) consideration the price for which the promise of the other party is bought. Consideration must be present or future (executed or executory). Consideration must not be previous to the contract itself, except in the case of services rendered at the express request of the other party (iv) certainty of terms There are two types of terms: 1. express terms (oral or written). They must state clearly and precisely the rights and obligations of each party. Express terms are of two kinds (a) conditions which go to the root of the contract and (b) warranties or terms of the contract which are collateral or subsidiary to the main purpose of the contract. 2. implied or innominate terms . The contents of the contract include general rules which are not formulated (commercial local usage, customs or statutes) but to which the courts will give much as importance as to the express terms (v) capacity of the parties to enter into a contract the general rule is that any person may enter into a binding contract. Special rules apply to infants, minors, mentally disordered and drunken persons, enemy aliens and corporations. (vi) legality of the object a contract is illegal if it contravenes a statute or the common law or morality (vii) genuine consent It can be vitiated by the following elements: 1. mistake. The general rule is that mistake does not affect the validity of a contract. Nevertheless, there are some kinds of mistakes (operative mistakes) which undermine the agreement so that there is no true consent and render the contract void. 2. misrepresentations they make a contract voidable. The aggrieved party will have to go to court to have the contract decalerd void. Misrepresentation has to be active, as silence does not amount to misrepresentation. There are three kinds of misrepresentations: (a) innocent when the defendant, in good faith, is unaware that his statement is wrong; (b) negligent when the defendant is unaware that his statement is wrong but is liable for noy controlling its authenticity; (c) fraudulent when the defendant intenti0nally makes false statements 3. duress 4. undue influence For a contract to be valid all the above elements must be present. If one or more is absent the contract is void or voidable. PRIVITY OF CONTRACT A contract creates a special legal relationship for the parties who enter upon it. It follows that only such people are the parties (privy) to a contract who can be normally affected by it. Thus, as a rule, a contract can only bind the parties, it cannot impose obligations upon other people, nor can it confer rights upon other people. Yet, there are exceptions to this rule.

DISCHARGE OF CONTRACTS (termination of a contract) A contract may be discharged by: agreement performance breach frustration - Unforseen events may occur which render further performance impracticable or impossible (sickness, accident, war, the interference of third parties, legislation which renders further performance illegal) operation of the law for instance lapse of time, if the contract is entered into for a particular period of time, the contract is discharged at the expiration of that period.

REMEDIES FOR BREACH OF CONTRACT Given the circumstances in which a contract may be discharged (terminated) as the result of a breach, there are some categories of remedies which may be awarded to the party injured by the breach:

damages common law remedy, may be claimed by the injured party as a right. They are monetary compensation for a loss. quantum meruit- (as much as he deserved) a claim for an amount earned, a claim in respect of unremunerated services specific performance a decree of the court ordering a defendant to perform his obligations under a contract injunctions- for the purposes of contract law, they are generally prohibitory, that is to say they are orders commanding a person to refrain from doing something rescission- The court may order rescission of a contract where it would br unreasonable to uphold it on account of mistake, misrepresentation or otherwise rectification in case it is sought to correct, to rectify a document which purports to embody some prior agreement, whether oral or written, and this prior agreement has not been properly reproduced in the document

LIMITATION Rights of action cannot be permitted to endure forever. People must be made to press their claims with reasonable diligence. Hence the following rules of limitation have been made: an action upon a simple contract must be brought within 6 years of the accrual of the cause of action an action upon a contract under seal must be brought within 12 years of the accrual actions in which the damages claimed consist or include damages in respect of personal injuries to the plaintiff or any other person must be brought within 3 years subject to the same rules which apply to the same claims in tort

THE LAW OF CONTRACTS IN THE US The law of contracts deals with the enforcement of promissory obligations. Contractual liability derives from consent freely given in the form of a promise whether express or implied from the acts of the parties. The court will sometimes imply a promise (implied in law or quasi contract) to prevent unfair profit even in the absence of consent on the part of the party bound by it.

Contract law applies to a wide range of agreements concerning employment, insurance, sale of goods, sale of land, services, etc and to such varied parties as individuals, business organizations and government entities. Contract law is more state than federal law although differences from state to state are generally insignificant. It is mainly case law, although there are statutes governing it as well. For instance, the Uniform Commercial Code provides for the formation of contracts for the sale of goods. A contract may be defined as a promise for the breach of which the law gives a remedy. The word contract applies to the whole series of acts by which the parties have given their agreement, to any executed document or to the legal relations which have resulted. Fro a promise to be enforceable (for the law to give a remedy) at least two criteria must be met: (a) the requirement of a writing (contract must be evidenced by a writing sales of land, contracts to sell goods above a minimum value, contracts to be liable for the debt of another, contracts to be performed after a one-year periods) (b) the requirement of a consideration ( it is something for which the promisor has bargained and which he has received in exchange for his own promise). If it is another promise given in return the contract is known as bilateral, if it is another act given in return, the contract is known as unilateral. However, contract to perform services do not come under these requirements and are enforceable without a writing. In the US, contracts, like statutes, are detailed and prolix, especially when drafted by a lawyer.

LEGAL ENGLISH WORKSHOP V (Applied Modern Languages MA Programme) 2012-2013 Course instructor: Roxana-Cristina Petcu, PhD

I. Fill the blanks in the text below using the terms in the list: practice of law, private law, physical injury, abused, tort of negligence, mental injury, civil law,finacial loss, law of tort, careless behaviour In ____, individuals bring claims against other individuals. Private law is also referred to as ____ because it is the law used by citizens if they believe that their legal rights have been _____ by other citizens. The _____ is a major part of private law. Today the most important tort of all is the ____, where the negligence of the defendant has led to the plaintiff suffering harm. The defendants _____could cause the plaintiff to suffer ____, _____ or_____. It is because the law of negligence is so important for all those involved in the _____that this particular tort is the main subject of this chapter of law. II. Look at the list of legal terms below. Match each of these terms with its definition.
1. product liability; 2.damage ; 3.defamation ; 4. strict liability ; 5.nuisance ; 6.trespass ; 7. slander; 8. claimant/plaintiff ; 9. tort ; 10. damages ; A. a breach of duty towards other people generally; B. financial compensation for loss or injury; C. physical or economic harm or loss; D. person who makes a claim; E. making a public statement which harms someones reputation; F. total legal responsibility for an offence which has been committed; G. an interference with private property; H. spoken statement which damages someones character; I. an act which prevents the plaintiff from the use and enjoyment of his land; J. legal responsibility for damage caused by the defendants product

III. Look at the sentences below and choose the alternative which best fills the blank spaces: 1. A person who has sustained an ______ at the fitness center and who believes they may have a _______ _______ the
company will usually seek advice to assess whether the likely level of damages, i.e. the ________ that may be _________, is sufficient to justify the ________ of ________ a claim. A. 1. loss ; 2. injury ; 3. damage; 4. violation B. 1. case ; 2. petition; 3. claim ; 4. file C. 1. against ; 2. upon; 3. with; 4. for D. 1. damages ; 2. financial compensation; 3. liability; 4. remedy E. 1. awarded ; 2. granted; 3. given ; 4. allotted F. 1. case ; 2. action; 3. risk ; 4. course G. 1. pursuing; 2. putting ; 3. initiating; launching

2. The amount of damages, known as ______, is usually made of two aspects. _______ damages are paid to ________ the plaintiff for the ________ resulting from the injury and for the ____ it has on his life. A. 1. sum ; 2, quantum ; 3, quantity; 4. quota B. 1. legal; 2. money; 3. general ; 4. specific C. 1. compensate; 2. reward; 3. reimburse ; 4. repay D. 1. pain and suffering; 2. consequences; 3. effects; 4. results E. 1. effect; 2. result; 3. impact; 4. consequence 3._____ damages are calculated more objectively as they consit of claims for the past and future _______ to the plaintiff. This typically includes ________, in addition to the ____ of care and necessary equipment required as a result of the injury. A 1. general; 2. special; 3. exemplary; 4.extraordinary B 1. losses; 2. gains; 3. loss of earnings; 4. profits C. 1. price; 2. money; 3. treatment; 4. cost

4. In some cases, when _________ is admitted, it may be appropriate to make ________ on account of the full award, before the final claim is _____. A. 1. responsibility; 2. reward; 3. liability; 4. recovery B. 1. full payments; 2. no payments; 3. interim payments; 4. half payments C. 1. paid; 2. solved; 3. withdrawn; 4. settled IV. Supply the correct adjective derived from the nous below. Provide their Romanian equivalents. Use them in sentences of your own. Slander; defamation; libel; liability; injury V. Fill the blanks in the text below using the terms in the list:
within the limitation period; clinical negligence; in the case in point; instruct; reputable; potential claim; bring the claim; likely amount of the damages; essential leg; pursue the claim; conditional fee basis ; element of negligence; a fee estimate at the outset; sought medical advice; investigating; adversely affected the outcome; an impartial, unbiased opinion; causal link; exploring the claim; no win no fee; keeps a register of experts; an independent expert; obtaining the medical records; legal expenses insurance; prepare a report. Our law firm specializes in ____, so plaintiffs ____ us, that is to say individuals come to us to get an idea whether they have a _____ and what the process will involve. Depending on that advice, they may then instruct us to ______ on their behalf. The ______ has to be enough to cover the cost of _____ the claim. We are always careful to give clients_____.Initially this will just be the cost of ______ It will involve _____ of our clients from the relevant general medical practice or hospital. We usually go through these before instructing _______to ______. The department _____ which we use for _____ Some clients may have ____ or may qualify for Public Funding and others may have to fund themselves. In those cases we usually agree a payment schedule with the client. If we do pursue this is usually on a _____, that is _____, so there is an elemnt of risk involved. The basis of a claim is that the plaintiff has _____ or treatment and believes that as a result their health has suffered. We have to show that there is a _____ between the two things. The second _______ is that there has been an ______ Sometimes this involves extremely complicated evidence. Basically, we need to demonstrate that the course of action or advice given by the doctor _______would not be advised by a similarly experienced and _____ body of practitioners. The role of the experts in all of this is extremely important.WE rely upon them to explain how the action of the defendant has _____ for the patient. The other extremely important point is that the plaintiff must _____ ______. This is usually within 3 years of the event, although it may be extended if the case involves a child or the plaintiff has a mental disability. VI. After filling in the blanks of the text above, find synonyms for the following words and phrases:

Possible case; negatively influence the health of the client; unprejudiced point of view; causation; to start an action; probable costs of action; in proportion to the damages recovered; in this instance. VII. Complete the sentences below with verbs from the text above on clinical negligence. 1. The solicitor ____ the clients a fee estimate. 2. The firm ____ the claim. 3. The solicitor _____ the clients medical records. 4. An independent expert ____ a report. 5. The department ________ a register of experts. 6. The firm _______ a payment schedule with the client. 7. We _______ the claim on a conditional fee basis. 8. The action of the defendant has adversely ______ the outcome for the patient. 9. The claimant must ____ the claim within the limitation period. VIII. Here is a brief summary of the law of contract. Complete the text using the words below: Agreement; breach; capacity; consideration; damages; fraud; illegal; obligation; oral; performance; property; signed; terms A contract is an agreement that creates a binding _______ upon the parties. The essentials of a contract are as follows: mutual _______; a legal _______, which in most instances need not be financial; parties who have legal ____ to make a contract; absence of _______ or durres; and a subject matter that is not _____ or against public property. In general, contracts may be either ___ or written. Certain types of contracts, however, in order to be enforceable, must be written and _______ . These include contracts involving the sale and transfer of _____ . In case of a _______ of contract, the injured party may go to court to sue for financial compensation (or _______) , or for rescission, for injunction, or for specific performance if financial compensation would not

compensate for the breach. Specific ______ of a contract is the right by one contracting party to have the other contracting party perform the contract according to the precise ____ agreed. IX. Make word combinations using the words below. Provide the definitions of the terms you have found and their Romanian equivalents: Contrary, offer, conditions, avoid, sale, qualified, parties, essential, contracting; terms; contract; acceptance; counter; uncertainty; evidence, subject to, rebuttal, presumption X. Complete the sentences below with words from the list below: Barred; rendered; treated; set aside; required; consented; implied 1.The contract was _____ unenforceable after 12 years. 2. The contract was technically voidable but the parties ____ it as binding. 3. Because of the limitation period, you are _______ from bringing an action. 4. the other party to the contract has ____ to the terms of the contract. 5. The contract was _______ by the court because it was defective. 6. Although there was no written agreement, the court decided the conduct of the parties _____ a contract. 7. Registration of the transfer of land _____ by the law. XI. Link the type of contract to its description. Provide their Romanian equivalents. 1. consultancy agreement; 2. distribution agreement; 3. franchise agreement; 4. loan agreement; 5.manufacturing licence agreement; 6. terms and conditions of sale agreement ; 7. contract of employment ; 8. directors service agreement; 9. shareholders agreement A. this agreement is used to ensure the repayment of money borrowed, usually in monthly instalments; B. this agreement is used where one party buys goods from the manufacturer anr resells them on his own account. He will however be given the right to use the manufacturers intellectual property rights; C. this agreement sets out the terms and conditions on which a business supplies goods: D. this agreement is used where one party grants to another the right to run a business in the name of the first party. E. This is the equivalent of a contract of employment for directors; F. this agreement is used where one party is providing services as an independent advisor to a company; G. this agreement should be used where one party (the licensor) owns intellectual property rights in respect of a product it has developed and wishes to license the manufacture of a third party; H. this is intended to govern the relationship between a number of shareholders in a company. The agreement works as a second layer of protection of protection preventing the company from being run in a manner other has been agreed; J. this contract comes into existence as soon as a job offer is accepted whether that offer is oral or in writing XII. Look at the following extracts from contract clauses. Link the underlined word to its meaning; provide their Romanian equivalents. 1.now it is hereby agreed; 2. subject as hereinafter provided; 3. you will find in the document herewith attached; 4. the first instalment becoming due one month from the date hereof; 5. the failure of either party to exercise any right or remedy to which it is ewntitled hereunder; 6. by referring to the points mentioned therein; 7. as thereby stated; 8. and for a period of 12 months thereafter; 9. the failure of either party to exercise any right or remedy shall not constitute a waiver thereof ; 10. all statutory instruments or orders made pursuant thereto; 11. the initial Fee tohether with any VAT thereon; 12. the cost of the product, and the monthly payments therefore; 13. the aforementioned terms shall prevail over A.by the terms of this agreement; B.to that thing just mentined; C.previously stated; D. later in this document; E. after that event; F. by means of this document or declaration ; G. in that matter; H. on that item; I. of this event ; J. for that item; K. with this document ; L. of or about that; M. by means of or because of that XIII. Below are the main paragraph titles from a Sale Agreemnt. Link the paragraph titles to the details of the contents of each paragraph. Provide their Romanian equivalents.

1.PRICE AND PAYMENT; 2. GOODS; 3. DELIVERY; 4. ACCEPTANCE; 5. TITLE AND RISK; 6. LIMITATION OF LIABILITY; 7. FORCE MAJEURE; 8. ENTIRE AGREEMENT; 9. GOVERNING LAW AND JURISDICTION; 10. RIGHTS OF CONSUMER A. the Buyer only receives title to the Goods once he ahs paid all sums due to the seller; B. this prevents a perty from relying on something said in the pre-contract negotiations that is not excluded I n the Agreement itself with the exception of deliberate misrepresentations (which are impossible to exclude); C. The Goods are as specified in the quotation; D. allows for defaults in the event of happenings outside the control of the seller; E. the Price is the quoted price; if the Price is not paid on the time the seller is entitled to interest at 4% above base; F. This does not prevent the buyer suing for breach of warranty after the 7 th day. It is intended to prevent rejection; G. Specifies which law applies and where the parties must sue; H. delivery is as shown on the quotation; I. this is required when selling to consumers. To sell to a consumer without the phrase would be a criminal offence; J. tries to exclude the liability of the seller to personal injury and death (the minimum allowed by law). It specifically excludes economic loss and limits the liability of the seller to the price. There is a risk that these terms would be deemed unfair in a consumer transaction. XIV. Translate into Romanian: A. Where have all your savings gone? Investors may draw the wrong lesson from history FOR American and European savers it has been a lost decade. After two booms and two busts, stockmarkets have earned them nothing, or less, in the past ten years. Low interest rates have made bonds and bank deposits unrewarding too. Were it not for the tax relief they receive, contributors to personal pension plans would have been better off keeping their money under their mattresses. It will be little consolation to Westerners that savers in Japan have known this empty feeling for far longer.This years figures are enough to put anybody off saving. American mutual-fund assets have declined by $2.4 trilliona fifth of their valuesince the start of 2008; in Britain, the drop is more than a quarter, or almost 130 billion ($195 billion). The value of global stockmarkets has shrunk by maybe $30 trillion, or roughly half. These figures put the losses on credit-related securitieswhere the financial crisis beganinto the shade to equities. This year the value of all manner of risky investments, from corporate bonds to commodities to hedge funds, has been clobbered. The belief that diversification into alternative assets could prevent investors losing money in bear markets has proved false. And of course housing, which many people counted on for their retirement nest-eggs, has lost value too.As a result, saving seems like pouring money into a black hole. Any American who has diligently put $100 a month into a domestic equity mutual fund for the past ten years will find his pot worth less than he put into it; a European who did the same has lost a quarter of his money.It may seem an odd time to worry about savings. This week the National Bureau of Economic Research declared that the worlds largest economy, America, had been in recession since December last year. The economies of Japan and much of western Europe have been shrinking. A rapid, global, privatesector shift to thrift is exactly what the world economy does not need. Thats why governments around the world have been passing hurried measures to try to encourage people to spend more of their incomes. In some countries, they should. Asians (and Germans too), have been squirrelling their money away with excessive enthusiasm. But other countries citizens have been putting too little aside for their old age. In America, the household savings ratio (the proportion of disposable income not used for consumption) has been below 2.5% since 1999; in Britain, it has been below 3% in each of the past two years. The Asians parsimony made the Anglo-Saxons profligacy possible. Through their increasingly sophisticated financial systems, the Americans and British were able to borrow from the thrifty Asians to finance their spending spree. And, because their house prices were rising so fast, they had the collateral and the confidence to do so. In other words, Anglo-Saxons were able to save their cake and eat it. They did not have to sacrifice consumption in order to build up assets for the future, because lax monetary policies encouraged borrowing that pushed up the prices of housing and other assets, which gave them the illusion of having saved enough. But now this debt burden is being unwound, asset prices are collapsing and savings rates are rising because consumers are unwilling, or unable, to borrow.Though this is bad news for the American and British economies in the short term, it ought to be good news in the long term. How good, though, depends as much on where people put their savings as on how much they put aside. If savers treated financial assets as they do other goods, they would sell them when they are expensive and buy them when they are cheap. Actually, they do the opposite. They piled into the market in 1999-2000, at the peak, and are piling out of it now. They should, of course, have got out in 2000, when the global price-earnings ratio was 35; shares look relatively much more attractive now, since the ratio is down to ten. A recent analysis shows that, when American price-earnings ratios are low, returns on equities over the next decade average 8%; when they are high, returns average 3%. But peoples recent losses have made them cautious. They are putting their money into cash or money-market funds, rather

than equities or corporate bonds. The returns they are getting on their savings look increasingly pitiful. Interest rates are falling sharply, with more central banks announcing cuts this week. Savers may initially be shielded from the full impact of those reductions, because commercial banks are competing for retail deposits. But rates in many big economies are heading for, or have already reached, 1-2%. Caution is understandable, after the trauma of this year. Equity and corporate bond markets could yet fall further, especially as the news on the economy seems to get worse every week. But it is still perverse that investors were happy to buy shares nine years ago, when the ratio of share prices to profits was three times what it is today, and are now determined to keep their money in cash and bonds. That approach will be hopelessly inadequate for those who want to build a decent pension, especially in defined-contribution, or money-purchase, schemes, where the employee bears all the investment risk. The average American scheme member contributes just 7.8% of salary to his pension scheme. His employer, on average, contributes only 4.4%. He has a pot worth only $68,000. A rule of thumb is that total contributions need to be around 20% of wages to match a traditional final-salary scheme. Inadequate savings, badly invested, are a problem for individuals and the economy. Cautious savers are putting their money in banks; banks are reluctant to lend; companies therefore find it hard both to borrow money and to raise equity capital. This timidity hurts companies and, in the long term, savers. Implausible as it may sound, right now equities and corporate bonds are a better long-term bet than cash. B. Ending the exodus. Will Britains corporate tax exiles come home? IF YOU are a director of a British company, your duties may now include flying to Dublin to attend board meetings. Fed up with Britains tax system, a small but growing band of firms have moved their headquarters most recently WPP, a big advertising company. It took an oft-travelled route, remaining listed on the London Stock Exchange but creating a new parent company that is incorporated in Jersey, in the Channel Islands, and is resident for tax purposes in Ireland.Inertia no longer guarantees that big British firms will stay puta majority of boards are thought at least to have explored the idea of changing their residence. So the government finally acted, in its pre-budget report in November. The dividends companies receive from foreign operations will become taxexempt, replacing a cumbersome system under which Britain taxes foreign profits but gives firms credit for payments they make to fiscal authorities overseas. When America granted a similar, albeit temporary, tax holiday in 2004, several hundred billion dollars were shipped home; the inflow may even have bolstered the dollar exchange rate. In Britain the change will mainly help British multinational firms that have sold foreign divisions in countries with low or no taxes on such disposals. Unable to repatriate the profits without incurring a hefty tax bill, they have resorted to lending the trapped proceeds to their British parent companies instead. Now, as these fiddly financing arrangements are unwound, some predict that as much as 50 billion-worth of dividends will be repatriated. Sadly for the flagging pound, the net impact is likely to be far smaller, with the dividend inflow offset by repayment of previous inter-company loans. More important than this technical change, however, may be the broader improvement in what one expert calls the mood music. Many of Britains corporate tax exiles, including WPP, were scared off by the Treasurys growing interest in taxing internationally mobile profitsthe fruits of intellectual property, for example, or interest incomeif it deems a firm is dodging British tax by shifting them around its group. The pre-budget change signals a clear shift to a territorial approach, in which the British taxman will limit his enthusiasm to domestic profits and leave genuine overseas earnings alone. Its a big step forward, says Chris Sanger, head of tax policy at Ernst & Young, an accounting firm, and a former government adviser.There are still grumbles: some worry about the cap the pre-budget report sets on the interest costs firms can deduct from profits. But the change in approach should help to halt the exodus. Whether it will persuade exiles to return is less clear. After years of confrontation with the Treasury, many bosses will reserve judgment until the details are set in stone. WPP says it has an interest in developments, but that so far it will not consider returning. The London-to-Dublin shuttle has not yet been grounded. C. Something for something. The fight against an ingrained culture of dependency goes on FEW politicians resemble a stern Victorian less than James Purnell, the modish 38-year-old who thrived at the Department of Culture, Media and Sport (otherwise known as the Ministry of Fun) before becoming the work and pensions secretary. Yet his plans to reform Britains welfare system, unveiled on December 10th, saw him portrayed as a redeemer of the feckless by those who deplore the dependency culture that blights some areas, and as a tormentor of the undeserving poor by those who fear the human cost of tightening benefits during a recession. In truth, the plans are the latest attempt by Labour and Conservative governments to prod people from welfare to work. Yet 2.6m still claim incapacity benefit, many without good reason. Research published on December 8th by the Joseph Rowntree Foundation, an independent body, which looked at some 50 indicators of economic and other sorts of well-being, shows that there has been little recent progress in improving the plight of

the poor and marginalised (see chart)which another study too suggests (see article). And the case of Karen Matthews, a welfare mother involved in drugging and kidnapping her own daughter, has revived anxiety about the moral consequences of dependency. Mr Purnells white paperthe product of policy reviews by David Freud, a former banker, and Paul Gregg, an academicis more radical than many that have gone before it. Almost all claimants will have to show that they have made efforts to find or prepare for work. In return, help from the governments Jobcentre staff will become increasingly bespokeallowing claimants to co-write their own action plans to re-enter the job market. Long-term recipients of job-seekers allowance (JSA) will be transferred to private or voluntary contractors who will be paid only if their charges find and keep jobs. Claimants of incapacity benefit (renamed the employment and support allowance) will be medically reassessed by 2013. Sanctions will be imposed on those failing to meet the conditions of their benefit or found playing the system. Bold by British standards, then, but nothing like as drastic as the American welfare reform of 1996, in which benefits were explicitly time-limited. The real models to emulate, says Professor Gregg, are the likes of Denmark and the Netherlands, where benefits are high but unemployment is low because claimants are given so much help in finding work.These nuances are likely to be lost on the enemies of welfare reform, who include many trade unionists and some Labour backbenchers. Ministers are not worried, pointing to scores of Labour MPs who have developed hard-nosed attitudes to welfare after seeing dependency fester in their constituencies. They can also broadly count on the support of the Tories. Indeed, obstacles to the white paper are more likely to be practical than political. Mr Purnell says that bids for welfare contracts have not dried up because of the recession, but that may change as the economy deteriorates. Some also worry that the shift from a rules-based welfare system to one which allows Jobcentre staff discretion in dealing with claimants will ask too much of these front-line workers. Despite all this, Gordon Brown, the resurgent prime minister (a poll on December 8th put Labour only four points behind the Tories, who enjoyed vaulting leads just months ago), purportedly sees political wisdom in offsetting his Keynesian economic strategy with right-wing gestures in other areas. In addition to welfare reform, recent weeks have seen tough rhetoric on immigration and a suggestion from Jack Straw, the justice minister, that the Human Rights Act could be rebalanced to prevent it being used to benefit criminals. Welfare reform also provides some intellectual succour to the recently beleaguered right. Britain, after all, is a recession-stricken country lamenting market failure, led by an emboldened centre-left government intervening to rescue banks and boost demand. Renewed focus on a welfare system widely acknowledged to be dysfunctional is a reminder that the state too can fail.

XIV. Translate into English:

A. Concurentii acuza grave nereguli: mii de euro spaga pentru un post de comisar al Garzii Financiare Sibiu Mai multi aspiranti la titlul de comisar n cadrul Garzii Financiare Sibiu au izbucnit, ieri, n acuzatii grave, dupa un concurs care, n cele din urma, a fost anulat. Concursul de angajare a sase comisari pe diferite trepte n cadrul Garzii Financiare Sibiu trebuia organizat, initial, pe 8 decembrie. Amnat printr-un ordin venit de la Bucuresti, proba scrisa a concursului a fost reprogramata pentru ziua de ieri, n mare graba, de Nicu Florescu (foto), comisarul-sef al Garzii Financiare Sibiu. El a revenit rapid n aceasta functie dupa ce, timp de sase luni, a fost n concediu medical. Concursul organizat de el a strnit nemultumiri nsa n rndul participantilor. Nu mi se pare normal sa fiu anuntata prin telefon haideti mine la examen, dupa ce cu cteva zile nainte am fost notificati ca proba scrisa se amna, spune o concurenta care nu a dorit sa si faca publica identitatea. Anuntati telefonic nsa, concurentii au descoperit si alte probleme.Unii dintre cei care s-au nscris pentru acest concurs nu au reusit sa treaca de testul psihologic. Au fost declarati inapti. Acum, ei apar n cadrul concursului. Sau mai grav, ei sunt trecuti pe liste ca inapti, dar cu pixul apare modificat ca sunt deodata apti, pentru ca au depus contestatie. Nu poti fi inapt azi si apt mine. Mai mult, unii dintre concurenti au fost primiti pe usa din dos, la cteva zile dupa testul psihologic, reclama un al doilea concurent.Unii dintre concurentii care au fost plimbati n cursul zilei de ieri de la o institutie la alta pentru a se gasi o sala de examinare sustin ca la mijloc ar fi spagi grase, de ordinul a miilor de euro.Psihologii din cadrul Spitalului Militar spun ca, odata ce o persoana este declarata inapta pentru un anumit post, aceasta din urma nu are cum sa depuna contestatie. Vraistea n care a fost organizat concursul si-a gasit exprimare si prin modalitatea n care a fost anuntata comisia de examinare. La avizier, presedinte al comisiei era trecut Gheorghe Gabriel, or, acesta a fost revocat cu cteva zile n urma din

aceasta functie. Presedinte al comisiei a fost Nicu Florescu, seful Garzii Financiare Sibiu (foto). Sunt probleme din primele mele zile de cnd m-am ntors. Toate problemele pe care le avem vor fi rezolvate pe cale legala, s-a rezumat sa declare Florescu. Cu toate acestea, sesizarile si neregulile din timpul concursului au determinat Agentia Nationala a Functionarilor Publici sa amne, n prima faza, concursul pentru data de 16 decembrie. Valul de reclamatii si sesizari i-a determinat, n cele din urma, sa anuleze concursul. Nicu Florescu nu se afla la primele probleme n ultima perioada. El a intrat n concediu medical n vara acestui an dupa ce, n august, superiorii sai de la Bucuresti i-au lipit pe poarta somarea la plata a unei amenzi de 10.000 de lei, pe care Florescu refuza sa o primeasca. Amenda i-a fost data pentru ca a angajat si utilizat credite bugetare n alte scopuri dect cele aprobate si nu a respectat reglementarile emise de Ministerul Finantelor cu privire la utilizarea si tinerea registrelor de contabilitate si depunerea situatiilor financiare periodice.

B. Bebelusi morti la nastere in Hunedoara: medici acuzati de malpraxis de doua mame Doi nou-nascuti au murit la nastere n ultimele doua zile in judetul Hunedoara, iar familiile micutilor acuza medicii de neglijenta.Mamicile sustin ca ambele sarcini au decurs normal. Familiile femeilor care au pierdut copiii locuiesc la Petrosani si n satul Batiz, iar copiii lor au fost declarati morti la nastere. Oamenii sunt revoltati si le cer socoteala medicilor, pe care i acuza de neglijenta, iar n ambele unitati sanitare au nceput anchete n cazul bebelusilor morti.Mariana Bublea de 32 de ani a nascut miercuri, la ora 13.00, la spitalul din Petrosani, nsa familia sa sustine ca ar fi trebuit sa aduca pe lume copilul nca din 2 decembrie. Oamenii sunt revoltati si sustin ca medicii au neglijat femeia pe timpul travaliului, iar copilul s-a sugrumat dupa mai multe zile de chin.Practic, rudele femeii au povestit ca aceasta a acuzat mai multe zile dureri, iar acum cer sa li se faca dreptate. S-a internat saptamna trecuta, smbata, pentru ca stia ca ar fi trebuit sa nasca din 2 decembrie. Sarcina a decurs normal, dar a avut mai multe zile dureri si doctorita Aurora Vasilie a tot amnat-o ca nca nu naste. La nastere nsa, nu a ajutat-o nimeni si doctorita i-a aratat la final copilul si i-a spus ca e mort, iar apoi a plecat sa fumeze, a spus Marius Cucaila, fratele femeii care a nascut la Petrosani.Copilul, potrivit rudelor femeii, ar fi murit din cauza ca s-a sugrumat cu cordonul ombilical, dupa ce mama sa s-a chinuit mai multe zile sa l nasca.Conducerea spitalului unde a avut loc incidentul a refuzat sa faca declaratii, motivnd doar ca este un caz intern pentru care a fost declansata o ancheta.Potrivit directorului Spitalului de Urgenta din Petrosani, medicul Alexandrina Remescu, cazul va fi discutat de medicii specialisti si deocamdata nu a putut face alte precizari. Fratele femeii este hotart sa reclame cazul la Colegiul Medicilor, motivnd ca este convins ca si alti bebelusi au mai murit aici si nimeni nu a luat atitudine.Un alt caz, la fel de cutremurator, a avut loc la spitalul din Deva, unde o alta femeie de 36 de ani din localitatea Batiz a nascut un copil mort, iar familia ei da vina pe medici. Femeia nsarcinata n luna a noua s-a internat la spitalul din Deva, iar medicii, pe toata perioada sarcinii, au asigurat-o de faptul ca va naste o fetita normala. Proaspata mamica crede ca s-a ntmplat ceva n timpul travaliului, cnd nu a fost supravegheata corespunzator.Trebuia sa nasc n 16 decembrie si mi s-a rupt apa cu o saptamna nainte. M-au dus la spital si acolo m-a preluat o moasa. M-a consultat ea, desi nu cred ca are voie sa faca acest lucru. Mi-a provocat o hemoragie si cnd a vazut ce se ntmpla m-a dus la ecograf. Medicul care mi-a facut ecograful m-a asigurat ca va fi bine, ca inima copilului bate si ca nu sunt alte probleme. Mi-a spus sa ma linistesc, a povestit Dorica Muntean.Dupa acest episod, femeia a fost condusa n salon si lasata acolo, pentru ca era noapte si personalul s-ar fi dus la culcare. Femeia a nascut cteva ore mai trziu. Am vazut copilul, l-au pus ntr-o tavita si el se misca. Nu l-am auzit plngnd. I-au luat pulsul si am auzit ca traia. Apoi i-au pus oxigen si i-au apasat inimioara. Faceau fete-fete, apoi mi-au zis ca e mort, a spus femeia.Sotul femeii spune ca a depus la rndul sau plngere la Parchet si Politie pentru ca nu a acceptat ca fetita sa-i moara, n conditiile n care sarcina a decurs normal. n ambele cazuri, familiile celor doi bebelusi sunt decise sa se adreseze instantei, iar conducerile celor doua unitati medicale au declansat anchete interioare. C. Arestat pentru 29 de zile: Rambo de Maramures avea un intreg arsenal de razboi acasa Cazul pistolarului din Borsa, prezentat n cotidianul nostru miercuri, ia amploare. La perchezitia domiciliara, politistii au gasit un adevarat arsenal de razboi. Pna si pe un pat dintr-un dormitor a fost gasita aruncata o pusca cu aer comprimat.Mai mult, s-a gasit si o arma militara n perfecta stare de functionare, la care era atasat un sistem artizanal de ochire cu laser, precum si gloantele aferente. Va reamintim ca, marti la prnz, Gheorghe Stetco a fost mirosit de jandarmii care asigurau paza la Palatul de Justitie din Baia Mare.Dupa ce l-au legitimat, oamenii legii au gasit asupra lui un pistol armat cu gloante de cauciuc, un cutit cu lama de 10 centimetri si un spray paralizant-lacrimogen. Atunci, borseanul a sustinut ca nu stia ca nu poate intra n institutie cu armament si ca nu a vrut sa faca nici un rau.Pistolul l port tot timpul cu glont pe teava. Pai pna scot pistolul, l armez, atacatorul ma omoara. De cnd am fost njunghiat le port cu mine ca masura de precautie, a declarat atunci

Stetco. El a sustinut ca are acte pe arma si ca totul este legal.n urma cercetarilor ulterioare insa, politistii au descoperit ca barbatul avea aviz de detinere a pistolului, dar nu avea aviz de portarma. El trebuia sa tina pistolul n cutie, ntr-un dulap nchis. Nu a facut acest lucru. Drept urmare, este cercetat penal pentru port ilegal de arma neletala si port ilegal al cutitului, a declarat purtatorul de cuvnt al IPJ Maramures, comisarul Voichita Zehan. n baza unei ordonante emise de Judecatoria Viseu de Sus s-a efectuat o perchezitie la domiciliul lui Gheorghe Stetco (55 ani), din Borsa. Nu mica le-a fost surprinderea politistilor cnd pe un pat au gasit o arma de vnatoare neletala cu aer comprimat si munitia aferenta. Aceasta nu era pastrata n conformitate cu prevederile legale, adica nchisa n dulap.n urma cercetarilor s-a stabilit ca pentru aceasta arma neletala suspectul are aviz de detinere. El a ncalcat legea pentru ca nu o pastra conform dispozitiilor legale. Mai mult, politistii de la Biroul Arme Explozivi Substante Toxice au descoperit si o arma militara de provenienta germana si 61 de cartuse aferente, a mai precizat comisar Voichita Zehan.Aceasta arma militara era n perfecta stare de functionare. Pe teava avea atasat un dispozitiv artizanal de ochire numit punct ochit, punct lovit cu laser. Cele 61 de gloante calibrul 7,62 mm erau functionabile. Ambele arme si munitia aferenta au fost ridicate n vederea confiscarii si expertizarii. Pentru aceasta arma militara, barbatul este acuzat de comiterea infractiunii de detinere ilegala de arma letala. Conform legii, borsanul poate primi ntre 3 si 10 ani de nchisoare. De altfel, politistii l-au prezentat instantei pe Gheorghe Stetco cu propunere de arestare preventiva. Magistratii de la Judecatoria Viseu de Sus au emis mandat de arestare preventiva pentru 29 de zile.