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DEPARTAMENTO DE IDIOMAS
De
FACULTAD DE DERECHO
UNIVERSIDAD DE BUENOS AIRES
AO 2014
2. Derechos Humanos
3. Contratos
7. Derecho Societario
8. Derecho de Familia
Texto 25Marriage
Texto 26: Floridas Adoption Information Guide
Texto 27: Grounds for Divorce
9. Derecho Sucesorio
Anticipe, segn los pasos anteriores, Cules son las palabras claves?
UNIDAD 1:
DERECHO CONSTITUCIONAL
The framers of the Constitution created three equal branches to prevent any one branch from
having too much power. Our countrys system of government rests on a separation of powers.
The legislative branch--Congress--makes the laws. The President and other executive branch
departments execute and enforce the laws. It is the job of the judicial branch to apply and
interpret the laws and to resolve disputes that arise under them. No branch may perform
functions reserved for the other branches. Federal courts may exercise only judicial powers and
perform only judicial functions, and judges may decide only cases that are before them.
The Constitution also creates a system of "checks and balances" among the three branches of
government. This means that each branch has some powers over the other branches. For
example, the President can veto legislation passed by Congress, which can, in turn, override the
veto. The President appoints most federal judges, but the Senate must approve them. The
courts interpret the laws that Congress enacts and may declare them unconstitutional.
What is judicial independence, and why is it important?
The founders of this country recognized that the judicial branch must remain independent to
fulfill its mission effectively and impartially.
Texto 2:
Fuente: http://www.uscourts.gov
The structure of the federal courts is roughly pyramidal. The Supreme Court is at the top of the
pyramid. The Supreme Court is the highest court in the federal
system. The Supreme Court is often called "the highest court in the land" because it hears appeals
from state courts as well as federal courts. The Supreme Court has nine justices and begins its term
on the first Monday in October of each year.
The Supreme Court hears most cases on appeal. Litigants appeal their cases from a state supreme
court or from a federal Court of Appeals must file for a "writ of certiorari". If four of the nine Justices
agree to issue a writ, the Court will hear the case. The Court also has limited "original jurisdiction"
in some cases.
The Federal Courts of Appeal are the middle part of the pyramid. The Courts of Appeal are divided
into twelve different regions, often known as "circuits". These courts are often known as "circuit
courts". Eleven of the twelve circuit courts handle cases from different states -- for example, the
Eleventh Circuit Court of Appeals in Atlanta handles cases from Alabama, Florida, and Georgia.
The twelfth circuit court is the Court of Appeals for the District of Columbia, and is located in
Washington. Additionally, there is also a United States Court of Appeals for the Federal Circuit,
which hears certain specialized cases.
The Federal District Courts are the lowest part of the pyramid. There are 94 judicial districts across
the country, including judicial districts in the District of Columbia, Puerto Rico, the Virgin Islands,
the Northern Mariana Islands, and Guam.
presented to them by the parties. In continental systems, on the contrary, court procedure is
inquisitorial, which means that judges investigate the case and collect evidence.
Equity
Equity comprises the rules developed by the common law courts in contrast to the rules
developed by the courts of equity or courts of chancery.
In the middle ages, in many situations there was no remedy available at common law.
Thus, a practice developed of appealing directly to the king or to his chief legal
administrator, the lord chancellor, and a new system of law developed alongside the
common law. This system, equity, aimed at achieving more justice and fairness. The two
main examples of equitable remedies are:
a) Injunctions: a court order which requires a party to do or refrain from doing specific
acts.
b) Specific performance: the right to force someone to fulfil a contract rather than simply
pay damages for breaking it.
Common law is then the part of law that is opposed to equity, the body of rules
administered by the old courts of equity/chancery (today, the Chancery Division of the
High Court of Justice). Courts of equity or chancery are still maintained as separate
jurisdictions in certain areas of the commonwealth and in some states of the United States.
Solicitor or Barrister?
The solicitor is the first point of contact with the law for a client in the UK. The solicitor
listens carefully to the client, making sure their needs are clearly understood and then
explains the legal position and tenders advice.
By contrast, barristers will only see the client in the company of a briefing solicitor. The
barrister is the specialist with particular skills in advocacy, a consultant who will examine
the case and decide what line to take in court. The barrister will be reliant on the detailed
brief prepared by the clients solicitor.
There are only a few solicitors who are allowed to present cases in the higher courts. Many
more solicitors work in their litigation departments and spend much of their time preparing
briefs for counsel. Barristers are self-employed in the independent Bar. Solicitors are
normally salaried and may be offered a share in the profits of the practice if they are
successful.
The Bar is an advocacy profession. The Bars right of audience in the higher courts remains
virtually unchallenged. The work divides equally between civil and criminal law. There are
over 70 specialist areas, including major ones like chancery (mainly property and finance)
and the commercial bar.
Judges in England and Wales have mostly been barristers of 10 years standing, then
Queens Counsellors, and are appointed by the Lord Chancellor.
Judges cannot work as barristers once they are appointed. A barrister who is a part-time
judge is known as a Recorder. The Crown Prosecutor, who works for the Director of Public
Prosecutions, is responsible for prosecuting criminals based on evidence presented by the
police.
Solicitors do a variety of work -corporate and commercial, litigation, property, private law,
banking and project finance, employment law and environmental law.
Attorney at Law
A person admitted to practice law in their respective state and authorized to perform both civil and
criminal legal functions for clients, including drafting of legal documents, giving of legal advice, and
representing such before courts, administrative agencies, boards, etc.
10
Prosecutor
One who prosecutes another for a crime in the name of the government. One who instigates the
prosecution upon which an accused is arrested or who prefers and accusation against the party
whom they suspect to be guilty, as does a district, county, or states attorney on behalf of the state,
or a United States Attorney for a federal district on behalf of the US government.
In Spain, the universities are in charge of the education of lawyers. Anyone completing a law degree
is entitled to be called a lawyer and may work as a lawyer for a legal practice or in a company.
However, to achieve public office and work for the State Judiciary, as a notary or judge, for example,
graduate lawyers must compete for places through public examinations and then attend judicial
school for two years. They then may be appointed as civil servants anywhere in the country.
11
UNIDAD 2:
DERECHOS HUMANOS
12
It is not manifestly politically motivated and its object is consistent with the Charter of the
United Nations, the Universal Declaration of Human Rights and other applicable instruments
in the field of human rights law;
It gives a factual description of the alleged violations, including the rights which are alleged
to be violated;
Its language is not abusive. However, such a communication may be considered if it meets
the other criteria for admissibility after deletion of the abusive language;
13
It does not refer to a case that appears to reveal a consistent pattern of gross and reliably
attested violations of human rights already being dealt with by a special procedure, a treaty
body or other United Nations or similar regional complaints procedure in the field of human
rights;
Domestic remedies have been exhausted, unless it appears that such remedies would be
ineffective or unreasonably prolonged.
National human rights institutions, established and operating under the Principles Relating
to the Status of National Institutions (the Paris Principles), in particular in regard to quasijudicial competence, may serve as effective means of addressing individual human rights
violations.
How to submit communications?
Please fill out the complaint procedure form if you consider that your communication
meets the abovementioned criteria.
Where to send communications?
Communications intended for handling under the Human Rights Council complaint procedure
may be addressed to:
Complaint Procedure Unit
Human Rights Council Branch
Office of the United Nations High Commissioner for Human Rights
United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
Fax: (41 22) 917 90 11
E-mail: CP@ohchr.org
14
You are kindly requested to submit your complaint in writing in one of the six official
UN languages (Arabic, Chinese, English, French, Russian and Spanish) and to use these
languages in any future correspondence;
Anonymous complaints are not admissible;
It is recommended that your complaint does not exceed eight pages, excluding
enclosures.
You are kindly requested not to use abusive or insulting language.
I. Information concerning the author (s) of the communication or the alleged victim (s)
if other than the author
Individual
Group of individuals
NGO
Other
Last name:
First name(s): .
Nationality:
Address for correspondence on this complaint: ..
Tel and fax: (please indicate country and area code) .
E-mail: .
Website: .
Submitting the complaint:
On the authors own behalf:
On behalf of other persons:
15
National human rights institutions, established and operating under the Principles Relating to the Status of National
Institutions (the Paris Principles), in particular in regard to quasi-judicial competence, may serve as effective means of
addressing individual human rights violations.
16
2- If so, detail which procedure has been, or is being pursued, which claims have been made,
at which times, and the current status of the complaint before this body:
Yes
No
Date:
Signature: .
N.B. The blanks under the various sections of this form indicate where your responses are
required. You should take as much space as you need to set out your responses. Your
complaint should not exceed eights pages.
VII. Checklist of supporting documents
Please provide copies (not original) of supporting documents (kindly note that these
documents will not be returned) in one of the six UN official languages.
- Decisions of domestic courts and authorities on the claim made (a copy of the relevant
national legislation is also helpful):
- Complaints sent to any other procedure mentioned in section V (and any decisions taken
under that procedure):
- Any other evidence or supporting documents deemed necessary:
VIII. Where to send your communications?
Office of the United Nations High Commissioner for Human Rights- Human Rights Council Branch-Complaint
Procedure Unit- OHCHR- Palais Wilson
United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
Fax: (+41 22) 917 90 11
E-mail: CP@ohchr.org
Website: http://www.ohchr.org/EN/HRBodies/HRC/Pages/HRCIndex.aspx
17
18
ARTICLE 3
Prohibition of torture
19
UNIDAD 3:
CONTRATOS
20
What is a Contract?
A contract is an agreement; but not all agreements are contracts.A contract is sometimes defined
as a legally enforceable agreement.
Agreement
Agreement is reached when a firm offer is unconditionally accepted by the
offeree. The rules governing offer and acceptance form an important part of the case-law of
contract.
(a) The offer
An offer is a statement of the terms of a contract which the offeror is prepared to enter into with
the offeree.
(b) Acceptance
A valid acceptance operates to create a contract between offeror and offeree. An acceptance
must satisfy two requirements. First, it must be unqualified; secondly, it must be
communicated to the offeror.
21
(i)
Rejection
(ii) Revocation
An offer may be revoked by the offeror at any time before acceptance has taken place.
(iii) Lapse
Where the offeror stipulates that his offer is to remain open for a specified period of time,
the offer will lapse if not accepted within that period.
Consideration
(g) What is consideration?
It was said that consideration may consist either in some right, interest, profit or benefit
accruing to one party, or some forbearance, detriment, loss, or responsibility given,
suffered, or undertaken by the other.
22
E-contracts
Online contractual transactions are becoming increasingly common, and it is
essential that those entering such transactions examine the terms and
conditions carefully before clicking on I agree to indicate acceptance, as
courts are inclined to uphold agreements accepted in this way.
There are two main types of e -contracts: B2C contracts between businesses
and consumers, and B2B contracts, which are between businesses and
businesses. Obviously, there are jurisdictional issues that arise because of the
global scope of the Internet, and agreements affect the jurisdiction and
specify laws that will govern the tra nsactions. Technology also brings with it
other risks for companies. Data protection and privacy issues must be dealt
with by companies to limit their exposure to liability.
The need to regulate requirements concerning e-commerce contracts led to
the setting up of UNCITRAL Model Law on Electronic Commerce in 1996 to
set general conditions. It confirms that clicking I agree on a website
constitutes a valid form of consent and allows an offer to be made and
accepted in electronic form. UNCITRAL Mode Laws ha ve been enacted
nationally worldwide and are also important for developing countries, as ecommerce greatly facilitates and protects new businesses in accessing new
markets.
However, as with
automatically valid,
involved were fully
how clear the terms
website.
23
No paper needed
The most significant legal effect of the new e-signature law is to make electronic
contracts and signatures as legally valid as paper contracts. The fact that electronic
contracts have been given solid legal support is great news for companies that conduct
24
business online. Under the law, consumers can now buy almost any goods or servicesfrom cars to home mortgages- without placing pen to paper form. The law also benefits
business-to-business websites who need enforceable agreements for ordering supplies
and services. For all of these companies, the new law is essential legislation because it
helps them conduct business entirely on the Internet.
25
UNIDAD 4:
DERECHO PROCESAL CIVIL
26
clerk of court also keeps a record of each person who testifies and
marks for the record any documents, photographs, or other items
introduced into evidence. As the questioning of a witness proceeds,
the opposing attorney may object to a question if it invites the
witness to say something that is not based on the witness's personal
knowledge, is unfairly prejudicial, or is irrelevant to the case. The
judge rules on the objection, generally by ruling that it is either
sustained or overruled. If the objection is sustained, the witness is
not required to answer the question, and the attorney must move on
to his next question. The court reporter records the objections so
that a court of appeals can review the arguments later if necessary.
At the conclusion of the evidence, each s ide gives a closing
argument. In a jury trial, the judge will explain the law that is
relevant to the case and the decisions the jury needs to make. The
jury generally is asked to determine whether the defendant is
responsible for harming the plaintiff in some way, and then
to determine the amount of damages that the defendant will be
required to pay. If the case is being tried before a judge without a
jury, known as a "bench" trial, the judge will decide these issues. In
a civil case the plaint iff must convince the jury by a "preponderance
of the evidence" (i.e., that it is more likely than not) that the
defendant is responsible for the harm the plaintiff has suffered.
28
Although some cases are decided on the basis of written briefs alone, many
cases are selected for an "oral argument" before the court. Oral argument
in the court of appeals is a structured discussion between the appellate
lawyers and the panel of judges focusing on the legal principles in dispute.
Each side is given a short time usually about 15 minutes to present
arguments to the court.
The court of appeals decision usually will be the final word in the case,
unless it sends the case back to the trial court for additional proceedings,
or the parties ask the U.S. Supreme Court to review the case. In some cases
the decision may be reviewed en banc, that is, by a larger group of judges
(usually all) of the court of appeals for the circuit.
A litigant who loses in a federal court of appeals, or in the highest court of
a state, may file a petition for a "writ of certiorari," which is a document
asking the Supreme Court to review the case. The Supreme Court,
however, does not have to g rant review. The Court typically will agree to
hear a case only when it involves an unusually important legal principle,
or when two or more federal appellate courts have interpreted a law
differently. There are also a small number of special circumstances in
which the Supreme Court is required by law to hear an appeal. When the
Supreme Court hears a case, the parties are required to file written briefs
and the Court may hear oral argument.
30
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32
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34
Write to:
Chief Judge Jonathan Lippman
Continuing Jury Reform
25 Beaver Street, 11th Floor
New York, NY 10004
Send an E-mail
Call 1-800-NYJUROR [1-800-695-8767] or 212-428-2990
Directed by Gary Fleder. With John Cusack, Rachel Weisz, Gene Hackman, Dustin
Hoffman.
35
36
UNIDAD 5:
DERECHO PENAL Y PROCESAL PENAL
37
o
o
o
o
o
o
o
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o
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o
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TITLE V. VENUE
Rule 18. Place of Prosecution and Trial
Rule 19. [Reserved]
Rule 20. Transfer for Plea and Sentence
Rule 21. Transfer for Trial
Rule 22. [Transferred]
o
o
o
o
o
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o
o
o
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o
o
o
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o
o
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o
39
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strike a jury purely because of the juror's race or gender. Batson v. Kentucky, 476 U.S.
79(1986) (prohibiting race-based challenges); J.E.B. v. Alabama, 511 U.S. 127 (1994)
(prohibiting gender-based challenges).
Due Process requires that criminal defendants receive a fair trial. In high-publicity
trials, trial judges have the responsibility to minimize effects of publicity, perhaps by
implementing a gag-order on the parties and to eliminate outside influences during the
trial. An interesting question of outside influence went to the U.S. Supreme Court in
2007 in Carey v. Musladin, 549 U.S. 70 (2006). After the victim's family wore pictures of
the victim on buttons during the trial, the jury convicted Musladin of murder. The
Supreme Court overturned the Ninth Circuit's grant of post-conviction habeas relief for
a lack of due process because no clear federal rule existed regarding spectator conduct.
Due Process further commands that defendants have the right to call their own
witnesses, mount their own evidence, and present their own theory of the facts. In order
to properly mount a defense, the prosecution must turn over all evidence that will be
presented against the defendant and have pre-trial access to depose all of the
prosecution's witnesses.
Pre-trial would also be the point at which the defense might raise a defense of double
jeopardy, if such a defense existed in the particular case. The Fifth Amendment,
through the Double Jeopardy Clause prohibits states from charging the same defendant
with substantially the same crime on the same facts.
CRIMINAL TRIAL PROCEDURE
Once a trial begins, the U.S. Constitution affords further rights to criminal defendants.
Trying to avoid convicting an innocent defendant at all costs, the law only permits the
prosecution to overcome the defendant's presumption of innocence if they can show the
defendant's guilt beyond a reasonable doubt. This very high burden differs drastically
from a civil trial's much lower standard in which the plaintiff must only prove a claim
by a preponderance of the evidence.
One such right includes the right to cross-examine the prosecution's witnesses.
Defendants derive this right from the Sixth Amendment's Right to Confront Clause. The
U.S. Supreme Court took up the Right to Confront Clause in Giles v. California (076053)(2008). After domestic violence resulted in a woman's murder, the Supreme Court
overturned a court's admission of a murder victim's statements under a theory of
forfeiture by wrongdoing The Court reached this holding because the Framers did not
recognize the forfeiture exception to the Confrontation Clause at the time of the
Constitution's founding.
The Sixth Amendment guarantees a defendant the right to assistance of counsel during
trial. If a defendant cannot afford an attorney, the government is required to provide
the defendant an attorney. Such defendants receive legal representation from the Public
Defender's Office. The Federal Rules of Criminal Procedure provide that an accused
shall have access to counsel at every stage of the proceedings, beginning with the
defendant's initial appearance. If a defendant demands the presence of counsel during
police interrogation, police must stop the interrogation until the defendant's counsel is
present.
42
SENTENCING
Sentencing usually occurs immediately for infractions and misdemeanors. For such
minor infractions, penalties may include probation; fines; short-term incarceration;
long-term incarceration; suspended sentence, which only takes effect if the convict fails
to meet certain conditions; payment of restitution to the victim; community service; or
drug and alcohol rehabilitation.
More serious crimes result in the trier of fact hearing evidence and arguments from
both the prosecution and the defense regarding the appropriate sentence. Some
jurisdictions allow the judge, alone, to determine the sentence; others will have a
separate sentencing phase trial, complete with a new jury, to determine the sentence for
certain crimes.
During a sentencing trial, the prosecution presents evidence of aggravating factors, and
the defense presents evidence of mitigating factors. The U.S. Supreme Court has
interpreted the U.S. Constitution to protect the right to a jury sentencing trial for all
defendants facing the death penalty.
Before the judge announces the sentence, a defendant is entitled to allocution.
Allocution is the right of the defendant to directly address the judge without the help of
counsel. During this direct address, the defendant may offer a personal explanation of
any unknown facts, may ask for mercy, or may offer an apology for the criminal
behavior. This opportunity for defendants to show remorse or to offer the motivations
behind their criminal acts may influence whether the judge grants some leniency.
44
While awaiting the results of appeals, Capone was confined to the Cook
County Jail. Upon denial of appeals, he entered the U.S. Penitentiary in
Atlanta, serving his sentence there and at Alcatraz.
On November 16, 1939, Al Capone was released after having served
seven years, six months and fifteen days, and having paid all fines and
back taxes.
Suffering from paresis derived from syphilis, he had deteriorated greatly
during his confinement. Immediately on release he entered a Baltimore
hospital for brain treatment and then went on to his Florida home, an
estate on Palm Island in Biscayne Bay near Miami, which he had
purchased in 1928.
Following his release, he never publicly ret urned to Chicago. He had
become mentally incapable of returning to gangland politics. In 1946, his
physician and a Baltimore psychiatrist, after examination, both
concluded Capone then had the mentality of a 12 -year-old child. Capone
resided on Palm Island with his wife and immediate family, in a
secluded atmosphere, until his death due to a stroke and pneumonia on
January 25, 1947.
47
UNIDAD 6
DERECHO COMERCIAL
(TTULOS NEGOCIABLES)
48
49
50
Fuente: http://www.translegal.com/lets/negotiable-instruments-2
Negotiable Instruments
The law of negotiable instruments (also called commercial paper in the US) is an area
of commercial and business law which sets out the general rules that relate to certain
documents of payment. A negotiable instrument is a document which promises the
payment of a fixed amount of money and may be transferred from person to person.
Negotiable instruments have two functionsa payment function and a credit function.
This area of law started developing in the fourteenth century because merchants
needed a less risky and more convenient alternative to carrying large amounts of gold
or money, as well as ways of obtaining credit. This law was eventually codified, and
since 1882, in England, transactions in negotiable instruments are governed by the
Bills of Exchange Act. In the US, this area is regulated by the Uniform Commercial
Code, Article 3, which has been adopted in all states. The rules are very similar in
other common-law jurisdictions such as Canada, India and Pakistan.
In this context, the word negotiable means transferable; it does not mean open to
discussion or modification, as it does in a litigation context. Negotiability allows the
transfer of ownership from one party (the transferor) to another (the transferee) by
delivery or endorsement. Endorsement is the action of signing an instrument to make it
payable to another person or cashable by any person. That means merely signing your
name on the back of the document, or adding an instruction such as pay to the order
of Emily Burns
There are several types of common negotiable instruments including promissory notes,
certificates of deposit, cheques (US checks) and bills of exchange.
A promissory note is a document, signed by the person making the document,
containing an unconditional promise to pay a fixed sum of money to a named person,
to the order of a named person, or to the bearer (the person who is in physical
possession) of the document. Loans are typically formalized in promissory notes, and
since they often provide for payments over time, they function to provide credit to the
borrower who is the maker of the note.
A debenture (UK) or bond or secured debenture (US) has a similar function to a
promissory note; it is a written acknowledgment of debt, secured on the assets of a
company. In fact debentures are the most common form of long-term loan used by UK
companies.
51
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UNIDAD 7:
DERECHO SOCIETARIO
53
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idea of control through tax havens is to pitch one country's legal system against
another's and thus obstruct and slow down any investigation.
The anonymously controlled companies registered in tax havens control and direct UK
companies. The public has no idea who the real owners are and who they are really
dealing with. As part of the money laundering regulations banks subscribe to the
doctrine of "know your customer" (KYC), but without knowing the details of directors
they are happy to open bank accounts for companies controlled by anonymous
companies from tax havens. They may be providing banking and credit facilities to
criminals and terrorists. Accountants and lawyers frequently act as the UK postboxes
for the tax haven companies and are often the brains behind the secrecy structures. The
accounts of the UK companies controlled by companies from tax havens carry a clean
bill of health even though there is no public information about the individuals behind
these companies.
The current UK company law prioritises laissez-faire ideologies over concerns about
public safety, security and accountability. It is perfectly possible for Osama bin Laden,
al-Qaida and others to be operating UK companies and shifting funds through the
established banking network. A first step towards reform should to ban companies from
acting as directors of other companies. Only natural persons who are UK residents and
citizens should be allowed to become directors of companies.
57
UNIDAD 8:
DERECHO DE FAMILIA
Texto 25:Marriage
Texto 26: Floridas Adoption Information Guide
Texto 27: Grounds for Divorce
58
Marriage
Marriage is a civil contract entered into by both parties. The marriage contract
differs from ordinary contracts in that it cannot be dissolved by the parties but only
by the sovereign power of the state.
The validity of the marriage is determined by the laws of the place where the
marriage is contracted and validated.
In order for there to be a valid marriage, there must be the legal, mental and
physical capacity to enter into the marriage contract and the consent of the
parties.
a)
Legal impediments to the marriage contract may result from 1) one
or both of the parties being underage, 2) a marriage between relatives within
the prohibited degrees of relationship, and 3) a previous marriage (of one of the
persons) undissolved by death or divorce.
Where legal impediments exist there is a distinction between marriages which
are voidable (recognised until set aside in court) and those which are void (never
existed legally). For example, marriages where one or both of the persons are under
the age required by law are voidable and may be set aside only at the election of
one of the parties to the marriage.
b)
Mental Incapacity to Marry means that a person may be of unsound mind
or mentally incompetent; this may include insanity, imbecility, intoxication or
other states of mind that deprives a person of the use of reason. The marriage
contracted during the mental incapacity is voidable, but it may later be
ratified by this person if he /she subsequently becomes competent.
c)
Physical Incapacity to Marry or impotence to perform the marriage act may
render the marriage voidable. Impotence should not be confused with
sterility, the inability to procreate.
d)
Consent of Parties to Marriage: It seems unnecessary to say that consent
of the parties to the marriage is necessary for a valid marriage; yet there have
been many court cases in which the question of consent has been seriously
disputed. The law says that there is no valid consent to the marriage if there has
been a mistake on the part of one of the parties concerning whether there was
really a marriage.
59
Once you decide to pursue adoption, you will begin a mutual approval process. The specific process
may vary slightly in different parts of the state. Overall, the purpose of this process is twofold: to help
prospective adoptive parents decide whether they truly want to adopt a foster child and for The
Department of Children and Family Services to evaluate prospective adoptive parents. Not everyone
who completes the process will be approved to adopt.
Early in the process every prospective adoptive parent must complete the Model Approach to
Partnerships in Parenting (MAPP) training. The class usually meets once a week for 10 weeks. During
this time you will explore the issues of adoption and decide if you really want to adopt and, if so,
whether you would like to become a family for an older child, a group of brothers and sisters, or a
younger child with medical needs.
Case workers will visit your home one or more times to do a home study to help determine if you
would be a good prospective parent for a foster child and which child might fit you family. They will
interview you and your spouse, if you have one, and your children if you have any.
The kinds of topics you will discuss include:
Why you want to adopt a child
What your childhood was like
Your marriage (if applicable)
Your lifestyle and how it would accommodate a child
Your finances
Your parenting philosophy
You support system
As part of the home study, the case worker will contact your friends, relatives and employers for
character references.
You will be asked to see your doctor for a physical examination to determine your state of health, and
your doctor will be asked to supply your medical records for the past two years.
When your application has been approved, your name will join a pool of waiting families. The task of
the adoption staff is to match the strengths of the family with the needs of the child. In order to get
better acquainted with the children in need of a foster home, you may attend department-sponsored
events with children seeking families or look at the Children in Waiting brochures or the department's
adoption homepage on the Internet at http://www.adoptflorida.org.
When a "match" between your family and a child has been made, we will provide you with
information and a picture of the child. When you decide you want to meet the child, the adoption
counselor will arrange it for you. If you feel you and the child are right for each other, you will visit
60
together several times until everyone is comfortable, and then the child will come to live with your
family. To ensure everyone is happy with the adoption, there is a three month "adjustment" period
before the adoption is complete.
The process will be over when you finalize the adoption before a judge. Your child will receive a new
birth certificate with his or her new last name on it - yours. Then you and your child are a family in the
eyes of the law.
Source: http://adoptflorida.com
61
62
UNIDAD 9:
DERECHO SUCESORIO
63
Inheritance law is the area of the law that deals with how a
decedent's estate will be distributed or passed down to heirs upon his or
her death. Not only will inheritance law vary by country, but it may also
vary by states within a country or by religions within a co untry. In some
jurisdictions, these laws take the place of a last will and testament, while
in others they only determine the division of assets in the absence of a
will.
In the United States, when a decedent dies, his or her estate generally
goes through a legal process known as probate. During probate, the
decedent's last will and testament is admitted to the court for review. If
the decedent did not leave a will then the inheritance law of the state
where the decedent died will apply and the estate will pass to the heirs
through intestate succession. Intestate succession refers to the legal rules
that determine who will receive the decedent's assets and what
percentage they will rece ive
Intestate succession is a process through the property of someone who has
died without a valid will is transferred to heirs in accordance with
statute. In this case, rather than distributing property as specified in a
will, the executor of the estate follows regional law when determining
how to break up an estate. Intestate succession is actually quite common;
even wealthy people sometimes neglect to make wills or draft wills which
are not considered valid.
The term intestate means without a will. Someone can die intestate in
the sense that a will was never written or cannot be found, even if people
believe that it exists. The re can also be situations in which there is a will
present but it cannot be considered valid. This may be because it has not
been prepared properly or because it lacks witnesses. More complex legal
challenges to validity such as questions about whether or not the testator
was of sound mind may be litigated in court by surviving family
members.
When someone dies intestate and the assets of the estate exceed any
debts, a problem is presented because the decedent's wishes are not
known. By statute in most regions, the government dictates how estates
should be broken up. As a general rule, the surviving spouse is favored in
intestate succession, although some regions may also indicate that certain
property should pass to children. In rare cases where someone dies with
no surviving family members, the property may revert to the ownership
of the government.
U.S. inheritance laws do not distinguish between male and female heirs.
For instance, if the intestate succession laws of the state where the
decedent died dictate that the estate shall pass to the decedent's children,
then all children inherit equal shares. Of course, the decedent may give a
larger share to a male or female child in a will if he or she chooses to do
64
so. Absent a will, however, all heirs are treated equal regardless of
gender.
International inheritance law is often predicated on religious beliefs or
doctrines. As such, inheritance laws in countries outside the United States
may give preference to male heirs or exclude females from inheriting
altogether.
Muslim laws of inheritance traditionally excluded females from
inheriting at all. In more recent times, Muslim inheritance law has
evolved to allow females to inherit, but male heirs a re often given two
shares for every one share given to a female. In India, under the Indian
Succession Act of 1925, a daughter is only entitled to one -fourth of the
son's share of any inheritance.
Efforts are being made in some countries to change the prac tice of
favoring male heirs over their female counterparts. The Hindu Succession
Amendment Act of 1985 is one such example. Under the Act, female heirs
are now given equal treatment in the absence of a will and inherit in
equal shares to their male counter parts.
65
when
the
court
takes
into
Executor Duties
The executor plays the key role in the probate proceedings from the very
beginning. After residency and bond issues are r eviewed, and the court
officially appoints him or her as the executor, it is up to him or her to
collect and inventory the assets of the estate, pay all debts and expenses
of the estate, and then distribute property to the beneficiaries and
establish any trusts, if directed by the Will.
It will be the executor's responsibility to notify heirs, beneficiaries and
creditors, obtain a federal identification number for tax purposes, and
open a checking account in the name of the estate.
The executor must review all records to determine all of the assets of
your estate, and physically take custody of all assets which are subject to
probate. After taking custody, the executor must determine the fair
market value of the estate property, pay any debts still outstand ing,
resolve any claims by creditors, and pay the costs of all expenses
incurred in administering the estate. The executor may have to sell some
of the estate's assets to pay debts and expenses.
The executor is also responsible for preparing and filing dea th tax
returns. This can include the federal estate tax return and the state
inheritance and estate tax returns. He or she will also be responsible for
filing your final individual income tax return, the estate income tax
returns, and any necessary gift ta x returns.
Finally, it is the responsibility of the executor to distribute the remaining
estate assets to the beneficiaries, and to establish and fund any trusts
specified in the Will.
Closing the Estate
When all of the distributions to the beneficiaries h ave been made or are
nearing completion, a final report must be filed with the probate court
which summarizes all of the receipts and disbursements of the estate and
summarizes all other acts taken by the executor. A copy is provided to
the beneficiaries w ho have the opportunity to object to any items in the
report.
If the beneficiaries have no objections, the court will typically approve
the closing of the estate, the beneficiaries will sign receipts indicating
that they have received their distributions, the executor will file these
receipts, and the court will discharge the executor from duty.
67
Cost of Probate
There can be substantial cost involved in probating an estate, so it makes
sense to avoid or curtail full probate where possible and appropriate. If
it is not necessary to deal with possible claims against the estate or
challenges to the Will, if it's not necessary to have formal authority to
retitle the decedent's assets, and if it's not necessary for the court to
supervise the activities of the exec utor, court supervision and its related
costs can be dramatically reduced, or eliminated altogether.
Probate also involves executor and attorney fees, which, however, are
usually subject to state law limitations. Although such limits vary from
state to state, executor fees often range from 2 to 4 percent of the assets
that are subject to probate. Of course, many executors who are friends or
family members of the deceased agree to serve without a fee. An
attorneys fees will vary depending on the amount o f work spent on the
probate process, but they are usually based on the same guidelines as the
executor fees.
Time Spent in Probate
Probate proceedings are lengthy.
complete, and if it's necessary
proceedings can last well into a
state laws affect the length of the
The time it takes for distributions to reach beneficiaries also varies. The
usual time frame for the first dist ribution is from four to eight months
from the time of death, although most states have provisions for spouses
and minor children to receive distributions almost immediately.
Privacy Issues
When a Will is admitted to probate, it becomes public record. Not only
does the Will itself become public, but all documents involved in the
proceedings become public record and can be viewed by anyone desiring
access. Some people have legitimate reasons for viewing this loss of
privacy as a negative aspect of probate pr oceedings.
Probate without a Will
If you do not leave a Will, then the courts will take over the distribution
of your property. The probate court will first appoint an administrator,
whose duties will include the same asset gathering, debt paying and
distributing tasks as an executor would do who is designated by a Will.
However, a court -appointed administrator will usually have to post a
bond. The cost of the bond will be paid from your estate, using available
cash or else the proceeds from the sale of some property. Because there is
no direction from a Will to choose beneficiaries, the courts will
68
distribute the remaining assets according to state law. Most states give
top priority to the spouse, followed by surviving children.
The legal term for probate without a will is intestate proceed ings, and
the laws that govern estate distribution are called intestacy laws.
Short Form Probate
The duration and cost of the regular probate process can be minimized
for some small estates that do not exceed a certain value. Every state but
Montana and North Carolina has some sort of Small Estate
Administration, but they differ on what exactly qualifies as a small
estate.
If the laws in your state allow your estate to qualify as a small estate,
then a more economical and streamlined approach can be used to
distribute your property. While most of these laws qualify an estate
based strictly on the size of your estate, some states also require consent
of the heirs before allowing short form probate.
There are circumstances in which you can avoid the probate pr ocess
altogether. A very common way is through the establishment of a living
trust and the transfer to the trust, while you are alive, of substantially all
of your assets. Living trusts are governed by their own provisions and
they need not end immediately at your death. Therefore, if the trust is
the titleholder to your property, there is no need to go through probate
to retitle those assets out of your name. Instead, the successor trustee
merely distributes the trust assets to the beneficiaries that you h ave
specified in the trust document. Similarly, life insurance, pension plans,
and retirement accounts are payable directly to a named beneficiary, and
therefore are neither governed by the Will nor require probate. Finally,
property owned jointly with sur vivorship rights passes automatically to
the survivor, and is not subject to the Will or probate proceedings.
69
TEXT 30:
Fuente: http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ip26chp07
7. Distribution when no relatives are entitled
BON A V AC ANTI A
7.1 Bona vacantia is the Crowns st atutory right to the property of an intestat e
estate, to which no relat ives are ent itled. In most jur isdictions when the
intestat e is not sur vived by a spouse or partner, issue, parents or remoter
eligible r elatives, the Crown (or Territor y) is ent itled to the intestat es estat e
by bona vacantia.
7.2 The possibilit y of an intestates estat e passing t o the Crown may not be so
unlikely as it once was, given the reduction in the size of the average f amily in
Australia and the higher incidence of single child f amilies. The f ollowing
hypothetical example illustrates the point:
Alan died intestate leaving no spouse and no issue. Alan was an only child of
parents each of whom was an only child. His parents and all of his
grandparents had pr edeceased him.
A f urther example m ay be f ound in a 1991 case where one third of the large
estate of an elder ly woman ( w ho lef t no r elat ives entit led on intestacy) went on
partial intestacy to the Crown, contrar y to her intent ion, because her will was
badly drawn.
7.3 In the Australian Capital Territor y, conditions are imposed upon the public
trustee wher e the Territor y is entit led to an intestate estate. The estate must
be held in trust unt il six years have passed since the date of death of the
intestat e. At that point the estate must be sold and the proceeds paid to the
Territory ( less all costs and charges lawf ully due to the public trustee or any
other person).
7.4 An alternat ive proposal could be to enact a provision whereby the
intestat es estate g oes to a char it y or charit ies r ather than to the Crown. In
1985 the Law Ref orm Commission of Tasmania noted:
The Commission believes that most people would pref er their estate to go to
charit y t han to the Crown, given t hat no close f amily exist at the time of their
death. Alt hough many people m ight obj ect to the propert y going to the State
rather than to relat ives of the deceas ed, they are less lik ely to object to it
going to charit y.
However, the Tasm anian proposal would involve the establishment of a
Char ities Board to distr ibute the f unds received. Unif orm national legislation
would then requir e the creat ion of a charities boar d in each jurisdiction. The
Law Commission of England and W ales was opposed t o such a proposal as the
chosen char it y would, then, also have t he job of administer ing the intestate
estate and would be required to account to any benef iciar ies that are
subsequently discovered.
7.5 A provision to similar ef f ect has been enacted in Queensland with respect
to Indigenous people who die intestate. In cases where the chief executive of
the Abor iginal and Islander Af f airs Corporation is unable to determine that a ny
person is entit led to succeed to the estate or a part of the estate, that propert y
70
shall vest in the chief executive who shall apply the moneys or the proceeds
of the sale of any propert y (less the expenses (if any) of such sale) f or the
benef it of [Ab origines/Islanders] generally under the schemes whereby the
chief execut ive may grant aid to Indigenous persons who apply f or it on such
terms as the chief executive may think f it.
ISSUE 7.1
Are the present provisions for the di sposal of intestate estate s w here no
relatives of the int estate are entitled to distribution under the rules of
intestacy satisfact ory?
PROVISION FOR DEPEND ANTS
7.6 A number of jurisdict ions allow the Crown to provide f or dependants f or
whom the intestate might have been reasonably expect ed to have m ade
provision, or who might be said to have a moral claim against the estate. I n
New South W ales the Crown Solicitor has published guidelines on the
procedure f or applications.
7.7 Such a provision was designed to include f oster children and will cover
also the situat ion of an old f riend, say, who looked af ter the intestate in the
last days of his lif e. Such a provision could also be used, albeit in limit ed
circumstances, to provide f or step childr en of the intestate who are oth er wise
not entit led to distr ibution on intestacy.
7.8 The provision can be seen to be stat utory recognition of the common law
right of certain dependants of the intest ate who, although not ent itled at law,
may nevertheless petit ion the Crown f or a waiver of its rights of bona
vacant ia in any estat e in respect of which there are no legal next of kin. It has
been noted, at least in New South W ales, that the provision allowing
dependants to make application was of particular importance to de f acto
couples, both heter osexual and same -sex, bef ore the ref orms of 1984 and
1999 respectively, since they could not apply under f amily provision
legislat ion.
7.9 Certoma has criticised the discr etionar y nature of this provision and
argues that, at least in New South W a les, it implies that the intestate would
not reasonably have been expected to make provision f or a relative as close
as a f irst cousin. It would, one would suspect, be diff icult to imagine that any
testator would pref er the Crown as bona vacantia rather than to benef it his
closest relatives.
7.10 It can be argued that such a provision is no longer necessar y given the
broader scope of f amily pr ovision legislation to cover dependants. In any case,
the recommendat ions of the National Committee in relation t o f amily provision
would appear to cover the situat ion, whereby a person, whet her or not they are
a member of the f amily of a deceased person, may apply f or a f amily provision
order if they are a person to whom [the] deceased person owed a
responsibilit y to pr ovide maintenance, educat ion or advancement in lif e. In
making a f amily provision order in r elation t o such an application, the court
may have regard to whether the applicant was being maintained, either wholly
or partly, by the deceased person bef o re the deceased persons death.
7.11 It is important to dist inguish bet ween the nat ure of an application under
f amily pr ovision and the nature of an applicat ion f or provision out of bona
71
vacant ia. In the case of a claim f or family provision a person, who is not
entit led to a share of the deceaseds estate, may only make a claim if they
were being maint ained by the deceased or over whom t he deceased had
responsibilit y. In t he case of an applicat ion f or provision out of bona
vacant ia application may be made by a person who has a pur ely moral claim to
a share of the estate, f or example, f oster children.
ISSUE 7.2
Should unif orm legislation allow persons to petit ion the Crown to make
provision f or them out of bona vacant ia?
ISSUE 7.3
If so, what cr iter ia should be used to identif y the people who are ent itled to
apply?
72
UNIDAD 10:
DERECHO DE DAOS
73
74
commit a crime, on the ground that an insane person lacks intent, may nonetheless be held
liable for committing a tort. A lunatic who escapes from an insane asylum with a gun, breaks
into a house and shoots up the china and puts a bullet or two in the owners thigh would be
held liable for damages for trespass, battery and the value of the china he broke if the
homeowner chose to sue him. But he might well escape criminal prosecution either for
breaking and entering the house or for assault and battery on the owner.
75
DEFAMATION
A false statement that harms a persons reputation The tort of defamation includes both
libel and slander. If the statement is published, it is libel, if spoken, it is slander. To
establish a prima facie case of defamation, four elements are generally required: a false
statement purporting to be a fact concerning another person or entity; publication or
communication of that statement to a third person; fault on the part of the person making
the statement amounting to intent or at least negligence; and some harm caused to the
person or entity who is the subject of the statement.
TRESPASS
The act of entering someone's property without permission or authority. (Although it
usually refers to real estate, trespass can apply to personal property as well.) Trespassing
can be a tort (a civil wrong, which the property owner can sue over) and can be a crime if
it's done willfully. Under Tort Law, a property owner may bring a Civil Law suit against a
trespasser in order to recover damages or receive compensatory relief for injury suffered
as a direct result of a trespass. In a tort action, the plaintiff must prove that the offender
had, but knowingly violated, a legal duty to respect another persons right to property,
which resulted in direct injury or loss to the plaintiff.
NEGLIGENCE
A failure to behave with the level of care that someone of ordinary prudence would have
exercised under the same circumstances. The behavior usually consists of actions, but
can also consist of omissions when there is some duty to act (e.g. a duty to help victims
of one's previous conduct).
Five elements are required to establish a prima facie case of negligence: the existence of
a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in
fact of physical harm by the negligent conduct; physical harm in the form of actual
damages; and proximate cause, a showing that the harm is within the scope of liability.
NUISANCE
Something that interferes with the use of property by being irritating, offensive,
obstructive, or dangerous. Nuisances include a wide range of conditions, everything from
76
a chemical plant's noxious odors to a neighbor's dog barking. The former would be a
public nuisance, one affecting many people, while the other would be a private nuisance,
limited to making your life difficult. Lawsuits may be brought to abate (remove or reduce)
a nuisance.
77
speak of intent or the 'intentional act' as the basis of fault liability in four principal
instances:
(a) the deliberate or wilful conduct of the defendant (for example where the
defendant wilfully or deliberately hits the plaintiff in the face);
(b) constructive intent (in cases where the consequences of the defendant's conduct
are substantially certain or foreseeable as for example where the defendant throws a
brick into a crowded room and hits the plaintiff);
(c) where the defendant's conduct is reckless (for example, where the defendant kicks
or throws arms around without consideration for the safety of the plaintiff who is
near, and subsequently causes injury to the plaintiff); or
(d) transferred intent where the defendant intends to hit B but misses and hits P
instead the defendant would be taken as having intended to hit P.
The element negligence. There are two senses in which the law of torts deals with
negligence. In its 'ordinary' meaning, negligence simply refers to a careless conduct of
the defendant as opposed to a wilful conduct. However in tort law, the term
negligence is used more commonly in its technical sense to mean the breach of a duty
by the defendant consisting of his or her failure to take reasonable care to avoid a
reasonably foreseeable harm to another person. A significant section of the law of
torts is based on this notion of negligence.
Causes of action. Before a person can sue another in tort, he or she usually has to fit
the facts of the case into the framework of a recognised cause of action. There are
two principal forms of actions in torts. These are actions in trespass and actions in
negligence. In addition to these two there is a range of related torts which are dealt
with later in this text.
Interests protected in tort law. Like other branches of law, the law of torts protects
specific interests, these include:
(a) personal security (through the torts of trespass and negligence);
(b) personal reputation (through the tort of defamation);
(c) property rights (through trespass and conversion); and
(d) economic and financial interest (through trespass and conversion).
Trespass: An intrusion or infringement on another.
Trespass implies willful intrusion on another's rights, possessions, or person: "In the
limited and confined sense [trespass] signifies no more than an entry on another man's
ground without a lawful authority" (William Blackstone).
Infringement is most frequently used to denote encroachment on another's rights:
"Necessity is the plea for every infringement of human freedom" (William Pitt the
Younger).
Conversion: The unlawful appropriation of another's property.
Any unauthorized act that deprives an owner of personal property without his or her
consent.
The wrongdoer converts the goods to his or her own use and excludes the owner from
use and enjoyment of them.
The type of property that can be converted is determined by the original nature of
the Cause of Action. It must be personal property, because real property cannot be
lost and then found. It must be tangible, such as money, an animal, furniture, tools,
80
or receipts. Crops or timber can be subject to conversion after they are severed from
the ground. The rights in a papersuch as a life insurance policy, a stock certificate,
or a promissory notecan be converted by one who appropriates the paper itself.
81
Vol. 30, No. 46 July 15, 2002 http://www.masslawyersweekly.com $7.75 per copy
JUDGE DIANNE M.
KOTTYMER
Plaintiff must show coffee was
unreasonalby hot
by John O. Cunningham
Lawyers say there is a dearth of state decisions on the critical elements
of coffee-burn casesand an apparent split in authority, but that may
soon change as such suits become more common.
In two recent cases brought by pl aintiffs burned by hot coffee, Superior
Court Judge Diane M. Kottmyer dismissed one case by summary
judgment, but District Court Judge Leah W. Sprague ruled that a similar
suit should be decided at trial.
The two court decision, respectively, are: Martinelli v. Custom Accessories,
Inc., Lawyers Weekly No. 12 -143-02; and Guay v. Starbucks Coffee
Company, Lawyers Weekly No. 16 -016 02. Jeffrey S. Stern of Boston
reported that he settled a third case for a plaintiff in Middlesex Superior
Court early this year.
Local lawyers say that coffee burn cases are much more complicated than
the media portrayal of the seminal McDonalds coffee case.
But recent Massachusetts rulings show that there are indeed good -faith
claims of coffee being brewed at dangerous temper atures higher than the
industry standards.
Attorneys for plaintiffs and defendants agreed that hot coffee is
normally brewed at temperatures that can cause second degree burns
almost instantly.
But lawyers differ on the relevance of industry standards fo r brewing
and serving coffee, the need for explicit warning about the dangers of
82
Cicero argued that Dunkin Donuts selects the container and lid
arrangement knowing that hot coffee purchased at a drive -up window
has to be transported away in an auto.
He maintained the lid in his case was not designed to stay on the
container if it fell over.
Stern, who ha ndled a case involving an exploding coffee maker, said that
getting hit with hot coffee can be like getting hit with napalm. He
suggested that retail practices should take account of the fact that
coffee is brewed at inherently dangerous temperatures.
Summary Judgment Denied
Plaintiff Gail Guay brought an action against Starbucks Coffee Co. at the
end of 1998 for damages allegedly resulting from the defendants
negligence, breach of implied warranties and failure to warn.
The plaintiff suffered second -degree burns when she accidentally spilled
a cup of black coffee purchased at the defendants Newburyport store on
May 30, 1998.
The judge noted that the defendant contended that it should be
absolved of liability as a matter of law because it at all ti mes complied
with prevailing standards in the industry regarding the temperature at
which coffee is brewed and served.
But Sprague added that such compliance is not the sole determinative
factor in assessing liability.
She said the defendants neglig ence is not an issue of law but is an issue
to be determined by the trier of fact at trial.
Sprague suggested that the finder of fact is to consider all relevant
factors, one of which may be the defendants compliance with the custom
or practice of its trade.
The judge also emphasized that the plaintiff has produced ... the
affidavit of an expert, Richard Fraser, M.D. who is prepared to testify
that the excessive temperature of the coffee plaintiff purchased from the
defendant was the direct and pr oximate cause of the plaintiffs injuries.
Summary Judgment Granted
On June 12, 1997, plaintiff Lynda Martinelli purchased a cup of hot
coffee in a Styrofoam cup with a lid at the drive -up window of a Dunkin
Donuts at 980 Eastern Ave. in Malden.
After purchasing the coffee, the plaintiff affixed a plastic cup holder to
the door of her vehicle to hold the covered cup in place. When she made
a sharp turn into her driveway, the cup holder and the coffee fell onto
her side and coffee spilled out of th e cup burning her left hip and thigh.
The plaintiff sued the vendor, the maker of the cup holder and other
defendants in Middlesex Superior Court in the year
2000.
84
The judge granted summary judgment for Dunkin Donuts and its
franchisee who served the c offee because there was no indication that
the cups failed to contain their contents under foreseeable conditions
where they would reasonably be expected to do so.
Kottmyer said that the plaintiff must adduce evidence that the coffee
was defective or u nreasonably dangerous by virtue of being hotter than
it should have been. She also emphasized that heat is an inherent
feature of a cup of coffee.
The judge noted that coffee is customarily served and intended to be
consumed as a hot beverage. Given th e nature of the product, the fact
that the coffee was hot enough to burn skin on contact is insufficient to
satisfy their burden, Kottmyer said.
She asserted that the plaintiff must show that the coffee was
unreasonably hot to survive summary judgment, and she added that
there was no evidence that the cup and lid violated any applicable
standard or were otherwise unreasonable in design.
Settling Out
In Sterns case, a glass French press type of coffee maker exploded due
to failure of the glass comp onents to homogenize evenly during
manufacturing.
The fact that coffee grounds were mixed with the water worsened the
burn injury suffered by the plaintiff, a 41 -year-old woman, because the
mixture adhered to her thigh.
Stern said he engaged an expert c eramicist from MIT, Yet -Ming
Chiang, to analyze the product and explain how the catastrophic failure
occurred.
He also argued that a design defect failed to include a feasible enclosure
around the glass which could have minimized the injury.
The case settled at mediation after depositions of the plaintiff and her
husband. Stern said that getting early and effective expert assistance on
glass and ceramic fractures was a critical key to settlement.
Questions or comments may be directed to th e writer at jcunningham@lawyersweekly.com.
P l a i n ti f f G a i l G u a y
s u f f e r e d s e c on d d e g r e e bu r n s on h e r
f o o t d u e t o a c of f e e
bu r n .
G u a y s c a s e r e c e n tl y
survived summary
j u d g e m e n t i n s ta t e
D i s tr i c t C ou r t.
85
UNIDAD 11:
DERECHO INTERNACIONAL
PRIVADO
86
Fuente: http://www.hg.org/international-law.html
International Law, unlike most other areas of law, has no defined area or
governing body, but instead refers to the many and varied laws, rules and customs
which govern, impact and deal with the legal interactions between different nations,
their governments, businesses and organizations, to include their rights and
responsibilities in these dealings.
The immense body that makes up international law encompasses a piecemeal
collection of international customs; agreements; treaties; accords, charters (i.e. the
United Nations Charter); protocols; tribunals; memorandums; legal precedents of
the International Court of Justice (aka World Court) and more. Without a unique
governing, enforcing entity, international law is a largely voluntary endeavor,
wherein the power of enforcement only exists when the parties consent to adhere to
and abide by an agreement.
Due to the diverse legal systems and applicable histories of different countries, laws
addressing international law include both common law (case law) and civil law
(statutes created by governing bodies). Their application covers all the facets of
national law, to include substantive law, procedure, and remedies.
There are three main legal principles recognized in much of international law, which
are not required, but are based chiefly on courtesy and respect:
- Principle of Comity - in the instance where two nations share common public policy
ideas, one of them submits to the laws and judicial decrees of the other.
- Act of State Doctrine - respects that a nation is sovereign in its own territory and
its official domestic actions may not be questioned by the judicial bodies of another
country. It dissuades courts from deciding cases that would interfere with a countrys
foreign policy.
- Doctrine of Sovereign Immunity - deals with actions brought in the court of one
nation against another foreign nation and prevents the sovereign state from being
tried in court without its consent. In the U.S., this is governed by the Foreign
Sovereign Immunities Act (FSIA) of 1976.
To be determined a sovereign state a nation must run its own government, with its
own territory and population.
There are both national laws and international agreements which govern/regulate
international business transactions, which include investments, offshore banking,
contracts, imports/exports, tariffs, dumping, trade and more.
Although there is no definitive governing body overseeing international law, the
United Nations is the most widely recognized and influential international
organization and the International Court of Justice (ICJ) is its judicial counterpart.
International law may further be broken down as public or private. Public
International law covers the rules, laws and customs that govern and monitor the
conduct and dealings between nations and/or their citizens. The UN deals largely
with public international law. Private International law (Conflict of laws) handles
disputes between private citizens of different nations.
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trade
is
the
exchange
of
goods
[or]
services
between
have
negotiated
numerous
international
treaties
and
trade
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business
(2) Manufacturing
units:
and
(1) U.S.
Services,
and
(3) Market
Foreign
Access
Commercial
and
Service,
Compliance,
and
Trading
System
Past,
Present
and
Future (2010).
The
WTO provides a forum and a "legal and institutional framework" for its member
to negotiate, implement, monitor, and resolve disputes relating to international
trade agreements.
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If a child is abducted from New Zealand, the child is returned to New Zealand so that issues of
parental responsibility can be resolved by the Family Court. If a child is wrongfully retained in
New Zealand, the child is returned to their country of habitual residence.
The Hague Convention assumes that the courts in the child's country of habitual residence are best
able to make decisions about the best interests of the child.
The Convention sets up a Central Authority in each country to deal with applications for the return
of children taken to or from each country. The Chief Executive of the Ministry of Justice is the
Central Authority for New Zealand.
What are the aims of the Hague Convention?
The Convention allows parents to seek the return of children who are wrongfully retained in
another country, for example at the end of a contact visit.
Further, the Convention allows parents to seek assistance in obtaining contact with their
children who live with another parent overseas
What are the requirements for a successful application for the return of my Child?
To ensure that a child can be returned from another Hague Convention Country the following
requirements must be met:
You must have been exercising the rights you had in relation to your child when the child was
taken out of New Zealand. (For example, if you had contact (access) rights, you were using
these rights to spend time with your child, and you can no longer do this);
Your child must have been habitually resident in New Zealand right before the child was
taken overseas;
Your child has been taken to or retained in a country which is a party to the Hague
Convention;
Your child must have been taken or retained out of New Zealand without your prior consent
or the consent of the Court.
If these conditions are satisfied, you may be able to ask for your child to be brought back to New
Zealand through the government authorities.
In some cases, the person who took your child out of New Zealand will oppose the child being
returned to New Zealand, and the Court will consider their reasons for doing this.
If you want to seek the return of your child, it is important to take action as soon as you discover
that the child has been taken from New Zealand or kept overseas. Any delay may later be seen as a
lack of concern about the child being overseas.
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UNIDAD 12:
DERECHO INTERNACIONAL
PBLICO
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Public International Law is the law of the political system of nation-states. It is a distinct and
self-contained system of law, independent of the national systems with which it interacts,
and dealing with relations which they do not effectively govern. Since there is no overall
legislature or law-creating body in the international political system, the rules, principles,
and processes of international law must be identified through a variety of sources and
mechanisms. This can make international law appear difficult to pin down. Students and
scholars in the United States often use the Restatement of the Law (Third), the Foreign
Relations of the United States as a guide to identifying international law as applied in the
US.
ALI Restatement 3rd, Section 101, International Law Defined:
"International law, as used in this Restatement, consists of rules and
principles of general application dealing with the conduct of states
and of international organizations and with their relations inter se,
as well as with some of their relations with persons, whether natural
or juridical."
From the Oxford English Dictionary:
"[I]nternational law, the law of nations, under which nations are
regarded as individual members of a common polity, bound by a
common rule of agreement or custom; opposed to municipal law ,
the rules binding in local jurisdictions."
Institutions Involved in the Process
As international law developed in the 17th and 18th centuries, it was widely understood that
it was a tool for relations between nation-states. Individuals had no role in the process which
resolved disputes between states except as representatives of the states, such as diplomats or
naval officers. The classic player is the sovereign body of the nation in whatever form it
takes for a given state. It can be the President, Prime Minister, King, or Queen, but it is now
often the bureaucratic representation of the sovereign power, such as the State Department,
the Foreign Ministry, the military, etc. Until the middle of the 20th Century, international
law consisted primarily of custom. More recently, customary international law has been
increasingly codified.
While that part of the governmental entity charged with foreign relations will have the lead
role in developing international law for the country, in practice each subunit of a government
has some ability to create what can be recognized as International Law. In the United States,
for example, the Executive Branch (acting through the State Department) may sign a treaty,
but the President ratifies it with the "advice and consent" of the Senate, and the Congress as
a whole may pass laws implementing it. In addition, administrative agencies can make and
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enforce regulations implementing the treaty and the statutes, and the courts can interpret any
of the above and use non-treaty related international law as an exercise of their judicial
power.
On the global scale, international organizations such as the United Nations and the European
Union have become extremely important as forums for creating international law. The most
recent development in this area has been the recognition that there is a role, within the sphere
of public international law, for individuals to pursue remedies against sovereign nations.
Identification of Authoritative Texts
The Charter of the United Nations establishes the International Court of Justice (ICJ) as the
principal judicial organ of the UN. The treaty which establishes the ICJ is informally known
as the Statute . Article 38 of this "Statute" furnishes an indirect answer to the question:
What are the texts of international law? The article is written in terms of what sources the
court will use in order to resolve a dispute. These sources include treaties, customary law,
case law, academic writings, and general principles of law. Article 38 reads:
"1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted
as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide
a case ex aequo et bono , if the parties agree thereto."
A different presentation of these ideas can be found in the Restatement of the Law 3d:
Foreign Relations Law of the United States , Articles 102 (Sources of International Law) and
103 (Evidence of International Law).
102 Sources of International Law
(1) A rule of international law is one that has been accepted as such
by the international community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal
systems of the world.
(2) Customary international law results from a general and consistent
practice of states followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties
thereto and may lead to the creation of customary international law
when such agreements are intended for adherence by states
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well as applications from States, those three courts can entertain applications from individuals,
which is not possible for the International Court of Justice.
The jurisdiction of the International Court of Justice is general and thereby differs from that of
specialist international tribunals, such as the International Tribunal for the Law of the
Sea (ITLOS).
Lastly, the Court is not a supreme court to which national courts can turn; it does not act as a
court of last resort for individuals. Nor is it an appeal court for any international tribunal. It
can, however, rule on the validity of arbitral awards.
5. Why are some disputes between States not considered by the Court?
The Court can only hear a dispute when requested to do so by one or more States. It cannot
deal with a dispute of its own motion. It is not permitted, under its Statute, to investigate and
rule on acts of sovereign States as it chooses.
The States concerned must also have access to the Court and have accepted its jurisdiction, in
other words they must consent to the Court"s considering the dispute in question. This is a
fundamental principle governing the settlement of international disputes, States being
sovereign and free to choose the methods of resolving their disputes.
A State may manifest its consent in three ways:
- A special agreement: two or more States in a dispute on a specific issue may agree to
submit it jointly to the Court and conclude an agreement for this purpose;
- A clause in a treaty: over 300 treaties contain clauses (known as compromissory clauses)
by which a State party undertakes in advance to accept the jurisdiction of the Court should a
dispute arise on the interpretation or application of the treaty with another State party;
- A unilateral declaration: the States parties to the Statute of the Court may opt to make a
unilateral declaration recognizing the jurisdiction of the Court as binding with respect to any
other State also accepting it as binding. This optional clause system, as it is called, has led to
the creation of a group of States each having given the Court jurisdiction to settle any dispute
that might arise between them in future. In principle, any State in this group is entitled to
bring one or more other States in the group before the Court. Declarations may contain
reservations limiting their duration or excluding certain categories of dispute. They are
deposited by States with the Secretary-General of the United Nations.
6. Are decisions of the Court binding?
Judgments delivered by the Court (or by one of its Chambers) in disputes between States are
binding upon the parties concerned. Article 94 of the United Nations Charter lays down that
"each Member of the United Nations undertakes to comply with the decision of [the Court] in
any case to which it is a party".
Judgments are final and without appeal. If either of the parties challenges their scope or
meaning, it has the option to request an interpretation. In the event of the discovery of a fact
hitherto unknown to the Court which might be a decisive factor, either party may apply for
revision of the judgment.
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As regards advisory opinions, it is usually for the United Nations organs and specialized
agencies requesting them to give effect to them or not by whatever means are appropriate for
them.
(. . .)
100
Copyright
United Nations
2005
101
Principles of International Law Recognized in the Charter of the Nremberg Tribunal and
in the Judgment of the Tribunal
Principle I
The fact that internal law does not impose a penalty for an act which
constitutes a crime under international law does not relieve the person who
committed the act from responsibility under international law.
Principle III
The fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible Government
official does not relieve him from responsibility under international law.
Principle IV
Any person charged with a crime under international law has the right to a
fair trial on the facts and law.
Principle VI
(ii)
(b)
for
the
War crimes:
Violations of the laws or customs of war which include, but are not
limited to, murder, ill- treatment or deportation to slave-labour or for
any other purpose of civilian population of or in occupied territory,
murder or ill-treatment of prisoners of war, of persons on the seas,
killing of hostages, plunder of public or private property, wanton
destruction of cities, towns, or villages, or devastation not justified by
military necessity.
(c)
103