Hersey and Wolfe were given to issuing restrictive obiter dicta about nonfiction writing.
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Its obiter dictum on politics—whether far right or far left, everyone is equally questionable—in this US election year rings particularly false.
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From here, Solar Obiter embarks on a journey that will take just over a year and a half, and include two close passes to Venus and Earth in order to take advantage of their gravitational pull to propel the spacecraft toward its target destination while conserving as much fuel as possible.
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Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts. The phrase obiter dicta is usually translated as "other things said", but due to the high number of judges and individual concurring opinions, it is often hard to distinguish from the ratio decidendi (reason for the decision). For these reasons, the obiter dicta may often be taken into consideration by a court.
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'The State (Furey) v Minister of Defence' also involved an army member being dismissed from service. De Roiste had relied on the obiter dictum set out in Furey. Obiter dictum is a Latin phrase meaning 'by the way'. It is an opinion or non-necessary remark made by a judge.
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This has been followed in Scotland in Wright v Paton Farrell (2006) obiter insofar as civil cases are concerned.
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Scottish decisions (and decisions from the USA and common law jurisdictions in the Commonwealth) are, like obiter dicta, merely persuasive in England.
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Obiter, the court also recognised the possibility of a servitude right of parking in Scottish law and an easement of parking in English law.
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However, such comments were not necessary for the decision in the case, and in law were only obiter dictum and not binding on subsequent courts.
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Birrell found success as a writer with the publication of a volume of essays entitled Obiter Dicta in 1884. This was followed by a second series of Obiter Dicta in 1887 and Res Judicatae in 1892. These, despite their titles, were not concerned with law, but he also wrote books on copyright and on trusts. Birrell wrote, and spoke, with a characteristic humour which became known as birrelling.
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At paragraph 66. Because of Lord Collins' status as general editor of Dicey Morris & Collins on the Conflict of Law those obiter comments are likely to attract great weight.
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She further advised in obiter that courts should ensure there will be no conflict once the order is rendered, and should not allow punishments that are not available under the foreign jurisdiction.
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Winner effectively placed all commercial interprovincial and international motor vehicle traffic under federal jurisdiction. Rand J's comments relating to mobility rights of Canadians, while obiter in this case, have significantly affected Canadian jurisprudence.
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Cotton LJ argued (in obiter) (James LJ agreeing) that where specific performance is not awarded because of a mistake, the court should proceed to award damages to the plaintiff in lieu of specific performance.
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The Legal & Literary Society, Osgoode Hall Law School's official student society, coordinates student activities both on and off campus. The organization also funds over fifty student clubs, as well as the student newspaper, Obiter Dicta.
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A majority of the Court, in obiter (4-2; Hayne and Kiefel JJ dissenting in part, French CJ not considering the question), concluded that the Bonus Act could not be supported by the taxation power.
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Denham J disavowed the dicta in Furey reasoning the time difference in both cases in her judgement: "These words were obiter dicta. Further, they appear in a judgement where the delay was one of four years. That is of an entirely different magnitude to the delay in this case of 29 years" The obiter dicta was not enough to persuade the court that there was a wrongful conviction". Fennelly J agreed: "In the nature of things a short delay might require only slight explanation.
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A litigant may also consider obiter dicta if a court has previously signaledCoale & Couture, Loud Rules, 34 Pepperdine L. Rev. 3 (2007). that a particular legal argument is weak and may even warrant sanctions if repeated.
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Although the provision in the Medicines and Related Substances Control Act was struck down, Sachs J made an obiter comment to the effect that Chapter 2 of the Criminal Procedure Act appeared to be in line with constitutional requirements.
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Mowbray has suggested that the court may have been influenced in its decision by the doubts expressed by some of the Obiter dicta of the domestic proceedings which expressed doubts about the durability of the armed forces policy towards homosexuals.
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The Chng Suan Tze decision is more notable for the issues that the Court of Appeal discussed obiter dicta, having already allowed the appeals on the ground that the respondents had not discharged their burden of proving the President's satisfaction.
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Dissenting judgments are not ratio, and so must be obiter. Sometimes, with the passage of time, more attention is given to the dissenting judgment that to the majority judgment.English Legal System - 2015 - Slapper & KellyE.g. Junior Books v Veitchi 1984, and Candler v Crane, Christmas & Co 1951.
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Judicial independence would later be extended under the Provincial Judges Reference of 1997, which followed Valente in stating that judges should enjoy administrative independence; however, this meant overturning obiter dicta in Valente that judicial salary commissions were not needed to ensure a salary is free of political manipulation.
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But, explained Neuberger J, it would probably be otherwise if a withdrawal was communicated before a notice was given (or deemed given), applying Holwell Securities Ltd v Hughes. This was just, however, ‘no more than a tentative view' -- an obiter dictum (other words and side-opinions of the court).
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In Taw Cheng Kong v. Public Prosecutor (1998),Taw Cheng Kong v. Public Prosecutor [1998] 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 78, High Court (Singapore). the High Court expressed the obiter view that the right to vote does not have constitutional status but is a privilege:Taw Cheng Kong, p.
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La Forest J added in obiter that had he found the impugned definition discriminatory, he would have upheld it under section 1 of the Charter "for the considerations set forth in my reasons in McKinney, supra, especially at pp. 316-18 ..."Egan v Canada, [1995] 2 SCR 513 at 539–540.
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Edlin (2008) p.7 If Coke intended the former, he may have later changed his view.Martin (2007) p.42 The statement by Coke is sometimes considered to be an obiter dictum (a statement made 'by the way'), rather than part of the ratio decidendi (rationale for the decision) of the case.
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In Compass Motors Industries (Pty) Ltd v. Callguard (Pty) Ltd, an important case in South African law, Van Zyl, J. expressed the opinion, obiter, that a security firm that had contracted to guard a premises had a legal duty to third parties to guard vehicles lawfully parked on the premises.
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My role in all this is to set > the agenda and then to prod and provoke when necessary – definitely not to > hand down obiter dicta. Though his belief in moral science has not been adopted by the greater community of historians, he retains the respected reputation that he enjoyed among his contemporaries.
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35.1; Grotius Inleiding 3.14.23; Westinghouse at 574C-D. This basic principle of the common law of sale has, however, been called into question in a strenuous obiter dictum in the case of NBS Boland Bank v One Berg River Drive; Deeb v ABSA Bank; Friedman v Standard Bank.1999 (4) SA 928 (SCA).
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There has also been extensive debate about the Court's obiter comment on the duties of directors: In addition, BCE Inc. effectively mandates the use of fairness hearings by courts in consideration of plans of arrangements, as was notably practiced during the litigation that took place on the 2010 share buyout by Magna International.
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Based on previous judgments as Hughes v Metropolitan Railway Co, Denning J held that the full rent was payable from the time that the flats became fully occupied in mid-1945. However, he continued in an obiter statement that if Central London had tried to claim for the full rent from 1940 onwards, they would not have been able to. This was reasoned on the basis that if a party leads another party to believe that he will not enforce his strict legal rights, then the courts will prevent him from doing so at a later stage. Being obiter dicta and in a court of first instance this was doubly not a binding precedent, yet it essentially created the doctrine of promissory estoppel.
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Australian Human Rights and Equal Opportunity Commission report Article 18 – Freedom of religion and belief. pdf versionThis definition was approved in an obiter statement in Ogle v Strickland (1987) 71 ALR 4, per Justice Lockhart at page 52, who quoted the definition from Stephens Digest of the Criminal Law 9th edition, 1950, p. 163.
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Co., the court held that the Supreme Court had only held post-sale restrictions invalid in price-fixing and tie-in cases, and therefore the general language outlawing post-sale restrictions was merely obiter dicta that could be ignored. The Federal Circuit reaffirmed this doctrine in 2016 in Lexmark Int'l, Inc. v. Impression Prods., Inc.
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706, para. 14. On 1 August 2012, the High Court dismissed her application. Dissatisfied, she appealed to the Court of Appeal which dismissed her appeal on 5 July 2013. However, in an obiter dictum, the Court of Appeal agreed with her interpretation of Article 49(1) of the Constitution rather than the Prime Minister's interpretation.
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This > decision may well have been reached to prevent such an absurdity from > passing into law however as in Shayler [2002] 2 WLR 754 (House of Lords); > Lord Woolf remarked in obiter that the defence should be extended to include > acts designed to protect a person's mental, as well as physical health, from > serious injury.
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Wade despite its emphasis on stare decisis, Chief Justice Rehnquist in dissent argued that this section was entirely obiter dicta. All these opening sections were joined by Justices Blackmun and Stevens for the majority. The remainder of the decision did not command a majority, but at least two other Justices concurred in judgment on each of the remaining points.
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The Court ruled that as Geyserland had not accepted Airways contract, there was no legally binding contract between the two parties. NOTE: The Court stated obiter, that Airways may have been successful if they had sued under Quantum Meruit i.e. they benefited from the improved air safety. For unknown reasons, this was never plead in court by ACNZ.
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For these reasons, it was strongly suggested that the government establish judicial salary commissions, thus overruling obiter dicta in the previous landmark judicial independence case, Valente v. The Queen, which had found such commissions were desirable but not necessary. In this case, it was noted commissions could guard against manipulation by both the executive and legislatures.
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Sedley LJ concurred in the result of the case (that the Trust was liable) but dissented on the obiter statements concerning insurance. He said that if there was a duty of care, it would be a logical and factual leap to include inquiry into insurance into the duty of care. That would not be fair, just and reasonable.
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In an article defending the Paris Commune which appeared in the Fortnightly Review Harrison proclaimed: 'The status quo is impossible. The alternative is Communism or Positivism.' Later works include Autobiographic Memoirs (1911); The Positive Evolution of Religion (1912); The German Peril (1915); On Society (1918); Jurisprudence and Conflict of Nations (1919); Obiter Scripta (1919); Novissima Verba (1920).
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"This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question." and later cases as a passing remark (obiter dictum) lacking any force as a controlling precedent. As to whether the Wong Kim Ark decision was correct on this point or not, modern scholars are divided.Epps (2010), pp. 348–349.
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The Court also ruled, in obiter dicta, that the United States had standing to challenge the validity of patents when a patentee relied on the patents to justify its fixing prices. It held in this case, however, that the defendants violated the antitrust laws irrespective of whether the patents were valid, which made the validity issue irrelevant.
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Phang Chin Hock, p. 73. The Indian Constitution was drafted by a constituent assembly representative of the Indian people in territorial, racial and community terms,. while both the Malaysian and Singapore Constitutions were enacted by ordinary legislatures. The basic structure doctrine was first cited with approval by the Federal Court in obiter dicta in Sivarasa Rasiah v.
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Nevertheless, Major confirmed that the theatre must monitor the patron's alcohol consumption based on the amount served and not solely on the patron's visible condition. In an obiter dictum, Major mused that even if there was a breach of the standard of care, it was not clear if a warning by Mayfield would have resulted in a different choice of driver.
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The complainant produced a number of young men who were prepared to testify that they were disappointed that the complainant had not been available as a prostitute. Miles declined to award any damages.“Obiter Dictum”, Newsletter Edition. Australian Capital Territory Young Lawyers Association No: 13 Autumn 2005 Miles led an inquiry into the fitness to be tried of David Harold Eastman.
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1928 only to find Eliot extending his criticisms in another review in The Criterion.Eliot, T. S., 'Mr Lucas's Webster ', The Criterion, June 1928, pp.155-158 Lucas counter-attacked in his 1929 essay 'Modern Criticism',Lucas, F. L., 'Criticism', Life and Letters Nov. 1929, reprinted in his Studies French and English (1934) ridiculing Eliot's literary-critical obiter dicta and hieratic tone.
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Stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by the way"). As the United States Supreme Court has put it: "dicta may be followed if sufficiently persuasive but are not binding".Central Green Co. v. United States, 531 U.S. 425 (2001), quoting Humphrey's Executor v. United States, 295 U. S. 602, 627 (1935).
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The heavy reliance on Lord Penzance's definition of marriage has been criticised on two distinct grounds. First, the original statement was an obiter dictum, meaning it did not establish a binding precedent. Second, this dictum was a defence of marriage and not a definition of it.Rebecca Probert, "Hyde v Hyde: Defining or Defending Marriage", Child and Family Law Quarterly, vol. 9. no.
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Because of the wide scope of the external affairs power, section 51(xxx) has remained largely unused, though it was considered in Ruhani v Director of Police (a case which dealt with the High Court of Australia's ability to hear appeals from the Supreme Court of Nauru) and was held obiter as being "conferred for reasons entirely unrelated to judicial power".
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An 1862 essay by Horace Binney criticized Taney's treatment of the earlier Bollman opinion by Chief Justice Marshall. According to Binney, "there was nothing before Chief Justice [Marshall] to raise the distinction between Congress and the President" and in any event those lines by Chief Justice Marshall were "altogether" obiter dicta.Binney, Horace. The privilege of the writ of habeas corpus under the Constitution, Vol.
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As to whether there is a general presumption in law that Carltona doctrine shall apply, Lord Kerr suggested that: Daly has suggested that the above quotation is merely "obiter" and a misunderstanding of the law. The Carltona doctrine merely reflects the constitutional reality that ministers act through their civil servants. The case itself broke no new ground and merely applied the established principles.Daly, P., 2020.
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Radford had an interest in literature and published occasional verses and essays. In 1894 he wrote Shylock and Others a selection of eight literary studies (published by T Fisher Unwin) and in 1917 he published Verses and Versicles (T Fisher Unwin). But he also had an interest in Shakespeare. In 1884, the Liberal politician Augustine Birrell published a collection of essays entitled Obiter Dicta (Elliot Stock).
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Journal of the American Medical Association. 2002; 288: 3096-3101. In 2010, Obiter Research, a chemical manufacturer in Champaign, Illinois, signed a patent license with Albany Medical College and the University of Vermont, allowing them the right to synthesize and market 18-MC and other congeners. In 2012 the National Institute on Drug Abuse gave a $6.5 million grant to Savant HWP for human trials.
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There could be an action in the tort of deceit, but not s.332. Because there was no allegation of fraud on Barnett directors, the parent could be no accessory. In an obiter dictum, Hoffmann J also looked at one of the liquidator's arguments. This was that the Rumasa's letter of comfort, for financial support over the years, should make the parent liable for Barnett's debts.
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Union of India and doubts were expressed as to the quantum of damages payable. But the Supreme Court set all doubts aside in another landmark decision in the case of Indian Council for Enviro-Legal Action v. Union of India where, it was held that the rule laid down in Mehta’s case was not obiter and was appropriate and suited to the conditions prevailing in the country.
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The Parsis and Iranis are considered legally distinct. A 1909 obiter dictum relating to the Indian Zoroastrians observed that Iranis (of the now defunct Bombay Presidency) were not obliged to uphold the decisions of the then regulatory Parsi Panchayat. Some of the Irani community speaks an ethnolect called Zoroastrian Dari. However, the two communities increasingly intermarry and are said to have been "integrated well" with each other.
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In 1997, the Federal Court cited the decision with approval as part of an obiter dictum in R. Rama Chandran v. The Industrial Court of Malaysia. However, when ruling directly on the interpretation of Article 5 in 2002, the Federal Court held in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another that a generous reading of the term "personal liberty" in Article 5 was in error.
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However, in June 2007, the Enlarged Board of Appeal of the EPO in cases G 1/05 and G 1/06 accepted, by way of obiter dictum,T 1391/07, reasons 2.5. "the Enlarged Board of Appeal has recently endorsed by way of obiter dictum in decisions G 1/05 and G 1/06 the practice of the EPO in this respect (see point 13.4 of the reasons: "The Board accepts that the principle of prohibition of double patenting exists...") that :"the principle of prohibition of double patenting exists on the basis that an applicant has no legitimate interest in proceedings leading to the grant of a second patent for the same subject-matter if he already possesses one granted patent therefor.Decision G 1/05 of the Enlarged Board of Appeal of the EPO, Reasons 13.4. (see also OJ EPO 2008, 271 and 307).
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Although this analysis was sufficient to dispose of the appeal, Lord Collins added some additional obiter dictum comments in relation to the doctrine of forum non conveniens. The Court of Appeal had held that "the BVI was clearly the appropriate forum for trial as a preliminary issue of the questions arising between the members and alleged members of Nilon."At paragraph 56. Lord Collins indicated his disagreement with that statement.
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Nevertheless, the Court upheld sec. 14 of R.A. 9006 on the ground, among others, that Congress merely recognized the substantial distinction between elective and appointive officials when it imposed the resign-to-run rule only on the latter. According to Justice Nachura, since the primary issue in that case was whether sec. 14 was an invalid rider, the discussion on substantial distinction was merely incidental and nothing but an obiter dictum.
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Solicitors Journal is a monthly legal journal published in the United Kingdom by the International In-house Counsel Journal, Cambridge."Back from the dead" in "Obiter", The Law Society Gazette, 22 October 2018 It was established in 1856 and covers "practical and independent updates and analysis about the latest developments affecting the legal profession."Solicitors Journal web site, About us (Retrieved 21 July 2011) The magazine has its headquarters in Cambridge.
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In the UK there are conflicting obiter dicta in "The Rafaela S" [2003] 2 Lloyd's Rep. 113 and "The Happy Ranger" [2002] 2 AER (Comm) 23, so the matter must remain unclear even though there are serious problems, for example, arising from the everyday occurrence of cargo being discharged against letters of indemnity when original bills of lading are not yet available to be presented at the discharge port.
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Inferior courts are not strictly courts of record, but some, such as employment tribunals methodically report their own cases, and have built up a specialist body of common law. Courts such as the magistrates court cannot establish precedent. Even if a court is bound to observe a precedent decision, it does not follow that the whole of the judgment is binding. One must distinguish between ratio decidendi and obiter dicta.
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Taylor v. Taintor, 83 U.S. (16 Wall.) 366 (1872), was a United States Supreme Court case. It is commonly credited as having decided that a person to whom a suspect is remanded, such as a bail bondsman, has sweeping rights to recover the suspect. However, this is erroneous, since the commonly cited portion of the case, obiter dicta, has no binding precedential value (although dicta can have persuasive value).
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The Michigan Supreme Court held that Henry Ford could not lower consumer prices and raise employee salaries. Notably, obiter dicta in the opinion written by Russell C. Ostrander argued that the profits to the stockholders should be the primary concern for the company directors. Because this company was in business for profit, Ford could not turn it into a charity. This was compared to a spoliation of the company's assets.
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Past Canadian case law, like Re Federal Republic of Germany and Rauca and obiter dicta in Canada v. Schmidt (1987) also indicated extradition was a violation, but still a justified limit, on section 6. The Court then turned to section 1 of the Charter, which provides for reasonable limits on rights. Cotroni declined to argue that extradition was unreasonable under section 1, since predent had already determined it was reasonable.
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The decision is also important for its treatment of oral testimony as evidence of historic occupation. While much of the decision is technically obiter dicta (since a new trial was ordered due to errors in how the evidence and pleadings were treated), the principles from Delgamuukw were restated and summarized in Tsilhqot'in Nation v British Columbia, 2014 SCC 44. There has not yet been a second trial in this case.
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Lord Nicholls gave the first judgment and said the following on vicarious liability: Lord Millett gave a concurring judgment. In obiter dicta he said that the claim could be based on dishonesty, like for liability in assisting breach of trust. At the same time it could ‘be based simply on the receipt, treating it as a restitutionary claim independent of any wrongdoing.’ Lord Hobhouse gave a short concurring judgment.
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As the plenary legislative powers of the Parliament were sufficient to grant extraterritorial legislative powers to the Parliament, the Court declined to pronounce whether Article 73(a) was an empowering provision. However, it indicated on an obiter basis that had it been necessary to do so, it would have accepted the Attorney-General's alternate submission that Article 73(a) of the Malaysian Constitution was never intended to be an empowering provision.Taw Cheng Kong (C.A.), p.
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The Master of the Rolls, William Brett, 1st Viscount Esher, suggested that there was a wider duty to be responsible in tort to those who might be injured if ‘ordinary care and skill’ was not exercised. Brett MR's obiter views would later be expressly adopted by Lord Atkin in the House of Lords in Donoghue v Stevenson when the general concept of a tortious duty of care in negligence was established under English law.
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The House of Lords overruledSince the 1966 Practice Statement, the House of Lords has been able to depart from its own precedent in order to achieve justice. Anns and held that the council was not liable in the absence of physical injury.As this case concerned economic loss, not personal injury, the House of Lord's statement on this point is obiter dicta. Also, the case of Dutton v Bognor Regis UDC was disapproved.
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Neil that the question of whether a conflict of interest may exist in how lawyers deal with clients was subject to a bright- line rule, where a lawyer, and by extension a law firm, may not concurrently represent clients adverse in interest without first obtaining their consent. While this was obiter to the case at hand, in 2007 it became the ratio for determining the later SCC case of Strother v. 3464920 Canada Inc.
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There was a conflict of opinion between Lord Westbury and Lord St Leonards concerning the availability of the defence of purchaser for value without notice in the case of competing equitable interests. Lord St Leonards maintained that the defence was always available. In Phillips v Phillips. Lord Westbury said: This obiter establishes a new category of equitable interests, mere equity, against which the defence of purchase for value without notice is available.
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Vogenauer (2005) p. 646 The courts' cautiously optimistic acceptance of Pepper, which included an attempt to include it in the House of Lords' Practice Directions, soon began to wane. Although the lower courts applied the decision and allowed the use of Hansard, and the Lords itself initially followed it in R v Warwickshire County Council, ex parte Johnson,[1993] 1 All ER 299 several objections and limits were expressed in later obiter dicta and ratio decidendi.Scott (1993) p.
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Things did not improve for Benchley and Obiter Dicta, and a failed practical joke at a company banquet further strained the relationship between Benchley and his superiors.Altman, 61–68. He continued his attempts to develop his own voice within the publication, but Benchley and Curtis were not a good match, and he eventually left,Yates, 31–34. as Curtis was considering eliminating Benchley's role and he had been offered a position in Boston with a better salaryAltman, 67–68.
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It held, obiter, that law might not encompass colourable legislation (that is, bills of attainder – legislation purporting to be of general application but in fact directed at securing the conviction of particular individuals), or legislation "of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being 'law' when they crafted the constitutional provisions protecting fundamental liberties".Yong Vui Kong (2010), p. 500, para. 16; see also pp.
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Another obiter dictum of the Court concerns Article 8 of the EU Fundamental Rights Charter: > Regard being had to Article 8 of the Charter, therefore, the Court would no > longer consider that the right to marry enshrined in Article 12 must in all > circumstances be limited to marriage between two persons of the opposite > sex. Consequently, it cannot be said that Article 12 is inapplicable to the > applicants' complaintpara 61 of the Judgment Judge Malinverni in his concurrence has objected to this obiter dictum: > Article 12 is inapplicable to persons of the same sex. Admittedly, in > guaranteeing the right to marry, Article 8 of the Charter of Fundamental > Rights of the European Union deliberately omitted any reference to men and > women, since it provides that “the right to marry and to found a family > shall be guaranteed in accordance with the national laws governing the > exercise of these rights”. In my opinion, however, no inferences can be > drawn from this as regards the interpretation of Article 12 of our > Convention.
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However, in a lengthy obiter discussion, the Court held that an objective rather than a subjective test should apply to the exercise of discretion by the authorities under sections 8 and 10 of the ISA. In other words, the executive could not insist that the exercise of the discretion was unchallengeable. The exercise of discretion could be reviewed by the court, and the executive had to satisfy the court that there were objective facts justifying its decision.Chng Suan Tze, pp.
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There was never any question that the main damage was suffered by the tenant and the tenant had the same locus standi as the landlord, exercising under a lease from time to time his legal rights. The question of liability in tort was not considered, instead a few words were said if that question had to be considered by the court (obiter dicta). The question was whether not having been privy to the original agreement was a bar to any recovery.
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Lord Reid also made obiter dictum comments about the nature of parliamentary sovereignty and constitutional conventions in the United Kingdom: Lord Pearce gave a dissenting judgment, in which he concluded that the detention orders should be upheld under the doctrine of necessity. Although he agreed that the United Kingdom retained full sovereignty over Southern Rhodesia, acts done by the de facto government of the territory should be recognized if such acts are necessary for "the ordinary orderly running of the country".
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Harvest All Investment Limited, et al., G.R. No. 224834, March 15, 2017, where the Supreme Court declared that an action calling for Stockholders' Meeting is incapable of pecuniary estimation, and the pronouncement in the case of Lu v. Lu Ym, 658 Phil.156 (2011) that an intra-corporate controversy always involves a property in litigation and that there can be no case of intra-corporate controversy where the value of the subject matter cannot be estimated is but an obiter dictum.
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The original majority agreed that these fears are equally applicable to elected and appointive officials alike, thus, treating the one differently from the other should fail the test of equal protection. The original decision also noted that the substantial distinction between elective and appointive government officials laid down in the case of Fariñas v. Executive Secretary (G.R. No. 147387, December 10, 2003) cannot be used to justify the different treatment of the two classes of officials because that "doctrine" was a mere obiter dictum.
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The present rule under English law is that only where a company was set up to commission fraud,e.g. Re Darby, ex parte Brougham [1911] 1 KB 95 or to avoid a pre-existing obligation can its separate identity be ignored. This follows from a Court of Appeal case, Adams v Cape Industries plc.[1990] Ch 433. Heavily doubted by Lord Mance in VTB Capital plc v Nutritek Int Corp [2013] UKSC 5, [127] 'they include obiter observations and are anyway not binding in this court'.
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If there was no such likelihood of confusion there would be no need for Reed to inform his customers expressly that the goods were not official. It was clear that the trademarks did designate origin. Further, the judge's decision on passing off was doubted. Although, Aldous LJ's comments were obiter, the traditional form of passing off was said to be no longer definitive of the ambit of the cause of action which now was approximating to a law of 'unfair trading' or 'unfair competition'.
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The four people argued that the obiter dicta in that case supported their interpretation of section 41, that it was a guarantee rather than a transitional provision. The Commonwealth electoral officers, who were represented by the Solicitor-General of Australia Sir Maurice Byers, and William Gummow (a future Justice of the High Court), argued that section 41 was indeed intended to be a transitional provision. They linked it with section 8, Application of Colonial Boundaries Act. and section 30 of the Constitution of Australia, Qualification of electors.
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The judges affirmed that assisting or rescuing should be promoted (although with more caution to oneself when taking the risk). This notion of encouraging rescuers has a longer history, as noted in the ratio and obiter dicta of former Associate Justice of the Supreme Court of the United States Benjamin Cardozo in Wagner v International Railway Co 133 NE 437 (1921): “Danger invites rescue. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer”.
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A group of shareholders sued, and the Michigan Supreme Court said in an obiter dictum that a "business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end." However, in the case itself a damages claim against Ford did not succeed, and since then Michigan law has been changed.Michigan Business Corporation Act §§251 and 541a(1)(c), and see Churella v Pioneer State Mutual Insurance Co, 671 NW2d 125 (2003) distinguishing Dodge.
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Claire McCaskill, Sen. Barack Obama et al.; page S2951 notes Chairman Patrick Leahy as agreeing to Secretary Michael Chertoff's "assumption and understanding" that a citizen is a natural- born citizen, if he or she was "born of American parents". In September 2008, U.S. District Judge William Alsup stated obiter in his ruling that it is "highly probable" that McCain is a natural-born citizen from birth by virtue of , although he acknowledged the alternative possibility that McCain became a natural-born citizen retroactively, by way of .
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A younger Robert Benchley Benchley did copy work for the Curtis Company during the summer following graduation, while doing other odd service jobs, such as translating French catalogs for the Boston Museum of Fine Arts.Altman, 55–56 In September, he was hired by Curtis as a full-time staff member, preparing copy for its new house publication, Obiter Dicta.Yates, 31–32. The first issue was roundly criticized by management, who felt it was "too technical, too scattering, and wholly lacking in punch"Altman, 61.
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Birrell did not defend his seat in the 1918 general election, nor did he ever return to Ireland. In 1929, he accepted an honorary doctorate from the National University of Ireland, but storms in the Irish Sea prevented him from making the crossing and he had to receive his degree in absentia.Irish Times 9 August 2008 He returned to literature with a further volume of essays and book reviews, More Obiter Dicta (1920) and a book on his father-in-law, Frederick Locker-Lampson. He died in London on 20 November 1933, aged eighty-three.
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The decisions In re R (1991) and Re W (1992) (especially Lord Donaldson) contradict the Gillick decision somewhat. From these, and subsequent cases, it is suggested that although the parental right to veto treatment ends, parental powers do not "terminate" as suggested by Lord Scarman in Gillick. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a child's (and parent's) wishes.
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The case has attracted extensive comment in the Canadian legal profession: #While Beetz J had suggested in obiter in Bisaillon v. Keable that the paramountcy doctrine could apply to conflicts between federal common law and provincial statute law, the Court in Ryan Estate noted that "we are aware of no case in which the doctrine was applied to common law".SCC, par. 67 However, the Court did not directly deal with whether paramountcy can apply where a federal statute is inconsistent with a provincial rule of common law.
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The court decided Mrs Rosset had no beneficial interest in the property. There were no discussions to that effect, and the work Mrs Rosset did was not enough for a constructive trust. The court also held, obiter, the date to determine whether Mrs Rosset was in occupation under LRA 1925 section 70 was the date the charge was created, i.e. 17 December just as Scarlett J had interpreted the law at trial; however, it abjectly refused to be drawn into whether Rosset was "in actual occupation" (clarifying this would need to be before completion).
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In this case, in Van Heerden DCJ's obiter dictum, he noted that it is conceivable, albeit unlikely, that a stipulation may be so worded that an absolute discretion to fix a prestation is conferred on one of the parties. In these circumstances, it is unnecessary to express a view as to whether such a stipulation will be invalid as being in conflict with public policy, or whether the fixing of the prestation may only be assailed when it is done in bad faith. See also the case of Benlou Properties v Vector Graphics.
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But then it could not be used in place of a confession as required for a death sentence. However, this may be, one would expect that the court would have "cribbed" from the intendits when writing the verdicts of the case. But this appears to have been the case in only a limited sense if one compares the texts of the intendits with the eventual verdicts. It looks as if the intendits only provided (rather tedious) filler material (obiter dicta) between the preamble of the verdicts and the rationes decidendi before the sentence.
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Chief Justice Thurlow, for the Court, found that the patent did not disclose how a technical challenge would be addressed and was not written clearly enough to enable a person skilled in the art to make or use the invention. In addition, he concluded the Commissioner's comments concerning the absence of a working model of the invention and describing the invention as an abstract theorem were obiter and were not relevant to the application's refusal. In view of the above, the Court dismissed the inventor's appeal and affirmed the decision of the Commissioner of Patents.
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In the majority opinion, Justice William Rehnquist wrote "[t]he existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them." Implicit in the obiter dicta of the ruling was to hold valid the statutory restrictions on gender discrimination in assigning combat roles.
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The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided—essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion—all pronouncements that do not form a part of the court's rulings on the issues actually decided in that particular case (whether they are correct statements of law or not)—are obiter dicta, and are not rules for which that particular case stands.
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Justice Felix Frankfurter filed a concurring opinion in which he disagreed with the majority's explicit rejection of the lower court's ruling that the Government could not challenge patent validity. He argued that the Court should not opine on that in obiter dicta since it was unanimous that "the arrangements challenged by the Government as violative of the Sherman Law cannot find shelter under the patent law, howsoever valid the patents of the defendants may be." He insisted, "Deliberate dicta, I had supposed, should be deliberately avoided."333 U.S. at 402.
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At the end of the war the flats became fully let, and the claimants demanded the return to payment of full rent. Denning J held that they were entitled to this from the last two quarters of 1945. Denning mentioned in an obiter dictum that had the plaintiffs tried to be reimbursed for the full amount they would have been estopped from doing so even though no consideration was present. This is because the plaintiff represented that he would accept half the rent and the defendant acted upon this.
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Taxation is a power of the federal and provincial legislatures; provincial taxation is more restricted, in accordance with sections 92(2) and 92(9) of the Constitution Act, 1867. In Allard Contractors Ltd. v. Coquitlam (District), provincial legislatures may levy an indirect fee as part of a valid regulatory scheme. Gérard La Forest observed obiter dicta that section 92(9) (with provincial powers over property and civil rights and matters of a local or private nature) allows for the levying of license fees even if they constitute indirect taxation.
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One aspect of the decision on which all judges agreed was that the High Court would not determine hypothetical or abstract question with Griffith stating "The questions submitted in the case are to a great extent of an abstract character. In my judgment the provisions of sec. 31 were not intended to allow the submission of hypothetical or abstract questions of law which may never arise for actual decision. Any opinions expressed by the Court on such questions can only be obiter dicta of more or less weight, but having no binding authority".
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Nonetheless, he expressed the obiter view that the "reasonable suspicion of bias" test established in Jeyaretnam Joshua Benjamin and Tang Liang Hong was not significantly different from the English "real likelihood of bias" test (also known as "real possibility of bias" test). According to him, "[t]he common substance of both tests appears, in a nutshell, to be this: The key question is whether or not there was a perception on the part of a reasonable person that there would be a real likelihood of bias".Tang Kin Hwa, pp. 617–618, para. 39.
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Justice Severson dissented on the grounds that the "exigent circumstances" definition was too vague and this situation did not meet the standards as the state vet had said that the cats were in good health. Severson also stated that the driver was not charged with any traffic offense and that she should have been, had the State intended to rely on her being unable to operate the vehicle as that was their focus in the seizure hearings. Justice Meierhenry concurred with the obiter dicta dissent. The case was later cited as precedent in South Dakota state law.
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Canada was the second nation in the world to formally organize its accounting profession, after the United Kingdom, but it occurred in a fragmented manner by both locality and specialty. It would only begin to experience significant consolidation from 2012 onwards. After some controversy in the first part of the 20th Century, it has been generally agreed that regulation of the Canadian accounting profession falls within provincial jurisdiction over matters of a local and private nature,held obiter by the Supreme Court of Canada in as well as under the provincial education power with respect to training for achieving such professional qualifications.
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An illustration of its strictness is Bowman v Secular Society, where it was held that even when attempted changes to the law were ancillary to the main goals, it was still unacceptable.Hudson (2009) p.1011 There is a dividing line; charitable trusts discussing political issues can be valid, as discussed by Hoffmann J obiter dicta in Attorney General v Ross.[1985] 3 All ER 334 This line is considered by the Charity Commission in their official guidelines, which allow the Commission to look at the wider purpose of the organisation when deciding if it constitutes a valid charity.
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These rules may contain an express term relating to the dissolution of the society, in which case it is considered operative. If not, a term can be implied as to the arrangements, as happened, for example, in Re Bucks Constabulary Widows and Orphans Fund Friendly Society (No 2). This will normally divide the rights up equally among those who were members at the time of dissolution. In the case of dissolution for lack of members, obiter comments in the case indicate that the rights will pass to the Crown as bona vacantia, because, at the time of dissolution, there are no remaining members.
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The plaintiffs, by contrary, argued that Iacobucci's Section 1 analysis was controlling, pointing out that the plurality in Egan had only addressed the Section 1 issue obiter and it was, therefore, not binding under the doctrine of stare decisis. The Court held that Section 15 was indeed violated, but was nonetheless saved by Section 1 of the Charter. On appeal, however, the Ontario Court of Appeal unanimously held that Egan clearly established that the exclusion of same-sex couples from the definition of "spouse" was a Section 15 violation. In addition, the Court held that VriendVriend v.
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Gleeson said: > In making that choice I am influenced by the general principle of > interpretation stated above. I am also influenced by the consideration that > the detention in question is mandatory, not discretionary. In a case of > uncertainty, I would find it easier to discern a legislative intention to > confer a power of indefinite administrative detention if the power were > coupled with a discretion... Accordingly, he found that a proper construction of the provisions of the Act would not permit Al-Kateb's detention to continue indefinitely. Justice Callinan, who was in the majority, also discussed the purpose of detention, in obiter dicta.
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The Australian government requested permission to keep the copy, and the British Parliament agreed by passing the Australian Constitution (Public Record Copy) Act 1990. The copy was given to the National Archives of Australia. A curiosity of the document's history is that the act remains in force at the UK's parliament in its original form, while in Australia the constitution exists as amended by referendum. Australian High Court judges have discussed in obiter that the constitution's source of lawful authority may no longer reside in the imperial parliament, but may instead now derive its lawful authority from the Australian people.
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Another problem may arise in older cases where the ratio and obiter are not explicitly separated, as they are today. In such a case, it may be difficult to locate the ratio, and on occasion, the courts have been unable to do so. Such interpretative ambiguity is inevitable in any word-bound system. Codification of the law, such as has occurred in many systems based on Roman law, may assist to some extent in clarification of principle but is considered by some common law lawyers anathema to the robust, pragmatic, and fact-bound system of English law.
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When George Santayana graduated from college, he published an essay, "The Ethical Doctrine of Spinoza", in The Harvard Monthly.George Santayana, "The Ethical Doctrine of Spinoza", The Harvard Monthly, 2 (June 1886: 144–52) Later, he wrote an introduction to Spinoza's Ethics and "De intellectus emendatione".George Santayana, "Introduction", in Spinoza's Ethics and "De intellectus emendatione"(London: Dent, 1910, vii–xxii) In 1932, Santayana was invited to present an essay (published as "Ultimate Religion")George Santayana, "Ultimate Religion", in Obiter Scripta, eds. Justus Buchler and Benjamin Schwartz (New York and London: Charles Scribner's Sons, 1936) 280–97.
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Justice Louise Charron emphasized in her opinion that the majority would not consider constitutional issues but rather just the statutes and whether the municipality should have used French in the courts, and she found against Charlebois. Charron noted that in terms of constitutional law and section 16 of the Charter, municipalities were deemed institutions by the Court of Appeal.Para. 14. However, she decided that the Court of Appeal's decision related more to section 18 of the Charter and the commentary on section 16 and institutions was thus obiter dictum. She thus turned back to the definition of an institution according to statutes.Para. 15.
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The different roles of case law in civil and common law traditions create differences in the way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. The necessary analysis (called ratio decidendi), then constitutes a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally shorter, referring only to statutes.
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Norman Varner The opinion attracted attention for also rejecting a request to refer to Varner with feminine pronouns, and going at length into perceived problems with granting such a request. Judge James L. Dennis, a Clinton appointee, dissented and wrote that Duncan misconstrued the motion. In Dennis's view, it was merely a polite request that this specific proceeding use Varner's pronouns, usually granted as a courtesy; not an overarching demand requiring six pages of obiter dictum about the threat of courts being forced to use custom pronouns everywhere. Dennis also wrote that there was no need to rule on the matter at all.
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Law Society of Upper Canada [2004] 1 S.C.R. 339 at paragraph 54 In Access Copyright, it was observed in obiter that fair dealing is a user's right but that the copier's purpose is also relevant at the fairness stage.Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 22. Where the purpose is not symbiotic with that of the user, the copier cannot "camouflage their own distinct purpose by purporting to conflate it with the research or study purposes of the ultimate user."Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 21.
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Another of the procedural requirements is that the sale proceeds or the capital money must be paid to the trustees of the settlements or into court – s22 of the 1882 Act. Under s.54 on a sale, exchange, lease or mortgage a bona fide purchaser/lessee/ mortgagee shall if dealing in good faith with the tenant for life, be conclusively taken, as against the beneficiaries of the settlement, as having paid the best price that could reasonably be obtained and to have complied with all requisitions under the acts. See obiter comments made by Black J in Gilmore v.
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Where the applicant fails to show good cause, the magistrate may nevertheless grant rescission mero motu, in the interests of justice, if exceptional circumstances warrant it.Wright v Westelike Provinsie Kelders Bpk 2001 (4) SA 1165 (C) at 1181H-1182A.A somewhat different conclusion was reached in Phillips t/a Southern Cross Optical v SA Vision Care (Pty) Ltd 2000 (2) SA 1007 (C) at 1013A-H, where Van Reenen J indicated that the criterion was now "less stringent," but these remarks were obiter. A magistrate has a discretion in the case of rescission, and is not obliged to grant it.
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But in the absence of any other evidence the presumption will still apply. The earliest known case where the presumption has been cited dates from 1677.Grey v Grey (1677) 2 Swans 594; 36 ER 742 In the Hong Kong case of Suen Shu Tai v Tam Fung Tai [2014] HKEC 1125 the Court of Appeal of Hong Kong, in obiter dicta, preferred the modern approach in that the presumption of advancement applies equally where a mother transfers property to her child. However, it left open the question of whether the presumption applies where a mother transfers property to an adult independent child.
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In Taw Cheng Kong v. Public Prosecutor (1998), the High Court suggested on an obiter basis that voting is a privilege rather than a right. It has been suggested by law academic Thio Li-ann that, if called upon to decide the issue, the court might infer the existence of the right to vote in the Constitution from its text and structure, and from the fact that it is an adaptation of the Westminster system of democracy. If the right to vote were to be found to be implicit in the Constitution, the judiciary would be better able to protect the right when issues arise before the courts.
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As of 2009, the High Court's decision in Taw Cheng Kong was the only case in Singapore where a statutory provision had been struck down as unconstitutional.. In Chng Suan Tze v. Minister for Home Affairs [1988] 2 S.L.R.(R.) 525 at 551, para. 79, the Court of Appeal held that sections 8 and 10 of the were inconsistent with Articles 12 and 93 of the Constitution, but this was, strictly speaking, an obiter dictum as the case was not decided on this point. Although overturned on appeal, the case illustrates the power that the judiciary wields and its role in safeguarding the Constitution.
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After the retirement of Justice Minita Chico-Nazario (who agreed with the Nachura decision) and the appointment of Justices Jose Perez and Jose C. Mendoza (who both agreed to Puno's opinion), the Supreme Court resolved to reverse the original decision and adopt the dissenting opinion of Chief Justice Reynato Puno. In opposition to the Justice Nachura’s original ponencia, Justice Reynato Puno made a very exhaustive discussion on the implications of the original ruling. The new Decision stressed that the doctrine of substantial distinction in Fariñas was not an obiter dictum because the seemingly unfair treatment caused by the repeal of sec. 67 and retention of sec.
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Shortly after the > decision, Attorney General John Ashcroft directed the adoption of the > Emerson court's view as the policy of the Justice Department in a memo to > all ninety-three United States Attorneys in November 2001. In contrast, > legal critics of the "individualist view" repudiated the Emerson analysis on > various grounds. Judge Robert M. Parker, while concurring in the Emerson > result, labeled the majority's analysis as obiter dicta, irrelevant to the > outcome of the case (see Emerson, Spitzer 2003). Moreover, the thoroughness > of the Emerson analysis was criticized because the court's rendered opinion > relied substantially on interpretations submitted in a "brief presented by > one party" (Spitzer 2003).
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In the United States legal system, the 1873 U.S. Supreme Court case Taylor v. Taintor, 16 Wall (83 U.S. 366, 21 L.Ed. 287), is cited as having established that the person into whose custody an accused is remanded as part of the accuser's bail has sweeping rights to that person. Though this may have been accurate at the time the decision was reached, the portion cited was obiter dictum and has no binding precedential value. As of 2008, four states, Illinois, Kentucky, Oregon, and Wisconsin prohibited the practice, as they have abolished commercial bail bonds and banned the commercial bail bonds industry within their borders.
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NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), is a US labor law case of the US Supreme Court which held that workers who strike remain employees for the purposes of the National Labor Relations Act (NLRA).. The Court granted the relief sought by the National Labor Relations Board, which sought to have the workers reinstated by the employer. However, the decision is much better known today for its obiter dictaBrisbin, A Strike Like No Other Strike: Law and Resistance During the Pittston Coal Strike of 1989-1990, 2002.Turner, "Restoring Balance to Collective Bargaining: Prohibiting Discrimination Against Economic Strikers," West Virginia Law Review, Spring 1994.
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It is presently not known whether Singapore courts will eventually adopt the current legal position in the United Kingdom. Chief Justice Chan Sek Keong observed during a 2010 lecture that what the High Court said about Anisminic in Stansfield was obiter dicta because the actual decision was "based on a breach of natural justice and not the doctrine of error of law".. The court had concluded that the ouster clause was ineffective in preventing judicial review of the minister's decision, as the plaintiff had not been given a fair opportunity to present its case with knowledge of the opponent's allegations.Stansfield, pp. 875–877, paras. 26–34.
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However, in obiter Binnie further suggested :I agree that notice of infringing content, and a failure to respond by "taking it down" may in some circumstances lead to a finding of "authorization"... An overly quick inference of "authorization" would put the Internet Service Provider in the difficult position of judging whether the copyright objection is well founded, and to choose between contesting a copyright action or potentially breaching its contract with the content provider. A more effective remedy to address this potential issue would be the enactment by Parliament of a statutory "notice and take down" procedure as has been done in the European Community and the United States.
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In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends. It is a legal phrase which refers to the legal, moral, political and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate rationes.
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The following nine at the Court of Appeal he enjoyed the least.Lewis (1983) pp16–18 Atkin became a Lord Justice of Appeal in 1919. In the 1920 case of Meering v Graham-White Aviation Co Ltd(1920) 122 LT 44 Atkin showed his disapproval of unjustified restriction on civil liberties by holding (obiter) that a person could sue for false imprisonment even under circumstances where he had been unaware of his imprisonment at the time. Again in 1920, in Everett v Griffiths[1920] 3 KB 163, CA Atkin held that Everett was owed a duty of care by a Board of Guardians who had detained him as insane on inadequate grounds.
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"The appropriate criterion" for determining the limits of a seller's freedom to impose restrictions, according to the Federal Circuit, "is whether [the patentee's or licensor's] restriction is reasonably within the patent grant, or whether the patentee has ventured beyond the patent grant and into behavior having an anticompetitive effect not justifiable under the rule of reason". In so ruling, the Federal Circuit said that any sweeping statements by the Supreme Court about property rights, and about post-sale restrictions on customers' use of patented products not being patent infringement, are mere obiter dicta that may properly be disregarded in cases not involving price-fixes or tie-ins.
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The particular pages of the Parke Davis opinion that the Leegin dissent cites include those in which the Parke Davis Court had found that Parke Davis had put together a horizontal combination or conspiracy among those to whom it sold its products, as in Interstate Circuit, Inc., v. United States.. The majority opinion, however, says nothing about overruling Parke Davis. Furthermore, the majority opinion observed, in obiter dictum, that a vertical arrangement may organize a horizontal cartel: > A horizontal cartel among competing manufacturers or competing retailers > that decreases output or reduces competition in order to increase price is, > and ought to be, per se unlawful.
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Vellama d/o Marie Muthu v. Attorney-General was a 2013 decision of the Court of Appeal of Singapore which held that Article 49(1) of the Constitution requires the Prime Minister to call a by-election when a casual vacancy arises in a Single Member Constituency ("SMC"), though the election need only be called within a reasonable time. The holding was an obiter dictum, that is, not required for the decision in the case and therefore not a binding precedent, though it may be persuasive in future cases. This was because the Court dismissed the appeal on the ground that the appellant, Madam Vellama, lacked standing.
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He had, to a certain extent, relied on them in England, by arranging to travel to Monaco for the auction, and he had suffered loss in England where the car was found not to meet the description in the brochure. The car had, however, been subject to auction in Monaco where the bid sum was payable. The court held that the claimant's decision to bid and to commit himself to the purchase that was "by far the most significant" act, and that was done in Monaco. The judge offered the obiter dicta that had the claimant made a telephone bid from England, a different judgment would probably have been made.
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London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157 is an English land law case, concerning easements. It persuasively confirmed for one of the first times, obiter, that parking a car on land on its own could be the appropriate subject matter for an express easement. It established that an arrangement for a future extension of easement rights over specific other land would require a specific parcel of dominant land too. Simply agreeing that wherever any dominant land is extended (to an incertain extent) the easement on the servient land will be extended (even to a certain degree) is insufficient.
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Chng Suan Tze v. Minister for Home Affairs is a seminal case in administrative law decided by the Court of Appeal of Singapore in 1988. The Court decided the appeal in the appellants' favour on a technical ground, but considered obiter dicta the reviewability of government power in preventive detention cases under the Internal Security Act ("ISA"). The case approved the application by the court of an objective test in the review of government discretion under the ISA, stating that all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.
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However, after a number of cases which established that a "real likelihood" test should be applied in the UK, the High Court in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005) expressed the obiter view that there was in fact no material difference between the two tests. In Re Shankar Alan s/o Anant Kulkarni (2006), a different High Court judge disagreed with this view, holding that the reasonable suspicion test is less stringent as it requires a lower standard of proof than satisfaction on a balance of probabilities. He expressed preference for the reasonable suspicion test over the real likelihood test.
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It had to be implicitly limited in scope. The House of Lords rejected this argument, holding both the Parliament Act 1949 and the Hunting Act 2004 to be completely valid. However, in obiter dicta Lord Hope did argue that the "rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based", that Parliamentary sovereignty "is no longer, if it ever was, absolute", it cannot be used to defend unconstitutional Acts (as determined by the courts).[2005] UKHL 56, [120] 'Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law'.
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Only the ratio decidendi (that is, the legal principle that determines the outcome) of a case is binding according to the doctrine of stare decisis; other legal principles expressed that are not crucial to the final decision (obiter dicta) are only persuasive.Chan, pp. 113–121. As English courts do not form part of Singapore's hierarchy of courts, decisions of such courts are not binding on Singapore courts. However, as a result of Singapore's colonial heritage, English judicial precedents continue to exercise a strong influence on the legal system and are regarded as highly persuasive, particularly as regards the development of the common law, and the interpretation of English statutes applicable in Singapore and Singapore statutes modelled on English enactments.
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At the same time, Southern Democrats characterized Republicans as lawless rebels, provoking disunion by their unwillingness to accept the Supreme Court's decision as the law of the land. Many northern opponents of slavery offered a legalistic argument for refusing to recognize the Dred Scott decision as binding. As they noted, the Supreme Court's decision began with the proposition that the federal courts did not have jurisdiction to hear Scott's case because he was not a citizen of Missouri. Therefore, the opponents argued, the remainder of the decision concerning the Missouri Compromise was unnecessary and beyond the Supreme Court's power to decide and so was a passing remark rather than an authoritative interpretation of the law (obiter dictum).
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If the question states a specific jurisdiction then it is proper to include rules specific to that jurisdiction. Another distinction often made in the rule section is a clear delineation of rules that are in holding, and binding based on the authority of the hierarchy of the court, being ratio decidendi, and being the majority ruling, or simply persuasive. There are occasions when rules are adopted on the basis they are the only clearly articulated rules on the issue, in spite of being minority decisions, obiter dicta, and from lower courts, in other jurisdictions, which have never been contradicted. The rules help make a correct legal analysis of the issue at hand using the facts of the case.
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The different roles of case law in civil law and common law traditions create differences in the way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles. These are called ratio decidendi and constitute a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta, which have persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally very short, referring only to statutes, not very analytical, and fact-based.
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The Federal Circuit held that patent rights are not property interests under the Fifth Amendment, reasoning that § 1498's "new and limited waiver of sovereign immunity" would have been unnecessary if Congress intended for patents to be compensable rights under the Takings Clause. The Federal Circuit so ruled despite a number of obiter dicta in previous decisions that assumed that patent infringement was a taking of property. The Federal Circuit's ruling is consistent with current Supreme Court takings jurisprudence, however, because patent infringement does not usually deprive the patentee of substantially all of the value of the patent.See (no taking because NYC's action did not deprive Penn Central of substantially all of the value of Grand Central Station).
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It does not form the legal judgment. It is of persuasive authority that may be used in other cases. McCarthy J delivered the obiter dictum in 'The State (Furey) v Minister of Defence': "... I see no logical reason why delay, however long, should, of itself, disentitle to certiorari any applicant for the remedy who can demonstrate that a public wrong has been done to him - that, for instance, a conviction was obtained without jurisdiction, or that, otherwise, the State has wronged him and that the wrong continues to mark his life." One may consider that this is a fair evaluation, as a wrongful conviction, despite how long a delay, should be dealt with sufficiently.
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The Court of Appeal went even further in a recent debt repayment case, Collier v P&M; J Wright (Holdings) Ltd.[2007] EWCA Civ 1329. This decision essentially copies the obiter dicta of Lord Denning MR in D & C Builders v Rees [1966] 2 QB 617 Arden LJ argued that a partner who had been assured he was only liable to repay one third of the partnership's debts, rather than be jointly and severally liable for the whole, had relied on the assurance by making repayments, and it was inequitable for the finance company to later demand full repayment of the debt. Hence, promissory estoppel could circumvent the common law rule of Foakes.
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In a 1929 case, Higgins, then a Justice of the High Court, suggested (as obiter dictum) that a person could lawfully object to compulsory voting on the grounds of religious belief. However, in 1943, the court continued the narrow approach it took in Krygger v Williams, upholding war-time regulations that caused the Adelaide branch of the Jehovah's Witnesses to be dissolved and have its property acquired by the Commonwealth government. The government had declared the branch to be an organisation whose activities were "prejudicial to the defence of the Commonwealth": one of the branch's professed beliefs was that the government was an "organ of Satan". Chief Justice John Latham held that the Constitution permitted the court to "reconcile religious freedom with ordered government".
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The case Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] AC 388 is comparable on its commentary on reasonable foreseeability to Chapman v Hearse. The obiter dicta from Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] AC 388 argued that a reasonable man, concerned for the safety of others would avoid the risk of putting others in harms way.Overseas Tankship (UK) Ltd v Morts Dock & Engineering Company Ltd [1961] UKPC 2 (18 January 1961). In relation to Chapman v Hearse, it contextualises how the appellant should have considered the implications of his actions on others and whether the end result of the appellants negligence (the death of Dr Cherry) was truly reasonably foreseeable.
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The Vellama decision has also been described as enshrining the principle of judicial independence and impartiality in Singapore by dispelling unfounded beliefs by some members of the public that the judiciary is subject to influence by the legislative and executive branches of government. It has also been said that the decision serves as a definition and recognition of the rights of Singaporeans with regards to whether a by-election must be called.. However, because Vellama's appeal was in fact dismissed for lack of standing,"Hougang By-election Judgment", pp. 12 and 14. the holding of the Court with regards to the Prime Minister's discretion in calling a by-election was obiter dicta and, strictly speaking, is not binding on other courts faced with a similar decision.
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In obiter comments made in the judgment, Lord Steyn, Lord Hope and Baroness Hale suggested that there might be limits to parliamentary sovereignty (although Lord Bingham and Lord Carswell impliedly supported the orthodox view that there are no limits to parliamentary sovereignty). Jackson prompted debate about the legitimacy of limiting parliamentary sovereignty and the theoretical justifications for the ruling. Alison Young suggests that the opinions could be explained by the Parliament Act 1911 modifying the rule of recognition defining valid legal documents or by the Act redefining Parliament in a manner that binds the courts. Christopher Forsyth argues that the Parliament Acts redefined Parliament to be a bicameral body for all legislation which also has a method of unicamerally legislating (except to extend Parliament beyond five years).
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James LJ found that the defendant's mistaken purchase of the lot did not fall within this category of unjust hardship. James LJ agreed with Cotton LJ (in obiter) that where specific performance is not awarded because of a mistake, the court should proceed to award damages to the plaintiff in lieu of specific performance. Brett LJ agreed to uphold the decree for specific performance, suggesting that a purchaser could not be relieved from specific performance for a mistake that was not of vital importance to the contract and arose from the purchaser's own negligence. Cotton LJ also agreed to uphold the decree for specific performance, holding that a purchaser could not escape specific performance for a mistake that "he had no right to make".
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The Teo Soh Lung decisions cannot be read apart from Chng Suan Tze and the series of legislative and constitutional amendments made by Parliament. The amendments had the effect of ousting review by the Judiciary and the Privy Council in situations of preventive detention. Chng Suan Tze has been dubbed the "single most important constitutional decision in the Singaporean nation".. It declared that the idea of any official power being non-justiciable is contrary to the Constitution.This point is obiter because the Court found for the applicants in Chng Suan Tze on a technicality: there was insufficient evidence of the President's satisfaction that the applicants were a security risk, and approval for the detentions was given by a member of the office of the Minister for Home Affairs.
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An oft-quoted legal definition of Parsi is based on a 1909 ruling (since nullified) that not only stipulated that a person could not become a Parsi by converting to the Zoroastrian faith but also noted: This definition was overturned several times. The equality principles of the Indian Constitution void the patrilineal restrictions expressed in the third clause. The second clause was contested and overturned in 1948. On appeal in 1950, the 1948 ruling was upheld and the entire 1909 definition was deemed an obiter dictum – a collateral opinion and not legally binding (re-affirmed in 1966).) There is a growing voice within the community that if indeed equality must be re-established then the only acceptable solution is to allow a child to be initiated into the faith only if both parents are Parsi.
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The House of Lords rejected this argument, holding both the Parliament Act 1949 and the Hunting Act 2004 to be valid. However, in obiter dicta Lord Hope argued that Parliamentary sovereignty "is no longer, if it ever was, absolute", and that the "rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based", and cannot be used to defend unconstitutional Acts (as determined by the courts).[2005] UKHL 56, [120] 'Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law'. There is not yet a consensus on the meaning of "Parliamentary sovereignty", except that its legitimacy depends on the principle of "the democratic process".
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The rule against reflective loss broadly provides that the proper claimant for a wrong done to a company is the company itself, and that a shareholder does not enjoy a separate cause of action for the diminution in the value of their shares or the failure to receive dividends as a result. The shareholder's loss is merely a "reflection" of the loss suffered by the company itself. However the case law evolved to raise the possibility that the rule against reflective loss should extend more widely, beyond shareholders’ claims to claims by other parties. In Johnson v Gore Wood [2002] 2 AC 1, Lord Millett made some obiter dictum comments that the rule would apply to claims brought by the claimant shareholder in his capacity as employee, rather than his capacity as shareholder.
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Aldred's Case (1610) 9 Co Rep 57b; (1610) 77 ER 816, [1558–1774] All ER Rep 622, is an English land law and tort law case on nuisance. The case can be seen as the birth of the ordinary man having a cause of action in certain types of environmental law against his immediate neighbour. The case confirmed a legal right to abate relatively extreme noise and smell, provided it cannot be justified as being protected by way of an easement have arisen such as from the passing of time (an easement by prescription) or custom on the piece of land in question. The judge recited the separate law, in an obiter dictum in an old Latin maxim in the English common law, that there is no right to a view.
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In an obiter dictum in Nadarajah v. Secretary of State for the Home Department (2005), Lord Justice Laws set out a more structured form of merits-based review.. He expanded the categorical approach in ex parte Coughlan into a continuum based on proportionality, suggesting that in order for a public body's decision to resile from a legitimate expectation to be lawful, it must be "a proportionate response to a legitimate aim pursued by the public body in the public interest".Nadarajah, para. 68. By advocating proportionality in the court's approach towards protecting substantive legitimate expectations, Lord Justice Laws effectively paralleled the approach used by the UK courts when considering whether an interference with a right subject to qualifications protected by the European Convention on Human Rights is lawful.
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Basic Law Committee member Elsie Leung would later criticise the court for its approach to interpreting the Basic Law. Po Jen Yap of the University of Hong Kong also criticised the CFA for effectively treating the NPCSC interpretation as having a judicial rather than statutory character, as though it were a ruling by a higher court, and in his opinion misusing this characterisation to treat the preamble of the interpretation as a mere obiter dictum. Conversely, the Court of Final Appeal was criticised from another direction by Ling Bing of the Chinese University of Hong Kong, who felt that the court's statement that "the power of the Standing Committee extends to every provision in the Basic Law and is not limited to the excluded provisions referred to in art. 158(3)" overstated the NPCSC's BL 158 authority to interpret the Basic Law.
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Chadwick LJ held that there was not enough to constitute fraud in this case on this single instance. Not every fraudulent transaction makes the business a business carried on with intent to defraud. Moreover, there must be a causal connection between the fraud and the loss, or ‘some nexus between (i) the loss which has been caused to the company’s creditors generally by the carrying on of the business in the manner which gives rise to the exercise of the power and (ii) the contribution which those knowingly party to the carrying on of the business in that manner should be ordered to make to the assets in which the company’s creditors will share in the liquidation.’ Then, obiter he said it could not have been the intention of Parliament to allow more than compensatory claims under section 213.
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In a unanimous decision, the court held that the words "adult person" in section 41 were fixed with the meaning they had when the Constitution came into effect, and thus applied only to people aged over 21. Justice Stephen summed up the court's opinion: > "The ordinary legal meaning of "adult"... was, at Federation, and had for > centuries been, that of a person who had ceased to be an infant and had > attained full age by attaining the age of twenty-one years." Because the whole court decided that King was not an "adult person", and that section 41 did not apply to her, the court did not need to decide about the nature of section 41, whether it was a guarantee or a transitional provision. However, some of the judges did address the issue in obiter dicta.
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Lord Bingham of Cornhill The majority of the Court of Appeal (Bingham LJ and Taylor LJ; O'Connor LJ dissenting) held that a duty was owed by the auditor to shareholders individually, and although it was not necessary to decide that in this case and the judgment was obiter, that a duty would not be owed to an outside investor who had no shareholding. Bingham LJ held that, for a duty owed to shareholders directly, the very purpose of publishing accounts was to inform investors so that they could make choices within a company about how to use their shares. But for outside investors, a relationship of proximity would be "tenuous" at best, and that it would certainly not be "fair, just and reasonable". O'Connor LJ, in dissent, would have held that no duty was owed at all to either group.
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Elias LJ held that the inclusion of the extra members was a trivial mistake, and excusable. It was necessary to read all the words of the statute, especially TULRCA 1992 section 226A, so that the union was required only to provide information ‘so far as reasonably practicable is accurate at the time it is given having regard to the information in the union’s possession’. Elias LJ gave the leading judgment, with the following introductory obiter dictum.cf Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, 463, the "right of workmen to strike is an essential element in the principle of collective bargaining" per Lord Wright and Morgan v Fry [1968] 2 QB 710, 725, 'It has been held for over 60 years that workmen have a right to strike...' per Lord Denning MR Etherton LJ and Mummery LJ concurred.
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362, para. 43. The principle against a public authority fettering its discretion by rigid adherence to a policy also applies to the exercise of discretionary police powers, as indicated by obiter dicta in the High Court case of Chee Soon Juan v. Public Prosecutor (2011).. Although the case did not involve judicial review and did not specifically cite Lines International, Justice Woo Bih Li discussed the validity of a general police policy in the context of judicial review, opining that the adoption of a policy "determining that political activities as a class posed a greater threat to public order than commercial activities ... was not in itself offensive for the purposes of administrative law provided that the police do not fetter their discretion and remain prepared to consider the facts of each case".Chee Soon Juan, p.
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The word was first recorded at the Conference on War and National Responsibility in Washington DC in 1970, where Arthur Galston proposed a new international agreement to ban ecocide.Article published in New York Times, 26 February 1970; quote in Weisberg, Barry Ecocide in Indochina (1970) Canfield Press, San Francisco OCLC 135562 Galston was an American biologist who identified the defoliant effects of a chemical later developed into Agent Orange. Subsequently, a bioethicist, he was the first in 1970 to name massive damage and destruction of ecosystems as ecocide. In an obiter dictum in the 1970 Barcelona Traction case judgement, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all.
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Windeyer J noted that no one could bring an action for negligence based on anything done in the course of war operations, but that members of the armed services are liable to civilians injured by negligent acts during peacetime. Because Parker was a civilian the Australian Government was liable. Windeyer J however made the following obiter dicta observation: > ... as I see the matter at present, the law does not enable a serving member > of any of Her Majesty's forces to recover damages from a fellow member > because acts done by him in the course of his duty were negligently done. Despite this case however, the Australian Government adopted a policy that when sued by a member of the military it would not challenge whether a member of the military could sue for damage caused by the negligence of another member of the military.
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Furthermore, in Schmidt Lord Denning had espoused the obiter view that where an alien's permit to stay "is revoked before the time limit expires, he ought ... to be given the opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for a permitted time".Schmidt, p. 171. This argument was advanced by Siah's counsel to persuade the court that "an alien who is in possession of an entry permit which has not yet expired is in the country lawfully until the date of expiry and, therefore, he has an interest during the unexpired portion that carries with it a public law right to a fair procedure, if and when the minister desires to terminate that leave to stay prematurely". The High Court judge considered this proposition and conceded that it was an "attractive" one.
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Section 18 of the MRHA merely states: "All orders and decisions of the President and the Minister and recommendations of the Council made under this Act shall be final and shall not be called in question in any court." The extent to which these clauses prevent the courts from exercising judicial review remains somewhat unclear, as a 1999 High Court decision held on an obiter basis that an ouster clause would not have the effect of barring the High Court from exercising judicial review "if the inferior tribunal has acted without jurisdiction or 'if it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity'", such as acting in breach of the rules of natural justice.Stansfield Business International Pte. Ltd. v. Minister for Manpower [1999] 2 S.L.R.(R.) 866 at 874, para.
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He then went on to consider the position in relation to the postal rule generally (which he referred to as "the roundabout path to the same result"). In relation to this he concluded based upon earlier authorities that although the postal acceptance rule was a rule of general application, it did not apply when there are express terms in the offer which exclude, and this includes excluding it by implication where the offer specifies that acceptance must reach the offeror. The Court also suggested obiter dictum that the rule ought not to apply in cases where its application would produce manifest inconvenience and absurdity. More broadly, the Court states that the rule does not apply if when looking at all the circumstances, it is apparent that the parties could not have intended a binding agreement until notice of acceptance was communicated to the offeror.
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The promises within a contract will be enforced under the promissory estoppel doctrine, when enforcing the contract promises avoids injustice. Lord Justice Denning is a leading figure in the field of promissory estoppel in the case of Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 (the High Trees case), was concerned with the modification of the rent payable on a block of flats during the Second World War. The importance of the case, however, lies in an obiter statement of principle which Denning LJ set out, “a promise intended to be binding, intended to be acted on, and in fact acted on, is binding so far as its terms properly apply”. Applying this principle, Denning held that a promise to accept a lower rent during the war years was binding on the landlord, regardless of the fact that the tenant had supplied no consideration for it.
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Negligent misstatement is not strictly part of the law of misrepresentation, but is a tort based upon the 1964 obiter dicta in Hedley Byrne v Heller Hedley Byrne v Heller [1964] A.C. 465 where the House of Lords found that a negligently-made statement (if relied upon) could be actionable provided a "special relationship" existed between the parties.In Hedley Byrne v Heller, the "special relationship" was between one bank who gave a financial reference to another bank. Subsequently in Esso Petroleum Co Ltd v Mardon,Esso Petroleum Co Ltd v Mardon [1976] Q.B. 801 Lord Denning transported this tort into contract law, stating the rule as: ...if a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another…with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable'.
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The court observed that the Court of Appeal in Chng Suan Tze had allowed the appeal solely on a technical ground – that the respondents had not adduced sufficient evidence of the President's satisfaction. Other matters mentioned in that judgment were merely obiter dicta. Therefore, although it had been held in Chng Suan Tze that the President's satisfaction under section 8(1) of the ISA was objective and thus reviewable by the court, these observations did not apply to the present proceedings in the light of the new provisions in the ISA. Section 8B(1), which stated that the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the Act shall be the same as was applicable and declared in Singapore on 13 July 1971, reaffirmed the law governing judicial review as laid down in the High Court's 1971 decision Lee Mau Seng v.
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Some degree of freedom from control is not incompatible with the relationship.See R v Feun 1954 (1) SA at 61A; Minister van Polisie en 'n Ander v Gamble en 'n Ander at 767F. In Mhlongo's case, it had been unnecessary for the court to decide whether there was State liability for an unlawful arrest effected by a policeman exercising his own discretion to arrest without a warrant while he was about police business.See Minister van Polisie en 'n Ander v Gamble en 'n Ander at 765–766. The court in Mhlongo, however, had voiced the following obiter opinion: > Turning more specifically to an arrest made by a policeman without warrant > and upon his own initiative in his role of "peace officer," it seems to me > that a distinction can, and should, be drawn between his decision to make > the arrest and the means employed by him to effect the arrest.568C-D.
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Justice John McLean also dissented from the Court's decision, deeming the argument that black people could not be citizens "more a matter of taste than of law." He attacked much of the Supreme Court's decision as obiter dicta that was not legally authoritative on the ground that once the court determined that it did not have jurisdiction to hear Scott's case, it should have simply dismissed the action, rather than passing judgment on the merits of the claims. The dissenting opinions by Curtis and McLean also attacked the Court's overturning of the Missouri Compromise on its merits. They noted that it was not necessary to decide the question and that none of the authors of the Constitution had ever objected on constitutional grounds to the Congress's adoption of the antislavery provisions of the Northwest Ordinance passed by the Continental Congress or the subsequent acts that barred slavery north of 36°30' N.
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From late antiquity there are mentions of "alpine horns", but the earliest secure description of the wooden instrument now called an "alphorn" dates from the sixteenth century.Sibyl Marcuse, "Alphorn", Musical Instruments: A Comprehensive Dictionary, corrected edition (New York: W. W. Norton, 1975). . This description by the naturalist Conrad Gessner calls the instrument a lituus alpinus and says it is "nearly eleven feet long, made from two pieces of wood slightly curved and hollowed out, fitted together and skillfully bound with osiers"."longum ferè ad pedes undecim, duobus lignis modicè incuruis & excauatis compactum, & uiminibus scitè obligatum" (Conrad Gessner, De raris et admirandis herbis qvae sive qvod noctv luceant, siue alias ob causas, lunariae nominantur, commentariolus : & obiter de alijs etiam rebus quæ in tenebris lucent : inferunter & icones quedam herbarum nove : eivsdem descriptio Montis Fracti, siue Montis Pilati, iuxta Lucernam in Heluetia : his accedvnt Io. Dv Chovl G.F. Lugdunensis, Pilati Montis in Gallia descriptio : Io Rhellicani Stockhornias, qua Stockhornus mons altissimus in Bernensium Heluetiorum agro, versibus heroicis describitur.
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R (Jackson) v Attorney General [2005] UKHL 56 is a House of Lords case noted for containing obiter comments by the Judiciary acting in their official capacity suggesting that there may be limits to parliamentary sovereignty, the orthodox position being that it is unlimited in the United Kingdom. The case, brought by Jackson and two other members of the Countryside Alliance, challenged the use of the Parliament Acts to enact the Hunting Act 2004. The appellants claimed that the Parliament Act 1911 could not be used to pass the Parliament Act 1949 which amended the 1911 Act; the Hunting Act, which was passed only in accordance with the modified as opposed to the original requirements of the Parliament Acts procedure, was therefore invalid. The Divisional Court and Court of Appeal both rejected this claim, although the Court of Appeal held that Parliament Acts procedure could not be used to effect "fundamental constitutional changes".
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The legal expression "semble" indicates that the point to which it refers is uncertain or represents only the judge's opinion. In a law report, the expression precedes a proposition of law which is an obiter dictum by the judge, or a suggestion by the reporter. For example, in the headnote(at page 576 E-F) for House of Lords' decision in Hedley Byrne v Heller,[1963] 2 All All ER 575 the reporter uses the term semble when summarising certain remarks of Lords Reid, Morris, and Hodson on a point which did not arise for decision in the case; semble indicates that this may be the law, but it falls to a future case to decide authoritatively. In Simpkins v Pays [1955],'Simpkins v Pays' [1955] 1 WLR 975 Queen's Bench Division Sellers J, having made an award to the plaintiff, suggested "semble" that an equal award was due to the defendant's granddaughter, even though she was not party to the action.
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Laws LJ went on to hold that there was no question of implied repeal as there was no inconsistency between the European Communities Act and the Weights and Measures Act, since there can be no inconsistency between a provision of an Act granting a Henry VIII power and the terms of legislation adopted in application of that power. Furthermore, to say that Henry VIII clauses could only operate vis-a-vis legislation which was already in existence at the time the clause was passed would be to place a limitation on the legislative powers of Parliament and run contrary to the doctrine of Parliamentary sovereignty. Given this primary finding, the Court's observations about how the doctrine of implied repeal might or might not apply to "constitutional statutes" were obiter dicta, albeit potentially significant, given the standing of Laws as a leading public law judge. Notwithstanding that, the point has not been subject to much judicial elaboration since the Thoburn case.
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Joachimson v Swiss Bank Corporation [1921] 3 KB 110 is a judicial decision of the Court of Appeal of England and Wales in relation to the fundamental nature of the legal relationship between banker and customer. Together with Foley v Hill (1848) 2 HLC 28 it forms part of the foundational cases relating to English banking law and the nature of a bank's relationship with its customer in relation to the account. The point decided in the case was that a customer does not have a right of action against its bank for repayment of sums until the customer makes a demand (and accordingly, for the purposes of limitation periods, that time does not run until such a demand is made). However, the reason the decision is considered so important is for the influential comments made by way of obiter dictum by Atkin LJ in relation to the nature of the banker-customer relationship.
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In July 2004, Abdurahman Khadr was denied a Canadian passport by Governor General Adrienne Clarkson on the explicit advice of her Foreign Affairs Minister, Bill Graham, who stated the decision was "in the interest of the national security of Canada and the protection of Canadian troops in Afghanistan." The government invoked Royal Prerogative in order to deny Khadr's passport, as national security was not at that time listed in the Canadian Passport Order as a ground for refusal. Shortly thereafter, on 22 September 2004, section 10.1 was added to the order, which allowed the minister to revoke or refuse a passport due to national security concerns. Khadr sought judicial review of the minister's decision to refuse his passport and, on 8 June of the following year, the Federal Court ruled that the government did not have the power to refuse to issue Khadr's passport in the absence of specific authority set out in the Canadian Passport Order, but stated in obiter dicta that if the order were to be amended, Khadr would likely not be able to challenge the revocation.
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The early Baroque composer and author Michael Praetorius used the word as a Latin equivalent of the German "Schallmeye" (shawm) or for the "Krumbhoerner" (crumhorns)—in the latter case also offering the Italian translations storti, and cornamuti torti.Michael Praetorius, Syntagmatis Musici, Tomus Secundus: De Organographia (Wolffenbüttel: Elias Holwein, 1619): 3, 40. A more particular term, lituus alpinus, was used in 1555 by the Swiss naturalist Conrad Gessner when he published the earliest detailed description of the Alphorn: "nearly eleven feet long, made from two pieces of wood slightly curved and hollowed out, fitted together and skillfully bound with osiers"."longum ferè ad pedes undecim, duobus lignis modicè incuruis & excauatis compactum, & uiminibus scitè obligatum" (Conrad Gessner, De raris et admirandis herbis qvae sive qvod noctv luceant, siue alias ob causas, lunariae nominantur, commentariolus : & obiter de alijs etiam rebus quæ in tenebris lucent : inferunter & icones quedam herbarum nove : eivsdem descriptio Montis Fracti, siue Montis Pilati, iuxta Lucernam in Heluetia : his accedvnt Io. Dv Chovl G.F. Lugdunensis, Pilati Montis in Gallia descriptio : Io Rhellicani Stockhornias, qua Stockhornus mons altissimus in Bernensium Heluetiorum agro, versibus heroicis describitur.
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Especially it was complained, that the bride price once taken, should not be refundable if the couple should get a divorce. The Mifumi petition on bride price was decided in 2010 by the Constitutional Court of Uganda when four judges to one (with Justice Tumwesigye dissenting) upheld the constitutionality of bride price (See Constitutional Court of Uganda (2010) Mifumi (U) Ltd & 12 Others v Attorney General, Kenneth Kakuru (Constitutional Petition No.12 Of 2007) [2010] UGCC 2 (26 March 2010. This was despite finding that certain elements of the custom of bride price, such as the demand for refund, was not only unconstitutional but also criminal. However all was not lost because the case significantly advanced African jurisprudence, particularly in the views of the judges expressed obiter dicta in their judgements. More importantly, MIFUMI appealed and in 2015 the Supreme Court of Uganda ruled that the custom of bride price refund was unconstitutional and therefore outlawed (See (See Supreme Court of Uganda (2015) Mifumi (U) Ltd & Anor Vs Attorney General & Anor (Constitutional Appeal No. 02 of 2014) [2015] UGSC 13).
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Counsel for the husband relied on the obiter words of Hoffman LJ in Pounds v Pounds: > "The agreement may be held to be binding, but whether it will be can be > determined only after litigation and may involve, as in this case, examining > the quality of the advice which was given to the party who wishes to resile. > It is then understandably a matter for surprise and resentment on the part > of the other party that one should be able to repudiate an agreement on > account of the inadequacy of one’s own legal advisers, over whom the other > party had no control and of whose advice he had no knowledge."Pounds v > Pounds [1994] 1 WLR 1535, 1550-1551, per Hoffman LJ He argued that all separation agreements should be binding, whether they are made before a marriage, after it, or once the marriage has already deteriorated. He argued that the case for recognising prenuptial agreements has strengthened since it has come to be accepted that both parties to a marriage are to be treated equally.
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The court also delivered an opinion that colonial legislatures did not have the power to pass laws with extraterritorial effect:[1891] A.C. 455 at 458; cited in Mohr 2005 p.90 :Their Lordships think it right to add that they are of the opinion that if the wider construction had been applied to the statute, and it was supposed that it was intended thereby to comprehend cases so wide as those insisted on at the bar, it would have been beyond the competence of the Colony to enact such a law. Their jurisdiction is confined within their own territories, and the maxim which has been more than once quoted, 'Extra territorium jus dicenti impune non paretur,' would be applicable to such a case. The question was already uncertain prior to this, and as an obiter dictum the opinion was not binding; nevertheless it had a chilling effect on Dominion legislatures' willingness to pass extraterritorial laws until the Statute of Westminster 1931 explicitly stated that they had the power to do so.
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The rights citizens have by being citizens of the United States are covered under the Privileges or Immunities Clause of the 14th Amendment, while the rights citizens have by being citizens of a state fall under the Privileges and Immunities Clause of Article Four. The Supreme Court did not prevent application of the Bill of Rights to the states via the Privileges or Immunities Clause in Slaughter-House, but rather addressed whether a state monopoly statute violated the natural right of a person to do business and engage in his trade or vocation. In other words, no provision of the Bill of Rights was at issue in that case, nor was any other right that followed under the U.S. Constitution. In obiter dicta, Justice Miller's opinion in Slaughter- House went so far as to acknowledge that the privileges or immunities of a citizen of the United States include at least some rights listed in the first eight amendments: "The right to peaceably assemble and petition for redress of grievances...are rights of the citizen guaranteed by the Federal Constitution".
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The decision has been analysed as of its own type and closely dependent upon the circumstances of the offence. In support a legal academic has published that applying too rigid a definition of intent/intention would remove "moral elbow-room" from the jury. Much opprobrium is expressed that R v Steane on its face extends the traditional definition of criminal liability by adding a criterion of true or moral purpose to offences for which a specific intent must be shown (not just actus reus and mens rea). In R v Howe, Bannister & Burke (R v Clarkson) conjoined appeals1987 AC 417 the highest domestic court held that co-murderers were liable even if they acted under a threat to their own lives, the idea of purpose being considered irrelevant, arguably obiter as the certified questions for the consecutive appeals were limited to duress -- leave for such a question was denied from the senior courts as to any "oblique purpose" in the more common context of a set of facts of a violent offence.
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In Binions v Evans[1972] EWCA Civ 6 when Mr and Mrs Binions bought a large property they promised the sellers that Mrs Evans could remain for life in her cottage. They subsequently tried to evict Mrs Evans, but Lord Denning MR held that their agreement had created a constructive trust, and so the property was not theirs to deal with.However in Ashburn Anstalt v Arnold [1989] Ch 1 a different Court of Appeal opined, in obiter dicta, that a third party transferee could not be bound (inconsistent with the reasoning of Lord Denning MR) unless it was express that a new property right was to be granted. Third, gifts or trusts that are made without completing all formalities will be enforced under a constructive trust if it is clear that the person making the gift or trust manifested a true intention to do so. In the leading case, Pennington v Waine[2002] 1 WLR 2075 a lady named Ada Crampton had wished to transfer 400 shares to her nephew, Harold, had filled in a share transfer form and given it to Mr Pennington, the company's auditors, and had died before Mr Pennington had registered it.
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The early Baroque composer and author Michael Praetorius used the word as a Latin equivalent of the German "Schallmeye" (shawm) or for the "Krumbhoerner" (crumhorns)—in the latter case also offering the Italian translations storti, and cornamuti torti. Michael Praetorius, Syntagmatis Musici, Tomus Secundus: De Organographia (Wolffenbüttel: Elias Holwein, 1619): 3, 40. With an added adjective, the term lituus alpinus, was used in 1555 by the Swiss naturalist Conrad Gessner in the earliest published description of the Alphorn: "nearly eleven feet long, made from two pieces of wood slightly curved and hollowed out, fitted together and skillfully bound with osiers"."longum ferè ad pedes undecim, duobus lignis modicè incuruis & excauatis compactum, & uiminibus scitè obligatum" (Conrad Gessner, De raris et admirandis herbis qvae sive qvod noctv luceant, siue alias ob causas, lunariae nominantur, commentariolus : & obiter de alijs etiam rebus quæ in tenebris lucent : inferunter & icones quedam herbarum nove : eivsdem descriptio Montis Fracti, siue Montis Pilati, iuxta Lucernam in Heluetia : his accedvnt Io. Dv Chovl G.F. Lugdunensis, Pilati Montis in Gallia descriptio : Io Rhellicani Stockhornias, qua Stockhornus mons altissimus in Bernensium Heluetiorum agro, versibus heroicis describitur. Tigvri [Zurich]: Apud Andream Gesnerum F. & Iacobvm Gesnerum, frates, 1555): 52.
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Under the 1979 Divorce Act, which governs common-law marriages, a decree of divorce may be granted only on one of the following three grounds: # irretrievable breakdown of the marriage; # incurable mental illness for a continuous period of at least two years; and # continuous unconsciousness for a period of at least six months. The use of the word “may” in sections 3, 4 and 5 of the Divorce Act of 1979 raises the question of whether or not the court has a discretion to refuse a decree of divorce even where all the requirements of one of the abovementioned grounds of divorce have been satisfied: for example, in cases where “divorce would result in grave financial or other hardship for one of the spouses.” It has been argued by several writers that it was the intention of the legislature to vest such a residual discretion in the court. When this question was considered (obiter) by the Appellate Division in Schwartz v Schwartz, Corbett JA rejected an interpretation of section 4(1) favouring such a discretion, and this was confirmed and adopted in Levy v Levy.
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