The Ends of Law

1. To give effect to the divine law
2. To enable the fullest development of the human personality
3. To give everyone his due
4. To keep the peace
5. To enable the free movement of individual in society
6. To make possible the greatest happiness of the greatest number
7. To enable the citizen to do his duty
8. To maintain the security of social institutions
9. To achieve equality
10. To achieve the maximum satisfaction of human wants

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The Nature of Law

1. Rules divinely ordained or framed within the divine dispensation
2. A reflection of divine reason
3. The embodiment of ancient tradition
4. A crystallization of reason and commonsense
5. A body of agreement among the members of the society
6. A reflection of the general will
7. The command of the sovereign
8. The reflection of the history, culture and needs of a given society
9. A reconciliation of freewill and general freedom
10. The product of evolutionary forces
11. A hierarchy of normative relations
12. The decisions of the courts
13. The application of freely found principles of justice and equity
14. The rules consolidating the economic interests of the dominant class
15. The enterprise of subjecting human conduct to the government rules
16. The conditions making social existence possible in organised groups

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Functions of Law

There are a few functions of law such as:

1. hearing grievances and providing remedies
2. awarding penalties
3. ordering conferment of public benefits by the government
4. facilitating and effectuating arrangements which are private
5. recognizing and ordering private ownership
6. protecting private life and reinforcement of family ties
7. promoting human health by by providing a healthy enviroment
8. maintaining the peace of community
9. protecting basic freedoms and liberties
10. securing equality of opportunity
11. regulating administrative action and
12. exercising surveillance and control over persons and power.

source : RS Summers, Law its Nature, Functions & Limits

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Treaties

What is treaties? If we look into the provisional draft of the International Law Commission, a "treaty" is defined as :
"any international agreement in written form, whether embodied in a single instrument or in 2 or more related instrument & whatever its particular designation (treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, modus vivendi or any other appellation), conclude between 2 or more states or other subjects of international law & governed by international law".

Besides,  Article 2 (1)(a) of Vienna Convention defines a treaty as " an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".

Elements of Treaties.

(1) Form
The manner in which treaties are negotiated and brought into force is governed by the intention and consent of the parties. There's no specific requirements of form, for instance, an agreement may be recorded in an exchange of letters or the minutes of the conference.The Vienna Convention applies only to agreements in written form but Article 3 stipulates that this limitation is without prejudice to the legal force of agreements 'not in written form'
(2) Full powers & signature
A Full powers involves an authority to negotiate & to sign & seal a treaty. If the negotiation is successful, the parties may adopt & authenticate the agreements. From the authentication comes the signature. Signature is subject to ratification, acceptance, or approval but signature does not established consent to be bound. However, signature qualifies the signatory state to proceed to ratification, acceptance or approval & creates an obligation of good faith to refrain from acts calculated frustrated the objects of the treaty.
(3) Ratification
Ratification involves two distinct procedural acts which are ratification in constitutional sense  & the second is the international procedure which brings a treaty into force by a formal exchange or eposit of instrument of ratification.Ratification needed the consent to be bound. In the Article 14 of the Vienna Convention, its provided that the parties must have intention to be bound.
(4) Accession, acceptance & approval
Accession, acceptance & approval occurs when a state which did not sign a treaty, already signed by other states, formally accepts its provisions. Accession may occur before or after the treaty has entered into force. The conditions under which accession may occur & the procedure involved depend on the provisions of the treaty. Recent practice has introduced the terms 'acceptance' & 'approval' to describe the substance of accession.
(5) Expression of consent to be bound.
Other ways of consent is an expression to be bound such as an exchange of instruments constituting a treaty. Signature, ratification, acceptance & approval are not the only means by which consent to be bound may be expressed.

In conclusion, a ratification of the treaties will bound the states that give their consent & intention to be bound.

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Bona fide purchaser principle

When the concept of the trust was being developed by equity, one of the problems that had to be addressed was what the rights of the beneficiary were if the trustee transferred trust property to a third party in breach of trust. The solution that equity imposed is not surprising when it is recalled that the courts proceeded on the basis of principles of conscience. If the trustee transferred the trust property to a purchaser who was acting in good faith, who gave value for the property and who had no notice of the equitable interests existing in the property, equity saw no reason why the purchaser should be treated as having acted with unconscionable conduct and so there was no reason why equity should allow the claim of the beneficiary to prevail. It can be said that the claims of the beneficiary and of the third party are equally valid and that in such a case the equitable maxim ‘where there is equal equity, the law prevails’ is applicable to protect the third party. In other words, the purchaser’s legal estate is allowed to prevail over the equitable interest of the beneficiary.An example of the bona fide purchaser rule in action is to be found in MCC Proceeds Inc v Lehman Brothers International (Europe) [1998] 4 All ER 675. Macmillan Incorporated (M) was a company taken over and controlled by Robert Maxwell and members of his family. The company placed shares in Berlitz International Inc, a wholly owned subsidiary, together with the share certificates in the name of Bishopsgate Investment Trust plc (a nominee company controlled by Robert Maxwell). An agreement declared that Bishopsgate held the legal title to the shares as nominees for M, who retained the beneficial ownership in the shares. The agreement stated that Bishopsgate Investment Trust plc would immediately transfer the shares to M on M’s written demand. Bishopsgate then, in breach of trust, pledged the certificates with the defendants as collateral under a stock-lending scheme. M knew nothing of this. The defendants were unaware of the interest of M. The shares were later sold by the defendants. The Court of Appeal said that, as the defendants were bona fide purchasers of the legal interest in the shares and had no notice of the claim of M or of the breach of trust by Bishopsgate, the interest of M was overreached and the defendants took free of any interest of M.

The bona fide principle is obviously important but it is limited. It does not apply if the trust property is acquired by a volunteer or by a purchaser of an interest other than the legal interest. In this context the consideration provided can either be money or money’s worth or marriage consideration, which is recognised by equity, but not the common law, as being consideration. In these cases the claim of the beneficiary prevails and he is able to assert his rights against the third party. These situations are resolved by applying the maxim ‘when the equities are equal the first in time prevails’.The bona fide principle only applies if the purchaser has no notice of the equitable interests. Notice can include actual and constructive notice. A person has constructive notice of matters of which he would have known had he made those inquiries which a reasonable man would have made. A purchaser will also be fixed with notice of facts known to his agents (e.g. his solicitor). This is called imputed notice.

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Maxim: Where the equities are equal, the law prevails

The related maxim is concerned with priorities of competing interests, that is to say which of various interests prevails in the events of a conflict, may be dealt with together. To understand this maxim, a distinction and understanding of the concept of “legal interest or estate” and “equitable interest” is necessary.
A legal interest or estate is an interest in the property required by a purchaser for valuable consideration either by cash or marriage consideration. It also includes mortgagee and lessee.


An equitable interest is any interest which recognised from the Chancery court. An example would be in the case of trust; although the trustee’s name would be registered as the holder of the property, the beneficiaries acquire an equitable interest over the trustee’s property. They have a right to sue the trustee for breach of trust.

Under general rule, the interest takes effect in order of their creation. For instance, whose rights are created first will receive priority in the court of equity. However, an equitable interest might be defeated by a legal interest, even though it has been created prior to the legal interest. For example, if the purchaser of a legal interest is bona fide and without notice of any equitable interest, then the equities are equal and legal interest prevails.

In the case of Langan v Lee Cheng Keat, the lands situated in Penang were held on trust as marriage settlement. However, the trust was never registered and the tittle deeds remained in the name of the owner. On the death of the owner, his administratix sold and conveyed the land to the Defendant and delivered to him the title deeds but without referring to the trust accidentally came across the marriage settlement. They filed a suit for possession of the property from the defendant.
The court held that defendant was in possession of the land and the title deeds as a bona fide purchaser without notice of trust. His equity should prevail over that of beneficiary.

In the case of Cave v Cave, the legal mortgage created without notice of the prior beneficial interest, applying the maxim above, the court held that the legal mortgage took priority over the equitable interest having been created bona fide for value without notice.


Others material

When two parties want the same thing and the court cannot in good conscience say that one has a better right to the item than the other, the court will leave it where it is. For example, a company that had been collecting sales tax and turning it over to the state government found that it had overtaxed and overpaid by 2 percent. It applied for a refund, but the state refused. The court upheld the state on the ground that the money really belonged to the customers of the company. Since the company had no better right to the money than the state, the court left the money with the state.

Where equities are equal , the first in time shall prevail – In the absence of a legal estate in the matter and the contest is among the equitable estate only, the rule is that the person whose equity attached to the property first will be entitled to priority over other or others e.g., if A enters into a contract for the sale of his house with B and then with C, the interest of B and C both being equitable, B will have priority over C because his attached to the property first.

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Licensees

This category types of entrants in occupiers liability refers to a person who enters the premises with the occupiers gratuitous permission, be it express or implied. Usually, the occupier does not have any interest in the presence of licensee on his premises, unlike a contractual entrant & an invitee. There are 3 types of licensees:
(i) entrant as of right
(ii) social visitors
(iii) an entrant by implied permission

Entrant as of right means those have the right to enter into premises that are open to the public such as public park, public lavatory, public library & any other building open to the public. Actual knowledge of the occupier as to the existence of danger is not necessary & the licensee visitor cannot assume that the premises will be free from visible dangers. The occupier must however, take reasonable steps in the circumstances to avoid damage from occurring, especially if the danger is obvious.
case: Aiken v Kinborough Corporation

Social visitors is one who enters into private premises with the permission of the occupier or by invitation. His purpose for being on the premises is social in nature & does not confer any materialistic or economic advantage to the occupier. In the case Yeap Cheng Hock v Kajima-Taisei Joint Venture, P, who was a geologist, was injured during a visit to a mine, the visit being for his own purpose. Syed Agil Barakbah J stated that at Common Law, a licensee is a person who enters premises with the consent of the occupier based on the occupier gratuitous permission & not for any business purposes. The P in this case was held to be a licensee & not an invitee. The D was found liable as the cause of the injury, which was a projection of rock in a tunnel, was a concealed danger & was known or ought to have been known by the D.

case: Datuk Bandar Dewan Bandaraya v Ong Kok Peng & Anor.

Besides, entrant by implied permission is for those who enters the premises without any express restriction by the occupier. The court applies the doctrine of allurement in this category such as a child entering a piece of land due to some attraction on the land, or someone who is not prevented to use the occupier's land in order to get to the other side of the land.

Children Licensees.
If the licensee is a child, the duty on the occupier is higher as a child cannot be expected to be aware of dangers that may be obvious to adults. In the case Phipps v Rochester Corporation, 2 children entered into D's area to pluck some fruits. The fell & injured themselves. The danger was visible to adults but not to children. The children were held to be licensees.
If the parents/guardian have exercised reasonable care for the safety of their child, it falls on the shoulders of the occupier to show that he has taken all reasonable precautions in the circumstances. In the case Kalaichelvi v Kinkara Group Estates Ltd, a 3 years old girl standing near the front door of her house was hit by the object which flew from the blade of a grass-cutting tractor nearby. The court held that the licensor occupier must act with the reasonable diligence to prevent his premises from misleading or entrapping licensee. due to the girl's age, she could not have known the danger. Consequently the machine should not have been operated so close to children without any precautions to prevent foreseeable injury.

Trespasser.
Trespasser is for those who enters premises without any express or implied permission of the occupier. His existence on the premises may not be known to the occupier. Examples: Wondering child, thief, person who has lost his way & ors.
In case of Robert Addie & Sons v Dumbreck, the court stated that in general, an occupier does not owe a duty to a trespasser as he had entered without permission & is therefore assumed to have accepted all risk & any danger there might be on the property.

other case: British Railways Board v Harrington

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