an appeal to God to witness its truth. An oath is required by law for various
purposes, in particular for *affidavits and giving evidence in court. The usual
witness's oath is: "I swear by Almighty God that the evidence which 1 shall give
shall be the truth, the whole truth and nothing but the truth". Those who object to
swearing an oath, on the grounds that to do so is contrary to their religious beliefs
or that they have no religious beliefs, may instead *affirm.
oath of allegiance An oath to be faithful and bear true allegiance to the Crown.
It is taken by members of both Houses at the opening of every new Parliament, by
certain officers of the Crown on their appointment, and by those who become
British citizens, British Dependent Territories citizens, British Overseas citizens or
British subjects by registration, or British citizens or British Dependent Territories
citizens by naturalization.
obiter dictum [Latin: a remark in passing) Something said by a judge while giving
judgment that was not essential to the decision in the case. It does not form part of
the *ratio decidendi of the case and therefore creates no binding jJtecedent, but may
be cited as *persuasive authority in later cases.
objection in point of law A form of pleading by a defendant in his defence that
raises an issue of law. When such an objection is raised the court may order the
issue to be tried as a *preliminary point of law.
objection to indictment A procedure in which the accused in a *trial on
indictment attempts to prove some objection to the indictment on legal grounds
(e.g. that it contravenes, or fails to comply with, an enactment). The objection is
raised by application to quash the indictment.
objects clause See MEMORANDUM OF ASSOCIATION; ULTRA VIRES.
objects of a power Persons in whose favour a *power of appointment may be
exercised, i.e. potential appointees.
obligation n. 1. A legal duty. 2. A *bond by deed.
obliteration n. The deletion of words in a will. An obliteration is valid only if the
words deleted are indecipherable or if the alteration is properly signed and
witnessed.
obscene publications Material that tends to deprave or corrupt. Under the
Obscene Publications Acts 1959 and 1964 it is an offence to publish an obscene article
or to have an obscene article for publication for gain. For the purposes of the Acts,
obscenity is not limited to pornographic or sexually corrupting material: a book
advocating drug taking or violence, for instance, may be obscene. Whether or not
particular material is obscene is a question of fact in each case, to be decided by the
jury, and expert evidence is not usually permitted. Material that merely tends to
shock or disgust is not obscene. The intention or motive of the author in writing or
depicting the material is irrelevant.
"Publishing" an obscene article includes distributing, circulating, giving, hiring, or
lending the article, offering it for sale or hire (the latter does not include displaying
such material in a shop, which is merely an invitation to treat and not an offer), or
transmitting it through the telephone system by means of a modem. An "article"
may be material that is to be looked at or played over, rather than read, and can also
include, for instance, a negative of a film or any article used to reproduce material
to be read or looked at. This offence is one of *strict liability, but there is a defence
of lack of knowledge, if the defendant can show he had not examined the article
and had no reason to suspect that publishing it would constitute an offence. There
is also a special defence of public good, which applies when the defendant shows
that publication of the article was justified as being in the interests of science,
literature, art, or learning. The offence of possessing an obscene article in the
expectation that it will be published for financial gain is also subject to the defences
of lack of knowledge and public good. If a magistrate suspects that obscene articles
are kept in any premises for this purpose, he may issue a warrant authorizing the
police to search for and seize the articles. If they prove to be obscene, the magistrate
may order them to be forfeited.
The Acts do not apply to material published by means of television or
broadcasting, but they do apply to cinema screening and theatre performances,
subject to the rule that prosecutions in such cases require the consent of the
Director of Public Prosecutions or the Attorney General, respectively. These offences,
too, are subject to the public good defence.
There are also various special offences relating to obscenity, e.g. publishing
obscene advertisements, sending unasked for material describing sexual techniques,
or sending through the post any "indecent or obscene article" (the latter offence is
limited to sexual obscenity, but also includes material that is merely indecent). It is
an offence to take, make, distribute, or possess indecent photographs or pseudophotographs
of a child; a "pseudo-photograph" is an image, created by computer
graphics or any other means, that resembles a photograph and can include
electronically stored data that can be converted into such images. These offences are
*arrestable offences, which may be tried either summarily or on *indictment and
attract a sentence of up to six months' imprisonment and/or a fine on level 5.
obscene telephone calls It is a *summary offence to make an obscene,
offensive, or annoying telephone call. The maximum punishment is three months'
imprisonment and/or a *fine on level 5.
obstructing a police officer The offence of hindering a police officer who is in
the course of doing his duty. "Obstruction" includes any intentional interference, e.g.
by physical force, threats, telling lies or giving misleading information, refusing to
cooperate in removing an obstruction, or warning a person who has committed a
crime so that he can escape detection (e.g.warning a speeding driver that there is a
police trap ahead). It is not, however, an offence merely not to answer, or to advise
someone not to answer, police questions that he does not have to answer. A police
officer is acting in the course of his duty if he is preventing or detecting crime (in
particular, breaches of the peace) or obeying the orders of his superiors. However, he
is not acting in the course of his duty when he is merely assisting the public in
some way unconnected with crime. When the obstruction amounts to an *assault,
the offence is punishable by imprisonment and/or a fine. One may be guilty of this
offence even if the police officer was in plain clothes. There is no power of arrest
unless accompanied by a breach of the peace.
obstruction n. The offence of causing or allowing a motor vehicle, trailer, or
other object to stand on a road in such a way that it is likely to impede other road
users or to use a vehicle on the road in a similar way (e.g.by driving unreasonably
slowly). It is unnecessary to show that any other vehicle or person has in fact been
obstructed. This offence is punishable by a fine. It is also an offence to leave a motor
vehi• 1eon a road in such a position or in such circumstances that it is likely to cause
danger to other road users. This offence requires a "notice of intended prosecution
and is punishable by a fine, *endorsement (which carries 3 penalty points under the
*totting-up system), and discretionary *disqualification.
obstruction of recovery of premises See RECOVERY OF PREMISES.
occupation n. 1. (in land law) The physical possession and control of land. Under
the Land Registration Act 1925 the proprietary rights of a person in actual
occupation may be an "overriding interest binding a purchaser of registered land,
unless inquiry is made of that person and the rights are not disclosed. Under the
Family Law Act 1996,spouses have rights of occupation in the *matrimonial home
by virtue of marriage, which may be capable of protection as *land charges. 2. (in
international law) The act of taking control of territory belonging either to no one
(peaceful occupation) or to a foreign state in the course of a war (belligerent
occupation). Peaceful occupation is one of the methods of legally acquiring
territory, provided the occupier can show a standard of control superior to that of
any other claimant. Denmark acquired Greenland in this way, and the UK acquired
Rockall. A belligerent occupant cannot acquire or annex the occupied territory
during the course of the war. Certain provisions for the protection of enemy
civilians in the Hague and Geneva Conventions are applied to those parts of the
enemy territory that have been effectively occupied. A belligerent occupier must
retain in force the ordinary penal laws and tribunals of the occupied power, but
may alter them or impose new laws to ensure the security and orderly government
of the occupying forces and administration. The government in exile is also
regarded as continuing to represent the occupied state in international law without
any special *recognition being necessary. See also CESSION; SUCCESSION.
occupation order Any of various orders under the Family Law Act 1996 relating
to occupation of the *matrimonial home in cases of domestic violence. The orders
can enforce the rights of co-owning spouses or spouses with *matrimonial home
rights to occupy the home and provide for the exclusion of the respondent from the
home or from any part of it. The orders can also extend similar rights to nonowning
ex-spouses, whether or not they are actually in occupation, and also - under certain
circumstances - to cohabitants or ex-cohabitants. See alsoBATTERED SPOUSE OR
COHABITANT.
occupier n. A person in possession of land or buildings as owner, tenant, or
trespasser. If he is a trespasser he may obtain a right to lawful occupation if the
owner accepts money from him as rent, in which case a tenancy may be created, or
through *adverse possession for a sufficient period.
occupier's liability The liability of an occupier of land or premises to persons on
the land for the condition of the premises and things done there. The occupier for
this purpose is the person or persons exercising control over the premises. At
common law the extent of an occupier's liability varied according to whether the
person on the land entered under a contract, as an *invitee, as a "Iicensee, or as a
trespasser. The common law rules have been replaced by statutes. The English
statutes distinguish between visitors and other persons on land. The Occupiers'
Liability Act 1957 imposes on an occupier a *common duty of care to all his visitors
(i.e. those who enter by his invitation or with his permission) to see that they will be
reasonably safe in using the premises for the purpose for which they were invited
or permitted to be there. Under the Occupiers' Liability Act 1984,an occupier only
owes a duty to persons other than visitors (i.e. trespassers and persons who enter
lawfully but without the occupier's permission) if the occupier is aware or has
reasonable grounds to know of a danger on the premises and that a person may be
in the vicinity of the danger and the risk is one against which he may reasonably be
expected to offer some protection. The duty, if any, is confined to taking such care
as is reasonable in all the circumstances to see that the danger does not cause death
or personal injury to the person concerned. The duty may be discharged by taking
such steps as are reasonable to give warning of the danger or to discourage persons
from incurring the risk.
In Scotland, the Occupiers' Liability (Scotland) Act 1960 requires an occupier to
show to all persons entering the premises such care as is reasonable in all the
circumstances of the case.
occupying tenant A person in possession of premises in accordance with his
rights under a lease or tenancy agreement. or as a *statutory tenant, assured .
agricultural occupier, or a *protected occupier, or under his rights as a tenant WIth
a *restricted contract.
offence n. A *crime. The modern tendency is to refer to crimes as offences.
Offences may be classified as *indictable or *summary and as *arrestable or
nonarrestable.
offences against international law and order Crimes that affe~t the p~oper
functioning of international society. Some authorities regard so-called mternatlO~al
crimes as crimes of individuals that all or most states are bound by treaty to pumsh
in accordance with national laws passed for that purpose. Examples of this type of
crime are *piracy, *hijacking, and *war crimes. The International Law Commission
has formulated Draft Articles on State Responsibility, which attempt to defme
international crimes for which individual states are liable. It gives as examples: (1) a
serious breach of an international obligation essential to safeguard international
peace (e.g. aggression) or peoples' rights to self-determination (e.g. colonial .
domination by force); (2) a widespread and serious breach of obligations essential to
safeguard individuals (e.g. slavery, *genocide, or apartheid) or the environment (e.g.
massive pollution).
offences against property Crimes that affect another person's rights of
ownership (or in some cases possession or control). The main offences against
property are *theft, offences of *deception and *making off without payment,
*criminal damage, *arson, *forgery, and *forcible entry. Some offences against
property, such as *burglary, *robbery, and *blackmail, may also contain elements of
*offences against the person.
offences against public order Crimes that affect the smooth running of
orderly society. The main offences against public order are *riot, *violent disorder,
*affray, *threatening behaviour, stirring up *racial hatred, public *nuisance, and
*obstruction of highways. See also RAVE; TRESPASS.
offences against the person Crimes that involve the use or threat of physical
force against another person. The main offences against the person are *homicide,
*infanticide, illegal *abortion, *causing death by dangerous driving, and *causing
death by careless driving (fatal offences against the person); and *torture, *rape,
*wounding, causing or inflicting *grievous bodily harm, *assault, aggravated
assault, *battery, *kidnapping, and offences involving *indecency (nonfatal offences
against the person). See also POISON.
offences against the state Crimes that affect the security of the state as a
whole. The main offences against the state are <treason and *misprision of treason,
*sedition (and incitement to *mutiny), offences involving *official secrets, and acts
of *terrorism.
offences relating to road traffic Crimes that are associated with driving
vehicles on public roads and related acts. The main offences in this category are
*careless and inconsiderate driving, *causing death by careless driving, *dangerous
driving, *causing death by dangerous driving, "drunken driving, *driving while
disqualified, *driving without insurance, *driving without a licence, *speeding,
*ignoring traffic signals, *parking offences, and *obstruction. Some road traffic
offences require *notice of intended prosecution. Road traffic offences carry various
penalties or combinations of penalties, such as fines, *endorsement of driving
licence, *disqualification from driving, and in some circumstances imprisonment.
The court may also make a *driving-test order. Many road traffic offences (especially
the minor ones) are offences of *strict liability. See alsoDRIVING LICENCE; MOT TEST;
ROAD TRAFFIC ACCIDENTS; ROAD TAX; SEAT BELT; VEHICLE CONSTRUCTION AND MAINTENANCE.
offences triable either way Crimes that may be tried either as an *indictable
offence or a *summary offence. These include offences of deception, theft, bigamy,
and sexual intercourse with a girl under the age of 16.
When an offence is triable either way, the magistrates' court must decide, on
hearing the initial facts of the case, if it should be tried on indictment rather than
summarily (for example, because it appears to be a serious case). Even if they decide
that they can deal with the matter adequately themselves, they must give the
defendant the choice of opting for trial upon indictment before a jury. There are
three exceptional cases, however. (1) If the prosecution is being conducted by or on
behalf of the Attorney General, Solicitor General, or Director of Public Prosecutions,
and they apply for trial on indictment, the case must be tried on indictment. (2) If
the case concerns criminal damage or any offences connected with criminal damage
(except arson), and the damage appears to be less than .400, the case must be tried
summarily. (3) If the defendant is a child or young person, he must be tried
summarily unless: (a)he is charged with homicide; (b) he is charged jointly with
someone over 17,and it would be better if they were tried together; or (c)he is aged
between 14 and 17 and charged with an offence punishable by 14 years'
imprisonment or more, and the court thinks that he should be sentenced to a long
period of detention.
offender n. One who has committed a *crime. See also FIRST OFFENDER; FUGITIVE
OFFENDER; JUVENILE OFFENDER; REPEAT OFFENDER.
offensive weapon Any object that is made, adapted, or intended to be used to
cause physical injury to a person. Examples of objects made to cause injury are
revolvers, coshes, and daggers; objects adapted to cause injury include bottles
deliberately broken to attack someone with and sawn-off shotguns. In theory any
object may be intended to be used to cause injury, but articles commonly intended
for such use include sheath knives (or any household knife), pieces of wood, and
stones.
It is an offence under the Prevention of Crime Act 1953 to have an offensive
weapon in one's possession in a public place. This offence is punishable summarily
by up to six months' imprisonment and/or a *fine at level 5 on the standard scale or
on indictment with up to two years' imprisonment and/or a fine, and the court may
order the weapon to be forfeited. There are special exceptions for those (such as
soldiers or police officers) who carry offensive weapons in the course of duty a~d in
cases of "reasonable excuse", but the defendant must prove that he comes within
these categories. Self-defence is not usually a reasonable excuse unless there is an
imminent and particular threat.
It is also an offence (finable only), under the Criminal Justice Act 1988, to possess
in a public place a bladed or sharply pointed article (other than a folding penknife
with a blade of three inches or less). Here, it is a defence to prove that the article
was for use at work, for religious reasons (e.g. a Sikh's dagger), or part of a national
costume, or that there was authority or good reason for its possession. The 1988 Act
also gives the Home Secretary power to prohibit the manufacture, sale, hire, and
importation of certain offensive weapons.
See alsoFIREARM; WEAPON OF OFFENCE; PROHIBITED WEAPON.
offer n. An indication of willingness to do or refrain from doing something that is
capable of being converted by *acceptance into a legally binding *contract. It is
made by an offeror to an offeree and is capable of acceptance only by a~ offeree
who knows of its existence. Thus, a person giving information cannot claim a
reward if he did not know that a reward was being offered. An offer must be
distinguished from an invitation to treat, which is an invitation to others to make
offers, as by displaying goods in a shop window; and a declaration of intention,.
which is a mere statement of intent to invite offers in the future, as by advertising
an auction. See also LAPSE OF OFFER; REJECTION OF OFFER; REVOCATION OF OFFER.
office copy An exact copy of an official document, supplied and marked as such
by the office that holds or issues the original. Office copies are generally admissible
in evidence to the same extent as the original. Thus office copies of entries recorded
at HM Land Registry are used in *conveyancing as evidence of title to registered
land, and an office copy grant of probate may be used to prove an executor's right
to receive or deal with the deceased's assets.
Office for the Supervision of Solicitors (055) The body that deals with
complaints about solicitors; it was previously called the Solicitors Complaints
Bureau.
Office of Fair Trading See DIRECTOR GENERAL OF FAIR TRADING.
Official Custodian for Charities A corporation sole created by the Charities Act
1960 for the purpose of acting as a custodian trustee of property held for charitable
purposes. It is now governed by the Charities Act 1993and is currently a member of
the Charity Commission staff.
Official Journal (OJ) The official organ of the European Union, usually published
every day and in each of the official languages of the ED.It is currently divided into
two parts. One part (designated L)contains *Community legislation and bears
references in the style "OJ [1997] L 23". The other (designated C) contains proposals of
the European Commission, reports of proceedings in the European Parliament,
notices concerning matters in the European Court, and other matters of general
information; it carries references in the style "OJ [1997] C 23". There is a daily
supplement containing publication of notices of public works and supply contracts
and invitations to tender (see PUBLIC PROCUREMENT). The OJ can be bought from The
Stationery Office and is published daily on the Internet.
Official Petitioner The *Director of Public Prosecutions when acting in respect
of an application for a criminal bankruptcy order under the Powers of Criminal
Courts Act 1973. The power to issue such orders was abolished by the Criminal
Justice Act 1988.
official receiver The person appointed by the Department of Trade and Industry
who acts in *bankruptcy matters as interim receiver and manager of the estate of
the debtor, presides at the first meeting of creditors, and takes part in the debtor's
public examination. In the *compulsory winding-up of a company, he often becomes
*provisionalliquidator when a winding-up order is made.
official referee Until 1972, a judicial officer of the "Supreme Court to whom
certain matters could be referred, usually cases involving prolonged examination of
accounts or large numbers of small items (such as building claims). The office was
abolished by the Courts Act 1971 but the functions previously discharged by official
referees can now be discharged by *circuit judges nominated by the Lord Chancellor
to take official referees' business. The official referee's court is now known as the
Technology and Construction Court and official referees as judges of the
Technology and Construction Court
official search A search, in response to an applicant's *requisition, into the
registers of local land charges, the Land Charges Department, or HM Land Registry
(as appropriate) in order to disclose any registered matter relevant to the requisition,
A certificate is issued by the registrar giving details of encumbrances that the
search has revealed. In the case of the land charges register, a purchaser is not
bound by any encumbrance that a proper search fails to reveal, the official search
certificate being conclusive according to its tenor. If an entry is made in the land
charges register after the date of the certificate and before completion of the
purchase (other than in pursuance of a *priority notice entered on the register on
or before the date of the certificate), it will not affect the purchaser if the purchase
is completed within 15 working days after the issue of the certificate.
In the case of registered land, a purchaser seeking to become the registered
proprietor is only bound by what is on the register and by *overriding interests.
When a purchaser has applied for an official search of the register, his subsequent
application to register the document effecting the purchase of the property
concerned takes precedence over any entry made by a third party in the register
during the priority period (30 days from the time the application for the search was
delivered). Should an official search fail to reveal a registered interest, the newly
registered owner is bound by that interest, but may be entitled to a statutory
idemnity. A local land charge search certificate is valid only at the time it is issued
and a purchaser is bound by any local charge registered subsequently. Since
December 1990 HM Land Registry has been open to public inspection: it is therefore
possible to discover, on payment of a fee, whether any specific property has been or
is about to be registered. The registers of local land charges and the Land Charges
Department are also open to public inspection.
official secrets For the purpose of the Official Secrets Acts 1911-89, information
that is categorized as a secret code or password or is intended to be (or might be)
useful to an enemy. It is an offence to make a sketch, plan, model, or note that
might be useful to an enemy. It is also an offence to obtain, record, or communicate
to anyone else a secret official code or password or any information or document
that is intended to be useful to an enemy. It is also an offence to enter, approach,
inspect, or pass over (e.g.in an aircraft) any prohibited place. Such places include
naval, military, or air-force establishments; national munitions factories or depots,
and any places belonging to or used by the Crown that an enemy would want to
know about. For all three offences the prosecution must prove that the act was
done for a purpose that prejudices the safety or interests of the sta~e. Even if no
particular prejudicial act can be proved, someone may be convicted If It appears
from the circumstances of the case, his conduct, or his known and proven character
that his purpose was prejudicial to the interests of the state. There is also a . .
presumption (which may be disproved by the defenda~t) that aI~.y ~ct done within ,
the scope of the three offences without lawful authonty IS prejudicial to the state s
interests. All three offences are punishable by up to 14 years' imprisonment.
It is also an offence under the Official Secrets Act 1911, section 2, for the holder of
a Crown office who has any document or information as a result of his position to
pass it on to an unauthorized person, keep it, or use it in any other way th~t .
prejudices the state's interests. The information need not be secret or co~f1dentlal
and the defendant need not have realized that harm might result from hIS act. The
offence is punishable by up to two years' imprisonment, and anyone who receiv.es
the information knowing or suspecting that it was given in breach of the Acts 1S.
liable to the same punishment. lt is also an offence to attempt to commit, or incite,
or aid and abet any of the above offences and to do any act of preparation for any
of these offences. All such acts are subject to the same penalties as the offence they
relate to. Thus, for example, buying paper in order to sketch a military installation
is a preparatory act carrying a sentence of up to 14 years' imprisonment. .
The Official Secrets Act 1989 replaces section 2 of the 1911 Act (above) WIth
provisions protecting more limited classes of information from ~isclosure.A
member or former member of the security and intelligence services, or a person
notified that he is subject to this provision, commits an offence, p~nishabl~ with up
to two years' imprisonment and/or a fine, if without lawful ~uthontyhe d1scloses. or
purports to disclose any information, document, or other article relatl~~ to secunty
or intelligence. Similarly, Crown servants and "government contractors are
prohibited from making disclosures that damage security services' operations,
endanger UKinterests abroad, or result in the commission of an offence and from
negligently failing to prevent such disclosures. Other offences relate to th~
disclosure by an ordinary citizen of protected information commumcated III
confidence by a Crown servant.
See also SABOTAGE; SPYING; TREASON.
Official Solicitor An officer of the Supreme Court who, when directed by the
court, acts as *1itigation friend (next friend) or childrens' guardian for those under a
disability who have no one else to act for them; he may also be called upon to
intervene and protect the interests of children. He can be appointed *judicial
trustee in proceedings relating to disputed trusts.
OJ See OFFICIAL JOURNAL.
Old Bailey See CENTRAL CRIMINAL COURT.
oligopoly n. Control of a market by a small number of suppliers, which mayor
may not lead to the operation of a *cartel. Compare MONOPOLY.
Ombudsman n. See COMMISSIONS FOR LOCAL ADMINISTRATION; HOUSING OMBUDSMAN; LEGAL SERVICES OMBUDSMAN; PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION.
omission n. A failure to act. lt is not usually a crime to fail to act; for example, it
is not usually a crime to stand by and watch a child who has fallen into a river
drown. Sometimes, however, there is a duty on a person to act, either because of the
terms of a contractual duty, or because he is a parent or guardian of a minor, or
because he has voluntarily assumed a duty (e.g.looking after a disabled relative), or
through a statutory imposition of such a duty. In such cases, omission may
constitute a crime. Usually this will be a crime of *negligence (e.g. manslaughter, if
the victim dies because of the defendant's omission]; if it is a deliberate omission
with a particular intention (e.g. the intention of starving someone to death) it will
amount to murder. See also NEGLECT.
Similarly, there is no general liability in the law of tort for failing to act, but
there are some situations where the law imposes a duty to take action to prevent
harm to others. Thus occupiers of premises are under a duty to see that their
visitors are reasonably safe (see OCCUPIER'S LIABILITY).
omnia praesumuntur rite et solemniter esse acta See PRESUMPTION.
onus of proof See BURDEN OF PROOF.
open contract A contract for the sale of land in which the only express terms are
the identity of the parties, the property, and the price. An open contract is valid if it
is in writing or, for contracts made before the Law of Property (Miscellaneous
Provisions) Act 1989 came into force, it is evidenced by writing (see MEMORANDUM IN
WRITING) or *part performance. Other necessary terms are implied, including: (1) a
condition that the vendor must convey an unencumbered freehold title, although
the purchaser is bound by any defect of which he knew and which cannot be
removed; (2) the vendor must within a reasonable time produce at his own expense
an abstract of title beginning with a *root of title at least 15 years old or, in the case
of registered land, the documents specified by the Land Registration Act 1925; (3)a
condition that the vendor will convey as *beneficial owner; (4) the purchaser must
deliver any *requisitions on or objections to the title within a reasonable time after
receiving the abstract; (5) the conveyance must be prepared by the purchaser at his
own expense; (6) the vendor must give vacant possession on completion; (7)the
transaction must be completed within a reasonable time: if it is not, the vendor is
entitled to interest on the unpaid price and the purchaser to the income of the
property from the time when completion should have occurred.
In the case of contracts made by correspondence, statutory conditions set out in
regulations made under the Law of Property Act 1925 apply (see STATUTORY FORM OF
CONDITIONS OF SALE). A vendor cannot insist on preparing the conveyance himself (a
contractual term to this effect is void), but apart from this the implied and
statutory conditions may be dispensed with, varied, or supplemented by agreement
between the parties. In practice, the forms of contract generally used specify the
parties' rights and obligations much more precisely.
opening speech 1. A speech made by the prosecution counsel at the beginning of
a criminal trial, briefly outlining the case against the accused and summarizing the
evidence that the prosecution intends to call to prove its case. 2. The speech made
by counsel for the claimant at the beginning of a civil trial.
open procedure See PUBLIC PROCUREMENT.
open space An area in a *conservation area so designated by the Secretary of
State for the Environment and consequently requiring "special attention" for
planning purposes.
operative mistake See MISTAKE.
operative part See DEED.
operative words The part of a conveyance that effects the essence of the
transaction; for example, the words "the Vendor hereby conveys Blackacre to the
Purchaser in fee simple". No specific form of words is necessary provided that the
intention is clear.
opinio juris [Latin, from opinio juris sive necessitatis (whether the opinion of law is
compulsory)] An essential element of *custom, one of the four sources of
*internationallaw as outlined in the Statute of the *lnternational Court of Justice.
Opinio juris requires that custom should be regarded as state practice amounting to
a legal obligation, which distinguishes it from mere usage.
opinion n. 1. A judgment by the House of Lords. 2. (counsel's opinion) A
barrister's advice on a particular question. 3. Advice on a case given by an *Advocate
General before a final judgment of the *European Court of Justice.
opinion evidence Evidence of the opinions or beliefs of a witness, as opposed to
evidence of facts about which he can give admissible evidence. At common law,
opinion evidence is in general inadmissible but this rule is subject to many
exceptions. Thus a nonexpert witness may testify as to age, speed of vehicles,
handwriting, or identity. Expert witnesses (e.g. doctors) may give their opinions on
any matter falling within their expertise. At common law, a witness could not give
his opinion on an ultimate issue (i.e. the question that the court had to decide) but
this rule, which was not very strictly applied in practice, was relaxed in respect of
civil cases by the Civil Evidence Act 1972.See also HEARSAY EVIDENCE.
option n. A right to do or not to do something, usually within a specified time. An
enforceable option may be acquired by contract (i.e. for consideration) or by deed to
accept or reject an *offer within a specified period. An option to acquire land or an
interest in it on specified terms will only bind third parties if it is registered (see
REGISTRATION OF ENCUMBRANCES). If an option to buy does not specify the price it will
only be valid if it specifies a means for determining the price, e.g. by a valuation to
be made by a specified third party who is or will be under a duty to act. Thus an
option to buy at a price to be agreed is void for uncertainty.
On the London *Stock Exchange, options to sell or to buy quoted securities are
purchased for a certain sum of money, which is forfeited if they are not taken up.
An option to sell is known as a put option, that to buy is a call option, and an
option to either sell or buy is a double option. Under the Companies Act 1985,
directors, shadow directors, and the spouses or children of either are prohibited
from buying or selling options in the shares of their own company.
optional clause A clause of the Statute of the *International Court of Justice
(Article 36(2)) that gives states the opportunity of signing a declaration by WhICh
they recognize as compulsory, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes concerning certain
specified matters. Despite acceptance of the optional clause, it is common for states
to append to their acceptance *reservations of their own making. These either
concern specific topics that they will not allow the Court to settle or the
reservations may, more sweepingly, exclude all matters that states consider to be
within their domestic jurisdiction.
option to purchase A right to compel the owner of land to sell it to the option
holder on agreed terms. The option constitutes an offer by its grantor that remains
open in accordance with the terms of the option, enabling the grantee to accept it.
This right binds third parties if entered as an *estate contract on the land charges
register if the land is unregistered, or by the appropriate entry on the charges
register in registered land. See REGISTRATION OF ENCUMBRANCES.
oral agreement A contract made by word of mouth, as opposed to one made in
writing. See also IMPLIED CONTRACT.
oral evidence Spoken evidence given by a witness in court, usually on *oath. A
witness's evidence must usually relate what he knows through the use of his own
senses. However, under the Civil Evidence Act 1995 *hearsay evidence in civil cases is
now permitted.
orality n. The principle that evidence must be given orally and subject to *crossexamination
unless *affidavit evidence is admissible.
order n. 1. A direction or command of a court. In this sense it is often used
synonymously with *judgment. 2. The document bearing the seal of the court
recording its judgment in a case. 3. A subdivision of the *Rules of the Supreme
Court and the County Court Rules.
order for account An order in civil cases that the amount of money due from
one party to another may be investigated. The order may be made before trial.
Accounts are usually taken by a master or a referee and are most frequently
ordered in partnership and trust matters.
order of discharge A court order resulting in the *discharge of a bankrupt.
Orders in Council Government orders of a legislative character made by the
Crown and members of the Privy Council either under statutory powers conferred
on Her Majesty in Council (see DELEGATED LEGISLATION; STATUTORY INSTRUMENT) or in
exercise of the *royal prerogative. Compare ORDERS OF COUNCIL.
Orders of Council Orders of a legislative nature made by the Privy Council under
statutory powers conferred on the Council alone. They relate mainly to the
regulation of certain professions and professional bodies. See DELEGATED LEGISLATION.
Compare ORDERS IN COUNCIL.
ordinance n. One of the forms taken by legislation under the *royal prerogative,
normally legislation relating to UKdependencies.
ordinary resolution A decision reached by a simple majority (i.e. of more than
50%) of company members voting in person or by proxy. It is appropriate where no
other type of resolution is expressly required by the Companies Acts or the *articles
of association. Compare EXTRAORDINARY RESOLUTION; SPECIAL RESOLUTION.
ordinary share See SHARE.
original evidence 1. Evidence of a statement made by a person other than the
testifying witness, which is offered to prove that the statement was actually made
rather than to prove its truth. Thus, if in an action for slander a witness testifies
that he heard the defendant defame the claimant, his testimony is original evidence
and not *hearsay evidence. 2. See DIRECT EVIDENCE.
originating summons A form of originating *process in the High Court now
rendered obsolete by the Civil Procedure Rules. Under the Rules, it has been replaced
by the *Part 8 claim form.
origin system A system for protecting products in which each is identified by
means of an appellation of origin, which is similar to a trade mark but may only
be used for a product from a particular region. The regulations, which cover many
products, were agreed in March 1996.The scheme stops manufacturers, etc., from
other regions from using local names, such as Stilton cheese, Newcastle Brown Ale,
and Jersey Royal potatoes.
OSS See OFFICE FOR THE SUPERVlSION OF SOLICITORS.
ouster n. The act of wrongfully dispossessing someone of any kind of
*hereditament, such as freehold property. See ADVERSE POSSESSION.
ouster of jurisdiction The exclusion of judicial proceedings in respect of any
dispute. There is a presumption that statutes and other documents (e.g. contracts) do
not oust the jurisdiction of the courts. See INTERPRETATION OF STATUTES.
outer Bar (utter Bar) Junior barristers, COllectively, who sit outside the bar of the
court, as opposed to *Queen's Counsel, who sit within it.
outraging public decency See CONSPIRACY.
outstanding term See SATISFIED TERM.
outworker n. See TELEWORKING.
overcrowding n. For statutory purposes a dwelling is overcrowded when two or
more people of opposite sexes over the age of ten, and not married to one another
or cohabiting, are obliged, because of lack of space, to sleep in the same room. There
is also a test for overcrowding based on the number of people living in the dwelling
compared with the number of rooms and the floor area of those rooms. Local
authorities have a duty to prevent overcrowding and can take action against an
owner-occupier, a landlord, or a tenant.
overreaching n. The process by which interests in land are converted on sale of
the land into corresponding interests in the *capital money arising from the sale.
Under the Settled Land Act 1925 the tenant for life always has the right to sell the
settled land and overreach other interests, including interests in remainder and in
reversion, with certain statutory exceptions (including the *principal mansion
house).
Where land is held on a *trust of land, the law of Property Act 1925provides that
a purchaser of the land shall take free of the beneficiaries' interests, provided that
the purchase money is paid to at least two trustees or a trust corporation. A
mortgagee exercising his *power of sale is able to overreach the mortgagor's estate
and *equity of redemption and convey the land free from the equitable right: the
mortgagor's rights are transferred to the purchase money, the mortgagee being
trustee of any such funds remaining after paying off the mortgage debt.
Overreaching in general affects only equitable rights.
overriding interests Certain rights and interests in registered land, listed in the
Land Registration Act 1925, that cannot be protected by registration but, unless
overreached, will bind the registered proprietor and any third party acquiring the
land or any interest in it. The list includes legal *easements and *profits Ii prendre,
rights of persons in actual occupation, rights acquired under the Limitation Acts (see
LIMITATION OF ACTIONS), and leases granted for terms of up to 21 years.
overrule vb. To set aside the decision of a court in an earlier case. Because of the
doctrine of *precedent, a court can generally only overrule decisions of courts lower
than itself. The setting aside of the judgment of a lower court on appeal is called a
reversal.
oversea company A *foreign company with an established place of business in
Great Britain. Such companies are obliged to comply with certain formalities, such
as filing their constitution or charter at the *Companies Registry and giving details
of their directors and of who is authorized to accept service of legal proceedings and
notices in the UK.
overseas divorce A divorce, annulment, or legal separation obtained overseas.
There are different rules for the recognition of overseas divorces in the UK,
according to whether or not they are obtained through judicial proceedings. An
overseas divorce obtained through proceedings is recognized if: it is effective under
the law of the country in which it was obtained; and either party to the marriage
was habitually resident in, domiciled in, or a national of the country where it was
obtained. An overseas divorce obtained otherwise than through proceedings is
recognized if: it is effective under the law of the country where it was obtained;
both parties were domiciled in that country, or one party was domiciled in that
country and the other party was domiciled in another country that recognizes the
divorce as valid; and neither party was habitually resident in the UKin the year
preceding the divorce. See also EXTRAJUDICIAL DIVORCE.
owner-occupier n. A person who has legal ownership of a dwelling in which he
lives or in which he lived before letting it on an *assured or *regulated tenancy. For
statutory purposes, the term includes a tenant under a *long tenancy.
ownership n. The exclusive right to use, possess, and dispose of property, subject
only to the rights of persons having a superior interest and to any restrictions on
the owner's rights imposed by agreement with or by act of third parties or by
operation of law. Ownership may be corporeal, i.e. of a material thing, which may
itself be a *movable or an *immovable; or it may be incorporeal, i.e. of something
intangible, such as of a copyright or patent. Ownership involves enjoyment of a
number of rights over the property. The owner can alienate (i.e. sell or give away)
some of these rights while still retaining others; for example, an owner of land may
grant a right of way or a patent owner may grant a licence to manufacture the
patented goods. Ownership may be held by different persons for different interests,
for example when a freehold owner grants a lease or when land is settled on
persons with interests in succession to one another (see SETTLED LAND). More than one
person can own the same property at the same time. They may be either joint
owners with a single title to the property (see JOINT TENANCY); or owners in common,
each having a distinct title in the property that he can dispose of independently (see
TENANCY IN COMMON).
A person may be both the legal and beneficial owner, or the legal ownership of
property may be separate from the beneficial (equitable) ownership (i.e. the right to
enjoy the property), as when a trustee owns the legal estate in land for the benefit
of another.
A legally valid transaction may confer specific rights to use, possess, or deal with
property without conferring ownership of it; for example, a contract may appoint a
person as the owner's agent for the sale of specified land.
See alsoESTATE.
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