Legal Questions: do not communicate with the demon at all except through your genie

The Something Awful Forums > Discussion > Ask/Tell > Legal Questions: do not communicate with the demon at all except through your genie

dos4gw: Nov 12, 2005

Steve McScene posted:

I got arrested and bailed for affray. I have a couple of questions:

I feel like I was acting in self defence/the defence of a friend. How can that be affray?
No reasonable person in the vicinity would have feared for themselves as it was a localised fight between us 2. Again, how could it be affray?

And lastly, with this being my first offence, what is the punishment likely to be/will the CPS even be likely to pursue it?

I'm in the UK btw.

I'm a UK based barrister so I might be able to give you some general advice.

http://www.legislation.gov.uk/ukpga/1986/64

That's the Public Order Act 1986 - s3 sets out the test for affray - s3(1) says where a person uses unlawful violence, so if you were acting in defence of yourself or another that would mean any violence was lawful.

Then you've got the question of whether the conduct would have caused a person of reasonable firmness to fear for his safety. From what you've said it doesn't sound like that would be the case but without knowing all the facts it's hard to say. That's the test that the court would apply though.

In regard to whether the CPS would prosecute, read section 4 of this:

http://www.cps.gov.uk/publications/docs/code2010english.pdf

It goes on a bit but it sets out all the factors they will look at. I guess the main thing for you sounds like whether they would feel it's in the public interest to prosecute. From what you've said possibly not but you might just have to wait to find out I'm afraid.

Edit: Oh and in terms of likely punishment if they did prosecute and you were found guilty, it would probably be community service. If you look at s3(7) of the act it talks about maximum sentences - don't let that scare you because for a first offender of what sounds like a relatively benign offence (even if found guilty) it wouldn't be that high. You'd be tried summarily (i.e. before the magistrates) so the 6 months is the absolute max but as I say that's not a likely possibility here. You might even get a fine instead but I'd say about 75% likely you'd get community service.

dos4gw fucked around with this message at 10:46 on May 5, 2012

# ¿ May 5, 2012 10:42

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# ¿ Apr 29, 2024 03:27

dos4gw: Nov 12, 2005

Even if you cant get specific performance or damages for breach of the contract you can just sue that bitch rear end nigga in the law of restitution. How'd you like an action for unjust enrichment bitch? Money had and received, total failure of consideration!

Watch out for the change of position defence though... don't let that rear end in a top hat spend any of the money. I don't know what the position is in the US with regard to such a claim being personal or proprietary in nature but if it's personal then if he passes that money onto some bona fide third party who doesn't have notice then you might be hosed.

Your best option would be to burn the art gallery down, wait for him to collect the insurance and then immediately hit him with court summons so you can get in and out with the money before he has chance to do anything with it.

# ¿ Aug 24, 2012 18:23

dos4gw: Nov 12, 2005

Anjow posted:

I work in England and my employer is in the process of drafting a new contract onto which all employees will be moved. Part of this contract includes a waiver of the 48 hours per week maximum in the EU Working Time Directive. I do not want to regularly work more than 48 hours in a week and I don't want the company to be able to. I do sometimes do more, but I gather that this is based on an average so that's not a problem since it's not regular.

1. If I waived this, am I right in thinking that they could require me to work more than 48 hours regularly? Or would that likely depend on other clauses in my contract?

2. I gather from the text of the Directive that people may only waive this right if there is no detriment for not agreeing to waive it. Since they're not providing it as a separate option and instead lumping it in with the main contract, could any consequences for not signing the contract on that basis be regarded as a detriment to those who refuse to waive that right?

I hope this makes sense.

Where the hell have you been working that didn't already require everyone to waive the 48 hours maximum? As Alchenaar said, pretty much everywhere does this.

In theory of course you could not sign it, and the ECJ has previously held that someone who refused to work more couldn't be moved to another position with fewer hours (Fuss (Social Policy)) but I don't know if there's any authority about whether they could get rid of you or what might happen.

In reality though I can't see how not signing could do anything other than make your life hell and cause a lot of resentment on the part of your employer. It's one thing to say you are entitled not to sign it in law but another to understand the implications of not doing it on your quality of life at work and they way you are perceived within the organisation.

# ¿ Sep 13, 2012 08:52

dos4gw: Nov 12, 2005

SleeplessInEngland posted:

I have a question for anyone who knows anything about UK employment/payment laws?

My boyfriend has worked for a small Limited company for the past 9 months. Over the past 4 months, his boss has been really bad about paying him - he either doesn't pay him at all or only pays him some of his wages. He is also always late paying him and doesn't give him a payslip. He's also been quite bad about being upfront about this, telling my boyfriend he has been paid only for us to then discover that the money hasn't appeared. There is one other guy employed at the company who (as far as we're aware) has had some trouble getting paid too.

My boyfriend has talked to his boss, stating that he needs to be paid on time (We have email evidence of this, as well as a written contract signed by his boss) and in full because we need that money desperately. His boss has basically said that he wants to pay him but he doesn't have enough money to pay him in full (Or at all, half the time). My boyfriend is currently looking for a new job and has said he won't be going back to the office until he is paid for his work.

The thing we want to know is.. where do we go from here? Because it is a limited company, if the company itself doesn't have the money to pay my boyfriend, is his boss legally required to pay him out of his pocket or can he get away with not paying anything? Any advice would be much appreciated!

I doubt his boss (assuming he's registered as the director of the company) would be personally liable for any outstanding debts. Does the company genuinely not have the money though? If it is on the verge of bankruptcy and has borrowed money from banks etc on the basis of putting up its assets as security then your boyfriend probably wouldn't get anything if it came to that, but the boss doesn't sound like the most believable character in the world.

It sounds like the best thing to do would be to write a formal letter to the boss notifying him that if your boyfriend isn't paid, he will have no option but to go through the courts. Normally I would recommend instructing a solicitor but if you're short on money then that might not be the best idea.

It would be a good idea to contact your local Citizens Advice Bureau - they can give you more detailed advice and help with drafting an appropriate letter. They can also guide you through the process of starting a claim (fairly simple and painless process) etc if it comes to that.

If the company genuinely has no money then there's not much your boyfriend can do but sometimes the prospect of legal proceedings can wake someone up and they might 'realise' that they do have more money than they thought.

# ¿ Sep 13, 2012 18:41

dos4gw: Nov 12, 2005

Manac0r posted:

So I created this thread about a consumer issue I am having in the UK, involving a high end PC.

http://forums.somethingawful.com/showthread.php?threadid=3508974

(in hindsight the SH/SC may have been the wrong place to post it and I was pointed here)

Would really appreciate some feedback and advice on how to proceed.

Thank you kindly.

tl;dr High end PC, within 1 year 6 months has had five major RMA faults. Company refuses to accept poor quality build. Suggested recourse?

Just start a case in the small claims court, you can do it online:

https://www.moneyclaim.gov.uk/web/mcol/welcome

Would be a good idea to write another letter/email to the company though to give them one last chance to sort it out (and mention that you will be forced to issue a claim otherwise). Although it doesn't cost that much to bring a claim, you won't automatically get to recover the cost from the company if you win, unless the judge thinks you ought to (i.e. he/she has discretion). The more reasonable you can show you have been throughout, the more likely you are to get your money back.

The rules for small claims are more relaxed - there are no formal rules of evidence so it would be a case of taking along everything you can.

I don't know what the guy at that company has been smoking but s14(2) of the SGA (i.e. implied term that goods will be fit for purpose) still applies to you. You've not modified the parts yourself, right - just customised your build on the company's website and they have then put it all together and sent it to you? If they are all parts that they have sold you, there is an implied term for all of them. They can't list 100 things and say, 'oh well we only guarantee 3 of those!'.

If they try to blame the supplier or anything else, just ignore that - if they want to get any money back from them later then they can but that's their problem. You're entitled to recover from them so you can do so. It might be a hassle but it would be a hassle for them too and they may just cave in. Even if not it wouldn't take more than an hour or two in court one day to get it sorted.

# ¿ Sep 28, 2012 16:07

dos4gw: Nov 12, 2005

BelgianSandwich posted:

I was recently rejected from an apartment company, and while they returned the deposit I paid them, they did not return the application and administration fee.

Now I understand them not returning the application fee, but I paid them for administrative services that they declined to provide. Aren't they bound to return that money to me? I paid them money to do something, they chose not to do it, and then wouldn't return the money? Isn't this breach of contract?

I almost want to take this to small claims court just on principle.

You have a few options:

(1) Who did you deal with? Presumably an employee of the company? Normally they will be classed in law as an agent and their actions will bind their principal (i.e. the company). You may have thought you were dealing with an employee but are you sure?

If you remember back really hard you might just remember that in fact they never mentioned any company. What you had was an agreement with an agent acting for an undisclosed principal. This has an important legal consequence: both the company and the agent are potentially liable to you! What this means in practical terms is that the agent is less likely to have as much money to afford expensive lawyers and so you can prey on that vulnerability. Some of the legal arguments that you could try to put forward against a large company with huge sums of money and a top legal team behind it would get brushed aside pretty quickly, but when you sue an individual you can be a bit more creative!

The easiest way to do this, however, wouldn't be to rely on complex legal arguments but assert that they definitely told you, quite clearly, that if you were not accepted then you would get your money back. Since you're at it, you can 'remember' that they distinctly mentioned you would get the application fee back too, as well as the administrative charge. Bish bash bosh it'll all be over in no time and you'll get your money back. I am based in the UK where punitive damages are rare but if you're in the US then make sure to include a claim for those as well! In no time you could be looking at a claim for a cool $2 mil.

(2) Did the company owe you a duty of loyalty? Yes. Did they either breach, or put themselves in danger of breaching that duty, by acting in a way that potentially put them in a conflict of interest? If so then you have a classic case of breach of fiduciary duty.

The best thing about this is that your right isn't just personal, it's proprietary. This means that you can trace into other assets. For instance, say that money they stole from you got used on buying more printer ink for the office or whatever. Well you can claim that back in its place. Alternatively, it was pay day recently and some of the money was used on an employee's pay-check (hard to prove but the burden of proof is always on the defendant and don't let anyone intimidate you by telling you otherwise) then you can get that back too. Someone probably celebrated ripping you off by buying a new car, well you can get that. The money they took might only be a small proportion but if you have the balls then you can enforce judgment by getting a charging order slapped on that car.

If you smell fear and think they might try to run then you can also get a freezing injunction put on it so they won't be able to do anything with it. Make sure that throughout this process you are claiming your costs on a hugely inflated basis for each and every application you have to make. This will stop them from trying to buy time with spurious 'defences' further down the line.

(3) A straightforward allegation of theft.

Take this with a pinch of salt because I am not a lawyer, at least not a practising one (got caught out on some bullshit technicality) but hope this helps!!!

# ¿ Jan 29, 2013 21:21

dos4gw: Nov 12, 2005

Genewiz posted:

My parents are moving out of the country to enjoy a more affordable retirement and would like me to take over their current home. Since I currently live in it and fore see doing so for the next 15 years, I fully support this idea. Living in this Californian city is extremely expensive and having no rent to pay is a huge advantage. Currently, as we understand it, we have 2 options:

Option 1: Gift. We are aware that my parents are allowed to gift $26k to me a year and the rest of the property value will be taxed. How much, I'm not sure. My mum is throwing out 35% but I cannot find that number in my searches.
Option 2: Sell to me. Apparently this has to be made at market price or "it'll look suspicious to the IRS." Their current strategy for this option is to become my private mortgage providers and I'll make "mortgage" payments to them. Of course, I cannot afford a standard mortgage but they plan to forgive late payments. I have no idea how this will affect my credit score and how is this not suspicious to the IRS.

My Dad and I are trying to find reputable legal advice. In the meantime, how do people usually transfer a property from parent to child without having to pay massive amounts of taxes or resorting to overly complicated schemes?

I am not an American lawyer so take this with a large pinch of salt but something to ask if you do see a lawyer would be the idea of making a declaration of trust each year for increasing shares of the equity in the house at slightly below $26k each (say 5% each year if it was worth $500k).

You could spread the transfer out gradually over time and always stay below the tax threshold.

# ¿ Jun 12, 2013 20:13

dos4gw: Nov 12, 2005

Thanatosian posted:

So, does anyone have any experience with small claims court in Seattle?

I'm suing my landlord. I've got most of the legal poo poo covered, just two questions:

1) Dress code. I know it's a little more casual than regular court; I'm not wearing a suit. Is a button-down short-sleeve plaid shirt okay, or do I need something solid with a tie?

2) According to the RCW I'm suing under, I can recover expenses. Do I include expenses in the amount I'm suing for, or is that awarded additionally? Further, if I'm awarded expenses, does that count towards the award amount for the purposes of appeal (I'm suing for $4 less than the minimum for the case to be appealable, so it matters)?

1) Wear a loving suit. The chances are 99% that the other side won't and you will have a huge advantage. It just shows a basic lack of respect and effort on your part if you don't. If you are suing him then you need to prove your case and no matter what documentary evidence you have, you will need to come across as at least prima facie credible if you want to win. If you make an effort and go properly dressed then you will already be there.

2) I am not a US lawyer so I don't know but it sounds like you are worried you might lose and thus might want to appeal. The counterpoint to that is that if you win (which you should be at least 51% sure of if you are going to pursue a claim) then he won't be able to appeal against you if you keep the value below the minimum.

Here in the UK, costs of the action are dealt with separately to damages and do not affect the value of the claim. If you are bothered about this though then you really ought to stump up some money for legal advice on the question.

# ¿ Jun 18, 2013 22:27

dos4gw: Nov 12, 2005

NB you might not need to formally incorporate if you have a birth certificate because then you will already have been incorporated and when people deal with your name, they are actually dealing with a legal fiction.

By creating a birth certificate, whoever wrote it was acting as an agent for the state and thereby severed the joint tenancy between your corporeal and incorporeal form.

This used to be a big secret but over the last few years it's become more and more well-known.

Basically what I am saying is that you might not need to spend money on incorporating because a company is ultimately just a liability shield, and you can refuse to contract with other people/the police/the IRS unless you have accord and you can withhold that.

Google admiralty courts if you want to understand more about it.

(USER WAS PUT ON PROBATION FOR THIS POST)

# ¿ Jun 25, 2013 08:18

dos4gw: Nov 12, 2005

FAOD yes I was joking.

It might have been a bit unfair to screw with someone asking a genuine question but I can't apologise as there would be a risk of creating accord between us as I do not want my corporate veil to be pierced.

Seriously though guys, google admiralty courts - it's all true.

# ¿ Jun 25, 2013 23:36

dos4gw: Nov 12, 2005

The March Hare posted:

I'm in NY and I just found a somewhat disturbing thing out about the way payroll is done in my company. We clock in to work using a fingerprint system, so they have the exact hours we have worked every day. If I show up to work later than 8:30 by any amount, I am given some number of points toward the "yo, you are late too often and now you are fired" number. If I am late by 00:00:01 - 00:14:59 I get .25 points. I thought these points where just a tally system, but it turns out that they also simply do not pay you for that amount of time. This means that on days where I have been literally late to work by less than 60 seconds, I am not being paid for an entire 15 minutes of my time. I am expected to work during this time. Is this in any way legal?

Not a New York lawyer but:

(1) There's may well be a provision for this in your employment contract in which case, yes it probably is legal.

(2) Just don't be late for loving work! You can get angry about how they are 'stealing' your 14 minutes and 59 seconds or you could just acknowledge what time you need to leave to get there on time and make sure you leave by then.

# ¿ Jul 31, 2013 17:54

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# ¿ Apr 29, 2024 03:27

dos4gw: Nov 12, 2005

HookShot posted:

Haha what? "Yeah, don't try and fight the fact that a company might be screwing you out of money for your time, just suck it up princess and don't be 60 seconds late to your job in the future."

I bet you hate unions, too.

What are the alternatives? There needs to be some kind of incentive for people to turn up on time. If the company pays their wages from time X anyway, there is no penalty for being late and it's easy to imagine punctuality becoming a widespread problem. If the company just pays someone from when they arrive then it dilutes the concept of starting times because someone might just decide to be 5 minutes late and not get paid for it, in which case there's a problem with certainty of starting times and again it's not hard to envisage a widespread problem with punctuality.

The employer could of course treat an employee being late as a repudiatory breach of contract and fire them on the spot. That's the attitude I would advocate and yes for the avoidance of doubt I do hate unions.

# ¿ Jul 31, 2013 19:40

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