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    (Original post by Nolofinwë)
    I understand that universities are (normally established as) legal persons, and never sought to dispute that.

    However, I still disagree because:
    1. The university has not committed a tortious act, indeed it has not committed any act at all.
    2. There is no general liability for omissions in negligence - Smith v Littlewoods [1987] 2 WLR 480. The cases concerning children a specific exception premised on the prior assumption of responsibility undertaken by a parent or legal guardian when taking the child into their care.
    there are several exceptions actually...you're not using neutral citations...High Court, Court of Appeal, Supreme Court......are the legal authorities based on the ratios (rulings).
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    (Original post by Nolofinwë)
    Again, if this is a reply to me, I find this only slightly easier to follow. I assume what you are saying is that the university owes a duty of care in negligence to its (adult) students to protect them from (criminal) harms inflicted by other students. This is, once again, omissions liability. I understand that there is a specific exception for schools owing duties of car to minors in their charge, but do you have any authority for this extending to adults in the charge of a university?
    you're misunderstanding tort...no such thing as a duty of care in negligence. Negligence usually means a personal injury & breach of duty/ causation by the tortfeasor. Everyone owes a duty but it does not mean that a duty gives rise to negligence.
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    (Original post by Democracy2013)
    there are several exceptions actually...
    Could you please cite any which are applicable to the present debate rather than just asserting this then?

    (Original post by Democracy2013)
    you're not using neutral citations...
    ....which is the correct form since I have cited cases from before neutral citations were introduced in 2001. I have published in and edited academic legal journals in the past, so I know correct citation form.

    https://www.law.ox.ac.uk/sites/files..._hart_2012.pdf
    (see pp 13-14)

    (Original post by Democracy2013)
    High Court, Court of Appeal, Supreme Court......are the legal authorities based on the ratios (rulings).
    Seeing as you have not cited any cases to the contrary, the rank of the authority seems to be of little importance. However, if you would still like to know, Smith v Littlewoods is ratio by the House of Lords.
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    (Original post by Democracy2013)
    you're misunderstanding tort...no such thing as a duty of care in negligence. Negligence usually means a personal injury & breach of duty/ causation by the tortfeasor.
    On a conceptual level, I understand that the existence of a duty of care is debated. However, it is generally accepted as a matter of authority that a duty of care of some description is a necessary element of the tort of negligence (I presume that you are familiar with Donoghue v Stevenson, Anns v Merton LBC, Home Office v Dorset Yacht Co, Caparo v Dickman, Comrs of Customs and Excise v Barclays Bank etc.). Furthermore, your suggestion that negligence requires a breach of duty presupposes the existence of a duty of care in order for liability in negligence to ever arise (because if there's no duty, then there cannot be a breach).

    (Original post by Democracy2013)
    Everyone owes a duty but it does not mean that a duty gives rise to negligence.
    I never claimed that the existence of a duty of care is a sufficient element in negligence. That would be completely absurd. However, it is a necessary element on the present authorities.
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    (Original post by Nolofinwë)
    I don't discuss that. I prefer to conduct legal debates based on the quality of the argument, not the credentials of the opposing sides. I'm not aware of any accepted legal tradition since Theodosius II which has accorded value to legal arguments on the basis of the esteem in which its proponents are held.



    I expected this is what you were going to cite for the comment 'In bankruptcy people lose their homes when it's not their debt'. I will have to respectfully suggest, however, that you have misunderstood how the s335A of the Insolvency Act 1986 works. s335A is incorporated into the law of coownership trusts of property through s15 TLATA 1996, providing different rules governing the court's discretion to grant sale in the case of a dispute between the co-owners. It arises in the following model scenario. X and Y co-owner a house. Y takes out a loan secured against his share in the house. He fails to repay, and the lender seeks to exercise their charge through obtaining sale of the property. X, however, wants to keep the property. The court is therefore asked to determine whether sale should be ordered or not, which is when the s15 discretion, guided by s335A, operates. Assuming that they have order sale, this does not entail any loss to X. Although the house will be sold, so they will lose their share in the title to the freehold/leasehold, that share will be substituted for the equivalent proportion of the proceeds of sale. Therefore, they do not suffer any loss in fact: they keep the exact same value.

    Such reasoning is not, therefore, analogous to imposing liability on relatives for A's tort, for two reasons:
    (1) there is no legal mechanism for doing so. TLATA 1996 and IA 1986 are statutes limited to co-ownership trusts over real property. In no way can they, therefore, extend to tort.
    (2) by simply requiring A's relatives to pay the damage, you make them incur a loss, as they lose money to meet the liability. That is materially distinct from the operation of the IA1986, where, as demonstrated above, X does not suffer any loss.
    s.335A relates to the trustee's power - not the mortgagee's power. The mortgagee's power is generally law of property act but based off an estate contract clause and therein breach. You demonstrate a naïve thinking approach..in the real world the official receiver will either put a charge on a property and is likely to get a court under via s.14, ToLATA 1996. A bank will also easily be able to get an order for possession, with a view to sale under its LPA statutory powers. The bank (mortgagee) already has charge over the property as such - the property is its security.
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    Am not doing your homework, it's your job to research the exceptions.
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    (Original post by Nolofinwë)
    Could you please cite any which are applicable to the present debate rather than just asserting this then?



    ....which is the correct form since I have cited cases from before neutral citations were introduced in 2001. I have published in and edited academic legal journals in the past, so I know correct citation form.

    https://www.law.ox.ac.uk/sites/files..._hart_2012.pdf
    (see pp 13-14)



    Seeing as you have not cited any cases to the contrary, the rank of the authority seems to be of little importance. However, if you would still like to know, Smith v Littlewoods is ratio by the House of Lords.
    I actually view tort as inconsequential actually...just ambulance chasers
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    (Original post by Democracy2013)
    s.335A relates to the trustee's power - not the mortgagee's power. The mortgagee's power is generally law of property act but based off an estate contract clause and therein breach.
    It's the trustee's power at first instance, but when s335A is being applied it is exercised by the court under s14 TLATA. This can be achieved by the mortgagee's application as the mortgagee (with a Charge by way of Legal Mortgage under s87 LPA1925) is effectively a lessee, so is able to bring an application for a court order under s14 as they have '...an interest in property subject to a trust of land...'.

    (Original post by Democracy2013)
    You demonstrate a naïve thinking approach..in the real world the official receiver will either put a charge on a property and is likely to get a court under via s.14, ToLATA 1996. A bank will also easily be able to get an order for possession, with a view to sale under its LPA statutory powers. The bank (mortgagee) already has charge over the property as such - the property is its security.
    Thank you for accusing me of naïvety. I don't like ad hominem - I didn't comment after you request to find out my level of qualifications, but now I'll say that if I read a third, I will retire from this debate.

    I'm not sure what this comment adds, as it confirms what I was saying.
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    (Original post by Democracy2013)
    Am not doing your homework, it's your job to research the exceptions.
    So instead of you proving your proposition, the burden is on me to establish it for you? I think a university, a court or anyone else would find this suggestion rather unsatisfactory.
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    (Original post by Democracy2013)
    I actually view tort as inconsequential actually...just ambulance chasers
    That's excellent, but we're debating the law here rather than personal opinions.
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    (Original post by Nolofinwë)
    It's the trustee's power at first instance, but when s335A is being applied it is exercised by the court under s14 TLATA. This can be achieved by the mortgagee's application as the mortgagee (with a Charge by way of Legal Mortgage under s87 LPA1925) is effectively a lessee, so is able to bring an application for a court order under s14 as they have '...an interest in property subject to a trust of land...'.



    Thank you for accusing me of naïvety. I don't like ad hominem - I didn't comment after you request to find out my level of qualifications, but now I'll say that if I read a third, I will retire from this debate.

    I'm not sure what this comment adds, as it confirms what I was saying.
    address my point that a lender would easily get a possession order...and trustee/ official receiver a charge. You are affected by credentials hence 'third'...universities just produce for the economy...notwithstanding institutional elitism etc
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    (Original post by Nolofinwë)
    So instead of you proving your proposition, the burden is on me to establish it for you? I think a university, a court or anyone else would find this suggestion rather unsatisfactory.
    it is basic knowledge that tort has omission exceptions. I can't think of them to hand. i'll get back to you on this.
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    (Original post by Democracy2013)
    address my point that a lender would easily get a possession order...and trustee/ official receiver a charge. You are affected by credentials hence 'third'...universities just produce for the economy...notwithstanding institutional elitism etc
    As I say, I don't see how this works in favour of your argument.
    The lender should indeed get a possession order, at least on reapplication after a year under s335A(3). Therefore, the sale is likely to be ordered. However, as I said many posts ago, this still does not establish that the co-owner suffers a loss by the bankruptcy, because the sale will generate proceeds (value), and hence the co-owner will get their proportionate share of the proceeds. They will not, therefore, suffer any loss. The lender only ever had a charge over the mortgagor's share, so they are only entitled to take the proceeds from that share.
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    that's my point, the loss is the family home and the family being made homeless. You seem to have a generous view of loss. Isn't that suffering enough.
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    (Original post by Democracy2013)
    that's my point, the loss is the family home and the family being made homeless. You seem to have a generous view of loss. Isn't that suffering enough.
    No, it isn't enough. The law of negligence (the tort were a reasoning by analogy for) does not recognise distress or inconvenience as actionable loss/damage - Alcock v CC South Yorks [1992] AC 310; Rothwell v Chemical & Insulating Co; Re Pleural Plaques Litigation [2007] UKHL 39, [2008] 1 AC 281.
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    First you were saying that bankrupts had rights to save their home, then you're accepting that it's ok to lose the family home as long as they have the proceeds...if one were to have half of the proceeds does that buy half of a house...notwithstanding the property will be auctioned and therein any equity will be lost. In any event, you are either on one side or the other.

    of course it does not especially against the senior police officer...but this new enquiry into Hillsborough may change the original position.
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    (Original post by limetang)
    I think an additional practical problem you come up against with universities though is the fact that practically nobody who has worked hard to gain admission into one as a student is going to refuse to sign the paperwork they're told they have to to matriculate. There is at least some sense of coercion going on here, what that means legally I've no idea but practically I think this is an issue.
    This would never be taken seriously as a coercion claim in a court of law. On this concept, any contract you must sign for anything you want to do is somehow coercion. You want to be employed? Sign this contract. Coercion.

    You are fully free to not go to University and not agree, therefore, there is no legal coercion.

    Further, IF Universities are going to be enacting sanctions for misconduct I think they should be clear what those sanctions are and how they are investigated. The oath taken (practically signed online) at my university is as follow:
    They are. It's usually spelled out in the student handbook or rules of University.


    I personally find that a bit concerning. It does not specify how misconduct will be investigated, and it does not specify what a fitting penalty is. It muddies the waters between conduct within the university and conduct outside it. It is far too vague and does make me uncomfortable. Would you not agree that if Universities are going to implement sanctions they have to be more specific than this?
    The issues you're raising are due to the fact that you're not actually familiar with the University's full rules of conduct. There will be a procedure statement somewhere that contains all of this.

    Also, this point aside I still think the question of how effectively a university can investigate serious crimes etc. is still important.
    It's not investigating it as a crime, as has been repeatedly stated. It's investigating it as a breach of contract; University rules.

    The University is only look for evidence which, on the balance of probabilities, which indicates that the student did or did not commit the relevant infraction.
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    (Original post by Democracy2013)
    First you were saying that bankrupts had rights to save their home
    Where did I say this?

    (Original post by Democracy2013)
    then you're accepting that it's ok to lose the family home as long as they have the proceeds
    That's always been my position

    (Original post by Democracy2013)
    if one were to have half of the proceeds does that buy half of a house
    No, it buys another house which is smaller, or half a house + mortgage. Or they can spend it on whatever else they want. They still suffer no financial loss.

    (Original post by Democracy2013)
    notwithstanding the property will be auctioned and therein any equity will be lost.
    Please explain what you mean by this, preferably with some citations rather than just assertions

    (Original post by Democracy2013)
    of course it does not especially against the senior police officer...but this new enquiry into Hillsborough may change the original position.
    Again, please explain this assertion.
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    I originally said that bankrupt's families suffer indirectly by losing their family home. You said this wasn't the case under Insolvency Act c/o ToLATA (Trust of Land). I then pointed out to you the reality is that OR/ Trustee/ Mortgagees powers will likely result in the loss of the family home in one way or another, whether through land charge or possession/ sale orders.

    Rather than addressing these points you gravitated to an almost pro bank/ OR stance.
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    The Op originally said this:

    It seems to be a hot button topic at the moment, of how universities are inadequately dealing with reports of sexual assault. Many critics say universities aren't dealing with them sufficiently well but .... the stand out thing as far as I can see about sexual assault is the simple fact that it's a CRIME. It would seem to me that investigation of the crime and punishment of it are the jobs of the criminal justice system, and mental and physical health needs are the jobs of the NHS. Beyond that it seems to me that the university has a responsibility to comply with the investigation of the police, and provide additional assistance to ensure the students academics don't suffer (so things like leave of absences etc.)

    So why, are we trying to make the university an all in one centre for the dealing of sexual assault, when it's very understandably unequipped to do so."

    This debate has gone off the rails. There should be separate debate forums for tort, property law, criminal law, bankruptcy, and now coercion. Let's get back to the op's point.
 
 
 
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