Show Posts

This section allows you to view all posts made by this member. Note that you can only see posts made in areas you currently have access to.

Messages - Talukdar Rasel Mahmud

Pages: 1 2 [3] 4 5
Politics / Different forms of government
« on: April 11, 2015, 12:45:08 PM »
A government is the system by which a state or community is governed. So, government refers to a system by which any state is organized. Government may be in different forms like presidential, unitary, democratic, authoritarian or dictatorial etc.
However, According to Worlds  Fact Book, different forms of Government are introduced below :
Absolute monarchy - a form of government where the monarch rules unhindered, i.e., without any laws, constitution or legally organized opposition.
Anarchy - a condition of lawlessness or political disorder brought about by the absence of governmental authority.
Authoritarian - a form of government in which state authority is imposed onto many aspects of citizens' lives.
Commonwealth - a nation, state or other political entity founded on law and united by a compact of the people for the common good.
Communist - a system of government in which the state plans and controls the economy and a single -- often authoritarian -- party holds power; state controls are imposed with the elimination of private ownership of property or capital while claiming to make progress toward a higher social order in which all goods are equally shared by the people (i.e., a classless society).
Confederacy (Confederation) - a union by compact or treaty between states, provinces or territories that creates a central government with limited powers; the constituent entities retain supreme authority over all matters except those delegated to the central government.
Constitutional - a government by or operating under an authoritative document (constitution) that sets forth the system of fundamental laws and principles that determines the nature, functions and limits of that government.
Constitutional democracy - a form of government in which the sovereign power of the people is spelled out in a governing constitution.
Constitutional monarchy - a system of government in which a monarch is guided by a constitution whereby his/her rights, duties, and responsibilities are spelled out in written law or by custom.
Democracy - a form of government in which the supreme power is retained by the people, but which is usually exercised indirectly through a system of representation and delegated authority periodically renewed.
Democratic republic - a state in which the supreme power rests in the body of citizens entitled to vote for officers and representatives responsible to them.
Dictatorship - a form of government in which a ruler or small clique wield absolute power (not restricted by a constitution or laws).
Federal (Federation) - a form of government in which sovereign power is formally divided -- usually by means of a constitution -- between a central authority and a number of constituent regions (states, colonies or provinces) so that each region retains some management of its internal affairs; differs from a confederacy in that the central government exerts influence directly upon both individuals as well as upon the regional units.
Federal republic - a state in which the powers of the central government are restricted and in which the component parts (states, colonies, or provinces) retain a degree of self-government; ultimate sovereign power rests with the voters who chose their governmental representatives.
Islamic republic - a particular form of government adopted by some Muslim states; although such a state is, in theory, a theocracy, it remains a republic, but its laws are required to be compatible with the laws of Islam.
Maoism - the theory and practice of Marxism-Leninism developed in China by Mao Zedong (Mao Tse-tung), which states that a continuous revolution is necessary if the leaders of a communist state are to keep in touch with the people.
Marxism - the political, economic and social principles espoused by 19th century economist Karl Marx; he viewed the struggle of workers as a progression of historical forces that would proceed from a class struggle of the proletariat (workers) exploited by capitalists (business owners), to a socialist "dictatorship of the proletariat," to, finally, a classless society -- Communism.
Marxism-Leninism - an expanded form of communism developed by Vladimir Lenin from doctrines of Karl Marx; Lenin saw imperialism as the final stage of capitalism and shifted the focus of workers' struggle from developed to underdeveloped countries.
Monarchy - a government in which the supreme power is lodged in the hands of a monarch who reigns over a state or territory, usually for life and by hereditary right; the monarch may be either a sole absolute ruler or a sovereign - such as a king, queen or prince - with constitutionally limited authority.
Oligarchy - a government in which control is exercised by a small group of individuals whose authority generally is based on wealth or power.
Parliamentary democracy - a political system in which the legislature (parliament) selects the government - a prime minister, premier or chancellor along with the cabinet ministers - according to party strength as expressed in elections; by this system, the government acquires a dual responsibility: to the people as well as to the parliament.
Parliamentary government (Cabinet-Parliamentary government) - a government in which members of an executive branch (the cabinet and its leader - a prime minister, premier or chancellor) are nominated to their positions by a legislature or parliament, and are directly responsible to it; this type of government can be dissolved at will by the parliament (legislature) by means of a no-confidence vote or the leader of the cabinet may dissolve the parliament if it can no longer function.
Parliamentary monarchy - a state headed by a monarch who is not actively involved in policy formation or implementation (i.e., the exercise of sovereign powers by a monarch in a ceremonial capacity); true governmental leadership is carried out by a cabinet and its head - a prime minister, premier or chancellor - who are drawn from a legislature (parliament).
Presidential - a system of government where the executive branch exists separately from a legislature (to which it is generally not accountable).
Republic - a representative democracy in which the people's elected deputies (representatives), not the people themselves, vote on legislation.
Socialism - a government in which the means of planning, producing and distributing goods is controlled by a central government that theoretically seeks a more just and equitable distribution of property and labor; in actuality, most socialist governments have ended up being no more than dictatorships over workers by a ruling elite.
Theocracy - a form of government in which a Deity is recognized as the supreme civil ruler, the Deity's laws are interpreted by ecclesiastical authorities (bishops, mullahs, etc.); a government subject to religious authority.
Totalitarian - a government that seeks to subordinate the individual to the state by controlling not only all political and economic matters, but also the attitudes, values and beliefs of its population.

Ancient forms of Government:
There were four forms of government in ancient Greece. These are:
An individual who seizes power and control everything.
 The  govt. was  ruled by the people originated in Athens around 500BCE. Democracy ensures people’s direct participation to form government.
 It was a government in which control is exercised by a small group of individuals whose authority generally is based on wealth or power. So, Oligarcy was a form of government in the hands of few leaders.
The govt. was ruled by a single person usually a king and his council and advisors. So Monarchy is a government in which the supreme power is lodged in the hands of a monarch who reigns over a state or territory, usually for life and by hereditary right; the monarch may be either a sole absolute ruler or a sovereign - such as a king, queen or prince - with constitutionally limited authority.

« on: April 11, 2015, 12:31:11 PM »
- Government is one of the inventions of human knowledge through which human being fulfils his desire. There are three organs of a state:
•   Legislature or Parliament
•   Executives
•   Judiciary
-The people’s Republican of Bangladesh is a unitary, independent and sovereign republic comprising three basic organs; the executive, the legislature, and the judiciary. The president is the Head of state and is elected by the members of parliament. The president acts in accordance with the advice of the prime Minister and the supreme command of the Armed forces vests with him. 

-The executive power of the republic is exercised by or on the advice of the Prime Minister, who commands the support of the majority members of parliament and is appointed by the President. The Prime Minister nominates the cabinet members from among parliament members and up to one tenths of the total from outside the parliament. The cabinet is collectively responsible to the parliament. The government is unitary in structure and parliamentary in form.

Law / Distinction between Human rights and Fundamental rights
« on: April 11, 2015, 12:26:47 PM »
There are some Fundamental distinction between directives and fundamental rights:
         First,   when certain human rights are written down in a Constitution, a supreme law, and protected by constitutional guarantees they are called fundamental rights. Directive principles, on the other hand, are polices relating to social, economic and cultural rights which are to be followed in governance of the country.
         Second,   fundamental rights are enforceable in a court of law and they create justiciable rights in favour of individuals. And the courts can enforce them against the government. Again, the courts are competent to declare as void any law that is inconsistent with any of the fundamental rights. The directives, on the other hand, are not enforceable in a court of law and they do not create any justifiable rights in favour of individuals. The court cannot compel the government to carry out any of the directives. Again, the courts cannot declare any void, which is otherwise valid, on the ground that it contravenes any of directives principles.
         Third,   fundamental rights are mandatory in nature whereas directives are declaratory in nature as they have expressly been excluded from the preview of the courts.
         Fourth,   the fundamental rights create negative obligation on the state, i.e., the state is required to refrain from doing something. The directives, on the other hand, impose positive obligation on the state i.e., to implement these principles the state will have to achieve certain ends by its actions.
         Fifth,   the directive principles may be described as inchoate fundamental rights while the fundamental rights are full-fledged i.e. the former requires legislation to become effective while the latter need not requires such legislation. And so long there is no law carrying out the policy laid down in directives neither the state nor an individual can violate any existing law or legal right under the colour of directive principles.
         Sixth,   Fundamental rights are primarily aimed at assuring political freedom to citizens by protecting them against excessive state action while directive principles are aimed at securing social and economic freedom  by appropriate state action.

Law / Common Law Vs. Civil Law
« on: April 11, 2015, 12:23:25 PM »
- Today the difference between common and civil legal traditions lies in the main source of law.
-Common-law systems make extensive use of statutes, judicial cases are regarded as the most important source of law, which gives judges an active role in developing rules. For example, the elements needed to prove the crime of murder are contained in case law rather than defined by statute. To ensure consistency, courts abide by precedents set by higher courts examining the same issue.
- In civil-law systems, by contrast, codes and statutes are designed to cover all eventualities and judges have a more limited role of applying the law to the case in hand. Past judgments are no more than loose guides. When it comes to court cases, judges in civil-law systems tend towards being investigators, while their peers in common-law systems act as arbiters between parties that present their arguments.
-Civil-law systems are more widespread than common-law systems: the CIA World Factbook puts the numbers at 150 and 80 countries respectively. Common-law systems are found only in countries that are former English colonies or have been influenced by the Anglo-Saxon tradition, such as Australia, India, Canada and the United States.
- Legal minds in civil-law jurisdictions like to think that their system is more stable and fairer than common-law systems. But English lawyers take pride in the flexibility of their system, because it can quickly adapt to circumstance without the need for Parliament to enact legislation. In reality, many systems are now a mixture of the two traditions, giving them the best of both legal worlds.

« on: April 11, 2015, 12:13:50 PM »
Where there is a right there is a remedy. This idea is expressed in the Latin Maxim ubi jus ibi remedium. It means that no wrong should go unredressed if it is capable of being remedied by courts. This maxim indicates the width of the scope and the basis of on which the structure of equity rests. This maxim imports that where the common law confers a right, it gives also a remedy or right of action for interference with or infringement of that right.
Application and cases
In Ashby v. White, wherein a qualified voter was not allowed to vote and who therefore sued the returning officer, it was held that if the law gives a man a right, he must have a means to maintain it, and a remedy, if he is injured in the enjoyment of it.
In cases where some document was with the defendant and it was necessary for the plaintiff to obtain its discovery or production, a recourse to the Chancery Courts had to be made for the Common Law becoming ‘wrongs without remedies’.
a)    If there is a breach of a moral right only.
b)    If the right and remedy both were in within the jurisdiction of the Common Law Courts.
c)    Where due to his own negligence a party either destroyed or allowed to be destroyed, the evidence in his own favour or waived his right to an equitable remedy.
i) The Trust Act
ii) Section 9 of CPC- entitles a civil court to entertain all kinds of suits unless they are prohibited.
iii) The Specific Relief Act- provides for equitable remedies like specific performance of contracts, injunction, declaratory suits.
-The maxim indicates the discipline which the Chancery Courts observed while administering justice according to conscience. As has been observed by Jekyll. M.R: ‘The discretion of the court is governed by the rules of law and equity, which are not to oppose, but each, in turn, to be subservient to the other.” Maitland said, “Thus equity came not to destroy the law but to fulfill it, to supplement it, to explain it.” The goal of equity and law is the same, but due to their nature and due to historic accident they chose different paths. Equity respected every word of law and every right at law but where the law was defective, in those instances, these Common Law rights were controlled by recognition of equitable Rights. Snell therefore explained this maxim in slightly different way: “Equity follows the law, but not slavishly, nor always.”
Application and cases
At common law, where a person died intestate who owned an estate in fee-simple, leaving sons and daughters, the eldest son was entitled to the whole of the land to the exclusion of his younger brothers and sisters. This was unfair, yet no relief was granted by Equity Courts. But in this case it was held that if the son had induced his father not to make a will by agreeing to divide the estate with his brothers and sisters, equity would have interfered and compelled him to carry out his promise, because it would have been against conscience to allow the son to keep the benefit of a legal estate which he obtained by reason of his promise. This decision was held in Stickland v. Aldridge.
Equity follows the law and even if by analogy law can be followed, it should be followed.
i) Where a rule of law did not specifically and clearly apply
ii) Where even by analogy the rule of law did not apply
Bangladesh has not recognized the well-known distinction between legal and equitable interests. Equity rules in Bangladesh, therefore, cannot override the specific provisions of law. As for example, every suit in Bangladesh has to be brought within the limitation period and no judge can create an exception to this or can prolong the time-limit or stop the rule from taking effect on principles of equity. Such a decision was held in Indian Appa Narsappa Magdum case.
-The maxim means that to obtain an equitable relief the plaintiff must himself be prepared to do ‘equity’, that is, a plaintiff must recognize and submit to the right of his adversary. Scriptures of Islam also inform us to be conscientious:
Application: In case of illegal loans, mortgage, estoppels, set off etc.
i) The demand for an equitable relief must arise from a suit that is pending.
ii) This maxim is applicable to a party who seeks an equitable relief.
i) Under sec 19-A of the Contract Act, 1872 if a contract becomes voidable and the party who entered into the contract voids the contract, he has return the benefit of the contract.
ii) sec 35 of the Transfer of Property Act embodies the principle of election.
iii) Sec 51 and 54 of the Transfer of Property Act.
iv) In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized.
-Equity demands fairness not only from the defendant but also from the plaintiff. It is therefore said that “he that hath committed an inequity, shall not have equity.” While applying this maxim the court believed that the behavior of the plaintiff was not against conscience before he came to the court.
Application and cases
In Highwaymen case, two robbers were partners in their own way. Due to a disagreement in shares one of them filed a bill against another for accounts of the profits of robbery. Courts of equity do grant relief in case of partnership but here was a case where the cause of action arose from an illegal occupation. So, the court refused to help them.
The working of this maxim could be seen while giving the relief of specific performance, injunction, rescission or cancellation.
i) Section 23 of the Indian Trust Act- An infant can not setup a defence of the invalidity of the receipt given by him.
ii) Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiff’s unfair conduct will disentitle him to an equitable relief of specific performance of the contract.
Distinction between maxim no. 3 and 4-
He who seeks equity must do equity   He who comes into equity must come with clean hands
i) It is applicable when both the plaintiff and the defendant have claims of equitable relief against each other.   i) It is applicable when the defendant has no separate claim to relief and the plaintiff’s conduct is unfair.
ii) It exposes the condition subsequent to the relief sought.   ii) It is a condition precedent to seeking equitable relief.
iii) It refers to the plaintiff’s conduct as the court thinks it ought to be, after he comes to the court.   iii) It refers to the plaitiff’s conduct before he   approaches the court.
iv) The plaintiff has to mould his behavior according to the impositions by the court.   iv) If the plaintiff’s conduct is unfair, it would not entitle him to the relief sought.
v) The plaintiff has an option or a choice before him either to submit to the conditions put by the court, or to get out of the court.   v) The conduct of the plaintiff snatched his choice from him. His equitable right therefore neither be recognized nor enforced.
vi) This maxim looks to the future.   vi) This maxim looks at the past.
-A Latin term in this regard is “Vigilantibus, non dormentibus, jura subvenient.” which means “Equity aids the vigilant and not the indolent”. So, if one sleeps on his rights, his rights will slip away from him. Legal claims are barred by statutes of limitation and equitable claims may be barred not only by limitation law but also by unreasonable delay, called laches.
Application and cases
To cases which are governed by statutes of limitation either expressly or by analogy the maxim will not apply. Such cases fall into three categories-
i) Those equitable claims to which the statute applies expressly.
ii) to which the statute applies by analogy.
iii) Equitable claims which are covered by ordinary rules of laches.
This maxim does not apply when-
i) where the law of limitation expressly applies
ii) where it applies by analogy, and
iii) where the law of limitation does not apply but the cases are governed by ordinary rules of laches.
The English doctrine of delay and laches showing negligence in seeking relief in a court of equity can not be imported into the Bangladeshi law in view of Article 113 of the Limitation Act, 1908, which fixes a period of one year (previously three years) within which a suit for specific performance should be brought.
Section 51 of the Transfer of Property Act embodies this doctrine but with a difference.
-Plato defined that “If you cannot find any other, equality is the proper basis.” This maxim is also explained as “equity delighteth in equality”, which means that as far as possible equity would put the litigating parties on an equal level so far as their rights and responsibilities are concerned.
Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been sometimes called proportionate equity.”
Application and cases
Application of this maxim can be understood from the following:
i)    Equity’s dislike for joint tenancy and presumption of tenancy-in-common
ii)    Equal distribution of joint funds and joint purchases
iii)    Contribution between co-trustees, co-sureties and co-contractors
iv)    Ratable distribution of legacies
v)    Marshalling of assets
-Common law was very rigid and inflexible. It could not respond favourably to the demand of time. It regarded the form of a transaction to be more important than its substance. It looked to the very letter of the agreement and not the intention behind it. On the other hand, Equity looks to the spirit not to the letter, it looks to the intention of parties and not to the words.
Application and cases
In case of sale of land, if a party fails to complete it within the fixed for it, he is at Common Law, in breach of the contract, but equity does not take this rigid attitude. It allows a reasonable time to the party to complete it.
The application can be seen in the following instances-
i)    Relief against penalties and forfeitures
ii)    Relief in regard to precatory trust
iii)   Relief in regard to mortgages, the doctrine of equity of redemption and the doctrine of clogs on redemptions
iv)    Attitude in regard to statute of frauds.
i) Sec 55 of the Contract Act- If time is the essence of the contract, and it is not performed within the stipulated time, the contract or part of it which is unperformed would be voidable. If time is not the essence, the contract will not be voidable but entitles the promisee to damages.
ii) Section 74 of the Contract Act- only a reasonable compensation can be claimed.
iii) Sec 114-A of the Transfer of Property Act- Forfeiture clauses in a lease.
-If someone undertakes an obligation for the other, equity courts look on it as done and as producing the same results as if the obligation had been actually performed. Equity courts therefore look to the acts of the person bound by his conscience and interpret and construe them in such a way that they amount to what ought to be done.
Application and cases
If A makes T trustee leaving 50,000 Taka to purchase a land for the use of B. T does not purchase the land and by the time, B dies leaving all immovable property to X and all movable property to Y. Now, who should get the 50,000 Taka? Equity in such cases would definitely regard the purchase of land which ought to have been made as made. The money thus goes to X.
The working of this maxim can be seen-
i) the doctrine of conversion
ii) Executory contracts
iii) doctrine of part performance
i)    Doctrine of conversion- In the case of Lachmere v. Lady Lachmere, money was taken as land. Doctrine of conversion can convert the money into immovable property and immovable property into money.
ii)    Executory contracts-
(a) Assignment of future property: When an assignment of property was made for consideration equity treated it as a contract to assign. When the property came into existence in such a contract it was treated as a complete assignment. As a leading case on this point, Holroyd v. Marshall can be cited.
(b)   Agreement for a transfer: In Walsh v. Lonsdale, it was decided that an agreement for lease could be treated as a lease in equity.
iii) Doctrine of part performance: Under the equitable doctrine of part performance contracts pertaining to land were allowed to be formed by oral evidence  where one of the parties did acts of pats performance. Maddison v. Alderson is a leading case on this point.
Many of the doctrines of English equity have taken statutory form in Bangladesh. Insofar as equitable assignments are concerned no equitable estate is recognized in Bangladesh. A transfer of future property for consideration operates as a contract to be performed in future.
i) The Transfer of Property Act- A Contracts to sell Sultanpur to B. While the contract is still in force, he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A.
ii) The Specific Relief Act- Section 12 relating to the specific performance of part of a contract also illustrates the application of the maxim.
iii) The Trust Act- Where a person acquires property with notice that another person has entered into an existing contract affecting that property, the former must hold the property for the benefit of the latter.
-Equity considered and estimated acts of parties. Thus where a person is under an obligation to do a certain act, and he does some other act which is capable of being regarded as an act in fulfillment of his obligation. In other words a person is presumed to do what he is bound to do.
In Sowden v. Sowden, a husband covenanted with the trustee of his marriage settlement to pay to them £50,000 to be laid out by them in purchase of land in a particular area D. He, in fact, never paid the sum, but after marriage purchased the land at D in his own name, for £50,000. He died and could not bring the land into settlement. Equity courts construed that he purchased land to fulfill his obligation.
Application and cases
i) Doctrine of performance and satisfaction
ii) Ademption
iii) Doctrine of presumption of advancement
iv) Relief against defective execution of power of appointment.
i) Doctrine of performance and satisfaction- Sowden v. Sowden and Lachmere v. Lady Lachmere cases are examples of performance. Satisfaction is the donation of a thing with it is to be taken in extinguishment of some prior claim of donee. This maxim is helpful where the presumed intention of the testator is to be found out; where the intention is express the maxim has no application.
ii) Ademption- Ademption is a transfer of property which operates as a complete or pro tanto substitution for a gift previously made by the will of the donor.
e.g. X by his will leaves his daughter Y one-third of his residuary estate. Thereafter on Y’s marriage X gives Y 20,000 Taka. X dies. 20,000 Taka is an ademption -complete or proportionately to the gift of one-third share of the residuary estate of X.
iii) Presumption of advancement- When a purchase or transfer of property without consideration is made by a father or a person in loco parentis, to or in the name of a child, a presumption arises. And the presumption is that it was for the benefit of the child. Such presumption, is known as ‘advancement’. The doctrine applies to cases of parent and child, husband and wife, of mother and child and even to illegitimate child, but not to a man and his mistress.
iv) Relief against defective execution of power of appointment- A power is an authority vested in a person to deal with or dispose of property not his own. A power may be legal or equitable but after 1925 all powers of appointment are necessarily equitable.
e.g. A holds 50,000 Taka upon trust to divide among a certain class of persons. A has no option is this matter He is bound to carry out the trust. On his failing to do so, the court will see that the property is duly divided.
A defective execution will always be aided in equity under the circumstances mentioned, it being the duty of every man to pay his debts, and a husband or a father to provide for child.
i) The Succession Act- Presumption against satisfaction is mentioned here. In Hasanali v. Popatal, a testator, who had a sum of Rs 9000 as deposit from his brother, gave to is brother a legacy of Rs 9000 and it was held that the brother was entitled to both, the legacy and his deposit. But as decided in Rajmanuar case where a will contained a clear indication that the legacy was meant as a satisfaction of the debt due to X, X could not claim both as the section explains.
ii) The Trust Act- Where a person contracts to buy property to be held on trust for certain beneficiaries and buys the property accordingly, he must hold the property for their benefit to the extent necessary to give effect to the contract. Equity thus imputes an intention to fulfill an obligation.
The doctrine of advancement does not apply in Bangladesh.
Before understanding this maxim we have to understand: what is right in rem and what is right in personam.
Right in Rem:
A right in rem is available against the world at large; it is a right available against persons generally. Examples are rights of possession and ownership.
Right in Personam:
A right in rem is available only against a determinate person or persons, corresponds to a duty imposed on determinate individuals. Examples are the right to receive compensa¬tion for false imprisonment or defamation; or the right to recover a debt from the person who owes me the money. Rights under a contract are rights in personam for only the parties thereto are bound.
-The jurisdiction of the court of chancery was originally exercised against the person – in personam
This is a maxim that governs how equity is administered in law.To act in personam means it acts upon a person's conscience. This is as opposed to acting in rem which is a characteristic of common law where it acts upon the property that is subject to the suit. As stated in the Earl of Oxford case,in case of a conflict between equity and common law, equity shall prevail. Lord Ellesmere insisted that Equity was not in competition with common law, rather, it acted upon the conscience of the parties to a suit. King James I held the same view.

This maxim comes in handy with regard to properties held abroad. The subjects most contested under this maxim include trusts and mortgages. It is also required regarding receivership.

Grounds for applying this maxim include:

1. The defendant must be within the jurisdiction.

2. The maxim cannot be relied on to grant an order in person when such will violate legal rules of another country.

3. The maxim will not be relied upon to grant an order which would not be enforceable since equity does not act in vain.
For example: This maxim can be applied in case of specific performance of contract, fraud, trusts etc.
When two parties each have a right to possess something, then the one who acquired an interest first should prevail in equity. For example, a man advertises a small boat for sale in the classified section of the newspaper. The first person to see the ad offers him $20 less than the asking price, but the man accepts it. That person says he or she will pick up the boat and pay for it on Saturday. Meanwhile another person comes by, offers the man more money, and the man takes it. Who owns the boat? Contract law and equity agree that the first buyer gets the boat, and the second buyer gets his or her money back.

This maxim operates where there are two or more competing interests, one legal and the other equitable. Where the claims of both parties are fair and meritorious, precedence will be given to the legal interest. This maxim was developed in connection with interests in lands. When a purchaser acquires property bona fide without notice of a defect in the vendor’s title, the equities are equal and the legal estate will prevail. If the purchaser takes title with notice of the defect, the earlier title, if valid, will prevail. The force of this maxim has largely been displaced by legislated systems of land title registration.
Cave v. Cave (1880) 15 Ch D 639.Fry J.
-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.


Law of Bangladesh / Re: Car driver contact form
« on: April 11, 2015, 11:50:08 AM »
Useful information. Thanks for sharing.

Law of Bangladesh / Re: What does copyright protect?
« on: April 11, 2015, 11:35:44 AM »
Its my pleasure  sir...These information will also be helpful for our IP students....

Law / Re: A Brief History of Patent Law
« on: April 11, 2015, 11:33:54 AM »
Thank you sir..

ভাল পদক্ষেপ। আমাদের দেশে যেমন নিয়ম তৈরি হয়, তেমনই সেটা ভঙ্গ করার প্রবনতাও প্রবল। তাই আইনের প্রয়োগের পাশাপাশি, গন সচেতনতাও  প্রয়োজন।

Law of Bangladesh / What does copyright protect?
« on: April 10, 2015, 02:43:11 PM »
For the purposes of copyright protection, the term “literary and artistic works” is understood to include every original work of authorship, irrespective of its literary or artistic merit. The ideas in the work do not need to be original, but the form of expression must be an original creation of the author.  The Berne Convention for the Protection of Literary and Artistic Works (Article 2) states: “The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. The Convention goes on to list the following examples of such works:
o   books, pamphlets and other writings;
o   lectures, addresses, sermons;
o   dramatic or dramatic-musical works;
o   choreographic works and entertainments in dumb show;
o   musical compositions with or without words;
o   cinematographic works to which are assimilated works expressed by a process analogous to cinematography;
o   works of drawing, painting, architecture, sculpture, engraving and lithography;
o   photographic works, to which are assimilated works expressed by a process
analogous to photography;
o   works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science;
o   translations, adaptations, arrangements of music and other alterations of a literary or artistic work, which are to be protected as original works without prejudice to the copyright in the original work.
o   collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations, are to be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

Member countries of the Berne Union, and many other countries, provide protection under their copyright laws for the above categories of works. The list, however, is not intended to be exhaustive. Copyright laws also protect other modes or forms of expression of works in the literary, scientific and artistic domain, which are not included in the list.

However, for more specifying we can say that copyright protects the following categories of creative works:
a)   Artistic works
o   Paintings
o   Photographs
o   Drawings
o   Engravings
o   Sculptures
o   Installations
o   Cartoons
o   Graphic Arts
o   Craftwork
o   Maps and
o   Plans
b)   Dramatic works
o   Theatre plays
o   Choreography
o   Screen plays
o   Mime
c)   Musical works
o   Melodies
o   Tunes
o   Compositions
d)   Literary works
o   Novels
o   Short stories
o   Poems
o   Song lyrics
o   Scripts
o   Letters or articles in newspaper
o   Reports
e)   Sound recordings
o   Compact discs (CDs)
o   Tapes
o   Digital recordings
f)   Broadcasts
o   Television
o   Radio
o   Films (short films, feature films, documentaries, corporate or training videos)
Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.
In other words, a work of authorship able to be fixed in a tangible medium is subject to copyright protection provided there is some element of creativity to the work to be protected.
Copyright protection gives the owner of a copyright the right to reproduce a work, prepare derivative work based thereon, distribute the copyrighted work, perform any copyrighted work publicly, and display the copyrighted work publicly.
Copyright protects the physical expression of ideas. It is a type of property that is founded on a person’s creative skill and labor. Copyright is designed to prevent the unauthorized use by others of a work, that is, the original form in which an idea or information has been expressed by the creator. As soon as an idea is given in physical form, e.g. a piece of writing, a photograph, music, a film, a web page, it is protected by copyright. It is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright theory says that it is the balance between the exclusive rights and the limitations and exceptions that engenders creativity. Copyright does not protect ideas, only their expression or fixation. There is no need for registration or to claim copyright in some way, protection is automatic at the point of creation. Both published and unpublished works are protected by copyright.
In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.
The Copyright law provides certain ways in which copyright works may be used without the need to first obtain permission from the copyright holder(s) – these include, fair dealing, library privilege, copying for examinations and copying for instruction. The University also holds a number of licenses, which permit copyright works to be copied and used in various ways. Otherwise, written permission must first be obtained from a copyright holder before their work is used or copied. Infringing the rights of copyright holders may be a criminal offence and/or cause them to sue for damaging.

Law / A Brief History of Patent Law
« on: April 10, 2015, 02:23:14 PM »
The earliest form of patents might have existed in the 500 BC in Sybaris, Greece where monopolies were granted to new dishes for a period of one year. Some even contend that the patents originated in the Roman Empire where guilds existed, but its uncertain whether the guilds in that era followed such a system as they existed primarily for social and religious purposes. The guilds in the Middle Ages developed in the context of the market economies that existed in the cities. Maybe the proprietary attitude developed to safeguard the craft knowledge which had attained widespread reputation outside the region, thus increasing the commercial value of the craft. The, the guild system followed a system of apprenticeship, which facilitated the process of imparting the techniques of the craft. Thus it can be regarded as communal property, rather than a monopoly held by an individual. The craft developed within the guild and was shared by all the craftsmen of the guild. For example, the Venetian glassmakers had reputation for glassmaking during the Renaissance time. Glassmaking was strictly restricted to guild members and was closely controlled by them. There were regulations as to working days, apprenticeship, technical specifications, quality of the glass, ingredients to be used. As the reputation of their craft increased the commercial value also increased, with it the realization that the craft must be strictly forbidden from being exported to other parts of Europe. Thus, the earliest forms of monopoly emerged in the form of a communal property, restricted to a region and the guild. Patents could have emerged out of the need to develop new industries within in the realm. The need for increased revenue, prevailing high taxes meant that the royalty could fill their coffers by allowing foreigners to practice new art within the realm. Protection of the trade, tax incentives may have served as inducements to lure the foreigners to introduce new industries. They were to be granted exclusive rights to practice their art for a certain period of time.
The word patent comes from the Latin 'litterae patentes', meaning an open letter. Such letters were used by medieval monarchs to confer rights and privileges. With a royal seal, the letters served as proof of those rights, for all to see.
While the first system for patenting inventions cannot be attributed to any one country, it is generally acknowledged that the first informal system was developed in Renaissance Italy. This system was introduced into the rest of Europe by émigré Venetian glass-blowers to protect their skills against those of local workers.
The first recorded patent of invention was granted to John of Utynam. In 1449, he was awarded a 20-year monopoly for a glass-making process previously unknown in England (subsequently, he supplied glass for the windows of Eton College Chapel, UK). In return for his monopoly, John of Utynam was required to teach his process to native Englishmen. That same function of passing on information is now fulfilled by the publication of a patent specification.
In North America the colonies adopted a similar system of limited monopolies. Following the revolution in 1788 Article I, section 8 of the Constitution was ratified:
'The Congress shall have power . . . to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries'.
More recently, during the 1980s, we have seen the development of supra-national patent-issuing authorities - the European Patent Office and World Intellectual Property Office (WIPO). These bodies enable patent applications to be filed simultaneously in a number of countries. In 1995, US patent law was changed following the GATT agreement to harmonise USPTO practice with the patent system in other countries.
Bangladesh inherited a century-old legal framework for intellectual property Rights (IPR). The patent system was introduced in this sub-continent by the British based on their own patent system in 1856. That act was gradually modified year after year to comply with the demand of age. Finally, the Indian Patents & Designs Acts come into existence in 1911. After Independence of Bangladesh, this Act in the name of Patents & Designs Act, 1911 has been continuing in operation till now with certain modifications and The Then Patents & Designs Rules, 1933 with few amendments is also in effect till now.
In Bangladesh, protection of Intellectual property mainly other than copyright comes under the purview of Ministry of Industries. On behalf of Ministry of Industries, Department of Patents, Designs & Trademarks (DPDT) administers all the activities relating to industrial property (i.e. Patent, Design, Trademark, GI etc). Before 1989 Trademark & Patent offices were in separate entity under Ministry of Commerce. Trademark office & Patent office merged in 1989 and came under the purview of Ministry of Industries and virtually, as a department namely DPDT started its work from 20.3.2004.

  See more at:
  See more at:

Law / Laws fail to protect garment workers
« on: April 10, 2015, 02:00:08 PM »
Six months have already passed. Still we are grieving the tragedy of the Rana Plaza collapse in Savar on April 24, 2013 that killed 1,133 workers and crippled another 1,500. About 2,438 were rescued alive with 316 missing. Many people still remain traumatised after escaping the death-knell luckily. However, proper compensation to the victims, which could alleviate their sufferings to some extent, is now a big concern of all for their betterment. But what are the present conditions of these victims and how much are they being compensated for?  As far as we know, Agriculture Minister Begum Motia Chowdhury informed a parliamentary session on July 24, 2013 that an amount of Tk 1,300 million was deposited at the Prime Minister's fund for assisting the Rana Plaza victims. But it is not clear yet what policy is being adopted for distributing the amount, how much money has already been distributed and what is the update on that fund? Although some amount has been distributed to some families, it should be made clear for creating public confidence over the government. It should not be expected to let the fund covered under the ashes. The fund should not be used arbitrarily. It should be distributed with a proper policy immediately to lessen the misery of victims and their families.

The export-oriented ready-made garment (RMG) sector has emerged as the biggest earner of foreign currency and is thus largely contributing to the economy of Bangladesh. It has seen a swift growth since the 1980s when jute and jute goods were losing their traditional markets. The RMG sector gradually injected dynamism in the export trade and thus enriched our economy. The sector now contributes significantly to the GDP and it also provides employment to a large number of Bangladeshis. It is a matter of great regret that though the national economy draws its life-blood sizeably from the RMG sector, the interest of its workers are being neglected for decades. 

However, the RMG sector in Bangladesh is to a large extent supposed to be regulated by labour laws. The laws focus on several aspects that facilitate good working conditions, better wage level, working environment, job security, work hours, sick leave, maternity leave and some other benefits. The Bangladesh Labour Act, 2006 has provisions covering health and hygiene, safety of the workers, welfare, working hours, child labour, leave and holidays with wages, penalties and procedures. The most important provisions, the violation of which has become a common concern recently, are health and hygiene (chapter-V), safety (chapter-VI), wages and payment (chapter-X). The Act also contained special provisions relating to health, hygiene and safety (chapter-VII) for the betterment of the employees to assure a better environment for work. The frequent incidents including building collapse, fire tragedy, and outbreak of diseases in garment industries indeed violate these provisions and make the laws useless to protect the interests of workers. After the hair-raising tragedy of Rana Plaza and Tazreen Fashions, the government amended the existing Labour Act. Although the amended Act makes some improvements, it still falls short of protecting workers' rights and meeting the international standards. The country has many codified laws which are enough to protect our rights but the workers are being deprived due to lack of their implementation. Then what does the watchdog bodies do and why they are for?

 Former US President Lyndon B. Johnson said: "Law is the great civilising machinery.  It liberates the desire to build and subdues the desire to destroy.  And if war can tear us apart, law can unite us - out of fear, or love or reason, or all three" (TIME September 24, 1965 page 48). Law is the greatest invention of human civilisation but due to lack of its proper implementation, we are being deprived of our rights. The onus of enforcement of laws is entrusted with law-enforcement agencies like police or RAB but we are ashamed when we see that the police are in a rough action against garment workers protesting for their rights. We rarely see any step taken against any garment owner by the government authority for exploiting cheap labour.

see more at:

Law / Re: On violence during hartal
« on: April 10, 2015, 11:29:57 AM »
Thank you Bro....Actually I wrote this in Financial Express on 7 November,2013.

Well said Bro....It is open secret and almost known to all that how developed & powerful countries are treating the developing over years.

Law / Re: Respite for children
« on: April 10, 2015, 11:22:33 AM »
Surely we need proper implementation of these laws for ensuring justice in our society & the Authority should be more sincere regarding this.

Pages: 1 2 [3] 4 5