Student Syllabus

Advocates and Solicitors (Jersey) Law 1997

Syllabus for the final qualifying examination issued by the Bailiff pursuant to Rule 3(6) of the Advocates and Solicitors (Qualifying) Examination (Jersey) Rules 1997, as amended
August 2013

[toggle_box] [toggle_item title=”Introduction”]The Bailiff has issued a syllabus for each of the subjects prescribed in Rule 3(4) of the 1997 Rules. This is effective for examinations taken after 1 November 2013.

Candidates should be familiar with the Study Guides approved by the Board of Examiners, relevant legislation, relevant cases (from the Table des Décisions de la Cour Royale, the Jersey Judgments, Jersey Law Reports, the Jersey Unreported series Privy Council judgments on appeal from Jersey, and such other decisions of the appellate Courts of England and Wales) as might be expected to have direct relevance to the way in which a Jersey lawyer might advise on the law of Jersey and relevant academic articles (in particular, those in the Jersey and Guernsey Law Review).

There must be clarity as to the cut-off date for changes in statutory or case law prior to each sitting. The Board will therefore apply the following rules:-

(i) Candidates will only be examined in respect of legislation which is in force prior to 1st April in the year in which the examinations are sat. They will not be examined on legislation which has been passed by that date but is not yet in force, nor will they will examined on proposed reforms set out in consultation papers, reports of the Jersey Law Commission etc, although of course such papers and reports can provide useful background for candidates on the current state of the law.

(ii) Candidates will be expected to be familiar with all material judicial decisions falling within the area covered by the syllabus. The same cut-off date will be applicable. Thus, candidates should be familiar with all decisions prior to 1st April. They will not be examined on judgments delivered after that date.

It follows from the above that candidates will not be examined on specific proposed reforms of the law, though candidate may be asked to identify and suggest solutions to practical problems with the law currently in force.

As candidates will see from the syllabus, the papers on civil and criminal procedure, trust and companies will be ‘open book’ examinations in that candidates will be supplied at the examination with certain materials (e.g. the Royal Court Rules in the procedure paper) to which they may refer during the examination. These materials will be supplied by the Board of Examiners at the time; candidates may NOT bring their own copies of such materials (or any other material) into the examination. Except where the syllabus expressly so provides, candidates will not be provided at the examination with any materials other than writing paper and, of course, the examination paper. Candidates may bring in to the examination room bottled water and, if they think it appropriate, a calculator.

Examination 1 – Jersey Legal System and Constitutional Law
Examination 2 – The Law of Contract
Examination 3 – Testate and Intestate Succession
Examination 4 – Law of Security over Immovable Property
Examination 5 – Civil Procedure and Criminal Procedure, and Legal Professional Ethics
Examination 6 – Law of Security Interests and Bankruptcy
Examination 7 – Company Law
Examination 8 – Trust Law
Examination 9 – Family Law[/toggle_item] [toggle_item title=”Examination 1: Jersey Legal System and Constitutional Law Syllabus”] A. Jersey Legal System

1. Customary Law
Authority of the Ancienne Coutûme and Coutûme Reformée in Jersey. Extent and limit of that authority.
Principal commentators on the Ancienne Coutûme cited in Jersey (Terrien and Le Rouillé d’Alençon): Date and standing in Jersey of their commentaries.
Date of compilation of Coutûme Reformée. Principal commentators cited in Jersey (d’Aviron, Berault, Godefroy, Basnage, Pesnelle, Routier, Houard and Flaust): Date and standing in Jersey of their commentaries.

2. Civil Law
Status of civil law within the “pays de droit coutumier”. Civil law followed in matters not regulated by the customary law, e.g. contract. Principal writers on civil law or civil law derived systems cited in Jersey (Domat, Pothier): Date and standing in Jersey of their works.

3. Local Authorities
Poingdestre, Le Geyt, Le Gros: Date and standing in Jersey of their works.
Commissioners Reports of 1847 and 1861.
The Jersey court system and the status of decisions of the Royal Court, the Court of Appeal and the Privy Council.

4. Other Systems of law to which the Jersey Courts may have regard
Status of foreign law in areas where it is relevant (only followed in the absence of local law to the contrary: persuasive but not binding).
France (the Code Civil and modern French writers); the areas of law in which the Jersey courts have regard to modern French law.
The United Kingdom; the areas of law in which the Jersey courts have regard to English law.
Note: This part of the paper is not on substantive law. The purpose of the paper is simply to ensure that candidates know the sources of Jersey customary law and the general areas of law in which they would be referred to.

B. Constitutional Law

1. The relationship between Jersey and the United Kingdom including the extent and limitations of Jersey’s legislative autonomy and the powers of the Crown and the United Kingdom Parliament to legislate for Jersey, the restraints upon the exercise of those powers and the mode of implementing any such legislation; and including the scope and extent to which the Island is able to participate in international affairs and make international agreements; and how treaties become binding on the island and the effect of treaties in domestic law.

2. The different forms of Jersey domestic legislation, i.e. Laws, Regulations, Orders and Triennial Regulations; how they are adopted and become effective.

3. The nature of the Island’s relationship with the European Union including the terms of Protocol 3 and the applicability of EU Regulations and Directives.

4. The States: a general understanding of the system of government in Jersey, including the powers and functions of Ministers and limitations on such powers, and the manner in which the States may take decisions. Candidates will not be examined on individual standing orders issued under the States of Jersey Law 2005, but are required to understand generally the powers of Scrutiny Panels and other Committees set up by the States.

5. The Parish: an understanding of the role of the Parish and Constable.

6. Crown and Public Officers: an understanding of the role of the Lt. Governor, Bailiff, Deputy Bailiff, Attorney General, the Solicitor General, the Viscount and the Judicial Greffier. [/toggle_item] [toggle_item title=”Examination 2: Law of Contract Syllabus”] A. Law of Contract

1. General principles
Basic principles of the Law of Contract, including la convention fait la loi des parties, the obligatory force of the contract, consent of parties and the theory of autonomy of will. Classification of contracts including distinction between contracts à titre onereux and à titre gratuit. Precontractual negotiations.

2. Formation of contracts
Offer. Acceptance. ‘Objet’ and ‘Cause’ (including the theory of ‘cause’ and the distinction between it and consideration). Certainty of terms. Incomplete agreement. Termination of offer. Contractual Intention. Capacity of individuals, corporations and non-corporate entities.

3. Validity
‘Vices du consentement’. ‘Nullité’. ‘Erreur’. ‘Violence’. ‘Dol’. ‘Déception d’outre moitié du juste prix’. ‘Lesion’.

4. Effect of Contracts between the parties
Implied warranties. Implied terms. ‘Vices caches’. Exemption clauses. Penalty clauses.

5. Miscellaneous
Tacite reconduction. Caution’, including ‘droit de division’ and ‘droit de discussion’. Prescription (including commencement and suspension thereof). ‘Résolution’. Waiver/Renonciation.[/toggle_item] [toggle_item title=”Examination 3: Testate and Intestate Succession Syllabus”] 1. Wills
Formal and essential validity; capacity, undue influence; holograph wills; revocation; dependent relative revocation; moyens de nullité.

2. Intestate succession
Direct and collateral successions: propres, acquêts et meubles: capacity to succeed; identity and rights of heirs at law: representation; methods of computation of degree.

3. Rights attaching to successions
Avances de succession; rapport à la masse; usufruits; rights of surviving spouse including dower and droit de viduité; légitime; reduction ad legitimum modum.

4. Probate
Grants of probate and administration: recovery and distribution of estate; variation and disclaimer of interests.[/toggle_item] [toggle_item title=”Examination 4: Law of Immovable Property”] 1. The classification of property: rights and obligations appertaining to ownership of land Corporeal immovables, deemed immovables, and incorporeal immovables and movables; what ownership comprises [qui a le sol a les dessus et le dessous]; clôture [enclosure]; mitoyennété [party ownership]; relief [off-set]; droit de jointure [right to build against property]; tour d’échelle [access right for maintenance]; voisinage; trees including the High Hedges (Jersey) Law; water.
Excluded: candidates will not be examined on the provisions of the Water Pollution (Jersey) Law 2000 or the Water Resources (Jersey) Law 2007.

2. Servitudes and covenants, including roads and rights of way
The nature and categorisation of servitudes and restrictive covenants; interpretation of servitudes/covenants; acquisition (including destination de père de famille and voie de necessité), exercise, aggravation and extinction (including prescription) of servitudes; building schemes (reciprocally enforceable servitudes); chemin de voisiné.

3. Transacting in immovable property Capacity to transact; statutory consents under the Housing (Jersey) Law 1949, the Agriculture Land (Control of Sales and Leases) (Jersey) Law 1974 and Agricultural Land (Control of Sales and Leases) (Exempted Transactions) (Jersey) Regulations 1974; authorisations and consents required when transacting on behalf of a third party including a party under a disability; how title to immovable property is acquired; promesse à heritage ne vaut; estoppel; entering and setting aside caveats [oppositions]; setting a conveyance aside; rectification of a conveyance.
Excluded: candidates will not be examined on the categories of housing qualifications or of exempted transactions under the Housing (General Provisions) (Jersey) (Regulations) 1970, nor upon the Agricultural Land (Control of Sales and Leases) (Exempted Transactions) (Jersey) Regulations 1974.
Candidates may be examined on the grounds for setting a conveyance aside, but will not be examined on the procedure to be followed, other than as is set out below.

4. Modes of ownership and enjoyment including leases and licences Ownership in perpetuity, usufructs and entails; sole ownership, co-ownership [joint ownership and ownership in common]; putting an end to co-ownership [licitation]; trusts of immovables, including fidéi-commis; share transfer and flying freeholds; contract leases, short-term leases and licences; service tenancies, perpetually renewable leases, réconduction and tenancy at sufferage; termination of a lease; promesse de bail.
Excluded: candidates will not be examined on the reciprocal rights and obligations of landlord and tenant or of landlord and licensee. They may be examined on the grounds on which a lease can be terminated, but will not be examined on the procedure to be followed for the termination of a lease or licence or the eviction of a tenant or licensee, other than as set out below.

5. Hypothecs (including rentes)
The nature of and rights conferred by a hypothec; what can be hypothecated and who can hypothecate; formalities for creating a hypothec; extinction of hypothecs; cancellation of registration; prescription of the droit de suite.
Candidates will not be examined in this paper on the procedures for real estate bankruptcies nor on the procedure for assigning or reimbursing a rente.

6. Conveyancing principles insofar as they impact on the law of property.
Implied guarantee of title under the Loi (1880) sur la propriété foncière; title derived from an intestacy; title derived from a will; prescriptive title.
Excluded: candidates will not be examined on
• defective title insurance
• professional undertakings
• indemnities
• retention monies.[/toggle_item] [toggle_item title=”Examination 5: Civil Procedure And Criminal Procedure, and Legal Professional Ethics Syllabus”] A. Civil Procedure

1. The Royal Court and Petty Debts Court
Divisions and jurisdiction;
The Royal Court Rules (excluding Parts 9, 12-14, 18 and 19);
Powers and duties of the Bailiff, Jurats, Judicial Greffier and other Court Officers;

2. Parties to Actions
Locus standi;
Representative proceedings;
Litigants who are not “sui juris”;
Third parties and parties cited.

3. Proceedings
Commencement of proceedings;
Service of process within and outside the jurisdiction;
Pleadings including amendment, striking out, consolidation of actions;
Stay of proceedings;
Security for costs;
Interrogatories; payments into court;
Summary judgment;
Injunctions and caveats;
Clameur de Haro;
Actions petitoires et possessoires;
Prescription and Limitation Periods.

4. Appeals
From the Judicial Greffier;
From the Royal Court;

B. Criminal Procedure

1. Courts and Types of Proceedings
Jurisdiction of Courts; “crimes”; “délits”; “contraventions”;
Mode of trial and Preparatory hearings.

2. Court Procedure
Bail and Police detention;
Procedure in the Magistrate’s, Youth and Royal Courts;
Pleas in bar

3. Sentencing Powers
Divisions of the Royal Court;
Magistrate’s Court;
Youth Court

4. Appeals
From the Youth Court,
From the Magistrates Court,
From divisions of the Royal Court

C. Legal Professional Ethics

1. Conflicts of interest
2. Obligations to the Court
3. Obligations to the Client
4. Obligations to fellow professionals

Candidates sitting this paper will be supplied with copies of the following, which they may refer to during the course of the examination:-
Royal Court Rules 2004[/toggle_item] [toggle_item title=”Examination 6: Security Interests and Bankruptcy Syllabus”] A. Security on movable property

The classification of tangible and intangible personal property including choses in action.
Security interests constituted under the Security Interests (Jersey) Law 1983, as amended.
Security interests constituted under the Security Interests (Jersey) Law 2012
Security over tangible movable property.
B. Bankruptcy

All matters relating to the law and procedure in the following types of insolvency:

1. Désastre.
2. Dégrevèment.
3. Réalisation.
4. Remise de Biens.
5. Cession de Biens.[/toggle_item] [toggle_item title=”Examination 7: Company Law Syllabus”] Candidates may be examined on any Part of the Companies (Jersey) Law 1991, as amended, except for Part 18C (Continuance) and Part 18D (Cell Companies). Candidates may also be examined on the provisions of the Companies (General Provisions) (Jersey) Order 2002.

In addition to being familiar with the relevant Parts of the Companies (Jersey) Law 1991 and relevant decisions of the Jersey courts, candidates are expected to have a general understanding of principles company law in so far as relevant to the examination syllabus.

Candidates sitting this paper will be supplied with copies of the following materials which they may refer to during the course of the examination:-
(a) Companies (Jersey) Law 1991, as amended;
(b) Companies (General Provisions) (Jersey) Order 2002; and
(c) Companies (Standard Table) (Jersey) Order 1992.[/toggle_item] [toggle_item title=”Examination 8: Trust Law Syllabus”] 1. Recognition, definition, validity and classification of trusts and trust interests.

2. Rights, duties and powers of:
(i) settlors;
(ii) trustees;
(iii) beneficiaries;
(iv) protectors;
(v) enforcers; and
(vi) investment and other advisers.

3. Jurisdiction of Jersey Courts over both Jersey law and Foreign law trusts.

4. Proper law of trusts and capacity of settler.

5. Construction, interpretation, variation and rectification of Jersey trusts.

6. Jersey charitable trusts and Jersey non-charitable purpose trusts.

Candidates sitting this paper will be supplied with copies of the following texts which they may refer to during the course of the examination:
Trusts (Jersey) Law 1984[/toggle_item] [toggle_item title=”Examination 9: Family Law Syllabus”]

1. Jurisdiction of the Family Division of the Royal Court (including appeals from the Royal Court).
2. Nullity.
3. Divorce.
4. Judicial Separation.
5. Ancillary Relief.
6. Separation and Maintenance Agreements and Orders (including the jurisdiction of the Petty Debts Court).
7. Civil Partnerships.
8. Legitimacy.
9. Children-parental responsibility, private law orders-general principles, Art. 10 orders, the welfare checklist. Financial provision for children.
10. Children – public law orders excluding adoption.
11. Injunctions – non-molestation, ouster and non-removal.

Procedural aspects relevant to the above will be considered in outline only. [/toggle_item] [toggle_item title=”Marking of Examination Papers”]At its recent meeting, the Board of Examiners agreed that, with effect from April 2005, it would provide candidates with a grading for each examination paper. The gradings for the examinations will be as follows:

0 – 49% Poor fail
50 – 59% Fail
60 – 70% Pass
71% + Good pass[/toggle_item] [/toggle_box]

Deputy Bailiff
10th January 2005

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