Cecily Zamora
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in medieval England and is still in effect in the US and other countries today. Common law is flexible and adaptable to unforeseen situations, as it allows for freedom of interpretation. It is influenced by precedent and policy judgments drawn from economics, the social sciences, business, and decisions of foreign courts. The primary English-speaking jurisdictions that follow common law are the United States, the United Kingdom, English-speaking parts of Canada, and Australia. In common-law jurisdictions, judicial decisions are the primary source of law, and court rulings are based on previous decisions and legal precedents. The ability to claim common law jurisdiction depends on the specific laws and requirements of the region or country in question, such as common-law marriage requirements in the US.
Characteristics of Common Law Jurisdiction
| Characteristics | Values |
|---|---|
| Basis | Unwritten laws based on legal precedents |
| Sources of Law | Judicial decisions |
| Adaptability | Can be adapted to situations not contemplated by the legislature |
| Flexibility | Can respond to changes in society |
| Efficiency | Court proceedings are shorter, saving time and money |
| Influence | Influences decision-making in unusual cases |
| Examples | United States, United Kingdom, Canada, Australia |
| Hearsay Evidence | Inadmissible in court, barring exceptions |
| Contracts | Longer than those in civil-law jurisdictions |
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What You'll Learn
Common law jurisdictions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from medieval English law and is distinct from civil law, which is primarily derived from Roman law. Common law is more malleable than statutory law, and common-law systems are adaptable to situations not contemplated by the legislature.
In common-law jurisdictions, judicial decisions serve as the primary source of law. The primary English-speaking jurisdictions—the United States, the United Kingdom, English-speaking parts of Canada, and Australia—are common-law jurisdictions. Common law in the US originates from medieval England, and today both the US and the UK operate under a dual system of common and civil law.
In common law jurisdictions, litigation is 'fact-driven', with an emphasis on the facts of a case, giving lawyers an active role. Judges present the precedents that apply to a case, significantly influencing the criteria that a jury uses to interpret it. Common law is also more flexible than civil law, as it can respond to changes in society and higher courts can overrule prior decisions without waiting for lawmakers to act.
The United Nations' Convention on Contracts for the International Sales of Goods (CISG) often governs international contracts. It allows foreign parties to negotiate a transaction under the CISG rather than the laws of a particular country. However, for the CISG to apply, all signatories must be from CISG-ratifying countries.
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Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law is a body of unwritten laws based on legal precedents established by the courts and can guide court rulings when the outcome is undetermined based on written rules of law. Common law places an emphasis on precedent while allowing some freedom for interpretation. Common law countries include the US and UK, where judges can make laws in certain areas.
Civil law, on the other hand, is primarily derived from Roman law. In civil-law jurisdictions, codified principles serve as the primary source of law. Civil law countries include Germany and France, where legislatures pass much more detailed laws and rely less on the opinions of judges. Civil law statutes tend to be more detailed than those written by common law legislatures, but this can make the statute more difficult to read. In civil law countries, the legislature has the foresight and diligence to address the precise set of facts applicable to a particular situation, making civil law clearer than case law in certain instances.
The value of a common-law system is that the law can be adapted to situations that were not contemplated at the time by the legislature. Common law is more malleable than statutory law, and common law courts are not absolutely bound by precedent. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
In civil-law jurisdictions, many who work with contracts accept the idea of a hierarchy of efforts standards, which is unworkable for several reasons. Firstly, imposing an obligation to act more than reasonably is unreasonable. Secondly, requiring a contract party to act more than reasonably creates too much uncertainty about the level of effort required. Finally, legalistic meanings attributed to efforts standards conflict with colloquial English.
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Common law marriage
The recognition of common law marriage varies across jurisdictions. In some US states, for example, if a couple lives together for a certain period, they may be considered legally married without any official registration or ceremony. In other jurisdictions, such as the UK, while common-law marriage is not formally recognised, cohabiting couples may acquire certain rights similar to those of married couples after living together for a specified period.
The requirements for establishing a common law marriage differ depending on the jurisdiction. In some states, simply living together and holding themselves out as a married couple may be sufficient. In other cases, there may be additional requirements, such as the need to file a legal document or obtain a court order declaring the validity of the marriage. It is important to note that not all jurisdictions recognise common law marriage, and in those that do, the specific requirements and legal implications may vary.
The history of common law marriage can be traced back to medieval England, where it originated from the practices of the king's courts. Over time, it has evolved and spread to other parts of the world, particularly those with legal systems influenced by English common law. Today, common law marriage continues to be recognised and practised in various jurisdictions, offering couples a way to establish a legally valid marriage without the need for a formal ceremony or registration.
To claim common law marriage, one must meet the specific requirements established by the jurisdiction in which they reside. These requirements often include factors such as the duration of cohabitation, public recognition of the relationship as a marriage, and the intention of both parties to be recognised as married. It is important to consult the specific laws and regulations of your jurisdiction to understand the exact criteria for claiming common law marriage.
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Common law and contract drafting
Common law is a body of unwritten laws based on legal precedents established by the courts. It is more malleable than statutory law, and common law courts are not bound by precedent but can adapt to situations that were not contemplated at the time by the legislature. Common law places an emphasis on precedent while allowing some freedom for interpretation.
The primary English-speaking jurisdictions that are common-law jurisdictions include the United States, the United Kingdom, English-speaking parts of Canada, and Australia. In common-law jurisdictions, judicial decisions serve as the primary source of law. Contracts drafted in common-law jurisdictions tend to be longer than those in civil-law jurisdictions because civil-law drafters rely on codified default rules. For example, a German civil code defines the word "unverzüglich" to mean "without culpable delay", and this is generally understood when used in contracts.
The differences between common-law and civil-law contracts are blurring, with English-language drafters exposed to both styles. It is still prudent to make clear how contract provisions relate to the codified default rules. For example, the phrase "without culpable delay" should refer explicitly to the relevant section of the German Commercial Code. Common-law judges are likely to interpret a contract based solely on the contract text, whereas civil-law judges take into account subjective considerations like the parties' presumed intent.
When drafting contracts, it is important to avoid using problematic common-law terminology, such as the traditional recital of consideration, which can consist of archaic language. It is also important to be aware of the risk of doing business with the "wrong" company in a corporate "family". For example, an affiliate of a contracting party might be bound by the contract if the contract states that it is to benefit the affiliate and is signed by someone who controls the affiliate. When in doubt, have a licensed attorney review the contract.
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Common law and hearsay evidence
Common law is a body of unwritten laws based on legal precedents established by the courts. It is more malleable than statutory law as common law courts are not absolutely bound by precedent but can adapt to situations that were not contemplated at the time by the legislature. Common law is derived from medieval England, but it is still very much in effect in the US and elsewhere today. The primary English-speaking jurisdictions that are common-law jurisdictions include the United States, the United Kingdom, English-speaking parts of Canada, and Australia.
Hearsay evidence is generally inadmissible in court. However, there are exceptions to the hearsay rule. Hearsay evidence is defined as a statement (oral or written) made by the declarant (the person who made the statement) at any time or place other than while testifying in court at the current trial or hearing. It is being offered to prove the truth of the matter asserted. The problem with hearsay is that when the person being quoted is not present, it becomes impossible to establish credibility.
The two main common law exceptions to the rule that hearsay is inadmissible are res gestae and confessions. Other exceptions include the "excited utterance" exception, which applies when someone makes a statement during a startling event, in the heat of the moment, potentially providing an unguarded and accurate piece of information. This exception is most applicable in criminal cases, as the rationale behind it is that during or immediately following a criminal act, a person is not likely to have the presence of mind to lie or give false statements. The third exception is the "matter of record" exception, which allows for official government records, private business records, prior court decisions or documents, and prior testimony of an unavailable witness to be admitted as evidence.
In England and Wales, hearsay is generally admissible in civil proceedings but is only admissible in criminal proceedings if it falls within a statutory or preserved common law exception, or if all parties to the proceedings agree. In Canada, hearsay evidence is generally inadmissible unless it falls within one of the established common law exceptions. As a result of the Supreme Court's decision in R. v. Khan and subsequent cases, hearsay evidence that does not fall within the established exceptions can be admitted if it is established that such evidence is both "necessary and reliable".
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offences.
Common law is adaptable to situations that were not contemplated at the time by the legislature. It is also flexible, as it can respond to changes in society. Court proceedings can be shorter, saving time and money, as judges need only follow precedent when making decisions.
Historically, the traditions of common law have led to unfair marginalization or disempowerment of certain groups. Past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This makes it difficult for marginalized parties to pursue favourable rulings.
Common-law jurisdictions refer to places where judicial decisions serve as the primary source of law. The primary English-speaking jurisdictions that are common-law jurisdictions include the United States, the United Kingdom, English-speaking parts of Canada, and Australia.
