Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is a flexible system that can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. In common law jurisdictions, particularly the United States, litigation is 'fact-driven'. This means that the facts of a case need to be established, and the applicable precedent must then be found. This gives judges a lot of influence over the criteria that juries use to interpret cases.
| Characteristics | Values |
|---|---|
| Definition | A body of unwritten laws based on legal precedents established by the courts. |
| Synonyms | Case law |
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. |
| Basis | Common law is based on the principle of stare decisis, which means "to stand by things decided". |
| Applicability | Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. |
| Evolution | Common law evolved from British tradition and spread to North America during the 17th and 18th centuries. |
| Flexibility | Common law is flexible and adaptable to changes in society, as it is not bound by written statutes or codes. |
| Efficiency | Common law proceedings can be shorter, saving time and money, as judges only need to follow precedent when making decisions. |
| Predictability | Common law provides predictability, especially in commercial contracts, as parties can anticipate the legality of their arrangements based on past decisions. |
| Influence | Common law influences the decision-making process in unusual cases where existing statutes or written rules do not provide clear guidance. |
| Complexity | Common law interactions with other legal systems, such as constitutional law and statutory law, can give rise to complexity. |
| Criticism | Common law has been criticized for marginalizing or disempowering certain groups due to outdated or biased precedents. |
| Evidence Rules | Common law has developed rules regarding hearsay evidence, generally making it inadmissible while allowing for exceptions like expert witness testimony and business document proof. |
| Contract Remedies | In common law jurisdictions, remedies for breach of contract often involve paying damages, while in civil law jurisdictions, the focus is on specific performance. |
| International Contracts | The United Nations' CISG governs international contracts when a contract doesn't designate a specific country's law, promoting negotiation and delineating rights and obligations. |
| Business Focus | In common law jurisdictions, the emphasis is on seeking reorganization for financially troubled businesses rather than immediate liquidation. |
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What You'll Learn
Common law jurisdictions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common laws sometimes inspire new legislation. Common law is more malleable than statutory law.
In common law jurisdictions, litigation is 'fact-driven'. The facts need to be established, and the applicable precedent must then be found. Common law has been described as flexible since it can respond to changes in society. It is adaptable to the unforeseen and can address situations not originally predicted by lawmakers.
In common law jurisdictions, such as England and the US, the emphasis when a business gets into financial trouble is on seeking a reorganisation rather than a liquidation to keep the business as a going concern. For example, in the US, Chapter 11 allows for reorganisation. In civil law jurisdictions, the process focuses on liquidation.
The United Nations' Convention on Contracts for the International Sales of Goods (CISG) often governs the international contract if a contract does not expressly designate which country's law applies. The CISG was enacted on January 1, 1988, and codifies private international law that has evolved from both common and civil law jurisdictions. The primary purpose of the CISG is to allow foreign parties to negotiate a transaction under the CISG rather than under the laws of a particular country.
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Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is more malleable than statutory law, and it draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England and is practiced in countries that were former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In common law jurisdictions, litigation is 'fact-driven', with an emphasis on the facts of a case, and the role of lawyers is particularly active. Common law decisions reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and other fields and jurisdictions. Judicial decisions are generally binding and can only be overturned by the same court or through legislation. Common law allows for extensive freedom of contract, with few provisions implied into the contract by law, and generally permits anything that is not expressly prohibited.
Civil law, on the other hand, is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practiced in about 150 countries. Unlike common law, civil law relies on legal codes as the primary source of law and gives less weight to judicial precedent. Civil law is generally more prescriptive than common law, with more provisions implied into a contract. In civil law jurisdictions, unless the contract specifies arbitration, it will be enforced by administrative courts.
In terms of remedies for contract default, civil law jurisdictions typically require specific performance, while common law jurisdictions more frequently award damages. However, both systems recognize a range of remedies, and in certain situations, civil law codes can be clearer than case law in common law jurisdictions. For example, civil law can provide clearer guidance when precise legislation has been enacted for a particular situation.
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Common law and contract law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
In the United States, the two primary sources of law that govern contracts are common law and the Uniform Commercial Code (UCC). Common law governs contracts for services and contracts not otherwise governed by the UCC. Common-law contract formation is more stringent than the requirements for formation between merchants under the UCC.
The elements of common-law contract formation include offer, acceptance, and consideration. Offer and acceptance together form mutual assent. Additionally, to be enforceable, the contract must be for a legal purpose, and the parties must have the capacity to enter into the contract. Acceptance must be a mirror image of the offer to constitute valid acceptance.
In addition, all common-law contracts must contain valid consideration. This means that there must be a bargained-for exchange of acts or promises, and both parties must incur new legal detriment or obligations as a result of the contract.
The common law has developed a set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context. For example, the market damages rule requires a court to know only the difference between market and contract prices.
In Anglo-American jurisdictions, the most frequent remedy for breach of contract is for the defaulting party to pay damages to compensate the other party. In civil law jurisdictions, the most common remedy for default is specific performance. Both civil and common law jurisdictions recognise a range of remedies, varying from compensatory to punitive damages, and from specific to modified performance.
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Common law and commercial disputes
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is practised in several countries, including the United States, the United Kingdom, Canada, Australia, and India. In common law jurisdictions, litigation is typically "fact-driven", with a strong emphasis on the facts of a case and the role of lawyers in presenting evidence and legal arguments.
Commercial disputes are an inevitable part of the business landscape and can arise from a variety of issues, including breaches of contract, partnership disagreements, intellectual property disputes, and disputes over commercial property. These disputes can have significant financial implications and impact business relationships. The complexity and nature of commercial disputes often require a specialised understanding of commercial law and the ability to navigate intricate legal and business principles.
Contract disputes are a common type of commercial dispute, which can arise from minor misunderstandings, unclear language, or ambiguous contract terms. A breach of contract occurs when one party fails to fulfil its contractual obligations, and it can lead to legal action if not resolved. Non-performance or partial performance of contractual duties can result in legal claims for damages or specific performance.
To address commercial disputes, businesses can employ proactive measures and seek strategic legal guidance from experienced law firms specialising in commercial law. Dispute resolution mechanisms such as litigation, mediation, and arbitration can be utilised to settle business conflicts. Litigation, a detailed and adversarial process, is often reserved for the most complex disputes when other resolution processes have been exhausted. It can result in a win-lose scenario, impacting future commercial relationships.
The predictability afforded by decided cases in certain jurisdictions, such as London for admiralty cases, makes them attractive for commercial dispute litigation. Common law can provide guidance on boundaries and freedom of expression rights for businesses, allowing them to operate with more certainty and efficiency. However, in jurisdictions with weak respect for precedent, the lack of consistency and predictability can prolong procedures and create challenges for businesses.
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Common law and freedom of expression
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and certain parts of the United States.
Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but they can be influenced by it. Judges can significantly influence the criteria that a jury uses to interpret a case. However, past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic can make it difficult for marginalised parties to pursue favourable rulings until popular thought or civil legislation changes the interpretation of common law. For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, effectively keeping women trapped in marriages until this precedent was overturned in the 1970s.
Freedom of expression is a fundamental human right, allowing individuals to say what they think, share information, demand a better world, agree or disagree with those in power, and express these opinions in peaceful protests. While international law protects free speech, there are instances where speech can be legitimately restricted, such as when it violates the rights of others, advocates hatred, or incites discrimination or violence. Any restrictions on freedom of expression must be provided by law, protect certain public interests or the rights of others, and be clearly necessary.
Common law plays a role in freedom of expression by providing clear guidance on the boundaries within which this right applies. For instance, newspapers, taxpayer-funded entities with some religious affiliation, and political parties can understand their freedom of expression rights through common law. In this way, common law enables these entities to come close to the boundaries of the law without crossing them.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Common law is practiced in England, the US, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In common law jurisdictions, litigation is 'fact-driven'. The facts of a case need to be established, and the applicable precedent must be found. In civil law jurisdictions, the focus is on liquidation. Civil law jurisdictions also tend to have more detailed contracts, and contracts are enforced by administrative courts.
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