Keith Mack
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents. It is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided. In common law, judges issue opinions and make decisions that interpret the law, and these decisions become precedents that guide future rulings. Common law rights are individual rights that arise from these judicial decisions and are later codified into formal laws. These rights are particularly relevant in common-law marriages, which grant similar rights to married couples to those who are not officially married.
| Characteristics | Values |
|---|---|
| Basis of common law rights | Judicial decisions and opinions |
| How it differs from civil law | Civil law has a comprehensive code of statutes that outline procedures and punishments. |
| Common law is based on precedent and interpretation. | |
| Civil law is created by legislators. | |
| Common law is made by judges. | |
| Civil law decisions are not binding in other cases. | |
| Common law decisions are binding in similar cases. | |
| Common law can be adapted to new situations. | |
| Civil law has clear rules for judges to follow. | |
| Common law rights | Individual rights that come from "judge-made" law. |
| Common law rights may become statutory rights after legislatures codify judicial decisions into formal laws. | |
| Common law rights are often related to natural rights, such as "life, liberty, and the pursuit of happiness". |
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What You'll Learn
Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs without the need for a marriage license or a formal ceremony. It is a union that results from an agreement between two individuals who intend to be married and are legally capable of doing so. This is followed by cohabitation and holding themselves out to the world as a married couple.
The concept of common-law marriage grants couples who are not officially married similar rights to those who have a marriage license, provided certain conditions are met. These conditions include the legal capacity to marry, which typically means being at least 18 years old, of sound mind, and not already married to someone else. Both partners must also demonstrate their intention to be married by referring to each other as "spouse" or "partner" and behaving as a married couple in public.
The validity of common-law marriage varies across jurisdictions. While some provinces in Canada may grant couples in marriage-like relationships similar rights and responsibilities as married spouses, they are not legally considered married. In the United States, common-law marriage is recognized in seven states and the District of Columbia, with nine other states recognizing it with restrictions. In England and Wales, common-law marriage was abolished by the Clandestine Marriages Act of 1753, which required marriages to be performed by the Church of England.
The recognition of common-law marriage is based on community recognition and the couple's representation of themselves as a married couple. While it provides flexibility and adaptability to situations not contemplated by the legislature, it also carries the risk of outdated or biased precedents influencing future rulings until societal changes prompt a revision.
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Common law trademarks
Common law rights are individual rights that arise from "judge-made" law, which is deeply rooted in stare decisis ("to stand by things decided"), or precedent. In common law systems, judges issue opinions and make decisions that interpret the law, and these decisions become the basis for future evaluations of similar cases.
For example, if a coffee blend is sold under the name "BLASTER" in California only, the trademark rights to that name exist only in California. If another coffee retailer begins selling a different blend in New York under the same name, there would be no trademark infringement. However, if the New York company attempted to sell their coffee blend nationwide, they would find that the California company's common law rights to the mark prevent them from entering the California market.
Therefore, while federal registration is not required to establish common law rights in a mark, it is generally recommended as it gives trademark owners substantial additional rights and protection.
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Common law vs civil law
Common law and civil law are 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, also known as case law, is deeply rooted in stare decisis, which means "to stand by things decided". It is a body of unwritten laws based on legal precedents and judicial decisions that recognise prior court decisions as legally binding precedent. Common law rights are individual rights that come from this "judge-made" law and are not formally passed by the legislature.
The common law system is less prescriptive than civil law, and generally, everything is permitted that is not expressly prohibited by law. There are few provisions implied into a contract under common law, so it is important to set out all the terms governing the parties' relationship in the contract itself. Common law is deeply reliant on precedent, which allows some freedom for interpretation. This means that the law can be adapted to situations that were not contemplated at the time by the legislature.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Unlike common law, civil law systems rely on legal codes as their primary source of law. Civil law judges tend to give less weight to judicial precedent and more weight to written decisions. There are a number of provisions implied into a contract under civil law, so less importance is placed on setting out all the terms in the contract itself.
In a civil law jurisdiction, the contract will be enforced by the administrative courts unless the contract specifies that the parties have agreed to arbitration. In many civil law countries, a separate administrative law governs PPP arrangements.
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Common law in commercial contracts
In the United States, most contracts are governed by a combination of common law and statutory law within the states where they are applied. Common law, also known as case law, is a body of unwritten laws based on legal precedents that may guide court rulings when the outcome is undetermined based on written rules of law. Common law rights are individual rights that come from this "judge-made" law and are not formally passed by the legislature.
Common law dictates that any change to an offer is a rejection and counter-offer, creating a new offer and changing the person who was initially the offeree to the offeror. Common-law contracts can be either bilateral or unilateral, and 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 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 to the contract must have the capacity to enter into the contract.
The Uniform Commercial Code (UCC) provides a framework for certain contracts, particularly those involving the sale of goods, within the broader area of law. The UCC contains two sets of rules for contracts: one set involves rules for everyone, and the other set involves rules for merchants. The UCC provides more flexibility in contract formation than exists in common-law contracts, accommodating the reality of business practices. The requirements for common-law contract formation would be too burdensome for merchants.
Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. For example, many contracts involving parties in Japan, France, Germany, and most other states of the United States choose the law of New York, even when the relationship of the parties and the transaction to New York are quite attenuated. Similarly, American contracts relating to corporate law issues include a Delaware choice of law clause because of the deep body of law in Delaware on these issues.
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Common law and marginalised groups
Common law is a body of unwritten laws based on legal precedents, or stare decisis, that may guide court rulings when the outcome is undetermined based on written rules of law. Common law rights are individual rights that come from this "judge-made" law and are not formally passed by the legislature.
The traditions of common law have historically led to the 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 until popular thought or civil legislation changes the interpretation of common law. For example, common law in England as late as the 1970s held that, when couples divorced, fathers—rather than mothers—were entitled to custody of the children, a bias that kept women trapped in marriages. Feminists in the 19th and early 20th centuries who fought for women's rights often faced such difficulties.
Marginalized groups can be understood as those who are disadvantaged by the law due to their social classifications. Race and ethnicity play a role, with differences in marriage rates at all levels of education between Black and White individuals. Multigenerational households are also more common among Black, Hispanic, and immigrant families. Non-traditional household and family structures are more common among lower socioeconomic status groups. More than 21% of American families are marginalized by intestacy classifications, and such forms are more common among individuals of colour and those with less wealth.
The right to education is universal and does not allow for any form of exclusion or discrimination. However, marginalized groups are often left behind by national educational policies, denying many people their right to education. This includes migrants, refugees, and children.
Access to justice is another area where marginalized communities face challenges. Studies have examined the role of courts and similar bodies in administering the laws that pertain to the entitlements of marginalized communities. Examples include the struggles for access to law and justice by landless rural workers in Brazil, indigenous communities in Latin America, and peasants' struggles for land in China.
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Frequently asked questions
Common law rights are individual rights that come from "judge-made" law and are not formally passed by the legislature. Common law, also known as case law, is a body of unwritten laws based on legal precedents.
One example of common law rights in action today is the concept of common-law marriage, which acknowledges similar rights to those with a marriage license for couples who are not officially married if certain conditions are met. Another example is common law trademark rights, which are granted in the United States based solely on the use of the mark without any registration.
A common law system allows the law to be adapted to situations that were not contemplated by the legislature. It provides stability and consistency in the legal system and enables parties, especially commercial parties, to predict whether a proposed course of action is likely to be lawful or unlawful.
