Gavin Howe
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has been used in England since the Middle Ages and is now applied in several countries around the world, including the United States, Canada, India, and Australia. Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law is more flexible than civil law as it can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. It is also less prescriptive, giving governments the freedom to enshrine protections of their citizens in specific legislation. Common law has been applied to various areas of law, including family law, with the concept of common-law marriage, and to proceedings before U.S. federal and state agencies.
| Characteristics | Values |
|---|---|
| Sources of Law | Common law systems place greater weight on judicial decisions than civil law systems. |
| Countries | Common law systems are typically found in former British colonies or protectorates, including the United States. |
| Binding Decisions | Judicial decisions are binding in common law systems, whereas civil law systems do not consider a judge's decision binding in other cases, even if the facts are similar. |
| Flexibility | Common law is more flexible than civil law as it can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. |
| Precedent | Common law relies on stare decisis, or following precedent, while allowing some freedom for interpretation. |
| Consistency | Common law promotes stability and consistency by relying on previous caselaw rather than subjective viewpoints. |
| Efficiency | Common law is considered more efficient as judges can follow precedent, leading to shorter court proceedings. |
| Adaptability | Common law can adapt to unforeseen situations not contemplated by lawmakers. |
| Infrastructure | Common law countries may require specific legislation related to infrastructure, such as prohibiting service providers from cutting off utilities for non-payment. |
| Contracts | Common law places more emphasis on setting out all the terms governing the relationship between parties in a contract, while civil law systems imply provisions into contracts. |
| Jurisprudence | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Standardization | Civil law systems aim for standardization and reducing bias by creating comprehensive codes of statutes, while common law allows for more localized variations. |
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What You'll Learn
Property
Common law property rules can apply to both tangible and intangible assets. Tangible assets include cars, real estate, and fine art, while intangible assets refer to patents, trademarks, leases, computer programs, and customer lists, among others.
Common law property is a system that determines ownership of property acquired during marriage. It asserts that each spouse is an individual entitled to sole ownership of certain items acquired during the marriage. This is in contrast to community property law, which treats assets acquired during marriage as belonging to both partners. In community property states, spouses share joint ownership over assets and debts.
In the context of divorce, the distinction between common law and community property law becomes important. Under common law, if one partner purchases a boat, car, or other vehicle and registers it under their name, then that vehicle belongs exclusively to that person. However, in a community property state, the vehicle would automatically become the property of both partners in the marriage.
In the United States, the majority of states have adopted the common law property system. Only nine states, including Arizona, California, and Idaho, use the community property system. The application of community property principles to real property located in a common law state can occur in certain situations, such as when the property is acquired with community property funds.
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Contracts
A contract is a legally binding agreement between two or more parties, creating mutual obligations that are enforceable by law. In common law, a contract must have several key elements to be considered valid and enforceable. These include mutual assent, expressed through a clear offer and acceptance, consideration from both parties, mutual intent to form a legal relationship, legality in its purpose, and parties with the capacity to contract.
The common law dictates that any change to an initial offer is a rejection and counter-offer, creating a new offer. This is in contrast to the Uniform Commercial Code (UCC), where a change to an offer may still result in a binding contract depending on the circumstances. Common law also requires that a description of the quantity, price, performance time, nature of work, and identity of an offer be included in a valid contract, whereas the UCC only specifies that quantity is a mandatory term.
Common law contracts provide security and clarity for all parties involved, ensuring everyone understands their rights and obligations. They are particularly important for intangible assets like copyrights, trademarks, and stocks, as they ensure these rights and obligations are clearly defined.
In the United States, most contracts are governed by a combination of common law and statutory law within the specific states where they are applied. While certain aspects of contract law may vary from state to state, there is a substantial degree of consistency across the country.
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Torts
Tort law protects each person's bodily integrity against both intentional and negligent interference, their mental health against intentional infliction of emotional distress, their reputation against misstatements by others, their privacy and freedom of movement against certain interferences, and their property against various forms of interference, including unauthorized use, willful or careless damage, and, in the case of land, against unauthorized entry and loss of usefulness.
The primary aims of tort law are to provide relief to injured parties for harms caused by others, to impose liability on parties responsible for the harm, and to deter others from committing harmful acts. Torts can shift the burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss. Typically, a party seeking redress through tort law will ask for damages in the form of monetary compensation. Some specific torts include trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress.
Within the European Union, there have been efforts to harmonise conflict-of-tort-law rules between member states. Under Article 3 of the proposed Rome II Regulation on the Law Applicable to Non-Contractual Obligations (22 July 2003), there would be a general presumption that the lex loci delicti will apply, subject to certain exceptions. In the United States, tort cases are heard before civil juries, while in the rest of the common law world, civil juries in tort actions are unusual, and cases are decided before a judge.
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Bankruptcy
In the United States, bankruptcy cases are under the exclusive jurisdiction of federal courts, meaning they cannot be filed in state courts. The process typically begins with the debtor filing a petition with the bankruptcy court, which automatically prevents debt collection actions by creditors. A trustee is appointed to oversee the case, and the debtor must disclose their assets, income, and debts in a meeting of creditors. This information helps determine whether asset liquidation or a repayment plan is necessary.
The Bankruptcy Code outlines different bankruptcy types, with Chapters 7 and 13 being the most common for individuals. Chapter 7 may require the liquidation of non-exempt assets, while Chapter 13 allows for debt restructuring under a new repayment plan without asset liquidation. Chapter 11 is another form of bankruptcy, similar to Chapter 9, which is designed for financially distressed municipalities to repay creditors without liquidating assets. Chapter 12 is tailored for farms and fisheries.
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Securities
The Securities Act of 1933, often referred to as the "truth in securities" law, has two main objectives: to ensure investors receive financial and relevant information about securities offered for public sale, and to prohibit deceit, misrepresentations, and fraud in the sale of securities. This Act requires the disclosure of important financial information through the registration of securities.
Additionally, securities laws broadly prohibit fraudulent activities related to the offer, purchase, or sale of securities. This includes disciplinary actions against fraudulent insider trading, where individuals trade securities while possessing material nonpublic information. The Act also requires various market participants, such as brokers and dealers, to register with the Commission and regularly file disclosure documents.
The Investment Company Act of 1940 regulates companies primarily engaged in investing, reinvesting, and trading in securities. It requires these companies to disclose their financial condition and investment policies to investors and focuses on providing information about the fund and its investment objectives. The Act aims to minimize conflicts of interest in complex operations and does not permit the SEC to directly supervise investment decisions.
The Investment Advisers Act of 1940 mandates that firms or individuals compensated for advising others about securities investments must register with the SEC and comply with regulations protecting investors. This Act has been amended, and currently, only advisers managing significant assets or advising registered investment companies need to register with the Commission.
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Frequently asked questions
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 England and has been widely adopted, including in the U.S., except for Louisiana, which follows the civil code.
Common law is applied in the US at both the federal and state levels. Federal common law applies primarily to interstate disputes where state laws conflict, federal government interests, and specific areas like securities fraud and antitrust regulations. Each state has its own common law traditions and the application of common law may vary by state.
Common law is applied in various areas of law, including property, contracts, and torts. A famous example of common law in action is Roe v. Wade (1973), where the U.S. Supreme Court established a precedent for reproductive rights.
