Cameron Miranda
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law is also known as case law and draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is practiced in the US, UK, Australia, Canada, Hong Kong, India, New Zealand, and more. The US federal courts are divided into twelve regional circuits, each with a circuit court of appeals. Common law courts are not bound by precedent but can reinterpret and revise the law without legislative intervention. Common law marriage, negligence, and contracts are some examples of common law in action today.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Origin | Common law originated in medieval England and was spread to North America during the colonial period (17th and 18th centuries). |
| Current usage | The US, UK, Australia, Canada, Hong Kong, India, New Zealand, and the UK all use common law. The US operates under a dual system of common and civil law. |
| Nature of laws | Common law is flexible and can be adapted to situations not contemplated at the time by the legislature. |
| Nature of courts | Common law courts are not absolutely bound by precedent but can reinterpret and revise the law without legislative intervention. |
| Nature of evolution | Common law evolves gradually over a decade or more, reducing disruptive effects. |
| Nature of precedents | Common law places great weight on precedents, which are detailed records of similar situations and statutes. |
| Nature of decisions | Court decisions that analyse, interpret and determine the boundaries and distinctions in law promulgated by other bodies are called "interstitial common law". |
| Nature of judges | Judges create common law when they decide cases and write opinions explaining their decisions. |
| Nature of cases | Common law is used in cases where the outcome cannot be determined based on existing statutes or written rules of law. |
| Nature of contracts | Commercial contracts often include a "choice of law clause" to reduce uncertainty. |
| Nature of negligence | Common law is used in cases of negligence, such as determining responsibility for damages in a car accident. |
| Nature of marriage | Common-law marriage, also known as marriage without formalities, grants similar rights to couples who are not officially married. |
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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 takes legal effect without a marriage license or participation in a marriage ceremony. In other words, it is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process.
The concept of common-law marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. The act of the couple representing themselves to others as being married and organizing their relationship as if they were married means they are married.
Common-law marriage is not recognized in all jurisdictions, but those that do will typically respect the validity of such a marriage lawfully entered in another state or country. In the United States, common-law marriage has existed since the colonial days and is still recognized in some states today. For example, in Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married and may be defined as "unmarried spouses".
There are a few requirements for a common-law marriage to be recognized. Firstly, both partners must have the legal right or "capacity" to marry, meaning they must be at least 18 years old, of sound mind, and not already married to other people. Secondly, both partners must intend to be married and behave as a married couple, referring to each other in public as "partner", "spouse", or taking the same last name. Lastly, the couple must live together for a period of time, although there is no statutory requirement for the length of time, and the court considers each case individually.
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Negligence
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and is in effect in the US, the UK, and elsewhere. Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law places an emphasis on precedent while allowing some freedom for interpretation.
To establish negligence, the plaintiff must prove four elements:
- Duty: The plaintiff must prove that the defendant had a legal duty to take reasonable care of them or of the group they belong to. This duty of care is well-established in certain categories, such as professionals to their clients/customers (e.g. doctors to their patients) or landlords/tenants to visitors of their property.
- Breach: The plaintiff must demonstrate that the defendant's behaviour (action or omission) failed to meet the standard of reasonable care towards them. This is determined by what would be expected from a reasonable person in the same circumstances and position as the defendant.
- Causation: There must be a reasonably close connection between the breach of duty and the damages incurred.
- Damages: The plaintiff must prove that they suffered actual damage, harm, or loss as a result of the defendant's negligent behaviour. The damage must be reasonably foreseeable, even if the extent or the way it occurred might be unexpected.
Once these four elements are established, the plaintiff has proven negligence, and the defendant must face the lawsuit and present their defences.
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Contracts
Common law is a body of unwritten laws based on legal precedents established by the courts. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
In the United States, most contracts are governed by a combination of common law and statutory law within the 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. Common law and the Uniform Commercial Code (UCC) are the two primary sources of law governing contracts in the United States. The UCC governs contracts for the sale of goods, while common law governs contracts for services and contracts not otherwise governed by the UCC.
It is important to note that private agreements between non-governmental parties can sometimes supersede statutory rules and common law precedents. Contracts play a crucial role in various sectors, ensuring that parties fulfill their respective obligations. Whether it is the sale of goods, the provision of services, or the execution of business agreements, contract law governs a diverse array of activities.
Common law contracts can be either bilateral or unilateral. In unilateral contracts, the accepting party may only accept through an action. All common-law contracts must contain valid consideration, which means there must be a bargained-for exchange of acts or promises, and both parties must incur new legal obligations as a result of the contract. Additionally, the parties to a contract must have the capacity to enter into the contract for its terms to be enforceable against them. Adults of sound mind have capacity, while minors may enter into contracts that they may later cancel.
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Interstitial common law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Here, courts follow precedents established by previous decisions.
For example, determining which driver is responsible for damages caused by a car accident is usually resolved using the common law principles of negligence. Judges define how contracts are created and what happens when promises made in a contract are not kept. This is an example of interstitial common law in action, as it involves the interpretation and application of law to specific facts.
Another example 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. This is an instance of interstitial common law as it interprets and applies the law to specific circumstances, in this case, the legal recognition of a relationship outside of statutory requirements.
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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 draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common laws sometimes prove the inspiration for new legislation to be enacted. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
Common law is a flexible system that allows judges to adapt the law to situations that were not contemplated at the time by the legislature. It is less prescriptive than civil law, and generally permits everything unless it is expressly prohibited. Trial judges must follow common law from the U.S. Supreme Court and their state supreme court, as well as the appellate court in their geographical area. Common law can be found in areas such as negligence and contracts.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is the world's most common legal system, practised in about 150 countries. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with the implementation of codes such as France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900).
Civil law is generally more prescriptive than common law. It relies on legal codes that function as the primary source of law, rather than judicial precedent. Civil law systems aim to create order and reduce bias by clearly defining the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions.
In summary, the key difference between common law and civil law is their approach to precedent and written decisions. Common law systems place great weight on precedent and allow judges some freedom for interpretation, while civil law judges tend to give less weight to precedent and rely more on written legal codes.
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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 draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law covers a range of areas, including negligence, contracts, and common-law marriage. It also includes interstitial common law, which involves the judicial interpretation of fundamental laws, legislative statutes, and agency regulations.
Common law is created when judges decide cases and write opinions explaining their decisions. These opinions become precedents that guide future decisions, ensuring consistency in the law.
Common law is practiced in various countries, including the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. While the concept of common-law marriage exists in some places, it is not recognized in all jurisdictions.
