Common Law

Our English Tradition

Even before legislatures met to make rules for society, disputes happened and judges decided them. In England, judges began writing down the facts of a case and the reasons for their decision. They often resorted to deciding cases on the basis of prior written decisions. In relying on those prior decisions, the judge would reason that since a current case was pretty much like a prior case, it ought to be decided the same way. This is essentially reasoning by analogy. Thus the use of precedent in common-law cases came into being, and a doctrine of stare decisis (pronounced STAR-ay-de-SIGH-sus) became accepted in English courts. Stare decisis means, in Latin, “let the decision stand.”Most judicial decisions that don’t apply legislative acts (known as statutes) will involve one of three areas of law—property, contract, or tort. Property law deals with the rights and duties of those who can legally own land (real property), how that ownership can be legally confirmed and protected, how property can be bought and sold, what the rights of tenants (renters) are, and what the various kinds of “estates” in land are (e.g., fee simple, life estate, future interest, easements, or rights of way). Contract law deals with what kinds of promises courts should enforce. For example, should courts enforce a contract where one of the parties was intoxicated, underage, or insane? Should courts enforce a contract where one of the parties seemed to have an unfair advantage? What kind of contracts would have to be in writing to be enforced by courts? Tort law deals with the types of cases that involve some kind of harm and or injury between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor lies about your product, your remedy would be in tort, not contract.The thirteen original colonies had been using English common law for many years, and they continued to do so after independence from England. Early cases from the first states are full of references to already-decided English cases. As years went by, many precedents were established by US state courts, so that today a judicial opinion that refers to a seventeenth- or eighteenth-century English common-law case is quite rare.Courts in one state may look to common-law decisions from the courts of other states where the reasoning in a similar case is persuasive. This will happen in “cases of first impression,” a fact pattern or situation that the courts in one state have never seen before. But if the supreme court in a particular state has already ruled on a certain kind of case, lower courts in that state will always follow the rule set forth by their highest court.

CC licensed content, Shared previously

Equitable Remedies versus Legal Remedies

What do we mean by a remedy in terms of law?  A remedy is what you (as the plaintiff) are asking the court to do for you.  Do you want monetary damages?  Do you want the defendant to be prohibited from doing something, such as playing their radio at 11:00 pm at night?  Do you want the defendant to have to do something, such as complete their agreement to sell you their house?  The action you are asking a court to take is what lawyers refer to as remedies.There are two main categories of remedies – legal and equitable.  Legal are the easiest to understand – this is money.  You are asking the court to award you monetary damages.  For example, assume you were involved in a car accident.  You incurred $5,000 in damage to your car and $3,500 in medical bills.  In filing suit against the plaintiff for these amount you are asking the court to award you legal damages – aka money.

 

If money is legal damages, then what are equitable damages?  Equitable damages is where you are asking the court to have the defendant do something or to stop from doing something.  Equitable damages are typically used when money alone will not make the plaintiff whole or compensate them for the harm they are claiming.

For example, you enter into a contract to buy the defendant’s house.  Everything seems fine and you are ready to settle on the property.  Suddenly the defendant changes his mind and tells you he does not want to sell you his house- he has decided not to move.  You had your heart set on the house and still want to buy it.  You can sue the defendant and ask the court for the equitable remedy called specific performance.  Specific performance is where the court will order the defendant to attend settlement and sell you the property.

Another type of equitable remedy is an injunction.  This is used to stop the defendant from doing something.  For example, your neighbor decides he is going to practice with his heavy metal band every night from 11:00 pm-2:00 am, which keeps you awake.  You can file suit asking the court to issue an injunction to prevent your neighbor from practicing at this hour as it violates local noise ordinances.

Other types of equitable damages include contract reformation and contract rescission which will be covered more in the section on Contract Performance, Breach and Remedies.

Legal and Political Systems of the World

Other legal and political systems are very different from the US system, which came from English common-law traditions and the framers of the US Constitution. Our legal and political traditions are different both in what kinds of laws we make and honor and in how disputes are resolved in court.

Comparing Common-Law Systems with Other Legal Systems

The common-law tradition is unique to England, the United States, and former colonies of the British Empire. Although there are differences among common-law systems (e.g., most nations do not permit their judiciaries to declare legislative acts unconstitutional; some nations use the jury less frequently), all of them recognize the use of precedent in judicial cases, and none of them relies on the comprehensive, legislative codes that are prevalent in civil-law systems.

Civil-Law Systems

The main alternative to the common-law legal system was developed in Europe and is based in Roman  and Napoleonic law. A civil-law or code-law system is one where all the legal rules are in one or more comprehensive legislative enactments. During Napoleon’s reign, a comprehensive book of laws—a code— was developed for all of France. The code covered criminal law, criminal procedure, noncriminal law and procedure, and commercial law. The rules of the code are still used today in France and in other continental European legal systems. The code is used to resolve particular cases, usually by judges without a jury. Moreover, the judges are not required to follow the decisions of other courts in similar cases. As George Cameron of the University of Michigan has noted, “The law is in the code, not in the cases.” He goes on to note, “Where several cases all have interpreted a provision in a particular way, the French  courts may feel bound to reach the same result in future cases, under the doctrine of jurisprudence constante. The major agency for growth and change, however, is the legislature, not the courts.”

Civil-law systems are used throughout Europe as well as in Central and South America. Some nations in Asia and Africa have also adopted codes based on European civil law. Germany, Holland, Spain, France, and Portugal all had colonies outside of Europe, and many of these colonies adopted the legal practices that were imposed on them by colonial rule, much like the original thirteen states of the United States, which adopted English common-law practices.

One source of possible confusion at this point is that we have already referred to US civil law in contrast to criminal law. But the European civil law covers both civil and criminal law.

There are also legal systems that differ significantly from the common-law and civil-law systems. The communist and socialist legal systems that remain (e.g., in Cuba and North Korea) operate on very different assumptions than those of either English common law or European civil law. Islamic and other religion-based systems of law bring different values and assumptions to social and commercial relations.

Equitable versus Legal Remedies: Attribution and licensing: Authored by: Donna S. Mandl; Provided by: Donna S. Mandl  License: CC BY-NC-SA: Attribution-NonCommercial-ShareAlike.

Other material CC licensed content, Shared previously