...1.2.1 Common law The term common law gives rise to diffi culty as it has several meanings, so any meaning depends upon the context in which the term is used: Common law may mean the law created by the common law courts in contrast to the law created by the Court of Chancery, which was called equity. Common law may m • ean all the law created by the courts, including the law of equity, as opposed to the law created by Parliament, that is legislation. In this sense, common law may be also termed ‘judge- made’ law. • Common law may refer to a legal tradition which defi nes the English legal system and other derivative legal systems as opposed to the civilian legal tradition exemplifi ed by the systems of mainland Europe. Apart from England and Wales other examples of a common law tradition are to be found in the legal systems of the states of the United States (with the exception of Louisiana), Canada, and Australia. Common law in this sense refers to forms of law- making, particularly judge- made law, which is governed by the doctrine of judicial precedent. The characteristic feature of the civilian systems is that law is to be found in codes made by the legislature. The civilian tradition is seen in the legal systems of France and Germany. While the French law of contract is codifi ed and to be found in legislative form, the English law of contract is to be found mainly in the decisions of judges as reported in 7 Common law and equity the law reports. As will...
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...The term "common law" has it's origins in England in the 11th century. Even today in the US, some common law principles from the original English law are applicable while alongside it is the growing body of common law which is being set as a part of stare decisis i.e. the judicial systems decisions and interpretation of statutory law provisions by judges, are becoming a part of the common law. Other judges look to these decisions as a guideline or as a necessary precedent to follow, while making their own decisions. There are both advantages and disadvantages to a legal system based on common law or precedent-based. Advantages: i) Equity: One of the arguments in favor of a common law system is that equity is a characteristic of this system. As the precedents are followed in all cases, all people are treated equally. The same legal principles are applied to all people irrespective of their position or wealth or power, which may be a factor in some countries. So this system of following precedents which already been set previously tends to bring equity and fairness in its wake. ii) Expedient: As these decisions are based on previous judgments, it's more convenient to follow this process through. People know what to expect; there is an element of predictability. The process is easier and more practical as there are no fixed, lengthy rules but real situations that have already been resolved. iii) Efficient: As there is already a basis on which the judgment will...
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...Compare and contrast common law and equity. The distinction between common law and equity is better understood when the history of the two are examined. Common Law is the law of the land created by the judiciary. “According to Blackstone, the common law is that “ancient collection of unwritten maxims and customs which have ‘subsisted immemorially in this kingdom.” These principles are revealed by the courts of law “through experience in the rendering of judicial decisions.” Common law is therefore, the overall accumulation of judicial decisions known as case law.” (Emerson 2009, 7). The common law has been described as the law of the common people of England. It emerged as the product of a particular struggle for political power (Business Law, Kelly, Hayward, Hammer & Hendy pg. 5). It can also be viewed as laws developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statues adopted through the legislative process or regulations issued by the executive branch. Within common law judges decisions are binding, just as other laws does, to ensure consistent treatment. In cases where parties disagree common law courts look to past precedential decisions of relevant courts. However if courts find that the case before hand is fundamentally different from previous cases, the judge have the authority and duty by law to set a precedent, which will become binding in future courts. Common law can be traced back to rules...
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...Contracts: -common law/UCC uniform commercial code. UCC is for buying and selling goods, common law contract is for everything else, Party, subject matter, price,delivery, payment terms – all neds to be listed in common law Party and subject matter – 2 things for UCC- everything else is filled by the judge based on the reasonableness. Contract is a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Contract is a set of voluntary promises that the law will enforce for private parties. Sources of Contract Law:/ Law that governs contracts 1) Common law * First law of contracts * Law decided by the judges and they used statutory law to interpret the common law * Common law applies to contracts that have land or services as their subject matter. Eg employment, home etc * Party, subject matter, price, delivery, payment terms * General treatment of the common law for contracts can be found in Restatement of Contracts 2) UCC – uniform commercial code * Common law lacks uniformity * Businesses experienced great difficutly and expense when they contracted across state lines because of differences in state contract common law * To address the need for uniformity, the National Conference of Commissioners on Uniform State Laws and the American Law Institute worked to draft a set of commercial laws appropriate for business people, lawyers, and law makers. The...
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...Faculty of Business, Economics and Law School of Law Introduction to Business Law Common Law Assignment Semester 2, 2014 Instructions 1. Weighting: The assignment is worth 20% of your final mark in this subject. 2. Due Date: The assignment is due and must be submitted latest by 4:00 pm on Monday, 15 September, 2014. 3. Questions: You must answer all questions. 4. Type: This is a common law problem-solving assignment, and as such, you are not required to discuss any legislation. The IRAC guide to answering problem questions is the format adopted for this assignment. It has been set out for you. You should cite relevant case authorities (cases) to support your answers. 5. Presentation: Your assignment must be typed with double spacing and wide margins. Size 12 font must be used. 6. Referencing: You must reference your work appropriately using footnotes. The Short Guide to Legal Citation available on LMS contains information on footnote citations. No bibliography is required. 7. Word Limit: The word limit is 1,500 words, including footnotes. You must provide the word count on the front page of your assignment. 8. Cover Sheet/Statement of Authorship: Your assignment must be accompanied by a cover sheet available on LMS. You must complete all the details required on the cover sheet including your tutor’s name and seminar time, and your name and student number. You must sign and date the cover sheet. 9. Submission: You must submit both a hard copy and an electronic copy of your assignment:...
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...Common Law Common law is a system of law, which is developed by the judges through the decision of courts, which is generally seen as being opposed to the civil system, which consists of statues, which is adopted by the legislative process, which in turn is developed by the executive branch. Precedent or case law therefore constitutes the system of law. Some of the rules constituting common law that was not adequate to ensure justice as common law itself is not adequate are the damages, mistake, and undue influence which are sorted below as example: • Damages- While building a house, the contractor and the owner had a contract of making a building, which contained 20 windows, but the contractor ended up making only 18 windows. As the windows were not made as per the contract, the contractor need to either make the window as told or needs to pay certain amount as compensation to the owner so that the owner can ask other to do the work for which he needs to pay. So it is a damage that is faced by the owner and compensated by the contractor. • Mistake - as per given example in damages while building a house a contract is made as per building of the house with certain amount of money. So, as the owner of the house needs to pay money to the contractor as it was contacted before Rs.200000. so while paying the contactor by cash receipt, the owner signed the receipt only of RS.20000 without checking the amount signed the owner paid the contractor as well as the contractor didn’t check...
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...1- Define Common law, derived from English law and found in England, the United States, Canada, and other countries once under English influence; Civil or code law, derived from Roman law and found in Germany, Japan, France, and in non-Islamic and non-Marxist countries; Islamic law, derived from the interpretation of the Koran and found in Pakistan, Iran, Saudi Arabia, and other Islamic states; A commercial legal system in the Marxist-socialist economies of Russia & the republics of the former Soviet Union, Eastern Europe, China, and other Marxist-socialist states whose legal system centered on the economic, political, and social policies of the state. Arbitration A procedure used as an alternative to “litigation” in which parties in a dispute may select a disinterested party as referee to determine the merits of the case & make a judgment that both judges agree to honor. Litigation The process in which a dispute between parties is contested in a formal judicial setting,. Commonly instigated by a law suit asserting one party’s version of the facts. Marxist – socialist tnets Cyber squatters Person or businesses that buy, usually for a nominal fee, & register as web site names descriptive nouns, celebrity names, variations on company trade marks, geographic & ethic group names & pharmaceutical \& other descriptors & then hold them until they can be sold as an inflated price. Sometimes called CSQ CONCILATION - A non binding agreement between parties to resolve...
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...which have recently arisen to them. I am required to write a report for the following contents: 1. General tortuous liability in comparison to contractual liability. 2. Vicarious liability and health and safety issues. 3. Strict liability in comparison with general tortuous liability. 4. The various elements of the tort of negligence. Describe the nature of general tortuous liability comparing and contrasting to contractual liability (3a) A tort is a legal wrong, and the principle is the law gives various rights to person, such as right of a person in possession of land to occupy it without interference or invasion by trespassers. When such a right is infringed the wrongdoer is liable in tort. The law of tort is concerned really with a person’s responsibility to others. It applies to both individuals and companies. (Common Law, Introduction to Types of Torts, p. 231) Generally tort refers to private and civil offenses for which law may...
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...Learning Materials COMMON LAW Common Law, Statute and Precedence are the sources for all laws accepted in the jurisdictions within the United States. Common law is based on the old English Legal System of laws based on the overthrow of monarchial dictators and the replacement with a representative system of Parliament. When the American Colonies established their independence in the late 1700’s they adopted much of the English legal system that they knew when they immigrated to the “New World”. This became the initial basis for civil and criminal law in the newly formed United States. Common law results from judicial decisions handed down from the courts. Most of the common law in criminal issues pertaining to the modern criminal justice system has been subjugated by state and federal legislatures that have created statutes establishing criminal law violations. In dealing with Common Law there is a catch-22 type of situation. When a common law is overridden by a statute creation the history of the common law is vacated in terms of how laws are executed. The problem arises when the enforcement method of the new law has common law as its basis. If this is not deemed acceptable by society then another statutory law has to be created. Whenever new laws are enacted there are frequently challenges in court. These challenges depending on the jurisdiction of the law end up going through the system and various courts of appeals. Ultimately they may reach the US Supreme Court where...
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...would otherwise have been severely disadvantaged by the common law. Discuss, with reference to decided cases. William the Conqueror found England with no single system of law common to the whole country. The law was mainly sets of customary rules which differed from area to area. For example, in one area you could get away with stealing, in another it would be seen as crime. There was no such thing as ‘ The English Legal System” until William’s invasion in 1066. William developed the legal system and introduced many rules. William preserved some of the old customary laws and used them as a basis for common laws. He introduced the feudal system and King’s justice, these were made to help those who supported him. Williams used subtle tactics to gain control of the country. He introduced Curia Regis, who enforced a system of rules which applied to the whole country and became known as common law. Although common law was seen for the better, it came with few problems. One of the problems was the rigidity of the writ system. In common law, if someone wants their case to be heard in court, they have to fit their complaints into the existing writs. If the writs are not similar to the existing ones, the cases will not be heard in court. The system was formal and rigid, bound by 'no writ, no remedy'. So if there was no writ to deal with the plaintiff's claim then there was no remedy. In addition to that, the common law uses damages as a remedy for cases. The aim of damages is...
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...According to the English dictionary equity is the quality of being fair and impartial but legally there is no proper definition for equity but it can be described up to a certain standard. It is about flexibility, justice and fairness which require discretion and uncertainty. It acts as a supplement to the common law. Such as: Land Law, Contract Law, and Tort. Equity developed due to the lack of remedies and non-fulfillment of the common law and it could be said that equity came after the birth of common law to correct the strictness and harshness of common law. Lord Chancellor who introduced the new system of justice called “Equity” in the famous case of Earl of Oxford’s Case [1615] . In that case Lord Chancellor held that, “men’s actions...
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...Vanessa W. Assignment 1 Department Training Series: Common Law Traditions and Sources of Law This training series will introduce you to the basic rules of law. Businesses face many legal issues that require the help of business persons “to prevent avoidable legal situations.” So it is important for business professionals to have a strong working knowledge of the laws that pertain to their type of business to ensure that their company is always in compliance. Thus, it is important to understand how and where to find the law in order to stay abreast of amendments as they are enacted. This series will serve to equip you with a basic knowledge of the rules of law applicable to business situations (Week 1 Lecture). Today I will focus on the common law, sources of American law, the importance of precedent to the judicial decision-making process, and equitable and legal remedies. In 1066 England the king’s court established a set of standardized rules for the country. This was the beginning of common law. “These rules applied throughout the entire English realm,” (Miller, 20011, p. 7). They then became a part of the legal system of all former colonies of England and the United States (Miller, 2011, p. 7). Common laws aren’t necessarily permanent laws of the books. They can be changed through state legislatures enacting statutes. Courts are able to turnover state statutes, as well, if they are found to be unconstitutional. This works to maintain a balance between the...
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...Common Law and U.S. History of Law The law of the United States originated with the very first colonies established in America. It was typically based on the common law of Britain. Colonies brought with them their values and morals, and based their individuals laws off of these ideas combined with Britain’s common law. Our laws developed at a slow pace until after the American Revolution. The Confederation of States held a Constitutional Convention in Philadelphia in the summer of 1787 (This Nation, 2008). This convention purpose was to establish a federal government, define its structure, and the rule of law for the land. The Constitution that was developed eliminated several common laws from Britain. The Constitution set up a three tier government: Legislative, Executive, and Judiciary. This document gave the Legislature the ability to write laws; the Executive Branch the task of enforcing the laws. The Judiciary branch or Supreme Court oversaw the legality of the laws and how they were to be administered. Even though with a Federal government making laws for the country, the states had the power to form their own governments, Constitutions, and laws. Many of the states developed or kept laws that were more along the lines of Common law. All the states except for Louisiana use common law. Louisiana uses French codes for their law (Lectric Law Library, 2012). Common law or that which derives its force and authority from the universal consent and immemorial...
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...What is Common Law Common Law is the system of laws originated and developed in England and based on court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than on codified written laws. Common law is the body of law based on judicial decisions and custom, as distinct from statute law, and the law of a state that is of general application, as distinct from regional customs. What are the sources of American Law? American Law is actually a body of many laws emanating from many sources. Sources of law include: Common Law, Case Law, Statutory Law, Administrative Law, Court Rules and Constitutional Law. American law comes from a variety of sources: the Constitution, state constitutions, federal and state statutes, and case law. Understanding this is important because litigants must identify the source of law in their complaint to bring suit in federal court. Equitable remedies refer to specific types of remedies available in court cases that can only be granted by a judge. A judge will grant, or not grant, a given equitable remedy based on the circumstances of a particular case. The term equitable remedy comes from the old English court system where there were two courts: courts of chancery and courts of law. Under this system, people would go to courts of chancery if the law didn't really provide them with relief but they still believed they had been wronged. Equitable remedies were and still are about what is fair and right. ...
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...Head: INTENT AND THE CODE 1 Different Intents and the Model Penal Code Difference From Common Law INTENT AND THE CODE 2 Abstract Although there are definitions established within Criminal Culpability, mainly intent, there continues to be discussion over the intended meanings. Specific intent, general intent, transferred intent and strict liability are frequently referenced in the determination of criminal offenses but continue to provide a level of confusion to the law professionals. The intent determines the mindset of the person accused of the crime and provides guidance to the process in which they are punished. These intents are part of the mens rea for the crimes committed and differ from the Model Penal Code. The Model Penal Code has served to simplify the definitions used in the previously mentioned intents. INTENT AND THE CODE 3 There are many differences in the interpretations of Common Law intents and liability. These intents are identified as: specific, general, transferred and strict liability which governs decisions of lawmakers and judges. The complexity in understanding the defined intents and applying them uniformly creates a feeling of disproportionate accountability from members of the public. The Model Penal Code (MPC) changes these intents in common law to four mental states: purposely, knowingly, recklessly and negligently. The “MPC expressly rejects the...
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