L2S03 - Anglais Conférence PDF

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Anglais Conférence – Semestre 3 20/09/2016 Examen: • • •

QCM cours 2 examens questions conférences Oral anglais

What is common law? The "common law" can briefly be described as the part of English law that is derived from custom and judicial precedent, and is distinct from statutory law, equity law, and ecclesiastical law; or, in the U.S. jurisdiction, the body of English law as adopted and adapted by the different states.

Historical definition of common law A description of the common law of England is practically also a description of the common law administered in all the jurisdictions of the English (British) colonies and dominions until their juridical independence, either upon becoming a republic (USA), or upon cessation of the appellate jurisdiction of the Privy Council in London. The term "common law" came to denote, in the first place, the body of judge-made law that developed in England. Historically in the antiquity, the British islands were occupied by the Celts. Then the roman invasion imposed roman civil law to the country. In the 5th century and the end of roman empire, with barbarian invasion, roman law fell into disuse. The law of each group (Saxon, Celts…) which apply. In 1066 the Normans came and invaded England and progressively imposed their courts to Rule in the kingdom. These courts took the best local customs each area of England and was made into a common practice, a common law. At the renaissance, roman civil law reappear which is still used today, but no such thing happened in the British island because they already had a common law.

Common law is opposed to equity. "Common law" is differentiated from "equity". Before 1873, England had two parallel court systems: courts of "law" which could only award money damages and recognized only the legal owner of property, and courts of "equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. 1

This split propagated to many of the colonies, including the United States. For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts. Additionally, even before the separate courts were merged, most courts were permitted to apply both common law and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" and "equity" remains important today when the case involves issues.

The precedent principle In common law legal systems, a precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Binding precedent means a precedent or an existing law that courts are bound to follow. For example, a lower court is bound to follow an applicable holding of a higher court in the same jurisdiction. Such precedents are also termed authoritative precedent or binding authority. Such precedent exists within common law jurisdictions that recognize judicially made law. Generally, binding precedents follow the doctrine of stare decisis, which means ‘stand by the decision.' Most states within the U.S. follow a common law system of law. There is also, persuasive precedent, it’s a previous decision which does not have to be followed by the judge in a later case. Although the judge is not bound to follow the previous decision because it is only persuasive and not binding, he or she may be influenced by it and 'persuaded' that the legal principles referred to should be followed. Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgment" or "the principle that the case establishes". In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends.

Carlill v Carbolic Smoke Ball Company [1892]. Carlill v Carbolic Smoke Ball Company [1892] is an English contract law decision by the Court of Appeal, which held an advertisement containing certain terms to get a reward constituted a binding unilateral offer that could be accepted by anyone who performed its terms. It is notable for its curious subject matter and how the influential judges (particularly Lindley LJ and Bowen LJ) developed the law in inventive ways. Carlill is frequently discussed as an introductory contract case, and may often be the first legal case a law student studies in the law of contract.

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The case concerned a flu remedy called the "carbolic smoke ball". The manufacturer advertised that buyers who found it did not work would be awarded £100, a considerable amount of money at the time. The company was found to have been bound by its advertisement, which was construed as an offer which the buyer, by using the smoke ball, accepted, creating a contract. The Court of Appeal held the essential elements of a contract were all present, including offer and acceptance, consideration and an intention to create legal relations.

Adams v Lindsell (1818). Adams v Lindsell (1818), is an English contract case regarded as the first case towards the establishment of the "postal rule" for acceptance of an offer. Ordinarily, any form of acceptance must be communicated expressly to an offeror; however, it was found that where a letter of acceptance is posted, an offer is accepted "in course of post". The case involved two parties in the sale of wool. On 2 September, the defendants wrote to the plaintiffs offering to sell them certain fleeces of wool and requiring an answer in the course of post. The defendants misdirected the letter so that the plaintiffs did not receive it until 5 September. The plaintiffs posted their acceptance on the same day but it was not received until 9 September. Meanwhile, on 8 September, the defendants, not having received an answer by 7 September as they had expected, sold the wool to someone else. The defendants argued that there could not be a binding contract until the answer was actually received, and until then they were free to sell the wool to another buyer. Law J said that if that was true it would be impossible to complete any contract through the post; if the defendants were not bound by their offer until the answer was received, then the plaintiffs would not be bound until they had received word that the defendants had received their acceptance, and this could go on indefinitely. Instead it must be considered that the offerors were making the offer to the plaintiffs during every moment that the letter was in the post. Then when the Offeree has placed his acceptance in the post there is a fictional meeting of minds, which concludes the offer and gives effect to the acceptance. The acceptance did not arrive in course of post strictly speaking (all parties understood in course of post to refer to 7 September). But because the delay was the default of the defendant it was taken that the acceptance did arrive in course of post.

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How a decision can stop binding the judges? To overrule a decision. Overruling precedent is the nullification of a prior decision as a precedent by a constitutionally valid statute or the rendition of a decision by the same court or by a higher ranking court which establishes a different rule on the point of law involved. Factors that support overruling precedent are: • • •

when the original rule is flawed from the outset; when older precedent conflicts with a newer decision that is found to be more soundly reasoned; and when the rule consistently creates unjust results or places unnecessary burdens upon the system. [Mullins v. Ortiz, 2009 Tex. App. LEXIS 3578 (Tex. App. Waco Apr. 29, 2009)].

The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals (plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation). Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits. District court decisions are not binding precedent at all, only persuasive. Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc (that is, all active judges of the court) or by a higher court. In these courts, the older decision remains controlling when an issue comes up the third time. Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court. Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled. In the UK, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify decisions of lower courts. From 1966 to 2009, this power lay with the House of Lords, granted by the Practice Statement of 1966. Canada's system, described below, avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.

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Law reports are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format. In common law countries, court opinions are legally binding under the rule of stare decisis. That rule requires a court to apply a legal principle that was set forth earlier by a court of a superior (sometimes, the same) jurisdiction dealing with a similar set of facts. Thus, the regular publication of such opinions is important so that everyone—lawyers, judges, and laymen can all find out what the law is, as declared by judges. To reverse the case: different solution. If a higher court reverses a decision of a lower court, then it changes that decision in favor of the other side in a case (=makes the opposite decision) (Ex: The decision was reversed on appeal.) BAILII is a data base of all decision like Legifrance.

Advantages and disadvantages of common law. Advantages of common law. • • • •

It’s time savior, you applied the rule of precedent, if the problem is already solving. It provided the judge to make mistakes. Regularity in the solution. Flexibility and practicality. You adapt the case to the law.

Disadvantages of common law. • • • •

It’s rigid, if a decision is wrong, the judge have to use the solution anyway. Illogical and unfair decision. … Inflation of decision and statutes.

What can be the future of common law?

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