scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability

2013 ◽  
pp. 1-19
Author(s):  
Mary Garvey Algero
Keyword(s):  
United States ◽  
New York ◽  
Common Law ◽  
New York State ◽  
Civil Law ◽  
The United States ◽  
Stare Decisis ◽  
The Common ◽  
Judicial Opinions ◽  
The Right

Despite the fundamental differences between the doctrines employed in common law and civil law (or mixed) jurisdictions when it comes to the respect paid to prior court decisions and their weight or value, United States courts that follow the common law doctrine of stare decisis have embraced some of the flexibility inherent in the civil law doctrine, and civil law and mixed jurisdictions throughout the world, including Louisiana, that use the doctrine of jurisprudence constante seem to have come to value the predictability and certainty that come with the common law doctrine. This Article suggests that Louisiana courts are striking the right balance between valuing the predictability and certainty of interpretation that comes with a healthy respect for precedent and maintaining the flexibility and adaptability of the law by not strictly considering precedent a source of law. This Article discusses the results of an ongoing examination of the sources of law and the value of precedent in Louisiana. The examination involves a study of Louisiana legislation, Louisiana courts’ writings about the sources of law and precedent, and a survey of Louisiana judges. Part of the examination included reviewing Louisiana judicial opinions on various issues to determine if there were differences in valuing precedent based on area of law or topic. It also included reviewing judicial opinions from the United States Supreme Court and New York state courts to compare these courts’ approaches to the use of precedent with those of the Louisiana courts. The article is based on a paper presented to the Third Congress of Mixed Jurisdiction Jurists, which was held in Jerusalem, Israel in June 2011, and the author’s prior writings on the subject.

General Limitations on the 'Right to Fire' in New Zealand

1982 ◽  
Vol 24 (4) ◽  
pp. 517-534
Author(s):  
A.J. Geare
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Current Situation ◽  
Court Decisions ◽  
Statutory Protection ◽  
The Common ◽  
The Right

This paper examines the development in the limitations imposed on employers' right of dismissal in New Zealand from the time when only the common law restrictions applied, through the first ineffectual statutory limitations, to the current situation. The paper analyses the current statutory protection against unjustifiable dismissal with reference to recent Arbitration Court decisions, discussing its implications, achievements and shortcomings.

Liberty and the Common Law

1945 ◽  
Vol 9 (1) ◽  
pp. 2-16 ◽  
Author(s):  
Lord Wright
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Civil Law ◽  
The State ◽  
Roman Law ◽  
Case System ◽  
The Common ◽  
The Law ◽  
The Individual ◽  
The Right

In preparing the few and elementary observations which I am about to make to you tonight I have wondered if the title I chose was apt or suitable. The Common Law is generally described as the law of liberty, of freedom and of free peoples. It was a home-made product. In the eighteenth century, foreign lawyers called it an insular and barbarous system; they compared it to their own system of law, developed on the basis of Roman and Civil Law. Many centuries before, and long after Bracton's day, when other civilised European nations ‘received’ the Roman Law, England held back and stood aloof from the Reception. It must have been a near thing. It seems there could have been a Reception here if the Judges had been ecclesiastics, steeped in the Civil Law. But as it turned out they were laymen, and were content as they travelled the country, and in London as well, to adopt what we now know as the Case System, instead of the rules and categories of the Civil Law. Hence the method of threshing out problems by debate in Court, and later on the basis of written pleadings which we find in the Year Books. For present purposes, all I need observe is that the Civil Lawyer had a different idea of the relation of the state or the monarch to the individual from that of the Common Lawyer. To the Civil or Roman Lawyer, the dominant maxim was ‘quod placuit principi legis habet vigorem’; law was the will of the princeps. With this may be compared the rule expressed in Magna Carta in 1215: No freeman, it was there said, was to be taken or imprisoned or exiled or in any way destroyed save by the lawful judgment of his peers and by the law of the land. Whatever the exact application of that phrase in 1215, it became a text for fixing the relations between the subject and the State. Holdsworth quotes from the Year Book of 1441; the law is the highest English inheritance the King hath, for by the law he and all his subjects are ruled. That was the old medieval doctrine that all things are governed by law, either human or divine. That is the old doctrine of the supremacy of the law, which runs through the whole of English history, and which in the seventeenth century won the day against the un-English doctrine of the divine right of Kings and of their autocratic power over the persons and property of their subjects. The more detailed definition of what all that involved took time to work out. I need scarcely refer to the great cases in the eighteenth century in which the Judges asserted the right of subjects to freedom from arbitrary arrest as against the ministers of state and against the validity of a warrant to seize the papers of a person accused of publishing a seditious libel; in particular Leach v. Money (1765) 19 St. Tr. 1001; Entick v. Carrington (1765) 19 St. Tr. 1029; Wilkes v. Halifax (1769) 19 St. Tr. 1406. In this connexion may be noted Fox's Libel Act, 1792, which dealt with procedure, but fixed a substantive right to a trial by jury of the main issue in the cases it referred to.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.12

2015 ◽  
Author(s):  
Huber Peter
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Time Limit ◽  
The Other ◽  
Reasonable Time ◽  
Time Limits ◽  
Individual Term ◽  
Time Period ◽  
The Common ◽  
The Right

This commentary focuses on Article 3.2.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning time limits for exercising the right to avoid the contract. Art 3.2.12 stipulates that notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely. Where an individual term of the contract may be avoided by a party under Article 3.2.7, the period of time for giving notice of avoidance begins to run when that term is asserted by the other party. In relying on a ‘reasonable time’ period rather than setting out a clearly defined period of time (for example, two years after conclusion of the contract), Art 3.2.12 follows the common law model rather than the typical civil law solution. This commentary discusses the commencement and duration of ‘reasonable time’ period as well as the consequences of failure to avoid a contract within time limit.

scholarly journals The Case for Specific Performance as the Primary Remedy for Breach of Contract in New Zealand

2004 ◽  
Vol 35 (3) ◽  
pp. 657
Author(s):  
Fionnghuala Cuncannon
Keyword(s):  
New Zealand ◽  
Historical Development ◽  
Common Law ◽  
Civil Law ◽  
Breach Of Contract ◽  
Administration Of Justice ◽  
Specific Performance ◽  
The Common ◽  
The Right ◽  
Practical Impact

This article examines the appropriateness of damages as the primary remedy for breach of contract in New Zealand. It argues that the civil law approach to contractual remedies, which gives primacy to performance of the obligation, is superior to New Zealand's common law position, which merely seeks to replace the right to performance with an award of damages. The importance of both the normative and practical impact of the remedial framework is examined in order to demonstrate that specific performance is better able to facilitate commercial endeavours. The three justifications for the primacy of damages in the common law (the historical development, the economic theory of efficient breach, and the concern that specific performance will overburden the administration of justice) are examined but rejected as adequate justification for the common law position. It contends that specific performance should be the primary remedy because it is more consistent with the principles that underlie the law of contract. It also contends that specific performance is more practical because it reduces conflict and promotes efficiency. The recommendation is that any change should be through appropriate legislation.

The Efficient Breach Theory under Jordanian Civil Law

2016 ◽  
Vol 30 (4) ◽  
pp. 336-356
Author(s):  
Yusuf Mohammed Gassim Obeidat
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Breach Of Contract ◽  
Law System ◽  
Legal Rules ◽  
Specific Performance ◽  
History Of ◽  
The Common ◽  
The Right

This study examined the ‘efficient breach’ theory and its possible application under Jordanian Civil Law. The theory says the promisor has the right to breach a contract and pay damages whenever his profit from breach exceeds his expected profits from performance. As a prerequisite for its application, the theory requires the general remedy for breach to be the payment of damages, rather than forced performance. Thus, the main area for its application is the common law system, since it favours damages as a primary remedy. This study reached the conclusion that the theory cannot work under Jordanian Civil Law, where the primary remedy for breach of contract is specific performance, that forces the promisor to complete the contract. In addition, it contradicts the good faith principle that Jordanian law is based upon, amongst other principles, and goes against the history of Jordanian legal rules.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

Sign in / Sign up

Export Citation Format

Share Document