What Is Common Law?

Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law influences the decision-making process in unusual cases where the outcome cannot
be determined based on existing statutes or written rules of law. The U.S. common-law system
evolved from a British tradition that spread to North America during the 17th- and 18th-century
colonial period. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand,
and the United Kingdom.
Common Law vs. Civil Law
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system
clearly defines the cases that can be brought to court, the procedures for handling claims, and the
punishment for an offense. Judicial authorities use the conditions in the applicable civil code to
evaluate the facts of each case and make legislative decisions. While civil law is regularly updated,
the goal of standardized codes is to create order and reduce biased systems in which laws are
applied differently from case to case.
Principle Sources of Indian Law – Judicial Decisions: Judicial precedent or decisions is a process which is
followed by the judges to take the decision. In Judicial precedent, the decision is taken by following the
similar cases happened in the past. So judicial decision is based on the principle of stare decisis i.e.
“stand by the decision already made”.

Judicial Precedent
There is a term called the doctrine of stare decisis which states that the court’s decision becomes a
precedent to be followed in future cases of a similar nature. The reason why a precedent is recognized
is that the verdict of the judiciary is assumed to be correct. The use of precedents helps the litigant gain
confidence in the judicial system. The administration of the judicial decision becomes just and fair.

General Principle of Doctrine of Judicial Precedent

There are two rules that apply to the doctrine of judicial precedents:

1. The first rule says that a court which is lower in a hierarchy is completely bound by the
decisions of courts which are above it.
2. The second rule states that higher courts are bound by their own decision in general in matters
of related to precedence.

High Court

• The decisions of the high court are binding on all subordinate courts. In case of a conflict
between two benches of similar authority, the latter decision is to be followed.
• The more the number of judges on a bench, the higher their authority.
• The decision of one high court is not binding on other high courts.
• The Supreme court is the highest authority and its decisions are binding on all other courts.
Article 141 of the constitution says that any law decided by the supreme court shall be binding
on all courts of the country.

Supreme Court
Article 141 states all courts are legally bound to the Supreme Court judicial decisions with the
exception of Supreme Court itself. The Supreme Court is not bound by its own decisions.
However, the Supreme Court recognises that its earlier decisions cannot be deviated from, except in
case of extenuating circumstances. If an earlier decision is found to be incorrect, the Supreme Court
will deviate from it.
District Consumer Forum: To provide simple, speedy and inexpensive redressal of consumer
disputes, the CPA envisages a 3-tier quasi-judicial machinery at the National, State and District
levels.

1. National Consumer Dispute Redressal Commission, known as National Commission, deals

with complaints involving costs and compensation higher than Rs. One Cr.
2. State Consumer Dispute Redressal Commission, known as State Commission, deals with
complaints involving costs and compensation higher than Rs. Twenty Lakh and less than Rs.
One Cr.
3. District Consumer Dispute Redressal Forum, known as District Forum, deals with
complaints involving costs and compensation less than Rs. Twenty Lakh.
Consumers can file different types of complaints depending on their specific grievance by visiting
the Consumer Court at the district, state or national level along with the documents required.

Tribunals: Tribunals are not originally a part of the Constitution of India. They were introduced in
1985.

• Tribunals were constituted with the objective of delivering speedy, inexpensive and
decentralized adjudication of disputes in various matters.
• Tribunals are created to avoid the regular courts’ route for dispensation of disputes.
• Some tribunals are specialized government agencies like boards and they also have
decision-making powers conferred upon them by law.
• The provision for tribunals was not present in the Constitution originally.
• The 42nd Amendment Act introduced these provisions in accordance with the
recommendations of the Swaran Singh Committee.
• The Amendment introduced Part XIV-A to the Constitution.
• This Part is called ‘Tribunals’. It contains two articles.
• Article 323A: Administrative Tribunals. Administrative tribunals are
quasi-judicial institutions that resolve disputes related to the recruitment
and service conditions of persons engaged in public service. Article 323A
provides for this and the Central Administrative Tribunal was created under
this Section.
• Article 323B: Tribunals for other subjects such as:
• Taxation
• Industrial and labour
• Foreign exchange, import and export
• Land reforms
• Food
• The ceiling on urban property
• Elections to Parliament and state legislatures
• Rent and tenancy rights
• While 323A deals with administrative tribunals, 323B deals with other types
of tribunals (like National Green Tribunal, Competition Appellate Tribunal
(COMPAT), Securities Appellate Tribunal (SAT), etc.
 • Tribunals under 323A can be established only by the Parliament. However,
tribunals under 323B can be established by both the Parliament and the
State Legislature.
• Under 323A, there can be only one tribunal at the centre and one for each
state (or two or more states), but under 323B, there can be a hierarchy of
tribunals

Arbitration: As an alternative to resolving disputes in the normal courts:

Arbitration is the most formal of the ADR procedures and takes the decision making away from the
parties. The arbitrator hears the arguments and evidence from each side and then decides the
outcome of the dispute. Arbitration is less formal than a trial and the rules of evidence are usually
relaxed. Each party can present proofs and arguments at the hearing. There isn’t, however, any
facilitative discussion between the parties. Unlike other forms of ADR, the award is often supported
by a reasoned opinion (though the parties can agree that no opinion will issue).
Arbitration can be “binding” or “non-binding.” Binding arbitration means the parties have waived
their right to a trial, agree to accept the arbitrator’s decision as final and, usually, there is no right of
appeal of the decision. If there is a binding arbitration clause in a contract, the matter must proceed
to arbitration and there is no trial.
Non-binding arbitration means the parties can request a trial if they don’t accept the arbitrator’s
decision. Some courts will impose costs and fines if the court decision is not more favorable than
that awarded in arbitration. Non-binding arbitration is increasingly rare.
When Should You Use Arbitration?
Arbitration is good for cases where the parties want a third person to settle the dispute but want to
avoid the cost of money and time that accompanies a court trial. It is also appropriate where the
parties want a decision maker experienced in the subject of the dispute.

Contract law:
Contracts have always been an indispensable part of our lives. Knowingly or unknowingly, we enter
into a contract hundreds of times in a year. Even when we buy candy, we are entering into an
agreement with the shopkeeper.

An agreement (Section 2(e))

An Agreement is a promise between two entities creating mutual obligations by law. Section 2(e) of
the Indian Contract Act, 1872 defines an agreement as ‘Every promise and every set of promises,
forming the consideration for each other, is an agreement’.
To form an agreement, the following ingredients are required:

• Parties: There need to be two or more parties to form an agreement.

• Offer/ Proposal: When a person signifies to another his willingness of doing or omitting
to do something with a view to obtain other’s assent. [Section 2(a)]
• Acceptance: When the person to whom the proposal is made signifies his assent for the
same thing in the same sense as proposed by the offeror. [Section 2(b)]
• Promise: When a proposal is accepted, it becomes a promise. [Section 2(b)]
• Consideration: It is the price for the promise. It is the return one gets for his act or
omission. [Section 2(d)]

The agreement should not expressly be declared to be void

There are certain kinds of contracts which are expressly declared by The Indian Contract Act, 1872
to be null and void. The following are some of the agreements which are not enforceable in the eyes
of law:

• Agreements without consideration except it is written and registered or is a promise to

compensate for something done or is a promise to pay a debt barred by limitation law.
• Agreements in restraint of marriage
• Agreements in restraint of trade
• Agreements in restraint of legal proceedings
• Agreements void for uncertainty
• Agreements by way of wager
• Agreements contingent on an impossible event
• Agreements to do impossible act

Contract (Section 2(h))

A contract is a lawful agreement. In other words, an agreement enforceable by law is a contract.
Contract = Agreement + Legal enforceability

1. Free consent of the parties: When there is absence of Coercion (Section 15), Undue
Influence (Section 16), Fraud (Section 17), Misrepresentation (Section 18) and Mistake
(Section 20, 21, 22), the consent is said to be free.
2. Capacity of the parties to contract: Section 11 and 12 lay down that the competent
parties are persons who have attained majority
3. Lawful consideration and Lawful object: Section 23 lays down that the consideration
and object is lawful unless it is forbidden by law or it defeats provisions of any law or is
fraudulent or involves injury to person or property or is violative of public health,
morality, peace and order.
Tort law:
Tort law is that branch of the law that deals with civil law, including law suits but excluding issues
involving contracts. Tort law is considered to be a form of restorative justice since it seeks to
remedy losses or injury with monetary compensation.
For example, throwing a punch in a fight is intentionally engaging in destructive behavior. A
plaintiff can file an intentional tort suit in this situation. Examples of intentional torts include
battery, conversion, false imprisonment and defamation.

Law at workplace:
These laws include: Factories Act, 1948; Mines Act, 1952; Dock Workers Act, 1986; Contract
Labour Act, 1970; and Inter-State Migrant Workers Act, 1979. This Code was introduced in the Lok
Sabah on 23 July 2019 and has since been referred to a standing committee for its comments.