UNIVERSITY OF ROME TOR VERGATA UNIFORM PRIVATE LAW

COMMON LAW 1

FLAVIO MORINI
FRANCESCA RAUCCIO
ALICE PRESTI
CECILIA COPPOLA

Academic year 2019-2020

 Hard Cases
The Where
The History and Statutes
and The What
Interpretation

Legal Education
Manner Of English Contract
and Training Of Writing Decisions Law
Judges
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 THE
ORIGINS:
Prior the Norman conquest in
1066, in England the
settlement of disputes was
conducted on a purely local
level, each region acting
independently and without
knowledge of what the others
were doing.
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Then, the king sought to establish a more
important central power and in his quality of
sovereign judge and source of justice, he
established his own courts with judges who
went on circuit throughout the entire
country.
This judges decided on the grounds of
common sense and common tradition.
This laws were ‘common’ because they came
from the royal courts, which were considered
the representatives of the central power.
hence the name, common law.
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 Common Law as the
The Common Law as applied by the royal courts
juxtaposition of the soon appeared to be characterised by numerous
common law stricto gaps and injustices.
sensu and equity.

Since legal rules can’t be formulated to deal adequately

with every possible contingency, their mechanical
application can sometimes result in injustice.

The King delegated this function to an official called

the Chancellor of the Royal Court.
In the course of time, this became the Court of
Chancery, through which there was the development
of a substantial body of collateral and independent
law.
Disappointed litigants had turned to the king with
petitions for justice because the courts had afforded
either no remedy or one that was ineffective.
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 THE TWO SYSTEMS OFTEN CAME INTO CONFLICT BUT IT WAS NOT UNTIL
1615 THAT THIS DISPUTE WAS EVENTUALLY RESOLVED.

In the earl of oxford ‘s The King verdict was that the

case in 1615 there were The final chancery was to retain its
two conflicting decision was traditional superiority over the
decisions from the referred to King common-law courts, but only in
common law court and James I. areas in which its authority was
the court of chancery. well recognized.

Conversely, common law courts started to

progressively absorb some of the doctrines of
equity, so that the conflict between the two
jurisdictions started to progressively dissolve.
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 The Judicatures Acts of
1873-1875
 Finally, the Judicatures Acts of 1873-1875 ended the
dualism between the two jurisdictions, because by these
Acts the Court of Chancery, the Court of Queen's Bench , the
Court of Common Pleas, the Court of Exchequer, the High
Court of Admiralty, the Court of Probate, and the Court of
Divorce and Matrimonial Causes were consolidated into the
Supreme Court of Judicature in order to amalgamate the
courts into one Supreme Court of Judicature which was
directed to administer both law and equity.
 However it is still disputed whether this only occurred from
a procedural point of view, or whether a true merger of the
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substantial law occurred.

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 WHERE:
 The common law legal system is
typical of the Anglo-American
countries, which, despite presenting
some differences and variations
among them, show broad basic
similarities.
 Home of this legal system: England.
 Common law rules on: United States
of America, Canada, Australia, New
Zealand and other former British
colonies.
 Mixed jurisdictions in: Louisiana
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(USA) , Quebec (Canada), Scotland,
South Africa and others.
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 COMMON LAW JURISDICTIONS HAVE BEEN TRADITIONALLY BASED
UPON CASES DECIDED BY THE COURTS (PRECEDENTS), WHEREAS
LEGISLATIVE MEASURES (STATUTES), HAVE PLAYED A MINOR ROLE.

JUDICIAL DECISIONS: considered to be the LEGISLATION: statutes are not formulated in

basis of common law, which consists of all terms of general principles but consist rather of
the rules that could be generalized out of particular rules in order to assure the maximum
them. Both the proof and source of law. fulfillment of the legislative intent.

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Common law was conceived
as being complete.
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 RULE OF PRECEDENT

 When a court decided a particular case,

its decision was not only the law for
those parties but had to be followed in
future cases of the same sort. A
precedent is then considered to be a
legal case that establishes a rule, that is
then used in later cases.
 It creates consistency and predictability.
 The stare decisis is the doctrine of legal
precedent. 9

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The core of common law: It has developed spontaneously in the
the doctrine of stare English Inns of Court. In the modern era it
decisis. became a legal doctrine.
 It leads the courts to follow previous
cases when making a ruling on a similar
one. It ensures in this way that cases with
similar scenarios are approached in the
same way.
According to the stare decisis all lower
courts should make decisions consistent
with the previous decisions of the higher
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courts.
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 The doctrine of stare
decisis applied to hard
and extreme cases:
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In severe situations, the supremacy of judge-made law
over statutes can lead to the risk of inconsistencies of the
new case with the precedent decision of the higher Court.
In this cases, three remedies can occur: 
1)Overrule the previous case and brand a new one to follow,
when the judge evaluates the first decision as wrong and
inconsistent.
When a case is similar to the previous one, but not
exactly the same:
2) application the earlier case
3) Distinguish the previous decision by leaving its
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application to specific situations.
HOWEVER, WITH THE GROWING NUMBER OF LAWS AFTER WORLD WAR II, STATUTES BEGAN TO BE SEEN AS THE
PRIMARY SOURCE OF ENGLISH COMMON LAW AND THE RULES WHICH GOVERNED THEM ALSO EVOLVED
OVER TIME. A FIRST INTERPRETATION OF STATUTES CAN BE SEEN IN THE: 

Literal Rule: a way of interpreting statutes which

focuses on the plain, literal and ordinary meaning of
laws, in the sense that actions should be taken
effectively according to what is written in the law. 

Disadvantages:
Advantages: 1) can produce absurd outcomes 2)
1) quick decision process 2) respects disagreement on natural meaning of
parliamentary supremacy. the statute 

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 Another
interpretation of Mischief Rule: the interpreter/ judge can
evaluate the statutory provision by referring to
statutes can be the "mischief" (defect) it intended to charge in
found in the: the pre-existing law. 

Advantages: Disadvantages:
allows the law to adapt to judges can bring their own
changes  views and prejudices

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 The last Golden Rule: a modification of the Literal rule. This rule
methodology states that if what is written in the Literal rule is interpreted
as an absurdity, then the Court should search for a new
is the: meaning of words to avoid the mistake. 

Narrow approach:
when a word has
multiple meanings 
There are two different
approaches for this last
rule: Advantages: Disadvantages:
Wide approach: errors can be corrected judges can change the
when the meaning of immediately  meaning of statutes
the word results in a
ridiculous outcome.  14

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 1) Literal Rule:
Example of the Fisher v Bell case 
application of the 2) Mischief Rule:
three rules:  Elliot v Grey case 

3) Golden Rule:
R v Allen case 

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 To
summarize:

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 In conclusion, in
relation with this:  USA (judicial review): 
 Court can review a law of
governmental body   in case of
inconsistency with the
constitution.

IN CONTRAST WITH:

UK (parliamentary sovereignty):
 
No power to strike down
statutes from Parliament.
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 DOCTRINAL MATERIALS
and
LEGAL EDUCATION

DOCTRINAL MATERIALS:
 There is not a large quantity of doctrinal writings, and these are
likely to consist of analyses of decided cases with the object
of classifying them and distinguishing the rules they
represent.
 The attorneys and the judges primarily cite previous cases
rather than works of doctrine.
LEGAL EDUCATION:
 Legal education is found on the primacy of the decided cases.
 The law student finds himself engaged in the discussion of
actual and hypothetical practical problems.
 The law student has to learn very carefully the cases which
have acquired great importance. 18

 Development of a skill in analyzing judicial decisions.

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 THE TRAINING AND THE TRAINING AND RECRUITMENT OF JUDGES
RECRUITMENT OF JUDGES
and  The judges must necessarily be practical
THE PERSONAL CHARCATER
 It is necessary to be an attorney or barrister with a
OF DECISIONS
number of years of experience and reputation
 After having succeeded as a practitioner, one is either
appointed by the government (as in England) or
elected by people (as in many American states)
THE PERSONAL CHARACTER OF DECISIONS
 Opinions are identified with their judicial authors
 As a consequence, each judge has the possibility of
setting his own point of view
 The judge needs to have a great personality that
makes itself felt and appreciated, and such a person
makes a substantial contribution to the development 19
of the law
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MANNER OF
WRITING
DECISIONS

DETERMINATI THE COURT

EXAMINATION ON OF WHICH DECIDES THE
EXPOSITION
OF THE CASES ARE
OF ALL THE
PREVIOUS ANALOGOUS
WHICH DECISION IS
FACTS PRECEDENTS MADE
CASES TO THE CASE
IN HAND ARE IN POINT

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 Contract law is the area of law that governs making contracts,
ENGLISH carrying them out and fashioning a fair remedy when there is a
CONTRACT breach.
LAW

A contract is an agreement that a party can turn to a court to

enforce.

A VALID CONTRACT HAS 4 PARTS:

MUTUAL INTENT TO
OFFER ACCEPTANCE CONSIDERATION ENTER INTO AN
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AGREEMENT

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 MAIN POINTS OF THE ENGLISH CONTRACT LAW
The importance of
remedies. English lawyers
tend to think in terms
“where there is a remedy,
there is a right”.
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The fact that in English law
a mere promise is not
enforceable; either it must
The “normal” remedy for
The emphasis on each party be put into a solemn legal
breach of contract in
making a promise to the form or the promise must
English law is the common
other. be in exchange for a return
law remedy of damages.
promise (or an act) by the
claimant (“the
consideration”)
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THANK YOU FOR YOUR ATTENTION!

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