The common law system Antoine KATZ Maily PREVOT Mathiru KEISSER Introduction • Case law essentially consists of judge-made law : based on common law and equity • Equity grew, as a remedy (recours) to the defects of the common law • common law and equity remain vital sources of English law. Origins of the common law • The old courts of common law were the three Royal Courts which sat at Westminster, in London: The Court of Common Pleas; The Court of the King’ or of the Queen’s Bench; The Court of Exchequer. • Historically, the Common Law came from the Anglo-Saxon Common Law in England. It existed, and controlled and ruled the land of England The common law • The common law consists of a body of principles which have been built up from the precedents of the old courts of Common Law. • Introduction of the system of common law, under which everyone would be treated the same. • Under this original common law, the standard machinery for starting an action was the original writ • If no writ existed to fit the plaintiff’s case, he had no remedy • The register of writs contained all the writs available, and the total number of writs contained the Common Law EQUITY • • a) the Common Law in some ways defective or inadequate; • b) the only remedy which the Common Law Courts would supply was that of damages (money compensation for loss suffered), and which was not always a satisfactory form of relief; • c) when a case involved important people, they sometimes tried to influence the Common Law courts in their favour, which was cause for complaint; • As a result, Chancellors began to develop a set of rules which remedied the defects in the Common Law. They granted new remedies based on just or equitable decisions they made. These decisions became known as rules of Equity • Equity follows common law. If common law does not produce a just outcome, then equity will be used. Equity will remedy the wrongs resulting from the rigidity and technicalities of the Common Law system when the Common law had failed to recognize rights ans duties. • The law relating to Trusts, for example, was entirely based on decisions of the Court of Chancery. It was developed from the sixteenth century mainly to protect certain categories of citizens such as minors or women, whose rights to own property were not recognized by the Common Law. There was considerable rivalry between the Common Law courts and the Court of Chancery. Differences between Common law and Roman Civil law. • The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, whereas civil law developed out of the Roman law of Justinian's Corpus juris civilis. • Codification is by no means a defining characteristic of a civil law system whereas common law jurisdictions have frequently codified parts of their laws, in the U.S. Uniform commercial code. the difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. CONCLUSION • We can not define the common law system without speaking of “equity”, because the two notion have merged to become the the Chancery Division of the High Court • The majority of the law is made up of decisions made by judges (via cases). • There is a codified system, which are a number of laws decided in advance and written down. This information can be accessed and understood by all those that need to use it.
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