Comparative Legal Systems - Appunti completi

Evolution of the English Legal System

Tounesende overloaded his boat with horses and the plaintiff's horse was lost overboard; the plaintiff Bukton convinced the Court that in cases where a promise was made (in the Humber Ferry case: the promise to transport the horse across the river), but not fulfilled, the facts of the case justified that it be treated like those previously considered matters of trespass. Finally, we can say that the evolution of the English legal system moved from case to case, gradually leading to "stare decisis" (binding precedent) (judge basing oneself on previously made decisions for reference (the case law formant) since there is no written legal system).

Common law: there is no pre-established body of written norms, it is a judge-made law system where the law is derived from previous cases.

Comparative legal systems - Ioriatti 15: the role of case law is not merely the interpretation and application of the law, but to define the legal rule so the legal system (the norms) is set by decided cases also.

shares (offers) in the Household Fire Insurance Company. The company allotted shares to Mr Grant and they concluded the contract by posting him a letter with notice of the allotment (acceptance). However, this letter never reached Mr Grant as it was lost in the post, therefore Mr Grant never paid the shares as a consequence and was sued in court by the Household Fire Insurance Company.

The appeal was dismissed and it was held that there was a valid contract between the parties for the shares. The postal rule was affirmed, which states that acceptance is effective when it is mailed, as long as the parties consider the post as an acceptable way of communicating.

So, was the contract between Mr Grant and the Company concluded? When is a contract inter absents concluded? In England, acceptance of an offer is complete and the contract concluded at the same time the acceptance is mailed/posted or is delivered to a postman (rule of binding precedent).

Comparative legal systems - Ioriatti 16

The rule of precedent is to provide a framework for the English legal system, as there isn't any pre-established body of norms. The distinguishing judge may distinguish the material facts of a decision in order to not apply a precedent, this technique favors the evolution of case law without challenging legal certainty.

Balfour v Balfour (1919)

Merrit v Merrit (1970)

A husband promised to pay his wife a £30 per month allowance. The wife sued her husband to enforce the promise. The court first recognized that certain forms of agreements do not reach the status of a contract. An agreement between a husband and wife is often times such a form of agreement. In such agreements, one party is given a £40 per month and signed a document confirming that when she had repaid the balance on the mortgage, he would transfer the matrimonial home into her name.certain sole name. She paid off the mortgagesum of money on a daily, weekly, and successfully acquired a declarationmonthly, etc.. basis. This agreement is that the house belonged to her. Hesometimes termed an allowance. However, appealed but was unsuccessful. Thethese agreements are not contracts arrangement was sufficiently certain tobecause the "parties did not intend be enforceable, and the paying of thethat they should be attended by legal mortgage was enough. She was entitledto the home entirelyBalfour v Balfour 1919 and Merrit v Merrit 1970 were both rulings on house owningbetween separated couples, the difference is that in the second judgement the twoparties were separated and the agreement was written and signedduty of careDonoghue v. Stevenson (1932)Mrs Donoghue went to a cafe with a the case is still not a right in the commonfriend. The friend brought her abottle of ginger beer and an ice was this contract liability or tortcream. Theginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. There were past judgements on the matter: - Winterbottom v Wright (1842) - Heaven v Pender (1883) The plaintiff Winterbottom had been contracted by the Postmaster-General to drive a mail.

coach supplied by the Postmaster. The defendant Wright had been contracted by the Postmaster to maintain the coach in a safe state. The coach collapsed while Winterbottom was driving, and he was injured. He claimed that Wright had negligently conducted himself, and so unfit for use. The painter was utterly disregarded his aforesaid contract and so wholly and negligently failed to perform his duty in this behalf.

In Winterbottom v. Wright, the court held that the plaintiff had no redress. The principle of Winterbottom meant that consumers who were injured by defective supporting apparatus: "it was said that they had invited the injury."

In a summary advanced in relation to a later House of Lords case, Caledonian Railway Co. v. Warwick (1897), Lord Herschell stated that the dry dock's supporting apparatus: "it was said that they had invited the injury."

plaintiff to come upon thatproducts in the 19th century had no legal staging, and that they wereaction against the defective execution of a responsible if the man so invitedcontract to which they were not expressly was led into the trap by means ofprivy. which he was injured"

ratio decidendi n.1: Heaven v Pender influenced Donoghue v Stevenson, since in thefirst it was found that "one has duty of care towards one's neighbours" thereforepeople who are close and directly affected

ratio decidendi n.2: "direct ratio decidendiaction to the consumer against the 'the rule in a decision', it becomes aproducer", while in the 19th norm only when someone finds it andcentury consumers who were injured applies it in a court caseby defective products had no obiter (dictum)action against the producer asthey were no part of a contract, Words of an opinion entirely unnecessarythis case decided that for the decision of the case. Such are notmanufacturers could be

Held binding as precedent. Responsible regardless of contract. Important is the style of the decision in a legal system. When a court makes a single decision, for example the Supreme Court in the US, it is proof of strong political power. The equity systems. The forms of action developed a rigid equity inflexibility. A lack of specific remedies was a particular body of law present that was developed in the e.g. compensation of damage instead of decree of English legal system specific performance not quite what was needed comparative legal systems - Ioriatti 18 local courts (e.g. Hundred Courts), who had sort of balanced this lack also disappeared at the beginning of the 1400 disappointed litigants turned to the King soliciting justice the chancellor (ecclesiastical figure, literate, right hand of the king) was the one to decide whether to enact the writ or not, he accepted petitions ex gratia for equitable relief the equity procedure the writ of subpena (with the passing of time this procedure became a little

(bitmore formal)based on the inquisitorial processes of Canon and Roman law (still present and used just not officially)

absence of forms of action

the defendant was questioned orally and in person

the aim of the chancellor's interrogatory: deciding on the basis of justice and fairness

since the 15th century the legal maxims (general principles) have been governing the way in which Equity used to operate

one who seeks equity must do equity

he who comes into equity must come with clean hands

equity acts in personam (so through questioning)

equity will not suffer a wrong to be without a remedy (the most important, since the Court started to invent new remedies, also based on what the chancellor decided)

equity follows the law (equity couldn't be in opposition of the common law, it had to go with it)

people started to do forum shopping more and more and equity became a system of court

equity remedies

specific performance

discovery order (by the judge forcing a party to deliver a document relevant

(just an equity thing)

(when a contract is concluded against one's will it could be rendered void) (fills the gap left by the common law, which only considered physical force)

(the trustee has all the powers so remedies were built: if the trustee does something that isn't in the interest of the beneficiary, money must arrive to the beneficiary all the same)

the good relationship between the two stopped in the 17th century: rivalry of Sir Coke and Lord Ellesmere, 1616 Decision of James I (the fist court of England is the equity court)

comparative legal systems - Ioriatti 1918th century: procedural rules become