History of Common Law

It derives from Roman law traditions. It’s also known as Continental European law. Laws recognized as authoritative are codifications in a constitution or statute passed by legislature. They are codified laws = civil code.

* Common law It is made by judges in court applying knowledge and common sense of legal precedent to the facts presented. There is no major codification of the law, and judicial precedents (= authority) are binding as opposed to persuasive. The idea of the common sense is applied in all the legal system of English law. Binding precedent relies on the legal principle of stare decisis (“to stand by things decided”) > judges are obliged to respect the precedents established by prior decisions. Existing binding precedents from past cases are applied in principle to new situations by analogy. Laws can be amended by Acts of Parliament or European Court of Justice (especially for Human rights).

ORIGINS OF ANGLO-SAXON LAW: FROM TIME IMMEMORIAL Time immemorial = “time out of mind” > a time before legal history and beyond legal memory. It is the period between Roman-Britain (43-410) and Norman-Britain (before 1066).

Evolution of pre-common law: * Ethelbert = king of Kent in 604 All the laws created under Ethelbert’s reign are known as the “dooms of Kent” (=judgments). Ethelbert’s code makes reference to the church (compensation required for property of a bishop, a priest…). Venerable Bede asserted they were composed “in accordance with Roman precedents”. This was the 1st attempt to write precedents.

* King Ine of Wessex = Law of Wessex (≈ 690) They shed light on the history of Anglo-Saxon society and revealed Ine’s Christian convictions. His laws survived only because Alfred the Great appended them to his own code of laws later.

* Ordinance of Alfred (≈900) > Doom Book consists of his own laws followed by his predecessor King Ine (= basis of Common Law) * Code of Canute (≈1035) > “Dooms of Canute the Dane” (king of Denmark) are the most comprehensive statutes of the 9th century. Statutes (de loi) = laws passed by the government

* Distinguish between law and right In some kingdoms, only the king had rights. But, as the country evolved, people thought that laws should be applied for all > people obtained rights. Dooms (= judgments/decisions and depended of kingdoms) are distinct from Canon law (= body of laws and regulations made/adopted by ecclesiastical authorities > deals with moral issues)

WHY ARE THERE DOOMS? * Justice passed primarily through Canon courts presided by religious and lay judges (= persons assisting the judge). So, cases were limited because you should have money to go to court * Anglo-Saxon tradition = law-making focused on “the king as the protector of the realm, the corrector of wrongs” * Development of shires, counties and hundreds > after the Romans left, England disintegrated and clans took control over a territory * “Personal laws” evolved into “local customs” into “customary laws” > personal laws deal with matters pertaining to a person (family). They are expressed in books by the dominant group. The latter grew and personal laws became the local customs. When the Normans came, local customs became customary laws. Primogeniture (Norman tradition) = the right, by law or custom, of the 1st son to inherit the entirety of a parent’s wealth, estate, title or office.

CONSEQUENCES OF 1066 (Norman Conquest) * Battle of Hastings * Merging of Frankish and Anglo-Saxon law > Normans were excellent administrators applying local laws, and didn’t bring their own laws. According to historians, English law is the offspring (daughter) of Frankish law (= early text in French + private law + technical terms) * Domesday Book = a great land survey commissioned by William I to assess (value) the extent of the land and resources being owned in England, and the extent of the taxes he could raise. This book also relates the importance of a uniform legal system among people within the territory. Local courts came under the administration of Norman rules. *

Laws of Henry I or “Leges Henrici Primi” (≈ 1115) = a legal treatise in England. It lists and explains the laws (how to conduct legal proceedings). Laws were actually issued by earlier monarchs that were still in force in Henry’s reign. It covers a diverse range of subjects: ecclesiastical cases; treason; murder; theft; feud; amounts of judicial fines… * Ranulf de Glanvill > reputed author of a book on English law. It was with his assistance that Henry II completed his famous judicial reforms.

HENRY II (1154-89): Separation of the power of church * Changes implemented: Henry II began to send judges from central court (Supreme Court) into local courts in order to limit the jury’s movements at Westminster (kings are dependent of the goodwill of law to maintain power). Henry wanted to diminish the power of the church, so he worked to make the legal system fairer (Assizes of Clarendon & Northampton). This explains the emergence of unified/uniformed court system and stare decisis, and further the emergence of common law.

* Henry II vs. Thomas Becket Henry appointed Becket (Archbishop of Canterbury) as Chancellor in 1155; it is the highest grade in government. Becket engaged in conflict with Henry over the rights and privileges of the church = who has greater authority: the state or the church? Another question was: what to do about bastards (1230)? For the church, if the parents got married after the child was born, the latter is no longer considered as a bastard, contrary to state law which underlined inheritance issues.

ANGEVIN LEGAL REFORMS (House of Anjou) * Royal legislation = 2 Assizes issued at : * Clarendon (1166) An act of Henry II that fostered (encouraged) the methods that would be known in common law countries as trial by jury * Northampton (1176) Largely based on the Assize of Clarendon > was a strong response to a crime-wave, then being experienced and gave additional powers to the authorities to set down new and severe punishments

* Beginning of travelling Royal justices Royal justice travelled throughout the realm to ensure the same rules are applied in every county and hundred, stating: “Inquiry shall be made throughout every county and hundred, through 12 of the more lawful men of the hundred and through 4 of the more lawful men of each village upon oath… whether there be… any man accused or notoriously suspect of being a robber or murderer or thief”.

* Creation of juries These bodies of 12 are referred to as “juries of presentment” (ancestors of the Grand Jury which survives in the US legal system). All accused by the presenting juries were to be put to ordeal of water, a text whereby those who floated were regarded as guilty because they were rejected by the water which had been blessed by a priest. Any convicted were to lose a foot and their right hand. Even if acquitted by ordeal, those of ill-repute were to leave the realm under oath never to return.

* Assizes about land law and inheritance * Novel Disseisin (land law) = an action to recover lands of which the plaintiff had been dispossessed. It simply asked whether a dispossession had taken place, in which case the property was restored to the plaintiff and the question of true ownership was dealt with later > very popular due to its expediency (opportunité). * Mort d’Ancestor (inheritance)

= an action where a plaintiff claimed the defendant had entered upon a freehold belonging to the plaintiff following the death of one of his relatives. These involved a royal writ (= official letter in specific terms from the king or chancellor). It is sent to the sheriff, ordering him to assemble 12 men who would declare whether the plaintiff really had been dispossessed ‘unjustly and without judgment’. In their speed and focus on a specific/limited issue (= new approach), such procedures differed from the traditional approach, which dealt with the general and more difficult issues such as to who had the “greater right to the land”. The law protected tenants (locataires) from landlords (propriétaires) by appealing directly the king > Henry offered sitting tenants trial by jury.

COMMON LAW (property/money): 1189-Today * Writ System Common law emerged from the adaptation of Writ System to meet everyday needs > writs had become a regular part of the Royal justice system. They provided the legal means to remove disputes. The nobility saw the creation of new writs as an erosion of their influence. Each writ defined a particular form of action.

* Casuistry = case-based reasoning

It is a method of case reasoning especially useful in treating cases that involve moral dilemma. Each case is judged individually. The process of casuistry is to resolve problems through general principles and studies of similar cases > reference to precedents.

* Applying common sense and precedent Common sense = knowledge and experience which most people already have. It is the good sense and sound judgment in practical matters. Precedent = a court decision that is cited as an example or analogy to resolve similar questions of law in later cases. Need for a body of internally consistent law

* Evolving system (ex: Piepowder courts) to law merchant (lex mercatoria) A piepowder court was a tribunal in England organized by a borough on the occasion of a fair or a market. This court had unlimited jurisdiction over personal actions for events taking place in the market = disputes between merchants + theft + acts of violence. Law merchant = body of rules and principles relating to merchants and mercantile transactions laid down by merchants themselves for the purpose of regulating their dealings.

* Precedent or stare decisis There was a need for standardized procedures and predictable outcomes. Decisions taken in Supreme Court were binding and overruled all others.

MAGNA CHARTA (June 15, 1215) = 1st written constitution = a document delineating a series of laws establishing the rights of English barons and major landowners, which limited the absolute authority of the king and became the basis for the rights of English citizens. Some clauses talk in terms of lords and tenants, others refer to freemen (non-serf). It was signed reluctantly by King John at Runnymede + creation of 1st House of Commons. The Magna Charta put an end of 150 years of harsh Norman penal code (including taxation) > limited the king’s powers by law and protect the privileges of his subjects (feudal barons). During his reign, King John faced high taxation, unsuccessful wars… = unpopularity > barons’ rebellion. Thomas Macaulay (poet + historian + politician): “Then it was the common law rose to the dignity of a science and rapidly became a not unworthy rival of the imperial jurisprudence”. In 1297, the Magna Charta was consolidated by Edward I.

HEBEAS CORPUS (‘you are to have the body’): the right to a fair trial = a writ (or legal action) through which a prisoner can be released from unlawful detention. But the origins of the Hebeas Corpus are not clear. Domesday Book = “No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgments of his peers, or by the law of the land”.

EVOLVING SYSTEM LAW AND EQUITY * Equity Equity and the Common law represented opposing values in the English legal system. Whereas common law provided results based on year of judicial wisdom, equity produced results based on the whim (caprice) of the chancellor. Equity cases came to be understood as only claims for which monetary relief was inadequate. Judges are guided by precedents in equity cases, but they have discretion and can rule contrary to apparent precedents. Professionalizing of judges = closer attention to forms of statutes.

* Growing awareness = 5 limits of common law * writ system = if your case don’t fit the exact example of writ, you won’t go to court * remedies = monetary compensation if the defendant is proven guilty * procedure = fair trial

* defenses and corruption = investigation on whether the defendant was telling the truth or not * trusts and mortgages (emprunt-logement/hypothèque) / “equity of redemption” = the right of a mortgagor (borrower) in law to redeem (racheter) his property once the liability secured by the mortgage has been discharged. The mortgagor has a specified period of time after and before foreclosure (saisie) to reclaim the property

* Equity = “to mitigate the rigor of common law” (réduire/atténuer) Equity is commonly said to ‘mitigate the rigor of common law’ by supplementing the stricter rules of the common law, where their application would operate harshly. There was also an attempt of the church to get back in line. Equity is more flexible than the common law.

LAW AND EQUITY The Chancellor was the ‘judge’ in the court of equity; he ran the administrative body of the state. The Chancery was the office from which the writs were issued. The Chancellor judged cases ‘in light of conscience and fair dealing’. He had the authority to issue a subpoena (= a writ requiring appearance in court to give testimony > citation à comparaître) to attend Westminster courts. However, no jury was available in equity. The Chancery’s increasing desire to enjoin actions (= to prohibit through injunctions) angered the law courts, because the Chancellor was supposed to act ‘on the conscience’; he had authority to cancel or enjoin ‘unconscionable’ actions or ‘sharp practice’. Conflict between clerical equity and common law

In 1873-75, law courts and equity courts combined together = equity supreme

COMPARISON TO FRENCH LAW: THE FRENCH LEGAL SYSTEM (Code Civil or Napoleonic Code)|

ORIGINS: LE DROIT ANCIEN There are Romano-Germanic influences: * Roman law * Jus gentium = “law of nations”. Roman law was created at the time of the Roman Empire. Jus gentium was applied to the dealings with foreigners, property and inheritance. Later, it referred to the natural of common law among nations considered as states within a larger human society (rules of peace and war, national boundaries, diplomatic exchanges…). * Lex RomanaVisigothorum (Alaric II, king of Visigoths, Germanic tribe – 506) = collection of Roman law compiled by Alaric II, with the advice of his bishops and nobles. It applied, not to the Visigoth nobles, but to the Hispano-Roman and Gallo-Roman population living under Visigoth rule south of the Loire.

* Germanic law It was more stratified because of the different prerogatives (= exclusive right or privilege or power to command by a person/group > king, lords, serves). Germanic law was influenced by Roman law, ecclesiastical law and earlier tribal customs. * customary law:

* Lex Salica = a body of traditional law codified for governing the Franks (Clovis I). The best-known principle of it is agnatic succession excluding females from the inheritance of a throne or fief * Lex Ripuaria = collection of Germanic law. Ripuarian law attached importance to written deeds; the clergy are protected by a higher weregild (= a value placed on every human being and every piece of property in the Salic Code> form of payment) Customary law comes to dominate France by the Carolingians, who judged according to a person’s background.

* ‘Personality of laws’, Dickson = laws which regulate the condition, state or capacity of persons. They are applied depending on individual’s background. They didn’t concern property, whether real or personal, and things.

LOIRE RIVER FRONTIER – to 1789 The river Loire was the line which separated France into 2 areas. These 2 areas had their own type of law: * Le pays de droit écrit – southern France It was in opposition to the “droit coutumier”. It was based on the classical Roman law, with variations of customary laws. Here, personality of laws became unworkable. For, the ‘droit écrit’ didn’t depend on racial situation.

* Le pays de droit coutumier (= customary law) – northern France This part of France was ruled by a variety of customary laws.

Roman law used to “plug the gaps” > there was a clear definition of property (paper+stamp). Every legal subject was equal = idea of equal citizens. Legal documents appeared, such as wills and testaments = main preoccupation of inheritance. That’s why Roman law never disappeared. When the Napoleonic code entered into force in 1804, all the “coutumes” were abolished.

* 1454: Charles VII – Ordinance of Monfils-les-Tours Charles VII was considered as politically clever. He decided the codification of all the custom laws under this ordinance. By 17th, most regional customs were published

SCIENCE OF CUSTOMS * Systemizing and unifying customs * * custom of the Duchy of Burgundy (1459-1576) * custom of Orleans (1509-83) * custom of Paris (1510-80)

These 3 customs stated that each decision had a particular outcome. Indeed, each custom was composed of a certain number of titles which dealt with > feudal organization and hierarchy when it came to lands (fiefs/obligations); relations between men and women (rights of women on possessions of her deceased husband); inheritance…

* Developing principles of conflicts of law (mix of Roman and customary laws) * Charles Dumoulin (1500-66) = he adapted Roman law to the moral and social needs of his time. He started a strong campaign against feudalism. His remarkable erudition and breadth of view had a considerable effect on the development of French law. * Bertrand D’Argentré (1519-90) = his principal legal work was the influential “Nouvelle coutume de Bretagne” (= customary Breton law). He fought against the influence of French and Roman law, which he considered overly procedural and inquisitive, unmerciful to the weak, and detrimental to individual liberty.

SCIENCE OF ROMAN LAW

The School of Elegance encapsulated “the spirit of Ancient Roman law” (Dickson). The University of Bourges was the centre for humanist lawyers, where there was a pure interpretation of Roman law. Between 13th and 15th, the south of France had been the centre of European research in Roman law. * Jacques Cujas (1522-90) = an applicant of the pure Roman law (legal humanist) = focused on ascertaining the correct text and social context of the original works of Roman law. * Hugues Doneau (1527-91) = one of the leading representatives of French legal humanism. He was interested in the construction of a coherent system of law. He tried to organize the subject matter of Roman law in a logical order (=less pure Roman law applicant).

PRE 1789 Distinction remains but French law emerged with the rising power of a central authority = the king (symbol of unity: ‘one law, one king’). The king demanded that all ‘coutumes’ were written down; this was called the “Chartes de coutumes”. * Ordonnance civile (1667) = bases of the future Code civil. It aimed at spreading uniform judicial procedures within France (north+south) *

Ordonnance criminelle (1670) = bases of the future Code pénal. It dealt with criminal procedures which were enacted in France under Louis XIV. It was 1st legal texts attempting to codify criminal law in France. * Parlements (regional courts)/‘arrêts de règlement’ = in regional courts, unclear customs were interpreted, and decisions were taken and applied to all, not just parties. However, in cases where there were 2 interpretations possible, judges had recourse to precedents.

1791: DROIT INTERMEDIAIRE (before Code civil) The “droit intermédiaire” means the law applied between 1789 and 1804 = transition from ‘droit ancien’ and ‘code civil’. It was 1st constitution which brought an ideological impetus (élan) = rejection of feudalism + confiscation of church estates (land) + need for reforms (feudal dues abolished) Abolition of 3 estates (social rank = clergy/nobility/citizens) = all equals. Property is equally divisible among heirs.

NAPOLEON: pragmatic person

Commission (authority granted) of “Droit Ancien” = intellectuals and lawyers were trained on the bases of “droit ancien”. The Napoleonic code/Code civil influenced the legal system of many of the European countries formed during and after the Napoleonic wars. The Napoleonic code established = rights and obligations of citizens (persons); laws of property (property/acquisition of property), contract; inheritance… The Code civil has represented stability in the French legal system.

DROIT PUBLIC (public law) It deals with state operations + public bodies (physical & moral). Hearings: * tribunaux administratifs * cour administrative d’appel > to lodge an appeal * conseil d’état (higher court) > determines legality of administrative measures

DROIT PRIVÉ (private law) It deals with relationships between individuals > law of contracts/torts and obligations. Hearings: * tribunal d’instance + tribunal de grande instance + tribunaux de commerce > basic civil litigation between parties where a wrong’s been done * cour d’appel + cour de cassation (equivalent to Supreme court) > to lodge an appeal * juge de proximité (a local magistrate) + tribunal de police (police court) > crimes * tribunal correctionnel > more serious matters concerning crimes * cour d’assise with trial by jury > the most serious crimes/offences + murder + rape

DIFFERENCES BETWEEN ENGLISH LAW AND FRENCH LAW They both have similar origins > Roman & Germanic influences. English system = judges make decisions related to precedents + they are passive (observer/listener) French system = judges tend to respect the law, but not without seeking the truth

ENGLISH CONTRACT LAW|

“A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty”.

US Restatement of the law of contract = any agreement that is enforceable (applicable) in court is a contract. Restatement is a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. It clarifies doctrine in every area of contract and commercial law.

Promise = commitment by someone to do (or not to do) something. In the law of contract = legally enforceable Breach = a situation in which a binding agreement is not honored by one or more of the parties to the contract Remedy = an action by a court of law to impose its will (e.g. money)

HISTORICAL BACKGROUND Lex mercatoria (“merchant law”) is administrated by merchants’ free movement of goods throughout Europe. There has been a need for quick decisions and clear judgments. In 19th, contracts were defined as “exchanges” > buying gave certain rights + possibility of redress (go to the court to gain reparations for a wrong). There’s no contract until goods are exchanged for money.

Principles: * “ex aequo et bono” (‘according to the right and good’ or ‘from equity and conscience’) > when we reach an agreement, it’s a need to be fair and equitable on both sides * writing is obligatory in an agreement between 2 parties

New principles: * 19th > strong French influence of Robert-Joseph Pothier and Jean Domat = contracts & coherent French legal system * “autonomie de la volonté” (will theory) = will is at the origin of obligation > we cannot have someone to sign a contract. Both parties have to agree for a contract to occur = intention to go into a contract * consensus ad idem (meeting of the minds) = mutual agreement/assent > intentions of the parties forming the contract. When there is a contract, both parties have to respect the conditions of contract. They have to be responsible of the consequences if they don’t.

Ex: donations (agreement between parties) are gifts without return consideration.

REFORM OF CONTRACT LAW * Estoppel (common law) = refers to a series of legal and equitable doctrines that preclude (excluer) “a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth”. * Misleading conduct = a business’ behavior that is likely to deceive * Misrepresentation = a false statement of facts made by one party to another, which has the effect of including that party into a contract * Unjust enrichment = type of causative event in which one party is unjustly enriched at the expense of another, and an obligation to make restitution arises, regardless of liability for wrongdoing.

WHAT MAKES A CONTRACT * Objective intention = internal motivation > what I believe * Subjective intention = inferred motivation > what the judge has to decide based on an evidence given to him

Caveat emptor = “Let the buyer beware” (“que l’acheteur soit vigilant”). It is the property law doctrine that controls the sale of real property after the date of closing.

Smith v. Hughes = old oats (avoine)Smith brought Hughes a sample of green oats and Hughes ordered them. A part of oats have been delivered, when they arrived Hughes said they were not the oats he thought they were. He wanted rolled oats, but got new green oats. Hughes refused to pay and Smith sued for breach of contract. Hughes didn’t know he bought the wrong product. Smith did know what he sold, but he never said that there were old oats.

The judge decided in favor of Smith. The judge pleaded in favor of Smith, stating:“If, whatever a man’s real intention may be, he conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree the other party’s terms.”|

CONSIDERATION = something exchanged (not exist in French law) There is no binding contract without consideration = “price of the bargain” (James). It’s a pre-requisite that both parties offer some consideration before a contract can be thought of as binding. Definition = “A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to the one party of a contract, or some forbearance (indulgence, tolerance), detriment, loss or responsibility given, suffered or undertaken by the other”.

OFFERS Offers and unequivocal (explicit) acceptance are made based on reasonable judgment. An offer is a statement by the offeror of what he will give in return for some promise or act of the offeree. Offer = Invitation to treat

Harvey v. Facey (1893)The case involved negotiations over a property in Jamaica. The defendant Facey, had been on negotiations with the mayor and council of Kingston to sell a piece of property to Kingston city. Harvey wanted the property to be sold to him rather than to the city and sent Facey a telegram:H = Will you sell us Bumper Hall Pen? Telegraph lowest price-answer paidF= Lowest price for BHP £900H = We agree to buy BHP for the sum of nine hundred pounds asked by you. Please send us your title deed in order that we may get early possessionFacey refused to sell at that price, at which Harvey sued. First, Facey won, but Harvey appealed to the Supreme Courts which reversed the trial court decision. Facey appealed to the Privy Council. It held that indication of lowest acceptable price does not constitute an offer to sell. It is rather considered as an offer to treat.|

CHAPELTON V BARRY URBAN DISTRICT COUNCIL 1940

Display of goods can be an offer, rather than invitation to treat; onerous exclusion clauses can be deemed to not be incorporated in a contract Deckchairs; “Available for three hours. Time expires where indicated by cut-off and should be retained and shown on request. The council will not be liable for any accident or damage arising from the hire of the chair.” Judgment: valid offer when chairs on display, acceptance when chair picked up. Therefore, ticket y a receipt of the contract, and the exclusion clause could not be incorporated as a term, because it was too late.

PHARMACEUTICAL SOCIETY OF GREAT BRITAIN V BOOTS CASH CHEMISTS (SOUTHERN) LTD Product in a store with a price attached is not sufficient to be considered an offer Alleged Breach of Pharmacy and Poison Act 1933

‘Pharmacists needs to supervise at point of sale’ Judgement: by placing the goods into the basket, customer makes the offer. This offer could be either accepted or rejected by the pharmacist at the cash desk. Completion of contract was at the cash desk, in the presence of the supervising pharmacist. Therefore, no violation of the Act.

ACCEPTANCE Offeree (person who wants to buy) must communicate acceptance Postal ruling = A makes offer to B (day 1). (Day 2) A decides to revoke offer posts letter to B. (day 3) B posts a letter accepting offer. On day 4, B receives A’s revocation letter. Revocation can be effective only when received, meaning on day 4. But a contract was formed on day 3. A cannot revoke offer. Post mark only Acceptance upon receipt of telex (entores ltd vs miles far east corporation 1955) Unilateral contract = one party makes contract; ex: company to public (not 1 person on particularly) Bilateral contract = contract made by 2 parties

UNILATERAL CONTRACT CARLILL V CARBOLIC SMOKE BALL COMPANY (1892) ‘Smoke Ball’ as cure for Influenza (pandemic killed 1 million) £100 reward deposited Mrs carill gets influenza 18/01/1891 Was it a real contract?

Judgment: Offer is unilateral Using it correctly is acceptance Using it is consideration Deposit shows intends to be legally bound

BREACH OF CONTRACT *minor breach: can only sue for damages incurred *material breach: failure to perform, sue or collect damages *limits “economic wastes, pricing in” *fundamental breach *Suisse Atlantique Société d’Armament SA v NV Rotterdamsche Kolen centrale (1967) = « In the ordinary way the customer has not time to read them, and if he did read them he would probably not understand them. And if he did understand and object to any of them, he would generally be told he could take it or leave it. And if he then went to another supplier the result would be the same. Freedom to contract must surely imply some choice or room for bargaining.” Lord Reid *anticipatory breach: known or inevitable non performance of future action *remedies and damages: usually monetary = expectation measure; reliance measure; liquidated damages (there are penalties if we don’t respect the clauses of the contract)

CONTRACTS: TERMINOLOGY; PRACTICAL APPLICATIONS; DIFFERENCES WITH FRENCH CONTRACTS|

Review: what is a contract? a legal contract in the common law must have consideration = exact dates, exact goals, money, parties involved

FORMULATING A SIMPLE VALID CONTRACT *offer vs invitation to treat (when a lot of goods are offered > you can take or refuse the good, when in shop) *form of acceptance implicit vs explicit > all acceptance should be clear *consideration > ex: teach for free is a donation. In a consideration each party has something to give or lose *intention to be legally bound balfour & balfour > prepared to accept the judgment by court if there is a dispute. There is a rebuttable presumption against an intention to create a legally enforceable agreement when the agreement is domestic in nature.

OTHER FACTORS FOR A VALID CONTRACT *certainty of terms > expressed (warranty) + implied (local customs, statutes, shared knowledge) *capacity = mental state (ex: disability), intoxication (not sign contract when drugged/stoned) *legality of the object = not a contract if it contravenes common law/morality *genuine consent (meetings of the minds) = mistakes (operative or genuine mistakes. If a written mistake = against law) + misrepresentation (pretend something is what is isn’t, the contract is invalid) + under duress (ex: religion) + under undue influence (if you can prove influence > invalid)

UNFAIR CONTRACT TERMS ACT 1977 Deals with unfair clauses. 1/Amendment of the law for England and Wales and Northern Ireland > idea of negligence: *negligence = breach of any obligation arising from the expressed or implied terms…reasonable take or exercise reasonable care (idea of normal) or reasonable exercise skill… and stricter duty). *duty of c are = responsibility providing care as a citizen or a member of the city. Duty of care is imposed by the Occupiers’ Liability Act 1957 *care of both contract or tort

Uniform thought done or to be done by a person in the course…

2/ Negligence liability A person cannot by reference to any contract term of.. given to persons generally or to particular persons exclude or .. liability for death or personal injury resulting from negligence In the case of loss or damage, a person cannot …or restrict his liability for negligence except in so far as the term or notice satisfy the requirement of reasonableness. When a contract of term or notice.. to exclude or restrict liability for negligence a person’s agreement to or the awareness of it is not of itself to be taken as indicating his voluntary of any risk

DIFFERENCE BETWEEN ENGLISH AND FRENCH CONTRACTS *Nicholas = “while in French law a contract is an agreement between parties, in English law, it can be nearly said to be a promise in return for good consideration *French law takes a moral stance while English law emphasizes the security of transactions and economic efficiency, so also French law treats breach of contracts as a form of a moral wrongdoing, while the common law looks more to commercial consideration = reference to merchant law.

MAJOR DIFFERENCE: OBLIGATIONS Art14: an alien, even if not residing in France may be cited before French courts for the performance of obligations contracted by him in France with a French person, the may be called before the courts of France for obligations contracted by him in a foreign country towards French persons. Art15: French persons may be called before a court of France for obligations contracted by them in a foreign country, even with an alien

OTHER CONSIDERATIONS IN FRENCH LAW Force majeure: externality = the defendant had nothing to do with the event Unpredictability = if the event could be foreseen, the defendant had to prepare for it (9 april 1962 chais d’armagnac) Irresistibility = if could not have been prevented

Final points on French contracts: Art1101: a contract is an agreement (convention) by which one or more persons bend themselves to one or more persons to gve , do or not do something Art1102: a contract is synallagmatic or bilateral when the contracting parties bind one another reciprocally Art1108: four questions are essential for the validity of an agreement: the consent of the binding party himself or herself; his/her ability to contract; a definite subject matter for the arrangement; a legitimate purpose (cause licite) for the binding.

TORTS|

Tort = civil wrong Tortus: is not a crime, breach of contract or breach of trust PH Windfield = “tortuous liability rises from the breach of a duty primarily fixed in law, such duty is towards persons generally and it’s breach redressible by an action for liquidated damages” (law of torts”

Law of tort or law of torts? 2 types of torts : trespass and case -General principle of liability theory: ‘all harm should be actionable in the absence of just cause or excuses” (keenan) > we don’t need new definitions = in common law is evolving by the use of precedents -law of torts = only specific torts, unless damage can be brought under recognized existing liability no remedy is possible. No perjury (not a crime in English court), eviction or invasion of privacy tort

Damage & liability Terminology: -damnum = damage suffered -injuria = injury with legal consequences (right to be compensated) “before an action can succeed the harm suffered must be caused by an act which is a violation of a right, the law vests in the plaintiff…” keenan -malice = acting with intention to injure without infringing on rights is not actionable unless… -motive = identifying malice in the intention to commit a crime against another person

Who can be a plaintiff? -minors through an adult “next friend” But: *no liability unless born alive *was injury caused before or after conception : doctors are not liable for treatment/advice given under prevailing professional standards of care *children are liable for their own torts, ability to form necessary intent needs to be proved (need of motive, rational think about their action) -mental disorder ability to form necessary intent, not criminally liable -married couples:

Married women and tortfeasors Act 1935: “each party shall have the right of action in tort against the other as if they were not married”, except of no party stands to significantly gain or issue of titles of property -the crown and its servants = pre 1947 “the king can do no wrong” not liable for torts by police -postal and telecommunications = not an agent of the crown limitations – sued for loss or damage to inland registered post -judicial immunity = judges magistrates (not liable for decisions they took in court), foreign sovereigns -enemy aliens can be sued, but cannot sue…

NEGLIGENCE Donaghue vs Stevenson 1932 = (snail in the bottle case). Principle of duty of care. Gastroenteritis caused by decomposing snail in ginger beer, who’s at fault? Lord atkin: “a man has a duty of care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur” Love thy neighbor: “who, then, in law, is my neighbor? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question”

Who is your neighbor? “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor” “a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form of which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”

Caparo industries plc vs dickman 1990: Insider trading (délit d’initié) used to acquire company in poor health Caparo obtains dickman ‘shoddy’ audits: nobody should be able to sue just because they acted upon said that was stupid House of lords 1992 conditions for establishing negligence in duty of care (3 conditions to be proved there is negligence): *harm must be a “reasonable foreseeable” result of the defendant’s conduct > when drinking and driving after *a relationship of “proximity” between the defendant and the claimant *it must be “fair, just and reasonable” to impose liability

BREACH OF DUTY Objective test = does behavior fall below that of a reasonable person (could depend on profession) Allowance made defendants’ age and lower standard of a ‘reasonable child of a certain age” Inexperience is not an excuse-excepted to behave as a reasonable competent and skilled person > the doctor’s lack of experience is not an excuse Importance of “but for” > often used for an act (if it was not for… there would be…)

McGhee vs national coal board 1972: Facts = no shower facilities to wash off coal residue, had to cycle home > dermatitis only due to kiln exposure? Decision = risk of harm materially increased by lack of facilities + cycle home Material risk = material contribution to damage, no, but for action on the part of the defendant needed

Barnett vs Chelsea & Kensington hospital management committee Facts = 3 men arrive at hospital with stomach pains. Dr Barnejee, unwell, told them to go home. 1 man died later (arsenic poisoning) Decision = hospital had been negligent but not cause death > arsenic poisoning (pas detectable avant de nombreuses analyses)

Causation = the fact you can prove a legal action that is reprehensible Bolam vs friern hospital management 1957 Facts = voluntary patient underwent electroconvulsive therapy and was injured as a consequence Decision = if a doctor reaches the standard of a responsible body of medical opinion he is not negligent. But this doesn’t justify stubbornness in the face of proven contradictory evidence to current medical knowledge.

Bolitho vs city and hackney health authority 1997 Sick child not seen by doctors, delay in intubation leads to brain damage and death. The defendants argued bolam 1957, that the decision not to have intubated him earlier could be confirmed by a reliable and respectable body of opinion. Decision = on the facts, not intubating the child in the particular circumstances

Fairchild vs glenhaven funeral services ltd 2002

Remoteness Scott vs shepherd 1773 Larrikin throws a lit firework into a crowd, passed quickly around before exploding in plaintiff’s face Decision = intermediaries But = not direct harm > indirect liability

Torts: nuisance, defamation, remedy, tort in French law Nuisance = things that affect us: used in 3 ways -activity or condition that is harmful or annoying to others (example – indecent conduct, a rubbish heap or a smoking chimney) -to describe the harm caused -a legal liability that arises from the combination of the 2 Law designed to stop bothersome activities interfering with public and private rights Nuisance is not a crime

Jones vs Powell 1675: Brewery ‘stink’ damages private papers Claim under nuisance tort rejected because “it is better that they should be spoiled than that the common wealth stand in need of good liquor” (justice whitelocke). At that time England was in short of water, so drinking liquor was better.

Rylands vs Fletcher 1878 Rylands’ subcontractors build reservoir that later flood sunken mineshafts in neighboring property causing £931 damage. Who is liable: Rylands or subcontractors? Decision: “we think that the true rule of law is “that the person who for his own purposes brings on his land and collects and keep their anything likely to do mischief if it escapes, must keep it at his peril, and, if he doesn’t do so, his primer facie unsorable for all the damage which is the natural consequence of its escape” But for act is at bringing it, there no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief, may accrue, or answer for the natural and anticipated consequence. And upon authority this we think is established to be the law, whether the things so brought be beasts our water, our fields…

Implications For his own purposes brings onto land and collects and keeps there accumulation of sewage not for benefit Likely to do mischief if it escapes None natural use some special use bringing with it increased danger to others Damages for land or interest in land not people or property – implications for environmental protection Environmental protection act 1990

See also burnie port authority vs general jones pty ltd 1994

Defamation: Tarnishing someone’s reputation making accusation against somebody, without evidence Slander = spoken Libel = printed Protection for freedom of speech exist: European convention on H.RT art10 First amendment of US constitution

McDonald’s vs Morris & Steel 1986-2005 What’s wrong with MD? Everything they don’t want you to know. The leading allegations: -is complicit in Third World starvation -buys from greedy rulers and elites and practices economic imperialism -wastes vast quantities of grain and water -destroys rainforests with poisons and colonial invasions -sells unhealthy; addictive junk food -alters in foods with artificial chemistry -exploits children with its advertising -is responsible for torture and murder of animals -poisons customers Greenpeace published the text with allegations against McDonald’s. Greenpeace was sued for defamation by a writ. Steel and Morris were members of Greenpeace, they refused to apologize for the allegations 1995 = McDonald’s won 1st case for legal damages

2004 = McDonald’s gained again symbolically (appeal the European court because they weren’t supported by the English law system)

Tort in French law “loi praetorienne” Code civil art 1382 ‘ tout fait quelconque de l’homme qui cause à autrui un dommage, oblige celui par la faute duquel il est arrive, à le réparer’ Art 1383 : chacun est responsable du dommage qu’il a causé, non seulement par son fait mais aussi encore par sa négligence ou par son impudence Art 1384 : on est responsable non seulement du dommage que l’on cause par son propre fait, mais encore de celui qui est causé par le fait des personnes dont on doit répondre, ou des choses que l’on a sous sa garde

General principles: Cause link (lien de causalité) between behaviour and loss needs to be established Une cause étrangère – when causal link is too remote (encompasses force majeure and contributory negligence) A fait must be illicit (illegal) either of criminal law or violation of la “sagesse moyenne” (normal reason) Abus de droit was behavior only to cause defendant loss? (case clement bayard, 1915) > abusing the right to sue somebody on purpose

LABOR LAW|

From master and servant to employer and employee (background; employment contracts; rights and condition)

Why labor law? Rights v costs = needs of enterprise vs needs of workers Reflection an evolving society: * ERA (1996): employment rights act * SDA (1986) + equality act 2010: sexual discrimination act = should get equal pay * RRA (1976): race relations act * DDA (1994): disability discrimination act * HASAWA (1974): health and safety at work act

"The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the 'contract of employment'. The main object of labor law has been, and... will always be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship."

Labor law redresses the unfair position between an employer and an employee.

MASTER AND SERVANTS ACT 1823 “The better regulations of servants, laborers and work people” * Requires obedience and loyalty * Infringements are punishable by hard labor No right to vote, although there was a parliamentary system

Ex: 1 hour unjustified absence – treadmill, prison. In 1835: 25% of New South Wales (Oz) prisoners accused of leaving place of work without permission, found in a hotel

Modified in 1867 aggravated breaches (injury to person or property). “In one year alone, 1864, the last return given, under the Master and Servants Act, 10, 246 working men were imprisoned at the suit of their masters – not one master at the suit of the men”. Used to keep trade unions illegal for : “restraint of trade”. Luddite = secret group in society thinking that machines were the enemy of humanity

1902 mod. 3 months term for absence from work, up to £10 for reemployment of servant who didn’t meet terms of contract.

Charged with vagrancy = no mean to support yourself. If you didn’t work > danger for the society.

TRADE UNION ACT 1871 S2 : purposes of trade unions should not be deemed unlawful to make any member liable for criminal prosecution Section 3: said ‘restraint of trade’ doctrine not make any trade union agreements void or voidable Section 4: stated that any trade union agreements were not directly enforceable or subject to claims for damages for breach (courts don’t interfere) Section 6: system of voluntary registration, members can access the financial records of the union But picketing is illegal = Revised trade union and relations act 1974.

Why unions in the 19th? * Ordinance of laborers 1394 Collective bargaining banned, fixed costs, everyone under the age of 60 must work. “they are sluggish, they are scarce, and they are grasping. For the very little they do they demand the highest pay” * Industrialization, urbanization, need for protection > people joined unions because they could have: * Benefits to members: provided benefits like health and employment insurance pensions and funeral expenses * Collective bargaining = negotiated collectively over wages and working conditions. Everybody gets the same conditions, even if some don’t want. * Industrial action = enforced strikes or resistance to lockouts * Political activity = promoted legislations favorable to members or workers

“We rarely hear, it has been said, of the combination of masters, though frequently of those of workmen. But whoever imagines, upon this account that masters rarely combine, is as ignorant of the world as of the subject. Masters are always and everywhere in a sort of tacit, but constant and uniform combination, not to raise the wages of labor above their actual rate. When workers combine, masters never cease to call aloud for the assistance of the civil magistrate, and the rigorous execution of those laws which have been enacted with so much severity against the combination of servants, laborers and journeymen” (Smith).

Employment contracts * Universal principles = rights and obligations in contract * In UK there are 3 types of contracts : * contract of employment / contract of service (employee) * contract of services (freelance) * mutuality of obligation: (McKenna) “There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill”.

O’Kelly v Trusthouse Forte place 1983 (mutual obligation) Fact: waiters hired for dinner service – no obligation to turn up or to be called, dismissed when trying to form a union Decision: not ‘employees’ because of no mutual obligation / cannot form a union (are self-employed) Consequences for agency workers

Nethermere ltd v. Gardiner 1984: contract of service or services? Case: Ms Taverna & Ms Gardiner sew using company equipement from home, worked fixed hours, paid per piece but not holiday pay Decision: no evidence of it being piece of work (time sheets kept); work could be refused; work accepted had to be completed So = contract of services

Employment rights act * Covers most British workers * Clarifies : contract of service(s) and mutual obligations * Covers = minimum wage and working hours, fair notice, time off and forms of payments (redundancy, lost earnings or compensation) * Establishes fair and unfair dismissal conditions

Fair dismissal section 94 (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do (b) relates to the conduct of the employee (ba) is retirement of the employee (c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (e) s98 (‘1)

the employment contract is a written statement of particulars: * must comply with existing race, sex and other discrimination legislation * your name and your employer’s name * your job title or a brief job description * the date when your employment began * your pay rate and when you will be paid * your hours of work * your holiday entitlement * where you will be working (if you’re based un more than one place it should say this along with your employer’s address)

Written statement of particulars: * sick pay arrangements * notice periods (préavis) * information about disciplinary and grievance procedures * any collective agreements that effect your employment terms or conditions * pensions and pension schemes * if you are not a permanent employee how long your employment is expected to continue or if you are a fixed term worker the date your employment will end * can provide evidence that at breach has occurred

basic rights of UK employees * minimum wage £4.50 working week 48h max * equal pay act 1970 (and amendment 2003) * equitable pay with comparator * equal pay for work of equal value * objective justification for difference * health and safety at work act 1974 * duty of care to preserve mental and physical health of workers * rehabilitation of offenders act 1974

* discrimination on grounds of criminal record unlawful * requirement to disclose criminal offenses if occupation * sex discrimination act 1975 (and amendments 1986, 2001) * direct and indirect discrimination definitions

* positive action * genuine occupational qualification * race relations Act 1976 (and amendment 2000) * direct and indirect discrimination definitions * positive action * genuine occupational qualification * trade union and labor relations (consolidation) act 1992 * time off for TU members and officials * information for collective bargaining purposes * consultation over redundancies * right not to be victimized for becoming or not becoming a TU member * right not to be unfairly dismissed for being a TU member * closed shop unfair * internal union affairs: discipline, secret ballot, members rights * legal status of collective agreement * lawful industrial action * disability discrimination act 1995 (and amendment 2003) * discrimination unlawful * definition of disability * reasonable accommodation/adjustments * asylum and immigration act 1996 * duty to check employee’s eligibility to work in the UK * work permit regulations * employment rights act 1996 confers rights to : * statement of employment particulars, pay statement * protection of wages * protection from suffering detriment in employment * time off work for public duties to look for work and training (in redundancy situations) * ante-natal care, employee reps

* suspension from work on medical and maternity grounds * maternity rights * termination of employment notice periods, written reasons for dismissal * not be unfairly dismissed and remedies * redundancy provisions and payments * human rights act 1998 confers rights to: * a fair trial (natural justice) * privacy and family life * freedom of thought, conscience and religion * freedom of expression * freedom of assembly and association

Time off rights: * maternity leaves: 52 weeks (24 in France) paid leave (first 6 weeks at 90% of pay then fixed rates £123.06) * paternity leave: 2 weeks at fixed rate + possibility to apply for up to 4 weeks unpaid * sick leave: SSP (statutory sick pay) paid for more than 4 days less than 28 weeks sick * also have the right to request flexi-time

Payments: * redundancy (indemnités de licenciement) payments – s.155 must have worked at least 2 years for employer: * each year: under 21 – 1/2 week’s pay ; 21-40 – 1 week’s pay; 40-65 – 1.5 week’s pay (pour chaque année de travail dans la tranche d’age est payé x*400£gross => travail de 10 ans entre 21-40 > 10*400 = 4000£ ; 1 an sous 21 alors 200£) * no if you are over 65 or fairly dismissed

* lost earnings compensation: s.182 determined of company become insolvent

Other rights: * paid time off 1. for public service (volunteer in an emergency, jury duty) 2. ante-natal and post-natal care 3. training

* protected from detriment (whistleblowing) * if dismissed due to health or safety issues

unfair dismissal test 1. was the dismissal for a fair reason? And if the dismissal was for a fair reason, so… 2. was the dismissal dealt with fairly? This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which it was handled was unfair and so an unfair dismissal claim can be made

(a) capability this is split into several areas * qualifications – does the employee have the necessary qualifications for the job and is a particular qualification actually needed for this type of job? * Incompetence – this can be repeated incompetence or a very serious individual incident, but was the employee trained, were warnings given? * Health – an employee who is genuinely ill on a regular basis, what was the illness, how long would the…

(b) Conduct * Theft * corruption including taking bribes * being drunk at work * taking drugs at work * leaking confidential documents or information * constantly late for work * unsuitable conduct outside work hours that has an impact on the employee’s job * even telling your employer exactly what you think of them * being absent on a regular basis * taking holidays without informing your employer the employer doesn’t need absolute proof in a case of dishonesty, but there must be strong evidence of the dishonesty for them to dismiss an employee

(c) redundancy

The employer must have a fair procedure for selecting who is going to be made redundant. Once the method has been decided upon the employer must stick to it. An employer cannot select an employee for redundancy if it is based upon one of the unfair dismissal exceptions

(d) breaking the law for example a foreign worker whose work permit has expired, to continue to employ them would break the immigration laws. The employer should check whether the situation can be made legal before dismissing the employee

(e) Any other reasons You can lose your job if you refuse to accept a company’s reorganization (use of computers)

Fairness of procedures = employer and employee have rights. The employee can be accompanied to defend himself. * Warnings, evidence, right to appeal, treating everybody equally…

Unfair dismissal exceptions: Exceptions to the 1 year continuous employment are where the dismissal is for one of the following reasons: * Trade unions activities * Belonging to a TU * Refusing to join TU * Dismissal linked to pregnancy and maternity rights * For refusing to work on Sundays * Discrimination (sex, age, race) * Dismissal o an employee observing health and safety rights * Dismissal relating to the working time regulations * You can be fired if you’re a member of union, or helping employees Chief Justice Adams => the highest judge rankThe Supreme Court USThe US Constitution limits the rights of people and the rights of the state. 3 branches of the US government = legislative + executive + judiciary = act at counterbalance.

Thomas Jefferson = father of the republican partyFederalists = John Marshall (chief justice)+ George Washington + John Adams1801 : presidential election > Jefferson/AdamsAdams (second president:

1797-1801) appointed to life judges and a justice of peace (sheriff) in political positions to protect his power few days before the end of his mandate. Jefferson came into power Under Jefferson => Madison v. Marbury > the concept of judicial review = courts may oversee and nullify the actions of another branch of governmentRoe v. Wade > abortion|