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 lawIt 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 IMMEMORIALTime 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 604All 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 rightIn 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 aredependent 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 BecketHenry 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 justicesRoyal 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 juriesThese 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 thepresenting 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 SystemCommon 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 precedentCommon 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 decisisThere 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 notunworthy 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* EquityEquity 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 EQUITYThe 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


ORIGINS: LE DROIT ANCIENThere 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 theHispano-Roman and Gallo-Roman population living under Visigoth rule south of the Loire.

* Germanic lawIt 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 1789The 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 FranceIt 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 ofproperty (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-ToursCharles 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.


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 1789Distinction 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 LAWThey 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


“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 BACKGROUNDLex 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 (meetingof 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”.

OFFERSOffers 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.|


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.

ACCEPTANCEOfferee (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 depositedMrs carill gets influenza18/01/1891Was it a real contract?

Judgment:Offer is unilateralUsing it correctly is acceptanceUsing it is considerationDeposit 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 bargain