Guide The Common Law

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Common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of "common law" is that it arises as precedent.
Table of contents

The adverse economic impact of these events must not only be exceptional but beyond all limits foreseen by the contract. Unpredictable and uncontrollable events that render the performance of the contract materially impossible exonerate the operator from its obligations.

For example, a spill from a chemical factory causing permanent pollution of the only water source would be considered force majeure. Natural phenomena such as hurricanes and droughts may also be considered force majeure.

The origin of the common law

Where there is a contractual commitment on the Operator to pay a penalty in the case of default and the amount is fixed by contract, under French law a judge may reduce or increase the amount of penalties as long as it is not reduced below the actual damage suffered. Similar concepts exist in Mali, Tunisia and Algeria, for example.

Under the French tax code article quarter gross-up clauses related to indemnification of withholding taxes on interest are not to be binding on French tax administration when the debtor is a French entity. In Common law jurisdictions, such as England and the US, the emphasis when a business gets into financial trouble is on seeking a reorganization rather than a liquidation to keep the business as a going concern eg US, Chapter 11, UK administration.

In Civil law jurisdictions the process focuses on liquidation although reform of some bankruptcy laws such as France and OHADA countries is now permitting reorganizations of debtors before they become insolvent. Common law systems have greater flexibility in granting different types of security over assets - an important feature of PPP arrangements involving commercial funding such as BOTs.

They also have the concept of trusts, which enable security interests to be held by a trustee for lenders in a syndicated loan situation without the need for formal transfer or re-registering of security interests in names of new lenders. Civil law does not have such a concept and so security interests generally required to be re-registered in the name of the new lender involving additional registration costs and notarial fees. France is in the process of introducing a trust law which will resolve a number of these issues.

In OHADA countries, however, filings involving public notary are required for formalizing security interests. Search Search. Features of a common law system include: There is not always a written constitution or codified laws; Judicial decisions are binding — decisions of the highest court can generally only be overturned by that same court or through legislation; Extensive freedom of contract - few provisions are implied into the contract by law although provisions seeking to protect private consumers may be implied ; Generally, everything is permitted that is not expressly prohibited by law.

Features of a civil law system include: There is generally a written constitution based on specific codes e. Right of unilateral cancellation The contracting authority has the right to cancel the contract early although it must compensate the operator. Right to continuity of service The operator in an administrative contract may not suspend the execution of its obligations under the contract, even if the contracting authority breaches the contract. Force majeure Unpredictable and uncontrollable events that render the performance of the contract materially impossible exonerate the operator from its obligations.

Gross-up clauses Under the French tax code article quarter gross-up clauses related to indemnification of withholding taxes on interest are not to be binding on French tax administration when the debtor is a French entity. Bankruptcy In Common law jurisdictions, such as England and the US, the emphasis when a business gets into financial trouble is on seeking a reorganization rather than a liquidation to keep the business as a going concern eg US, Chapter 11, UK administration.

Security interests and syndicated loans Common law systems have greater flexibility in granting different types of security over assets - an important feature of PPP arrangements involving commercial funding such as BOTs. Significant influence in some civil law jurisdictions. Subject Reference. English Dictionaries. Bilingual Dictionaries. Highlight search term Print Email.

Administrative Law Matters

Subscriber sign in. Forgot password? Don't have an account? Sign in via your Institution. Sign in with your library card. Show Summary Details Overview common law. Subjects: Law. Johnson , [59] decided in by the federal appeals court for New York and several neighboring states , the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and 'dozy' wood, quite insufficient for its purposes.

However, held the Cadillac court, "one who manufactures articles dangerous only if defectively made, or installed, e. Finally, in the famous case of MacPherson v. Buick Motor Co.

The facts were almost identical to Cadillac a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:. It may be that Statler v.


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If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold Devlin v. Smith, supra is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed.

Common law

A large coffee urn Statler v. What is true of the coffee urn is equally true of bottles of aerated water Torgesen v. Schultz, N. We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal.

Common Law 2012 S01E11 HD

In Burke v. Ireland 26 App. Otis Elevator Co. Pelham Hod Elevating Co. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought. We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.

Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.

The Common Law in the Supreme Court | Hoover Institution

There must be knowledge of a danger, not merely possible, but probable. Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger".

MacPherson takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of Winterbottom , that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable.

Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing. The example of the evolution of the law of negligence in the preceding paragraphs illustrates two crucial principles: a The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years.

This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes. All law systems rely on written publication of the law, [61] so that it is accessible to all. Common law decisions are published in law reports for use by lawyers, courts and the general public.

After the American Revolution, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law. West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States.

Government publishers typically issue only decisions "in the raw," while private sector publishers often add indexing, editorial analysis, and similar finding aids. In common law legal systems, the common law is crucial to understanding almost all important areas of law. For example, in England and Wales , in English Canada, and in most states of the United States , the basic law of contracts , torts and property do not exist in statute, but only in common law though there may be isolated modifications enacted by statute.

As another example, the Supreme Court of the United States in , [63] held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage , because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law. In almost all areas of the law even those where there is a statutory framework, such as contracts for the sale of goods, [64] or the criminal law , [65] legislature-enacted statutes generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the interstitial common law.

To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. In common law jurisdictions in the sense opposed to "civil law" , legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law. For example, in most U.