Scots Law Law of Contract

Document Sample
Scots Law Law of Contract Powered By Docstoc
        Unit 2
   1.   Source of law
   2.   English law
   3.   Common law: history
   4.   Common law vs. Civil law
   4.   Equity: history
   5.   Statute law: history
   6.   EU law: sources
   7.   Legal terms
   8.   Exercises
                Source of law
                 (fons iuris)
   Something (such as a constitution, treaty,
    statute, or custom) that provides authority
    for legislation and for judicial decisions
   A point of origin for law or legal analysis
               Great Britain
   England, Scotland and Wales
   1536 Wales united with England
   1707 Scotland united with the Treaty of
          The United Kingdom
   1800 Act of Union uniting politically Great
    Britain and Ireland: United Kingdom of
    Great Britain and Ireland
   1922 Irish Free State
   1927 the name United Kingdom of Great
    Britain and Northern Ireland adopted by
    act of Parliament (UK)
                English law
   The law of England, Wales and Northern
    Ireland – very similar; the Scots law –
    quite different
   The separate evolution of the two legal
    systems, both before and after the Union,
    has resulted in different principles,
    institutions and traditions
   Scots law – based on Roman law
        Sources of English law
   Common law
   (Equity)
   Statute law
   EU law
            History of English law:
     The pre-Norman period (before 1066)
   Based on ancient customs and traditions
   Medieval states and their legal systems –
   Local customs varied from community to
    community and were enforced in an
    arbitrary fashion
    The pre-Norman period (before
   Courts – informal public assemblies that
    considered conflicting claims in a case;
    trial by ordeal (e.g. snatching a stone
    from a boiling water or carrying a red-hot
    iron); trial by battle (legal until 1819)
    William the Conqueror (1027?-87)
   1066 Battle of Hastings
   Established Curia Regis (King‟s Court) – an
    instrument to govern the country and a
    court for deciding disputes
   The king would sit on a bench to hear
    cases – on of the most important courts:
    the Court of King‟s Bench;
           The Reign of Henry II
   1154 Henry II became the first
    Plantagenet king
   First ruler powerful enough to centralize
    the country and its laws against the
    opposition of local barons
                  Henry II
   By the Grace of God, King of the English
    and Duke of the Normans and Aquitanians
    and Count of the Angevins
          The Reign of Henry II
   King of England, Duke of Normandy, the
    ruler of all western France
   Medieval England: a polyglot community
    (English, French, Latin, Gaelic)
     Henry II and the English Legal
   Institutionalized common law by creating
    a unified system of law common to the
   The central royal court whose decisions
    provided precedents to be followed in the
    Henry II and the English Legal
 Judicial functions = legislative
 Established Royal Magistrate courts to
  adjudicate in local disputes
 Introduced a jury system (witnesses
  of an event); trial by jury
                   Henry II
   18 judges: 5 remained in London and took
    over the King‟s task of deciding cases: the
    King‟s Bench of Judges (Westminster)
   remaining judges – sent out on circuits to
    travel the country – had to apply the laws
    that had been made by the judges at
    Westminster: local laws replaced by
    national laws that would apply to all:
    common law
       “From time immemorial”
   In reign of Edward I (1272-1307)
    Parliament decided that „legal memory‟
    should run from the date of Henry‟s death
   Courts would take no account of any legal
    transactions which had taken place before
              Assize system
   Survived for 800 years (until 1971)
   Judges applied national laws, but would
    not ignore customs of the region
   If they approved they would accept them
    as law and carried them to other parts of
    the country
       Common Law: Definition
   The body of law derived from judicial
    decisions, rather than from statutes
    or constitutions; a native product of
    Britain („judge-made law‟)
              Common Law
   The legal system of Australia, Canada
    (except Quebec), England and Wales,
    Ghana, Hong Kong, India, Jamaica,
    Malaysia, New Zealand, Pakistan, the
    Republic of Ireland, Singapore, Sri Lanka,
    Tanzania, the USA (except Louisiana), the
    Bahamas, Zambia
            Civil Law: Definition
       (ius civile = law of the state)
   One of the two prominent legal systems in
    the Western World, originally adminstered
    in the Roman Empire and still influential in
    continental Europe, Latin America,
    Scotland, and Louisiana
   The most influential modern civil code –
    Napoleonic Code (egalitarian ideals of the
    French Revolution; the law should be
    accessible to all)
    The Common Law and the Civil
   Common law: unwritten = unenacted
    (=not passed by the Parliament, but
    created by courts); inductive principle
   Civil law: written = enacted (= passed by
    the Parliament); deductive principle
    Common Law = Judge-Made Law
   “There was a time when it was thought
    almost indecent to suggest that judges
    make law . They only declare it. Those
    with a taste for fairy tales seem to have
    thought that in some Aladdin‟s cave there
    is hidden the Common Law in all its
    splendour and that on a judge‟s
    appointment there descends on him
    knowledge of the magic words Open
    Sesame. ..
    Common law- judge-made law
   Bad decisions are given when the judge
    has muddled the password and the wrong
    door opens. But we do not believe in fairy
    tales any more. So we must accept the
    fact that for better or worse judges do
    make law, and tackle the question how do
    they approach their task and how should
    they approach it” (B. Cardozo, 1972)
            Equity: Definition
   1. fairness, impartiality
   2. the body of principles constituting what
    is fair and right; natural law
   3. the recourse to principles of justice to
    correct or supplement the law as applied
    to particular circumstances
   4. The system of law or body of principles
    originating in the English Court of
               Equity: History
   No hierarchy of courts
   Dissatisfied litigants could only petition the
    King in person (judicial function)
   Judicial functions – delegated to Lord
    Chancellor, originally the King‟s confessor
    and thus “a keeper of the King‟s
           Equity: History
 The function of the Lord Chancellor
  evolved into that of the highest
  judge; dealt only with civil disputes
  (property, contracts)
 Thomas More (1478-1535) - the first
  lawyer by profession to hold that
     Lord Chancellor and Chancery
   The function of the Lord Chancellor: to
    ensure fairness and justice if it was not
    provided by a common law court
   A system of chancery courts developed
    that administered equity
   Courts of common law – often in conflict
    with chancery courts
           Court of Chancery
   Conditions a person seeking justice had to
   1) he had to show that he could not
    receive justice in the common law courts
   2) had to show that he was without blame
    („coming to court with clean hands‟)
   Had to show he had not delayed in
    bringing the case before the court
       Equity and Common Law
   At first – no rules of equity; entirely based
    on Lord Chancellor‟s conscience
   Gradually equity evolved rules of its own,
    became closer to common law
   1873 The Judicature Act „merged‟ common
    law and equity
                Statute Law
   Originally created by the monarch
   By 13th c. gradually made through royal
    orders in response to petitions from the
   Parliament became the legislating
    authority because of its growing power
    against the monarch
            Modern Statutes
   Modern statutes – 19th and 20th c.
   Statutes – Acts of Parliament, created
    after a bill has been accepted by both
    Houses of the Parliament and signed by
    the monarch
   Supreme over all other forms of domestic
    Statute law vs. Common law
   Judges interpret statutes and thus create
    new precedents
   Interpretation: literal meaning or purpose?
         McBoyle vs. US (1930)
   The petitioner – convicted of transporting a
    stolen vehicle across state lines in contravention
    of the National Motor Vehicle Theft Act (1919)
   Section 2. of the Act defined a motor vehicle as
    including “an automobile, automobile truck,
    automobile wagon, motorcycle, or any other
    self-propelled vehicle not designed for running
    on rails...”
         McBoyle vs. US (1930)
   The short point was whether an aircraft fell
    within the statutory definition of a vehicle
   On its natural reading, the definition seemed to
    contemplate that a vehicle ran on the land and,
    whilst the phrase “any other self-propelled
    vehicle” might have been seized upon to widen
    the definition, the court declined to take this
    opening. The offence, therefore, had not been
            Sources of EU Law
   Primary: the Treaties
   Secondary:
   1. Regulations – binding in their entirety and
    directly applicable in all the Member States
   2. Decisions: binding on those to whom they are
   3. Directives: binding upon each Member State
    to which they are addressed; methods left to the
    Member States
                Legal terms
   Zakon
   Law
   statute
   Act of Parliament (bill=prijedlog zakona)
   Legislation (= zakonodavstvo; zakoni)
                Legal terms
   Equity= pravičnost; pravosudni sustav koji
    stvaraju suci (različit od common law), a
    zasniva se na načelu pravičnosti
   Legal remedy
   Pravni lijek
               Legal terms
   Common law
   A general system of law deriving
    exclusively from court decisions
   Englesko opće pravo (ne postoje propisani
    izvori prava), pravo koje ne potječe od
    zakonodavnih tijela već sudsko pravo,
    precedentno pravo; pravo čiji je primarni
    izvor u sudskim presudama
                Legal terms
   Precedent
   A judgement or decision of a court,
    normally recorded in a law report, used as
    an authority for reaching the same
    decision in subsequent cases
                Legal terms
   Public law
   The part of law that deals with the
    constitution and functions of the organs of
    central and local government, the
    realtionship between individuals and the
    state, and relationships between
    individuals that are of direct concern to
    the state
        Legal terms: Public law
   Constitutional law
   Administrative law
   Tax law
   Criminal law
     Legal terms: public civil law
      = javno građansko pravo
 Constitutional law
= ustavno pravo
Administrative law
= upravno pravo
Revenue law
= financijsko pravo
             Private civil law
       = privatno građansko pravo
   Law of contract
   = ugovorno pravo, obvezno pravo
   Law of tort
   = odštetno pravo
   Family law
   = obiteljsko pravo
              Legal terms
   Contract
   = ugovor
   Treaty
   = međunarodni ugovor
                Legal terms
   Substantive law
   = materijalno pravo, pozitivno pravo
   Procedural law
   = procesno pravo, postupovno pravo
            The sources of law
   Match these sources of law with the
    descriptions below:
   Common law
   Napoleonic Code
   Roman law
   The Ten Commandments
               Exercise (cont.)
   _____, which evolved in the 8th century BC, was
    still largely a blend of custom and interpretation
    by magistrates of the will of the gods.
   _____formed the basis of all Israelite legislation.
    They can also be found in the laws of other
    ancient peoples.
   _____refers to the entire body of French law,
    contained in five codes dealing with civil,
    commercial, and criminal law.
             Exercise (cont.)
   ______evolved from the tribal and local
    laws in England. It began with common
    customs, but over time it involved the
    courts in law-making that was responsive
    to changes in society. In this way the
    Anglo-Norman rulers created a system of
    centralized courts that operated under a
    single set of laws that replaced the rules
    laid down by earlier societies.
              EXERCISE 2
   Are the following sentences about the
    sources of law true or false?
   1. The Ten Commandments are based on
    moral standards of behaviour.
               True or false?
   2. In common law, judges resolve disputes
    by referring to statutory principles arrived
    at in advance.
   3. Roman law is based on the principle of
    deciding cases by reference to previous
    judicial decisions, rather than to written
    statutes draftred by legislative bodies.
               True or false?
   The Napoleonic Code was introduced into
    a number of European countries, notably
    Belgium, where it is still in force. It also
    became the model for the civil codes of
    Quebec Province in Canada, the
    Netherlands, Italy, Spain, some Latin
    American republics, and the state of
           Additional sources
   UK case reports:
   UK Parliament and legislative process:
   Legislation around the world:

Shared By:
Description: Scots Law Law of Contract document sample