test 3 Notes 1

test 3 Notes 1 - The Common Law System in the United States...

Info iconThis preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
The Common Law System in the United States and the Law of Contracts A. The Basis of Common Law As a general rule, common law adheres to precedent. Once a case has been decided, all subsequent cases should follow its rule. Precedent is commonly considered one of the basic concepts of the common law . The culture of common law shied away from formal, overt abolition of obsolete doctrines and institutions. Legal evolution sometimes took the form of shortcuts called legal fictions . The rise of the action of ejectment is a famous example: Suppose two men are fighting over title to a piece of land. Brown has possession, but black has a claim to it. Each thinks he is the rightful owner. Medieval common law had a form of trial that could resolve the dispute, but it was torturous and heavy handed. Ejectment was a way around it. In ejectment , the pleadings papers filed in court (to make each sides argument) would tell a rather odd story. The common law was not man-made in the ordinary sense; the judges uncovered the law (or found it); they did not make it, or tamper with it as it was found. The classic common law was utterly obsessed by the central topics: formal legal process and the law relating to the land. Local and customary law had important influence on the law of early America. Equity had power over persons, not over things. It could render judgment that actually affected the title to the land. Equity was closer to continental law and to canon law. No jury ever sat in a chancery court. The jury was purely a common law institution. Many familiar doctrinism and some whole branches of law, such as the law of trust, grew up out of equity rules and equity practices. From the late 15 th century into the early 18 th century, open and bitter conflict broke out between equity and law. In the 19 th century, equity and law finally “merged” in most of the US. This meant, there would no longer be separate courts. Where rules of law and equity collided, equity usually won. B. The Special Laws: Commercial Law, Admiralty, Canon Law
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
English law and practice recognized the merchant’s way of doing business. English law learned to handle the documents from which modern checks, notes, bills of exchange, and bills of lading are descended. Eventually the ordinary courts absorbed the law merchants into common law . A final key figure in this development was Lord Mansfield, who died in 1793. He was deeply versed in Roman and Continental law , had a sure touch for commercial cases. Admiralty , the law of the high seas and maritime commerce, was another “rival” of the common law . As early as the 16 th century, the English court of admiralty came into conflict with the common-law courts. The
Background image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

Page1 / 11

test 3 Notes 1 - The Common Law System in the United States...

This preview shows document pages 1 - 3. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online