It is the appellate court whose status makes it a

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detailed judgment. It is the appellate court whose status makes it a likely source of precedents. It is the appellate court whose judgments tend to be published. Nonetheless, the occasional ruling by a trial judge (judge of first instance) as to a legal issue raised by a party will be reported and will be influential. This is more likely where the issue is a novel one, is the subject of detailed argument and the judge (often after ruling on the matter) goes away and writes a detailed statement of his or her reasons for ruling as he or she did. The ratio/obiter dictum division sounds fine in theory. In practice the division is not so watertight between binding and non-binding parts of a judgment. First, the identification of what the ratio is, or the rationes are, may not always be clear. The law is a verbal discipline; judgments are verbal acts. Language is notoriously imprecise. One obvious problem in conceiving the precise ratio, for example, is in deciding the appropriate level of generality to be aimed at in stating it. For example, in the case of Donoghue v Stevenson [1932] AC 562, above, the House of Lords decided that (subject to proof of negligence in fact) the manufacturer of a soft drink owed a duty of care to the ultimate consumer to supply products in a safe state. What exactly was the ratio of this case (or main ratio, if there were several)? At one extreme it was that there is a tort of negligence of general ambit, rendering liable persons breaching a duty of care owed to others. At the opposite extreme it was that bottlers of ginger beer containing toxic matter are liable in damages to the ultimate consumer where he or she is injured. A variety of intermediate conceptions of the ratio are possible. Or perhaps, the better view is that there were a considerable number of rationes in the case. liv
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY Second, the determination of what exactly the ratio is or the rationes are will be rendered more difficult where (as is typically the case with appellate courts) there are several judgments each written by an individual judge, and containing different reasoning, even as they may arrive at the same conclusion. Third, in practice the courts and lawyers do not often go to the trouble of drawing a line between ratio and obiter dictum . If, say, the High Court states the law to be such-and-such on a given topic, the subordinate courts will tend to treat this statement as expressing the law and apply it, even as some parts of it will be obiter dicta . Quite simply, it is a statement of the law by a superior court. Fourth, there are numerous devices for evading an unwelcome or unwanted ratio decidendi and this may be a reason why the ratio/obiter dictum classification, one difficult to make often enough, becomes less significant in practice.
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