Questions tagged [common-law]

For questions regarding English common law, or legal systems based on judge-made law descended from it.

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247 views

Picking fruit that overhangs public property

Today I was eating plums from a tree growing on private property, which I picked from branches overhanging the public highway. A passing cyclist said "That is scrumping" and I replied "...
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4 votes
1 answer
78 views

Statutory Interpretation in Civil-Legal Systems?

There are several Statutory Interpretation rules which judges within the United Kingdom must follow when trying criminal cases under the Common Law system. These rules are used to prevent laws from ...
0 votes
3 answers
50 views

When is evidence deemed adduced in bench (judge-alone) criminal trials?

Background This question is answered easily for jury trials: something is put in evidence ("adduced") when the jury hears / sees it and there is no direction from the judge to disregard it. ...
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0 votes
1 answer
53 views

How when and why were the chancery and common law courts merged?

What had previously been the respective roles of each? Was chancery court system the last one to finally be subsumed by the common law courts? What social and political forces drove this change and ...
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1 vote
1 answer
65 views

What is the history of minors being unable to bind themselves to contracts?

What was the first jurisdiction that had special rules for contracts to which a person under a certain age is a party? How did the modern concept that people under 18 can back out of contracts except ...
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-1 votes
1 answer
31 views

Does the phrase exclusive possession actually denote a covenant or "implied term" of tenancies which landlords must respect, as is often claimed?

Or is it more a taxonomical device used to deduce as to whether or not a given agreement for accommodation is legally to be deemed a tenancy? In other words, considering the following quotation from ...
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1 vote
2 answers
56 views

Is there consideration if one item is given from someone who doesn't want it to someone who does?

Suppose I have an old refrigerator that no longer works. I don't want it, and would pay someone to take it; its value to me is negative. But my neighbor has an appliance repair company. My ...
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1 vote
3 answers
74 views

Hypothetical invoving the Felony Murder rule and a violent crime intermeddled-upon by an un-involved murderer

This is a hypothetical that I encountered in a work of fiction. The work itself wasn't really a story about law and only briefly discussed the possible ramifications, but I thought I would bring it ...
1 vote
1 answer
111 views

What was the mens rea of being a common scold?

The obsolete offence of being a common scold is somewhat quaintly described by Blackstone (IV:13.5.8, p. 169) as Lastly, a common scold, communis rixatrix, (for our law-latin confines it to the ...
0 votes
0 answers
62 views

Common law occupation/"co-tenancy" rights trumping lease restrictions on cohabiting or reassigning?

If I'm not mistaken, under s30, Family Law Act 1996 a tenant's spouse or partner implicitly has the same rights to occupy a dwelling let by the tenant themselves and various illegal eviction rulings ...
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1 vote
1 answer
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Does the doctrine of unlawful ouster apply throughout the common law world?

Like England for example? If so then why do English legal materials speak so much rather of illegal eviction than of unlawful ouster?
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4 votes
4 answers
1k views

Is there ever any consultation between judiciary and legislative draftspeople?

Often one sees judges attempting speculatively to infer legislators' intents by reasoning about their language. Yet nonetheless the objective seems to be to ascertain the legislators' original ...
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2 votes
2 answers
103 views

Does Google have a right to block our app for trademark use?

In a recent app store update, we've included in our description the names of several brands that we support through functionality in our app. Some if not all of these names are trademarked in the ...
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0 votes
1 answer
165 views

What would happen if you staged or hoaxed the commission of a crime?

This was inspired by the title of the following: In a state with the common law definition of theft, can you force a store to take cash by "pretending" to steal? but in this situation, we ...
22 votes
3 answers
6k views

In a state with the common law definition of theft, can you force a store to take cash by "pretending" to steal?

If I understand correctly, (a) under common law, theft requires an intent to permanently deprive the owner, and (b) legal tender only applies to debts, not purchases. B is the reason why stores do not ...
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0 votes
0 answers
36 views

Is (at least) 28 days and a sheriff court order always required to evict a Scottish common law tenant?

The one guaranteed condition is that the tenant does not live with their landlord. Regardless of what the tenancy agreement says, is a court order always required to evict such a common law tenant?
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2 votes
1 answer
144 views

Practically, what prevents judges from ignoring precedent?

This question/answer suggests that the United States' adherence to the common law system is traditional and not mandated by the constitution or federal statute. This makes me wonder what exactly keeps ...
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2 answers
80 views

When do judges have the power to create law and has this power been reduced over time?

If there's no known offence either in directly citable case law, or explicitly defined in legislature-ratified statute, then where can a judge gain the power to define a novel offence on which to ...
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0 votes
1 answer
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What is a slip opinion?

Another answer mentions slip opinions being not yet bound into a volume. Who is it that does this binding, which seems to canonise certain decisions in a certain sense, if only by making them more ...
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1 vote
1 answer
140 views

What are common law cases "lost in the mists of time"?

A respected user writes in another answer: Long-standing precedents whose origins are lost in the mists of time What are these long standing precedents, how are they known, and how can they be ...
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1 vote
0 answers
25 views

What is intermediate between a particular case citation and time immemorial?

What is intermediate between a particular case citation and time immemorial? Often, common law precedents are cited by the cases that established them replete with the exact year of the precedent case....
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3 votes
3 answers
605 views

How do common law concepts like torts get named?

For example, some torts have names that aren't used in other contexts in English and appear to have come in from French for their legal usage's purpose. But what is the origin of the name of trover ...
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0 votes
2 answers
120 views

What's the significance of boxed text in a document?

What is the lawful implication of text enclosed within a (stroked) text box in a document? I have heard this means this text is left out of the contract, or possibly adds an exception to it. I ...
1 vote
1 answer
99 views

Is discussing sexually explicit content in public a crime?

I am curious as to whether there is any prohibition, in England & Wales, on discussing sexual content in public. The public location could include a street outside, or perhaps an office ...
0 votes
2 answers
118 views

"Sentence first, verdict afterwards"?

In Alice in Wonderland, the Queen of Hearts said during a trial, "Sentence first, verdict afterwards." Are there any common law countries where this could be legal? Could the judge say "...
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1 answer
92 views

Is any part of the Magna Carta considered valid US law?

Is any part of the Magna Carta currently considered valid US law?
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1 answer
66 views

Is there any truth in that social security was based on models of either railroad worker or maritime insurance schemes? [closed]

A common law citizen trope which is no doubt in the final analysis completely bogus is that social security was modelled after mandated insurance for ships. David Siegel in another question suggested ...
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2 votes
2 answers
100 views

Judges upholding the rule of law

It's a judge's duty to decide disputes brought to them, but when people say that judges uphold the rule of law, does it mean that it only applies in the sense where judges were to deliver judgment in ...
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3 votes
1 answer
76 views

Sentencing guidelines for Regulation of Investigatory Powers Act 2000 (RIPA)

I have read into section 49 of the Regulation of Investigatory Powers Act 2000 (RIPA) which can demand suspects surrender passwords for encrypted devices, and section 53 makes it an offence not to do ...
13 votes
3 answers
3k views

Do various common law sovereign citizen movement theories have any kernels of basis in fact?

Note: I had seen and reviewed the proposed duplicate/precursor question on freemen of the land but if you read my question a little more carefully you will hopefully see that mine seeks to go deeper ...
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1 vote
1 answer
119 views

Is there civil liability for throwing away someone's property?

Paul rented 123 Main Street. When he moved, Dana moved into 123 Main Street. When she moved in, Dana found a nameplated copy of One Flew Over The Cuckoo's Nest that Paul had left behind. She ...
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1 vote
1 answer
37 views

Summary-only offence time limits

I was reading about Summary only offences here, focusing on the England & Wales jurisdiction, where the general rule is a six months statute of limitations. The general rule for time bars on ...
2 votes
2 answers
75 views

Find case law for Acts of Parliament

I am new to the field of law, focusing on common law (criminal only) in the jurisdiction of England & Wales. I have searched the government legislation website for various acts, in this case the ...
8 votes
2 answers
2k views

Is natural law a type of common law?

Is natural law a type of common law?
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9 votes
1 answer
619 views

What is tort law and how does it differ from civil law?

Is there any difference or overlap between the two? Does one more broadly encompass the other? Are torts defined in statute or do they exist alongside statute in some way more fundamentally and less ...
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8 votes
3 answers
936 views

Strictly speaking, are damages an essential element of breach of contract?

Several resources, including one from an attorney in California and another from an attorney in Arizona state that harm or damages to the non-breaching party is an essential element of a breach of ...
0 votes
2 answers
73 views

Contracting a builder 2nd time to fix their own negligence

Bob contracts Rob, a builder, to do some building work which requires the use of some heavy rare-to-find machinery which Rob owns. Rob mostly does a good job, but in one place he rushes it (end of ...
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-4 votes
1 answer
110 views

Can statutory common law be overruled entirely in the U.S. in jurisprudence? [closed]

Magna Carta chapter 28 (King John’s c 38) basically provides for a plurality of law-worthy, credible and trustworthy witnesses for one to be take into the law of an official or a bailiff — in other ...
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2 votes
1 answer
95 views

Tinker Standard: Theoretical or Actual?

So, when applying the Tinker standard, is the question whether or not a student’s activities is theoretically disruptive, or actually disruptive? Case: Tinker v. Des Moines To put the question into ...
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13 votes
2 answers
3k views

How is anti discrimination legislation reconciled with freedom of contract?

Let's say a landlord doesn't like someone's personality and chooses not to enter into a contract. In most common law territories this is their right to do businessor not as a private party with ...
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1 vote
1 answer
92 views

Computer Misuse Act 1990 vs Police and Justice Act 2006

I am studying towards a qualification called CREST CPSA, reading through their syllabus guide here. It covers some sections on Law that I was hoping to clarify on here. On PDF page 6/20 it covers the ...
5 votes
1 answer
434 views

The parties in an appealed criminal case

I have a question with regards to the parties of a criminal case on appeal. In a civil case for example, Adam v Seaside Holdings Ltd, the parties are: Appellant: Adam Respondent: Seaside Holdings Ltd ...
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2 votes
1 answer
78 views

UK: Can Islamic Shariah Councils act as binding arbitrators?

Could marriage be considered as a civil contract between two parties which defer to specific kind of arbitrators in case of disputes, giving up their right to judicial review, in a fashion similar to ...
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1 vote
1 answer
94 views

Eggshell skull rule in tort law

In the case Mustapha v Culligan of Canada Ltd., the plaintiff Mustapha had purchased bottled water from Culligan that contained dead flies. This image caused significant psychological harm leading ...
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2 votes
0 answers
35 views

Is the law of Accord and Satisfaction a very undeveloped field?

I have tried to find cases of Accord and Satisfaction in the Jamaican Jurisdiction but there are hardly any. And the UK courts also only have a few of them. Do you know where I can get it? Moreover, ...
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1 vote
2 answers
147 views

What exactly do Non-Disparagement agreements cover? Can they prohibit saying anything negative about anyone who ever worked for the company?

Take such a term in a work contract: During and after the term of this agreement, you will not make any defamatory or disparaging statements, whether written or oral, regarding the Company, or any of ...
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2 votes
1 answer
186 views

"Equity's darling": How do U.S. courts overcome bona fide purchasers?

This is a follow-up question to this question and this question; the accepted answers to each appear to conflict the concept of bona fide purchasers. According to a Wikipedia page on the topic: "...
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0 votes
0 answers
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Do lies about privileged conversations break the privilege?

It's generally the rule that communications seeking or providing legal advice are privileged if they are made in a confidential context, and that the client can erode or destroy the protection of ...
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0 votes
3 answers
163 views

Does the Clean Hands doctrine prevent undoing illegal contracts?

Bob knowingly pays Rob for doing something illegal (handing over an item that Rob has stolen, murdering Alice etc. — you name it). Both are caught and sent to jail. Now, will Rob legally own the money ...
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2 votes
0 answers
60 views

Where can I find ‘The Common Law: Judicial Impartiality and Judge-Made Law’?

I’m working on the translation of a document, which quotes a substantial part of this text: ‘The Common Law: Judicial Impartiality and Judge-Made Law’ by H. K. Luke. After some research, I realized ...

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