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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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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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 ...
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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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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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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 ...
user44651
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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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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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"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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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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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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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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An erstwhile friend misled me to believe she had committed suicide. Can I take action?
A good friend of many years, but with whom I fell out two years ago, meticulously misled me via multiple emails purporting to come from a member of her family, that she had died. Not only died, but ...
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Can a worker who is not an employee be wrongfully dismissed? (England & Wales)
Does wrongful dismissal (NB. I don't mean unfair) apply to workers who are not employees in England & Wales?
My understanding from my lecturer is that it does apply (it came up on a test question ...
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Does partiality discredit witnesses?
In criminal trials, when a regular (non-expert) witness does not like the defendant (and admits it when asked), does that alone give a valid reason to discredit them to any extent at all?
Can the jury ...
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How willing is the US Supreme Court to declare itself wrong?
In comments on this answer User Suprcat wrote (in part)
I think a big problem is that Marbury v. Madison has been applied in a way that ignores a major caveat: a court's job is to say what the law is,...
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The rule of issue preservation for appeal
In the US, there is a Rule of Issue Preservation: you must raise ("preserve") an issue before the court to later have opportunity to appeal on that issue.
I am trying to find out whether ...
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What is the scope of damages in common law fraud?
It appears to me that in case of fraud, the benefit-of-the-bargain rule defines the breadth and width of the liability of the tortfeasor in some U.S. states, and not strict liability.
Do I understand ...
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What torts can a person not yet admitted to the bar represent before a California state or federal court?
A comment on a recent question stuck with me: "[L]ay people can't prosecute [torts] in California".
Is this correct? And if so, to what extent? What torts can and cannot be prosecuted by a ...
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Do courts withhold hearing transcripts from parties anywhere?
Unlike the old days when court hearings were stenotyped, these days they just make audio recordings. Later those may be typed back to transcripts.
Anywhere in the world, do parties to court hearings ...
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Does a witness admit perjury by testifying a different story on retrial?
Bob was a witness in a trial. That trial was later declared a mistrial and a new one was ordered.
When taking the witness stand again, Bob tells a whole different story, inconsistent or directly ...
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Is there presumption of lack of witness' credibility?
Can a party in a case ever argue that their opponents' lay witness lacks credibility just because there is no evidence of their credibility?
Where the judge is the trier of fact (judge-alone/bench ...
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Is police report inadmissible when the cop who wrote it is not available to testify?
Say a cop conducted a crime investigation, interviewed the person of interest (later charged with the crime) and wrote it all down in a report.
When the trial comes, the cop is no longer available (...
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Locating summoned witnesses to serve the summons
Suppose a party to a proceeding has obtained summons to a witness from the court.
The witness lives in the town (as per their digital footprint) but is not responsive. The party has no idea where to ...
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Conflicting Terms after Post-Merger of Companies
Company A has a contract to produce widgets for the State for $5 per widget. The State also has a contract with Company B to produce the same widgets for $4.50 per widget. Company A acquires Company B....
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Are US courts less likely to enforce the repayment of a loan if it is (ceteris paribus) without interest?
Apparently, in common law, a loan given without an interest being specified/demanded is at procedural disadvantage, in that a court may not recognize it as a contract, the plaintiff having to rely on ...
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Defendant's right to surprise prosecution at trial
Common law disclosure obligations between prosecutors and defendants appear to be imbalanced:
prosecutors basically have to disclose everything they have on defendants
defendants have to disclose ...
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Using deepfake to create endorsment
The radio station I typically listen to regularly has some celebrity endorsement along the lines of
You are listening to song name on my favorite station station name
With the improvements of deep ...
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Notice of uncontroverted facts in criminal trials
Section 128 of the New Zealand Evidence Act 2006:
(1) A Judge or jury may take notice of facts so known and accepted either
generally or in the locality in which the proceeding is being held
that ...
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How do defence lawyers get away with saying "he didn't do it" when they only can prove the uncertainty that he did?
Following various criminal trials (like this one) I often see defence lawyers claim that the defendant unequivocally did not commit the crime whereas they do not actually present (or claim to have) ...
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I returned an order to a business online that has a "typical" return policy, and they have not issued a refund. How can I take legal action? [closed]
I ordered an item from business online that has a "typical" return policy, i.e., a full refund will be issued in, say, two weeks upon receiving the returned item, assuming that the item has ...
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Witness credibility questions on cross-examination
Dan is on trial for murdering Vanessa. Wayne, who is Dan's neighbour, is witness for the prosecution.
Dan's lawyer is interested to discredit Wayne's evidence, but has nothing.
On cross-examination, ...
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Are there any common law jurisdictions outside the United States which maintain separate Courts of Equity?
It is well know that some jurisdictions in the United States, most prominently Delaware, maintain separate equity courts (Courts of Chancery), as formerly existed in England prior to the Judicature ...
user38749
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FOI and Common Law right of access [US]
The US federal government, and accordingly, the State governments all have Freedom of Information laws, which provide for the disclosure of public information. frmally in a government fails to ...
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Legal theory of the accomplice
In a related question, the general tone of the answers, many of whom were obviously not Americans and more familar with British law, was that an accomplice could be convicted in absence of evidence ...
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When is it encumbent on a court to rule on arguments not raised by the defense?
Usually a court will not make a ruling using an argument which the parties to the case have not raised. This subject has been discussed on this site previously. However, I would argue that this legal ...
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During your trial, the Supreme Court of the US agrees to hear an appeal of a relevant precedent case. What is the law that you are presumed to know?
Imagine a court case in progress in the USA, specifically a case at the first level of the courts (i.e. it is a district court case and the court is a trial court, not any kind of appeal court). ...
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Sentence given when a Summary only offence has imprisonment over 6 months?
I was reading into the Wireless Telegraphy Act 2006.
At the sentencing section, I note the following:
(a)on summary conviction, to imprisonment for a term not exceeding 12
months or to a fine not ...
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How far does liability extend in a civil conspiracy?
Acme LLC makes widgets. Bob is a member of Acme.
Bob tries to take Acme's widget maker, thinking he can operate the machine himself, but breaks it in the process. Of course Bob has also violated his ...
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What are the legal implications of manipulating Bitcoin if you could “forge” transactions?
Imagine I have recently been abducted by highly advanced and strangely opinionated aliens who provide me with unfathomably advanced technology on the condition that I undermine Bitcoin (the aliens are ...
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When in court, how do you determine when to push the rules aside and make up your own?
I don't know any other way to ask it. I have recently been told that when you are in traffic court there are no references to federal law and to try to use federal law would be considered "pseudo ...
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Who is to examine the witness who is the self-represented plaintiff or prosecutor?
Bob is a self-represented plaintiff in a civil case (or, say, private prosecutor in a criminal case). He is also a witness. If the trial is judge-alone aka bench (not jury), he is able to conduct it ...
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Deed of undertaking between neighbours
Neighbours have an issue about their adjoining land parcels and have verbally agreed to sort it out in a certain way. One of them wants to make sure that the other is aware of the consequences and ...
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What is the extent of "technically feasible" in common law?
If a law requires a website to perform a duty towards its users as far as technically feasible what is the extent ? Does it mainly take care of financxial costs? Meaning is something that is possible ...
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Do proponents of jury trials see it as a means to an end, or an end in itself? [closed]
Let me explain the question. In the U.S., it is common place to hear people express enthusiasm for the fact that many cases are determined by juries.
Such enthusiasm may be motivated by the efficiency/...
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Stochastic legal liability
I am trying to understand how do legal systems handle situation where there is no clear causal responsibility of a person, but a well established stochastic relation. I am aware of the "beyond ...
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Street signs and bylaws -- what matters more?
The question is specifically about a situation in Canada (province Ontario, city of Toronto), but other common law country view would be useful.
Suppose there is a municipal bylaw that prohibits ...
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How large is the difference in the amount of reading needed to become familiar with the law in common vs civil law countries? [closed]
Common law relies more on previous rulings while civil law relies more on written code. Therefore, one would expect it takes more work to become familiar with the law in the former case.
Please ...
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Does "duty to rescue" apply to a child that one has no direct responsibility for?
This appeared in a comment on another SE site:
If I am sitting by a deep swimming pool and see an unsupervised toddler child playing close to the edge - and then watch the child fall in and drown, ...
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How can we reconcile the fact that common law, relative to civil law, give judges more power in interpreting law but less power in guiding trials? [closed]
In common law, judge-made precedents are more important than in civil law where judges are supposed to stick more closely to the written code. Thus, one may say that judges are given more power in ...
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Why are headnotes presumed to be correct in England and Wales, but not USA?
Please see the question in the subject line.
I can post a separate question if you want, but are headnotes presumed correct in other Commonwealth jurisdictions? Canada? Australia? New Zealand?
...
user35965