Civil Law Flashcards
What does civil law deal with?
deals with disputes between two individuals or groups where an individual’s or group’s rights have been infringed.
Examples of the types of disputes that arise include:
• a person making an incorrect statement that damages another person’s reputation
• a person carelessly causing harm to another person
• a family dispute
• a person not fulfilling a promise or obligation made under a contract.
Civil law protects what rights?
rights of individuals by providing a means for returning the wronged person to the position they were in before the wrong was done. This is done through civil remedies
What are civil remedies?
is monetary compensation paid by the party in the wrong to the party whose rights have been infringed
If someone has the belief that their rights have been infringed, according to civi law, what action may be taken?
The person may sue
What is the need of civil law?
It protects the rights of individuals. If the rights are infringed, such that someone is negligent towards them, they can take the matter to court to ask for compensation as a way of righting the wrong. If there were no opportunity for individuals to take action in court against people who had infringed their rights, some individuals would be exploited by others and it would be survival of the fittest.
Civil law provides guidelines for acceptable behaviour in many situations where individuals interact. These laws are enforceable through:
The courts and tribunals.
Particular types of civil law also serve different needs of the community. For example:
• Contract law aims to ensure that people who make promises under a contract are obliged to stick to those promises, or else compensate the other party to the contract if they fail to comply with
the contract.
• Family law ensures some level of harmony or consistency is provided in family disputes; for example, by providing rules on the custody of children.
• Tort law, such as that relating to negligence and defamation, aims to protect the rights of individuals.
• Laws relating to wills and estates aim to provide a consistent set of rules when a person dies.
Who is the plaintiff?
The wronged person bringing the matter to court
Who is the defendant?
party alleged to be in the wrong
What is a remedy?
A way in which a court will enforce a right, impose a penalty or make another court order for the benefit of the plaintiff. It is aimed at restoring the plaintiff to the position he or she was in before the wrongful act occurred. The most common remedy is damages.
What is damages?
A civil remedy (an order of a court) that aims to compensate the person who has been wronged for the injury or loss suffered.
What is a injunction?
A civil remedy, being a court order that stops someone from doing something or compels someone to do something.
Who holds the burden?
The plaintiff has the burden of proving that the defendant is in the wrong
The standard of proof is:
on the balance of probabilities; being which side of the story is most probably correct. This is a less strict standard of proof than in a criminal case.
What is common law/case law/judge-made?
Decisions made by judges that form part of the law.
Civil law can be enforced through courts, tribunals and alternative dispute resolution methods such as:
Mediation, conciliation and arbitration.
Distinguish between civil law and criminal law:
The aim of a criminal action is to punish the offender. The aim of a civil action is to return the victim to the position they were in before the act took place, which is usually done through monetary compensation. The main difference therefore is the consequence of the action, which is punishment or a civil remedy.
What is a compensation order?
A court that is hearing a criminal matter is able to order the defendant, on having been found guilty or convicted of an offence, to pay compensation to a victim.
Why we have courts?
The main purpose of courts is to settle disputes that arise in the community. A court’s primary responsibility is to apply existing laws to the facts in cases that come before the court and to make a determination on the case based on those laws.
What is Law made through parliament is known as?
Statute law or legislation.
What is a precedent?
A court decision that is followed by another court lower in the hierarchy.
How is a precedent interpreted in the courts by a hierarchy?
Precedents made in higher courts are followed by lower courts in the same hierarchy. In this way the courts are able to ensure a consistent approach.
What is the most important part of the judgement?
The most important part of the judgment is the reason for the decision. This is known as the ratio decidendi.
Precedent does not apply to sanctions or remedies handed down by the court. What is it?
It is not the sentence (in criminal cases) or remedy (in civil cases) that is the precedent for future decisions; it is the reason given for the decision that is the precedent. Using the example above, a teacher may set a precedent by deciding that deliberate unsafe behaviour is unacceptable when a student is leaning back on the chair, but students may be given different punishments depending on the circumstances of the case (for example, one student may lean back in a much more deliberate and dangerous way than another, and therefore may get a harsher sanction than another).
What is the snail in a bottle case?
This case was about a soft drink manufacturer, David Stevenson, who made bottles of ginger beer. May Donoghue’s friend purchased a bottle of ginger beer for Donoghue. After she had drunk half the contents of the bottle, a decomposed snail was poured out of the bottle. She became ill. She did not have a contract with the café or the manufacturer because she did not buy the bottle of ginger beer.
She claimed the manufacturer had been negligent in the washing of the bottles before filling them with ginger beer. She sued the manufacturer for negligence. The House of Lords found that the manufacturer had been negligent. Because the bottle was opaque, Donoghue did not have any opportunity to check the bottle’s contents before drinking it.
Before this case, the legal concept of negligence did not exist. The ratio decidendi in this case provided the guiding principle for the law of negligence and this principle continues to be used today. Put simply, the ratio decidendi in this case is that a person owes a duty of care to those who they can reasonably foresee will be affected by their actions.
What is the binding precedent?
Is one that must be followed by courts lower in the same hierarchy. A precedent is considered to be binding on a new case when:
• the material facts of the precedent are similar to the material facts of the new case
• the precedent was set in a higher court in the same hierarchy as the new case.
A decision of the Supreme Court is therefore binding on decisions in the County Court and the Magistrates’ Court, but not binding on the Court of Appeal or the High Court. In this way there is consistency in the way cases are decided.
What is persuasive precedent?
A decision in another court hierarchy may have made an important statement of law and this may persuade a court to choose to follow the precedent. The court can choose whether or not to follow the earlier decision in deciding the case currently before the court.
