Common Law Flashcards
What is precedent?
Where courts use past decisions to decide outcome of new case
How can precedent be used?
by any court even if higher, if it is seen as a good principle. Is called persuasive precedent.
Who must use precedent?
It is binding on all lower courts
What makes a judges decision?
Ratio Decidendi,
Obiter Dicta
Ratio decidendi
reason for judges decision, binding part of precedent
Obiter dicta
non binding remarks on case
What is persuasive precedent?
Where judges in higher courts use precedents from lower court to come to decision.
How can a judge avoid applying precedent?
Distinguishing case being heard from prior cases
Reversing decision
Overulling decision
What is a problem of common law?
Its only remedy is for damages, compensation
What are equity courts based on?
Fairness
Why were equity courts made?
to create more remedies to lesson harshness of some C. Law decisions
What are some of the remedies in an equity court?
Injuction
Specific performance
Rescission
What is an injunction
court order for person to do /not do /refrain from doing particular action.
What is it called when losing party is made to do an action, eg complete a contract?
Specific performance
What is rescission?
The unmaking of a contract/ decision between parties.
What is the adversarial system based on and where is it from?
Common law.
England, and operates for all nations made under that system
What is the judge in adversarial courts?
Impartial. ONly there to ensure fairness. Only has access to the issues, not witnesses
What can parties in adversarial courts do?
Legal reps test eachother’s evidence to come to decision
Cross examine their witnesses
Determine course of trial.
What is the inquisitorial system and where is it used?
Civil law
Used in most of Europe
What are the features of the Inquisitorial system?
Judge has more control
2 adverse parties present case to judge
Judge can seek any info,
Judge can examine witnesses
