Resolving international disputes

CLASS NOTES By Leslie A. Beck COMPARATIVE LAW CIVIL LAW VS. COMMON LAW AREAS OF COMPARISON Differences that you should be aware of Property Law Sources of law and method of judicial reasoning Property Law Civil Law You are either the absolute owner, or you are not. 3 components of absolute ownership usus (latin term) i.e. use Right of use fructus ie. enjoyment of revenues Right to enjoy revenues abusus ie disposal Right to dispose of that thing dismemberment This does not mean that the absolute owner cannot give away certain rights of the property, as long as the rights transfer back to the owner E.g. usifruct farmer has a large piece of land and son wants to get married and have family. Farmer is not willing to divide up the farm, but offers him a part of the farm where he lets him build a house and farm on it, but after 20/30/40 years the land goes back to the father Lease if you lease an apartment from the owner of a building, or a piece of land to farm on, etc you get the right to use it in consideration of rent. In this sense, the owner is giving away one right (the right to use the property) as long as at the end they get the right of use back. Common Law Theory no absolute ownership of land King gives a portion of the country to the Earls. In common law, there is a difference between ownership and possession. The Earls possess it, they are holding the land for him. The Earls will provide him every year with something in return (e.g. bushels of corn, men for war, etc). Earl gives a portion of that land to the Dukes, and asks that they hold it for them, in exchange for bushels, men etc. Dukes to the Lords, all the way to the peasant/farmer. When the farmer died, he was not able to give it to his children it would go to the lord, etc up the chain and that person would redelegate it. Known as the feudal system. Leasehold is when you hold it for a limited period of time. A freehold is where you hold the land forever, and you can sell the land, leave the land to your children. The only way it reverts back to the king is if someone dies without leaving any heirs, which means it goes up the chain of ownership. 2 types of ownership Real Beneficial Origin and Concept of Trust William the Conqueror said I am Law, but there were problems with this as the king could not see every subject. Eventually, he became busy with other things (wars, etc) therefore he set up a system of courts. They did not have to see everybody, unless they issue a writ. System of writs a court order telling someone that someone complained about you therefore you have to show up at court on x day. You only had a writ for certain problems. Trespass (tort) When someone caused you or your property personal injury Habeas corpus (produce the body) When someone grabbed a relative of yours and wrongly imprisoned them. This came about because of the idea of Where there is a remedy (ie. a writ) there is a right, but if you did not have a writ to cover a specific problem, then you did not have access to the courts lead to a parallel system of justice called Equity lead to new legal concepts such as the TRUST Trust you are too rich and do not want to be taxed. Therefore, you give some wealth to the friend who is going to hold it for you until the children are of age and you have died. The problem arises when the friend does not give it back. They have no writ therefore cannot take it back through court. When the friend goes to court, they argue that the land was given on a condition of trust (the friend was trusted by the father to give the property back). In addition to the possibility of someone being the absolute owner, they can also be the owner subject of a trust. Trust difficult to define, Underhill gave one of the best definitions under 5 parts An 1 equitable obligation, 2 binding a person (trustee), 3 to deal with property over which he has control (trust property), 4 for the benefit of persons (beneficiaries), of whom he (the trustee) may be one, 5 any one of whom may enforce the obligation Equitable obligation obligation created under the law of equity which was established by the courts of equity Who has the obligation The trustee What is the obligation To deal with the trust property over which he has control For what purpose For the benefit of the beneficiaries What is the consequence if the trustee does not deal with the property The Trustee can be sued by any one of the beneficiaries How a trust works There are 2 ways to set up a trust The settler gives trust property to one or more trustees for the benefit of one or more beneficiaries (essentially a gift) Can be through a will or agreement (intervivos trust) involving the settler or the trustee By way of declaration of trust a person simply declares that he is holding certain property in trust E.g. someone wants to set up a business, but does not want it known that they are the shareholders. Therefore, someone else holds that position, but signs a contract that states that all income goes to them, and they will exercise the wishes of the settler. Examples of trusts wills, Real Estate Investment Trusts (REIT), endowments You may set up a family trust for tax planning purposes. You can spread your income across the beneficiaries of that trust. Shareholder agreements, where sometimes money is put into a trust. There are wide personal business and tax-planning purposes to trust. differences between civil law and common law ownership In Common Law, a property can have two owners. The real owner (whose name appears as the owner) or the beneficiary owner In civil Law, you are the owner, or you are not. Only one type of ownership. 2 Sources of law and method of judicial reasoning both systems have 3 sources Judicial Precedent ie. Court decisions Legislation Doctrine ie. scholarly writings articles or books that are written to explain the law, and very often to criticize it the difference between the two systems is the weight and importance of each source Common Law JUDICIAL PRECEDENT (most important) Court Structure Supreme Court Court of Appeal Trial Court Each court is bound by its earlier decisions. Trial Court is bound by its earlier decisions unless overturned by the Court of Appeal, same thing for Court of Appeal with Supreme Court, etc (stare decisis stand by the past). The Supreme Court is also bound by its own precedents The Supreme Court has overturned its own precedents, such as the decision that people cannot be segregated but equal, as in the case with discrimination. Principal known as stare decisis stand by the past Abortion example of Row vs Wade (or something like that) How do you know when a judgement is a precedent To know that, you have to analyse the precedent Conditions for decision to be binding Decisions divided into two parts Ratio decidendi the reason for the decision for arriving at the decision (only this is the precedent) Obiter dictum other reasons that the judge has for coming to his/her conclusions It is often not clear which is the obiter dictum and which is the ratio decidendi. The facts have to be almost identical. What happens when they find a precedent they do not like They could try and find differences between the case then and now. What then happens is that if the judges can distinguish between it, they make judge-made law, which is an area of contestation and disagreement. Judges are not supposed to make the law. Legislation In the common law system, legislation is not as important as judicial precedent. If a court interprets a law in a manner in which the parliament doesnt like, parliament can pass a law countermanding that. Catch ( legislation is subject to judicial interpretation, and this means that the rules regarding stare decisis apply to interpretation. Therefore, when you are looking in the common law system, and you are wondering what does this legislation mean, you look at any court judgements/precedents in order to understand its meaning and application. Additionally, from a business point of view, there is very little legislation on very important aspects of business law. (e.g. you find it on leases, contracts of sale, etc but other types of contracts such as agency, etc there is no legislation, and therefore strictly jurisprudence applies. Additionally, to a large extent there is no legislation regarding torts As a source of law, it can supersede jurisprudence, but does not feature as much. Doctrine Scolarly writings For historical reasons, doctrine is less important and less abundant than it is in the civil law system. They try to summarise the law and put it in a rational form. CIVIL LAW Judicial Precedent (Jurisprudence) Not as important as in common law because a) There is no concept of stare decisis (Courts are not formally bound by higher courts, they just carry more weight. Another level can just choose to overrule) (2) Legislation Originally, the first code of laws that was developed in the western world was developed by the Roman Empire. This was different for a huge number of places because it covered such a wide expanse. When Napoleon ruled, there were even differences within France itself He created a different set for France and the rest of the Empire, The Law of Paris, and codified it into one document, and in 1804 it became law. It dealt with things such as family law, property law, contract law, civil liability, etc A code does the following in regards to each area that it deals with, it sets out general broad principles then sets out certain principles within. They are so broad that it covers the subject matter. For example, in civil law under Quebec, civil liability is anyone that is capable, is liable for any damage he/she causes through a wrongful act to a third party. Once you have this principle you have rules of application (e.g. what is the liability of parents if their children does wrong) (3) Doctrine Doctrine is much more important than in the Common Law system. Before, in Common Law system, if you wanted to become a lawyer you didnt have to go to school, just work with lawyers and read books. Example Abraham Lincoln never went to school he studied on his own and ended up becoming a lawyer with the help of those he worked with. Ended up becoming one of the most renowned layers in the USA before he went into politics. Difference between the two Civil law ( would read Justinian coda and make annotations and commentaries and some would start publishing codes. When Napoleon made some laws, books came out analysing the books and laws. Judges read the laws and doctrines as a basis for their judgements (today there is more doctrine in the Civil Law system than common law) Common ( Lets see what the judgment says Civil ( lets see what the doctrine says LEGAL SYSTEMS SPREAD BY COLONIZATION AND CONQUEST Common Law Includes India, England, USA Why common law is different around the world English Common law applied to the Colonies, so far as it was adapted by its institutions and circumstances. This means that you apply the English Common Law as far as needed, then you apply a chain of precedents As colonies gained independence, they established a cut-off date after which British precedence would not apply to them Over time, jurisdictions formed their own supreme Courts under their own state of appeal. After a certain date, Canada said that their Supreme Court judgements were right, and people could not go to the British House of Lords for an overruling, and this happened everywhere. Civil Law Formed out of Spain and all of her colonies, Germany, Italy, Portugal and its colony Brazil, and each country has its own civil code. The rules in France are not the same as the rules set out in Quebec, however the sources, the role, all of that is similar. Quebec Situation Was both a French and British colony. The French King was given a choice keep Quebec, or keep the islands of St Pierre and Miquelon. He decided to keep the islands. In 1774, the Quebec Act was adopted by parliament. In 1774, the 13 colonies started to push for independence. They adopted the Quebec Act, which was intended to protect the religion, language and culture. It created a hybrid system of Common Law and Civil Law. It said that local Quebec Law (Civil Law) will govern property, contracts, family law, civil liability. Basically, in Quebec, what was used was old Roman law and the custom of Paris. Under the Quebec system, the court system became a British system. The result was that Common Law heavily influenced civil law. July 1866, the Civil Court of Law in Canada codified the Civil Law in Quebec (like Napoleon and France). Much of the Civil Code of Canada was taken by the Napoleonic Code. Unlike what you would call the traditional Civil Law System, stare decisis was used in Quebec. If you read a judgement from a Court of Quebec and one outside Quebec, you would question whether it is not a Common Law system. This is because they are a Civil Law system, but they reason similarly to the Common Law system. 1994 Jan 1 The Civil Code of Lower Canada was abolished and replaced by the Civil Code of Quebec. This was essentially to modernise and innovate Quebec Civil Code. One of the innovations of the Civil Code of Quebec was the introduction of the Civil Code of the Common Law concept in terms of property of trusts. Up until then, there were very specific circumstances for its use. Not introduced as an identical, but an equivalent. PAGE PAGE i Y, W6- W ,ot@O/ozNzbENf3rCMu3CR 62HpUq7lkV2Dp3tejGvxYRYmYL)QsV3VV1v K6a,O HykoDGY3R@JyBw6K0i1P0YjbiXJB5IgAa6P g)-q8RmcWyXg/u6Q_5H
Z2PUGGFbCSOD,p 6wqR_gJSkq(WisE/p_tBzmCbvw@U./akjXmdjcU2faWuPnItyzR7Kzb_Y/dT/YyZkKqiadpQ2aA/wdnWvVewbj9)ed(w/ak6jAq11_xzGFOkNa4dhtJl ONRpwhpse)tp)af
27nmkS,a2gAz 6Q