Diff between common and civil law

[Muffin]

@aldiboronti

One often hears of common-law marriages, although they seem to have been ‘abolished for all practical purposes’ in the UK since the Marriage Act of 1753. The concept is still alive and well though. In the US it appears they have the force of law in some states.

Wikipedia: Common law marriage

Take the paragraphs on Ontario in that wiki article with a grain of salt. The author has confused spousal relationships in Ontario with common law marriages. In Canada, marriages are usually statute based, but in very rare instances, the courts have recognized common law marriages (e.g. aboriginal customary marriages – see *Connolly v. Woolrich * (1867), and *Re Noah Estate * (1961)).

When the wiki article author talks about common law marriages in Ontario, what he or she really is talking about is not common law marriages, but simply spousal relationships that are not marriages, either statutory or common law.

[Muffin]

@Spoons

I dunno about that…seems like every second Supreme Court of Canada decision I’ve been reading lately has quoted (with approval) Hogg on constitutional law.

He is taken as an authority on constitutional law in that his opinions usually are given significant weight, but neither his submissions nor his writings are in and of themselves sources of constitutional law.

When his opinion is accepted by a judge, it is the judge who is making (finding) the law, not Hogg.

[Spoons]

@Muffin

He is taken as an authority on constitutional law in that his opinions usually are given significant weight, but neither his submissions nor his writings are in and of themselves sources of constitutional law.

When his opinion is accepted by a judge, it is the judge who is making (finding) the law, not Hogg.

Chalk up my comment as coming from one who has been plowing through SCC cases to prepare for a moot, and who has observed more than once that it would be so much easier if I could just quote Hogg and be done with it. But I do want to thank you for your remarks–they do illustrate the distinction nicely, and drive home the point that while Hogg may be persuasive, he is not an authority; and the judge makes the final decision.

[Muffin]

[Bob and Ted]Whoa! Most excellent report, Northern Piper.[/Bob and Ted]

[Spoons]

@Muffin

[Bob and Ted]Whoa! Most excellent report, Northern Piper.[/Bob and Ted]

Psst! It’s Bill and Ted. Hey, I’m just trying to be excellent to you.

[Muffin]

Extra credit, dude!

[Northern_Piper]

@sweeteviljesus

@Polycarp

Like a contract, including the tacit one to buy and sell in a store. What constitutes a valid contract is probably spelled out in excruciating detail in books of statute law and commentary – but the basic concept: if you have a store selling tomatoes for $1, I walk in, pick up two tomatoes, hand you $2 (plus any tax you’re expected to collect), and walk out – neither of us has any complaint; the elements of a valid contract were present. And that basic concept predates statute law; it’s a part of the common law.

OK, but how is it different under a lex justinia (or whatever it’s called) system?

From the perspective of the buyer and the seller, if all goes well, there won’t be any difference. For example, when Mrs. Piper and I were in Paris over Christmas, it was my job to go out every morning to the local boulangerie to get the croissants and pain au chocolat. I went in, exchanged pleasantries with mademoiselle, placed my order, paid my euros, and went back to the appartement, where Mrs. Piper had made the coffee. (In case you can’t tell, I miss Paris… )

There’s no doubt a valid contract had been formed, but only a lawyer worries about such things in the abstract. As I said earlier, since the civil law and the common law both evolved in Europe, under an ever-increasing philosophy of freedom of contract and market economics, that’s not a surprise. Laws evolve to match social expectations.

It’s only if something goes wrong in the performance of a contract that issues might arise about the legal status of a contract. It’s also not likely to arise over a sale of a few croissants, because the stakes are so low. Issues about the validity of a contract are more likely to arise in a large commercial transaction, for example, if the baker ordered a month’s supply of flour, and the supplier didn’t provide it on time. If the baker has had to re-order the flour on short notice from another supplier, at higher cost, he might argue that he doesn’t have to accept the flour from the first supplier. The first supplier might counter that there was a reason for his failure to deliver on time, such as he thought the baker wanted the flour on a different date or something. And then, if they can’t resolve it, they may both seek legal advice. And it’s at that point that the differences in methodology between the two systems comes into play, as the lawyers start to work on their legal opinions.

In most civil law jurisdictions, the primary source of law governing the issue will likely be a civil or commercial code, supplemented by the authorities of learned writers. Court decisions may be consulted, but those decisions are not themselves considered to be statements of the law, simply the application of the law to the facts of a particular case. Depending on the practice in the courts of a civil law jurisdiction, the decision may be quite short and sparse, simply reciting the facts, the relevant sections of the Code, and a summary of the court’s ruling. Even in appellate cases, in some civil law jurisdictions there are no dissenting reasons by the minority judges.

If the same issue arose in a common law jurisdiction, there may be a statute governing the issue (e.g. - a state statute based on the Uniform Commercial Code in the U.S., or a provincial Sale of Goods Act in Canada), but it’s quite possible that there is no statute. In that case, the relevant law is found in the decisions of the courts, setting out the legal requirements for a valid contract to be formed, reasons for repudiation, and so on. Even if the jurisdiction has a statute governing the issue, the judicial interpretation of that statute is very important. The cases will go into the facts and the law in great detail, and the judicial commentary on the statute will be treated as essentially part of the law itself. Depending on the degree of detail in the statute, the court may find that the statute is not meant to displace the common law of contracts, but simply to supplement it, or change it some particular way. If so, court cases dealing with the law of contracts in general will also be relevant. If the decision is from an appellate court, there may be a dissent that needs to be studied, to see if there is likely to be a change in the law.

However, all that is in the lawyer’s office. The net product will be a legal opinion that the lawyer provides to the client, summarising the lawyer’s assessment of the client’s rights and obligations, and likely outcome if the matter goes to court. As I said with my Ford-Honda metaphor, the main differences between the two systems are technical and under the hood, where the mechanic (or lawyer) does the work in case of malfunction.

[Gfactor]

Awesome summary and explanations Northern Piper. Thanks.

[Northern_Piper]

@Spoons

Contempt of court. In my jurisdiction (Canada), the crime of “contempt of court” is not written down anywhere. You won’t find it in the Criminal Code, nor will you find it in any province’s legislation. But it exists, and arose from the common law.

This is a good example of a common law offence. It’s the only one left in Canada.

There’s also the common law defences.

When the Canadian Parliament decided to codify the criminal law, one of the reasons was to make criminal offences certain - as a matter of public policy, it decided that henceforth only Parliament would define what constitutes a crime, not the courts, and Parliament would only do it in the full legislative process, subject to public debate and input. So Canadian courts no longer have primary authority to define crimes.

However, the Criminal Code is not comprehensive, in the civil law sense of a code. That is, there still remain important elements of the criminal law that are left to the judges: common law defences, and some of the general principles of criminal liability (such as the concept of mens rea, which continue to be based in the principles of the English common law. These points are set out in s. 8 of the Code:

**Application of criminal law of England

8**(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.

Common law principles continued

(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

This approach, particularly preserving the common law defences, is consistent with the general approach of the common law in criminal matters, which is to favour the accused in cases of doubt. The offences are defined in advance, to assist everyone to know their potential criminal liability. If Parliament hasn’t defined something as an offence, it’s not the function of the courts to impose criminal liability. But, in the area of defences, the approach is that as society changes, a new basis to absolve someone of criminal liability may emerge gradually. Parliament is content to leave that issue to the courts, consistent with the idea that in case of doubt, the accused benefits.

Of course, Parliament can always step in and re-define a particular defence if it disagrees with the approach taken by the courts. That issue arose a while ago in connexion with the defence of drunkeness - Parliament modified the defence, cutting back on the approach that the courts had taken in that area.

[sweeteviljesus]

Thanks to everyone and especially Northern Piper.

What about the inquisitorial nature of the court in a civil law system? Does that mean that the bench cross-examines witnesses if the lawyers to ask a question that the court wants the answer to?

Thanks again,
Rob

[Northern_Piper]

@sweeteviljesus

Thanks for your replies. Having grown up in a common law state, I feel like I have a fairly good grasp on how the law works for a layman. But I still don’t quite understand how something like use of a right of way or a purchase or a gift is different in, say, France.

Purchases likely won’t be that much different in the two systems, although there are some technical differences about the formation of contracts.

Gifts are an interesting case where the two systems take a different approach. In the civil law system, a gift can be a contract.

For example, the Civil Code of Québec classifies the different types of contracts as follows:

NATURE AND CERTAIN CLASSES OF CONTRACTS

1378. A contract is an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation.

Contracts may be divided into contracts of adhesion and contracts by mutual agreement, synallagmatic and unilateral contracts, onerous and gratuitous contracts, commutative and aleatory contracts, and contracts of instantaneous performance or of successive performance; they may also be consumer contracts.
…
1381. A contract is onerous when each party obtains an advantage in return for his obligation.

When one party obligates himself to the other for the benefit of the latter without obtaining any advantage in return, the contract is gratuitous.

Thus, under civil law, if A declares that they are going to make a gift to B, that declaration can amount to a grauitous contract. If A does not perform it, B can sue on the contract. (There are some other requirements, but I’ve simplified a bit, because it’s been a while since I studied this issue. )

Under common law, a gift is not a contract and a promise to give something, without more, normally cannot be sued upon by the disappointed person. Under the common law, there has to be an exchange of some sort between the two parties for a contract to be formed. A mere promise by A to give something to B does not meet this requirement, since B is not giving or promising anything. However, there is an area of the common law governing gifts. My recollection (and again, it’s getting longer and longer since I studied this) is that under the law of gifts, if A goes beyond simply promising to make a gift to B, and actually partly performs the gift (e.g. - turning over the key of a promised car), then the promise plus the part performance may be enough to make the gift effective, allowing B to sue on it.

Rights of way are a tricky example, because the common law has several different ways to create them. Public rights of way can be created by continual use or by statute; easements can be created by agreement, and are a type of property; or a property owner can grant a licence to an individual, which is a type of contract. I’m not sure how the civil law deals with this issue.

[Muffin]

@Northern Piper

This [contempt of court] is a good example of a common law offence. It’s the only one left in Canada.

I’m not certain, but I think that contempt of Parliament in Canada is still a common law offence.

SPEAKER’S RULING

Contempts are offences against the authority or dignity of Parliament. These offences cannot be enumerated or categorized. As stated in Erskine May, 21st edition, at page 115:

"Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence. "

[Northern_Piper]

That’s a good point, but it raises an interesting issue of categorization - is the law of parliamentary privilege part of the common law? It’s based on custom and precedent, like the common law, and the scope of privilege can be tested in the courts, but unlike the common law, the initial decisions about privilege are made by the individual Houses of Parliament. See this comment from the Speaker, cited in House of Commons Procedure and Practice:

@Speaker Sauvé

“ … while our privileges are defined, contempt of the House has no limits. When new ways are found to interfere with our proceedings, so too will the House, in appropriate cases, be able to find that a contempt of the House has occurred.”

Does the fact that it’s the Houses of Parliament, and not the courts, that define the content of the offence of contempt mean that parliamentary privileges are not part of the common law? I’m not sure.

By the way, thanks to all for the compliments on earlier posts. Not often I get to dust off the ol’civil law degree, so it’s fun to think like a civil lawyer for a bit.

[Northern_Piper]

@sweeteviljesus

I started this thread after I was reminded about a story in the Atlantic about problems the Coalition Provisional Authority was having in Iraq. They used the case if Iraqi traffic laws and there were issues because you had a bunch of Americans trying to make up a code in a civil law country. Care to comment?
…
Actually, I may have the details wrong. The friction may have been over the fact that the US lawyers wanted to base the new code on common law. The article was about the lack of meeting of the minds, IIRC.

Thanks,
Rob

I would say that it is better not to try to import concepts from one system into the other, unless you’re very sure you know what you’re doing. (See my Ford-Honda analogy - just because they both have alternators doesn’t mean you can just take a Ford alternator and use it to replace the alternator in a Honda.) There will be technical differences between the two systems, some of which may be obvious and some which only appear as time passes, which can cause problems with the implementation of the law.

In the past, this was one of the critiques that some parts of the Quebec legal community made of the Supreme Court of Canada - that the Court in its early years was too quick to graft common law concepts onto the civil law in cases arising from Quebec. Some members of the Quebec legal community considered the Court’s decisions in this respect a form of anglo imperialism.

The drafters of the Civil Code of Lower Canada in 1866 were very cautious in this regard, and in the English version of the Code avoided using terms from the common law. Instead, they relied on terminology from Scots law, which is also based on the civil law, to express civil law concepts in the English version.

Since we’re in GQ not GD, I’ll stop there.

[Northern_Piper]

@Quartz

@Polycarp

A really good example is the Writ of Habeas Corpus… The writ itself is a part of the common law, and its availabilty, to bring the detained before the court so it can decide if there is a just cause for his detention, or else release him, predates almost all English statutes, and definitely all statute law anywhere else in the English-law-derived world, including the U.S., Canada, Australia, etc.

Doesn’t it come from Magna Carta (see also here) which is statute law, so wouldn’t that count as Civil Law under your definition?

Well, the fact that something is set out in a statute doesn’t make it civil law. The common law systems rely heavily on statutes, but that doesn’t turn them into civil law jurisdictions.

Also, I don’t think that Magna Carta created the concept of habeas corpus. There is the famous, general statement the king himself is bound by law when dealing with his subjects:

**Imprisonment, &c. contrary to Law. Administration of Justice.

XXIX.** No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [X5condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

That guarantee is one of the foundation stones of the concept of the rule of law, but by itself it doesn’t spell out how the courts will protect the rights of individuals, and doesn’t expressly create the right of habeas corpus.

According to the wiki article on Habeas Corpus, although the first recorded instance of the writ was 1305, there had been similar examples of the king’s royal authority being used to test the detention of prisoners prior to Magna Carta:

Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying: "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.”

The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.

So it appears the basic right of an imprisoned subject to appeal to the king to review his detention was a common law right. The development of habeas corpus was how the courts implemented that common law right, subject to statutes that defined the procedural mechanisms, and occasionally altered the substantive content of the right.

[Northern_Piper]

@Spoons

Have you ever given a thought to teaching law?

What makes you think I don’t?

[Muffin]

Contempt of Parliament – common law or not. Some fascinating reasons on both sides of the argument:
Stockdale v. Hansard (1836) per Chief Justice Lord Denman
http://www.uniset.ca/other/cs3/112ER1112.html
and
Kielley v. Carson (1841)
http://www.uniset.ca/other/cs3/13ER225.html
Bottom line – contempt of Parliament is part of the common law.

[Oslo_Ostragoth]

USA guy jumping in here. As has been stated, pretty much all our laws are based on common law and have since been codified. Have there been any significant court decisions lately that relied on common law?