Common Law And Statute Law Pdf
File Name: common law and statute law .zip
This book is also available in other formats: View formats. Please note that ebooks are subject to tax and the final price may vary depending on your country of residence. The study of the law of tort is generally preoccupied by case law, while the fundamental impact of legislation is often overlooked. At a jurisprudential level there is an unspoken view that legislation is generally piecemeal and at best self-contained and specific; at worst dependent on the whim of political views at a particular time.
Under Sources of Law we explained that some countries will apply greater weight to certain sources of law than others, and that some will put more emphasis on judicial decisions than others. There are two main types of legal system in the world, with most countries adopting features from one or other into their own legal systems, Common Law and Civil law.
Concept of "Concession" as Understood in France - summary Common Law System Countries following a common law system are typically those that were former British colonies or protectorates, including the United States. Judicial decisions are binding — decisions of the highest court can generally only be overturned by that same court or through legislation;.
Extensive freedom of contract - few provisions are implied into the contract by law although provisions seeking to protect private consumers may be implied ;. A common law system is less prescriptive than a civil law system.
A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supply of bad payers or may require that documents related to the transaction be disclosed under a freedom of information act. There may also be legal requirements to imply into a contract in equal bargaining provisions where one party is in a much stronger bargaining position than the other.
Please see Legislation and Regulation for more on this. There are few provisions implied into a contract under the common law system — it is therefore important to set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This will often result in a contract being longer than one in a civil law country. Countries following a civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America.
The civil law system is a codified system of law. It takes its origins from Roman law. Features of a civil law system include:. There is generally a written constitution based on specific codes e.
Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions; constitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all. In some civil law systems, e. Courts specific to the underlying codes — there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code;.
Less freedom of contract - many provisions are implied into a contract by law and parties cannot contract out of certain provisions. A civil law system is generally more prescriptive than a common law system. However, a government will still need to consider whether specific legislation is required to either limit the scope of a certain restriction to allow a successful infrastructure project, or may require specific legislation for a sector.
There are a number of provisions implied into a contract under the civil law system — less importance is generally placed on setting out ALL the terms governing the relationship between the parties to a contract in the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law.
This will often result in a contract being shorter than one in a common law country. It is also important to note in the area of infrastructure that certain forms of infrastructure projects are referred to by well-defined legal concepts in civil law jurisdictions. Concessions and Affermage have a definite technical meaning and structure to them that may not be understood or applied in a common law country.
Care should be taken, therefore, in applying these terms loosely. This is further considered under Agreements. In many civil law countries a separate administrative law governs PPP arrangements. It is important to seek local legal advice to check whether these rules apply in a particular civil system. It is also important to note that in a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
Some of the key administrative rules that apply to delegated management arrangements are listed below. Governments may wish to include these rules in the arrangement, and when they are part of the underlying law it may not be necessary to repeat them in the contract. But relying on just the underlying law is problematic because the rules are sometimes ambiguous. A contract that takes a background administrative law principle and spells out exactly how it is to be applied will generally be effective.
But, changing or overriding an administrative law principle may or may not be legally possible—that would need to be checked. For example, it may not be possible to completely remove the ability of a contracting authority to unilaterally change service standards.
Some civil law codes also contain mandatory notice periods before termination for breach of contract that cannot be avoided or overridden. The contracting authority may, as in France, have the right to modify aspects of the contract unilaterally when it deems the change to be in the public interest. The contracting authority has the right to cancel the contract early although it must compensate the operator. The operator in an administrative contract may not suspend the execution of its obligations under the contract, even if the contracting authority breaches the contract.
Under a concession or affermage-lease, the operator is deemed to assume duties relating to operating a public service, even beyond those included in the contract such as investing to address increasing demand or adapting to new technologies. For example, when the contracting authority imposes a unilateral modification, it must also adjust the financial terms of the arrangement so that the operator is not worse off for example, if the contracting authority required higher service standards, it might also have to allow a higher tariff.
Force majeure - Unpredictable and uncontrollable events that render the performance of the contract materially impossible exonerate the operator from its obligations.
For example, a spill from a chemical factory causing permanent pollution of the only water source would be considered force majeure. Natural phenomena such as hurricanes and droughts may also be considered force majeure.
Where there is a contractual commitment on the Operator to pay a penalty in the case of default and the amount is fixed by contract, under French law a judge may reduce or increase the amount of penalties as long as it is not reduced below the actual damage suffered. Similar concepts exist in Mali, Tunisia and Algeria, for example. Under the French tax code article quarter gross-up clauses related to indemnification of withholding taxes on interest are not to be binding on French tax administration when the debtor is a French entity.
In Common law jurisdictions, such as England and the US, the emphasis when a business gets into financial trouble is on seeking a reorganization rather than a liquidation to keep the business as a going concern eg US, Chapter 11, UK administration. In Civil law jurisdictions the process focuses on liquidation although reform of some bankruptcy laws such as France and OHADA countries is now permitting reorganizations of debtors before they become insolvent.
Common law systems have greater flexibility in granting different types of security over assets - an important feature of PPP arrangements involving commercial funding such as BOTs. They also have the concept of trusts, which enable security interests to be held by a trustee for lenders in a syndicated loan situation without the need for formal transfer or re-registering of security interests in names of new lenders.
Civil law does not have such a concept and so security interests generally required to be re-registered in the name of the new lender involving additional registration costs and notarial fees.
France is in the process of introducing a trust law which will resolve a number of these issues. In OHADA countries, however, filings involving public notary are required for formalizing security interests. Download Page as PDF. Key Features of Common Law or Civil Law Systems Under Sources of Law we explained that some countries will apply greater weight to certain sources of law than others, and that some will put more emphasis on judicial decisions than others.
Related Content. Not binding on 3rd parties; however, administrative and constitutional court decisions on laws and regulations binding on all. In most cases contractual relationship is subject to private law and courts that deal with these issues. Most PPP arrangements e.
An Introduction to Statute Law and Statutory Interpretation
Law comes from three places, which are referred to as the sources of law. The first source of law is constitutional law. The purpose of federal and state constitutions is to regulate government action. Private individuals are protected by the Constitution, but they do not have to follow it themselves. The federal and state constitutions are both written with words that can be subject to more than one interpretation.
Under Sources of Law we explained that some countries will apply greater weight to certain sources of law than others, and that some will put more emphasis on judicial decisions than others. There are two main types of legal system in the world, with most countries adopting features from one or other into their own legal systems, Common Law and Civil law. Concept of "Concession" as Understood in France - summary Common Law System Countries following a common law system are typically those that were former British colonies or protectorates, including the United States. Judicial decisions are binding — decisions of the highest court can generally only be overturned by that same court or through legislation;. Extensive freedom of contract - few provisions are implied into the contract by law although provisions seeking to protect private consumers may be implied ;.
constitutional constraints, statute law prevails over the common law. “Constitution, the federal, State and territorial laws, and the common law.
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Introduction First question which arise by listening legal system in mind is, what is law? In general, a rule of being or of conduct, established by an authority able to enforce its will; a controlling regulation; the mode or order according to which an agent or a power acts. As such two kinds of legal systems, which I am going to research, operate worldwide to elaborate rights and responsibilities of citizens in a variety of ways. The Indian legal system is based upon both legislation and common law.
Since then, U. A statute—or the statutory law—may also be referred to as legislation. This is an example of statutory law. Instead, the Constitution made provisions for law to evolve as society evolved. In , U.
Case law is the collection of past legal decisions written by courts and similar tribunals in the course of deciding cases, in which the law was analyzed using these cases to resolve ambiguities for deciding current cases.
The origin of the common law
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