Birke Häcker, University of Oxford, MT 2017 [email protected] INTRODUCTION TO THE COMMON LAW FOR CIVIL LAWYERS LECTURES 1 & 2: HISTORICAL AND CONSTITUTIONAL BACKGROUND I. INTRODUCTION II. WHAT IS THE ‘COMMON LAW’? 1. Meanings of the Term Common Law ↔ Civil(ian) Law Common Law ↔ Statute Law Common Law ↔ Equity 2. Historical Development: Some Landmarks Norman Conquest of Britain (AD 1066) Establishment of the Court of King’s Bench, Common Pleas and Exchequer The Practice of Law Reporting An example of so-called Law French: ‘Richardson, C. J. de C. B. at Assizes at Salisbury in Summer 1631, fuit assault per Prisoner la condemne pur Felony; que puis son condemnation ject un Brickbat a le dit Justice, que narrowly mist. Et pur ceo immediately fuit Indictment drawn pur Noy envers le Prisoner, et son dexter manus ampute et fixe al Gibbet, sur que luy mesme immediatement hange in presence de Court.’ System of Writs and Forms of Action Development of Equity in the Court of Chancery Relationship between Equity and the Common Law Judicature Acts 1873–75 3. Spread of the Common Law Worldwide Former colonies Mixed legal systems Divergences between common law systems 4. Relationship with the Civilian Tradition III. THE CONSTITUTIONAL SETUP 1. England, Great Britain, United Kingdom 2. Basic Tents of the ‘Constitution’ Constitutional Monarchy Rule of Law (Magna Carta Libertatum 1215, Bill of Rights 1689) Sovereignty of Parliament / Parliamentary Supremacy * A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885): ‘The principle, therefore, of Parliamentary Sovereignty means neither more nor less than this, namely that “Parliament” has the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’ * European Communities Act 1972 and Human Rights Act 1998 and their implications. * Miller case (SC, 2017): ‘Royal Prerogative’ cannot be used to trigger Art. 50 TEU! Separation of Powers 3. The Executive The Prime Minister and his/her Cabinet Public authorities 4. The Legislator ‘Crown in Parliament’ Lower House: House of Commons (made up of ‘MPs’) Upper House: House of Lords (made up of ‘Peers’) Making of statutes Style of legislation 5. The Judiciary (details to follow) Relationship with the other branches of government Appellate jurisdiction of the House of Lords transferred to the new Supreme Court in 2009 Principles of statutory interpretation Style of judgments Please read (in this order): Fisher v Bell [1961] 1 QB 394, Partridge v Crittenden [1968] 1 WLR 1204 and British Car Auctions Ltd v Wright [1972] 3 All ER 462 in preparation for lectures 3 & 4! Consumer Rights Act 2015 (c. 15) 5 6 Consumer Rights Act 2015 (c. 15) Part 1 — Consumer contracts for goods, digital content and services Part 1 — Consumer contracts for goods, digital content and services Chapter 2 — Goods Chapter 2 — Goods (b) the contract is, for any other reason, not a sales contract or a hire- (9) See section 19 for a consumer’s rights if the trader is in breach of a term that purchase agreement. this section requires to be treated as included in a contract. What statutory rights are there under a goods contract? 10 Goods to be fit for particular purpose (1) Subsection (3) applies to a contract to supply goods if before the contract is 9 Goods to be of satisfactory quality made the consumer makes known to the trader (expressly or by implication) any particular purpose for which the consumer is contracting for the goods. (1) Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory. (2) Subsection (3) also applies to a contract to supply goods if— (2) The quality of goods is satisfactory if they meet the standard that a reasonable (a) the goods were previously sold by a credit-broker to the trader, person would consider satisfactory, taking account of— (b) in the case of a sales contract or contract for transfer of goods, the (a) any description of the goods, consideration or part of it is a sum payable by instalments, and (b) the price or other consideration for the goods (if relevant), and (c) before the contract is made, the consumer makes known to the credit- broker (expressly or by implication) any particular purpose for which (c) all the other relevant circumstances (see subsection (5)). the consumer is contracting for the goods. (3) The quality of goods includes their state and condition; and the following (3) The contract is to be treated as including a term that the goods are reasonably aspects (among others) are in appropriate cases aspects of the quality of fit for that purpose, whether or not that is a purpose for which goods of that goods— kind are usually supplied. (a) fitness for all the purposes for which goods of that kind are usually supplied; (4) Subsection (3) does not apply if the circumstances show that the consumer (b) appearance and finish; does not rely, or it is unreasonable for the consumer to rely, on the skill or (c) freedom from minor defects; judgment of the trader or credit-broker. (d) safety; (5) In a contract to supply goods a term about the fitness of the goods for a (e) durability. particular purpose may be treated as included as a matter of custom. (4) The term mentioned in subsection (1) does not cover anything which makes the (6) See section 19 for a consumer’s rights if the trader is in breach of a term that quality of the goods unsatisfactory— this section requires to be treated as included in a contract. (a) which is specifically drawn to the consumer’s attention before the contract is made, 11 Goods to be as described (b) where the consumer examines the goods before the contract is made, which that examination ought to reveal, or (1) Every contract to supply goods by description is to be treated as including a (c) in the case of a contract to supply goods by sample, which would have term that the goods will match the description. been apparent on a reasonable examination of the sample. (2) If the supply is by sample as well as by description, it is not sufficient that the (5) The relevant circumstances mentioned in subsection (2)(c) include any public bulk of the goods matches the sample if the goods do not also match the statement about the specific characteristics of the goods made by the trader, the description. producer or any representative of the trader or the producer. (3) A supply of goods is not prevented from being a supply by description just (6) That includes, in particular, any public statement made in advertising or because— labelling. (a) the goods are exposed for supply, and (b) they are selected by the consumer. (7) But a public statement is not a relevant circumstance for the purposes of subsection (2)(c) if the trader shows that— (4) Any information that is provided by the trader about the goods and is (a) when the contract was made, the trader was not, and could not information mentioned in paragraph (a) of Schedule 1 or 2 to the Consumer reasonably have been, aware of the statement, Contracts (Information, Cancellation and Additional Charges) Regulations (b) before the contract was made, the statement had been publicly 2013 (SI 2013/3134) (main characteristics of goods) is to be treated as included withdrawn or, to the extent that it contained anything which was as a term of the contract. incorrect or misleading, it had been publicly corrected, or (5) A change to any of that information, made before entering into the contract or (c) the consumer’s decision to contract for the goods could not have been later, is not effective unless expressly agreed between the consumer and the influenced by the statement. trader. (8) In a contract to supply goods a term about the quality of the goods may be (6) See section 2(5) and (6) for the application of subsections (4) and (5) where treated as included as a matter of custom. goods are sold at public auction. 976 Miller v. Jackson (C.A.) [1977] April 6. The following judgments were read. LORD DENNING M.R. In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and B seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of Q cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoin- ing field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground.