Langues appliquées - Anglais : Economie, gestion, droit, AES - 4e - 182

law

Instructions For Study
1. Turn to the definitions following the text Case Law and Judicial Precedent. They refer to
the specialist terms printed in bold type in the list of Useful words and concepts.
2. Use an English language dictionary to find the meanings (in context) of the other words in
the list.
3. Do the exercises to test your language skills.

Case Law and Judicial Precedent
'Case law' is the term we use to describe the collection of all the legal principles emanating from
all the reported cases on a given topic. The 'case law' on the law of negligence, for example, consists of
thousands of individual cases, all building one on another, year after year, exploring different aspects
of the law and seeing whether the principles of law apply or do not apply (or need changing) to different
sets of facts. Indeed, it is often said that one of the strengths of English common law is that it is built
upon the concrete examples of case law rather than hypothetical models.
The doctrine of judicial precedent is concerned with the importance of case law in our
system. It is really the lawyer's term for legal experience. We all tend to repeat things we
have done before: law is essentially no different. If one case has decided a point of law then
it is logical that that solution will be looked at in the future. The principles of English law are derived
from observing the development of a line of particular cases on a particular topic. This is a key factor
in English law. Because English lawyers are so avidly fixed on case law, principles do not develop
unless claimants bring cases. Academics and practitioners may speculate on the development of
legal principles, but it takes real-life cases to settle them. And the judges in each case, to a greater or
lesser extent, draw upon the principles established in those earlier cases in reaching their decision.
As we noted above on the development of case law in negligence, this is a piecemeal,
case-by-case progression. As an example of this: imagine that a case in 1920 decided that any person
selling parrots was under an implied contractual duty to ensure that the parrot could talk. A layperson
reading about this case might think it interesting, especially if he has just bought a dumb parrot. A
lawyer, however, immediately starts to think of the ramifications of the case: what is the significance
of the case? How does it stand with other cases? What level of court made the decision? Thus, to the
lawyer, the case presents further questions:
Would this principle still apply if the pet shop owner had clearly told the customer that the parrot
could not talk?
Does the same principle apply to related birds such as budgerigars?
Should the principle apply to other birds?
Wider still, is there a general principle to be found in the case, which might mean that a similar
duty (say as to standards of health) might apply to other animals?
The particular case concerning parrots may consequently be seen as giving birth to a more general
principle on the duties owed by pet shop owners to their customers, e.g. that they owed a duty always
to deal in good faith. It is not beyond speculation that the same principle might one day be applied
to sellers of other types of goods such as televisions or cars. Eventually a textbook writer will sum up
all the case law in one general statement on the duties owed by vendors of goods. Looking back at the
history of the cases, we might find that one case concerning a mute parrot is now applied to all cases
on defective merchandise.

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