Comparative Law Civil Law Vs. Common Law

COMPARATIVE LAW CIVIL LAW VS. COMMON LAW

AREAS OF COMPARISON

CmL and CiL arrive almost at the same solution – difference is how you get to this solution

• Differences that you should be aware of:

1. Property Law
2. Sources of law and method of judicial reasoning

1. Property Law

• Civil Law

Only one absolute owner – on indiv that has ultimately 3 rights

• 3 components of absolute ownership:

1. usus i.e. use
2. fructus ie. enjoyment of revenues
3. abusus ie disposal

if a person has those three rights – it’s the owner

but he can temporarily lend it to someone else but still but the owner of everything (ex: lease) but right to get back

usufruct: owner gives the right to use and to get the revenue to a third party (farm – use the land and get the revenue from it, after several years, the rights goes back to the owner)

ONLY ONE OWNER of the thing at any one time – actual or by reversion the right of use, disposal

- dismemberment:

• Common Law

Before, there was only one owner of land (king), and everyone else who had land was a holder of a land for the ultimate benefit of the king.

→ feudal system: king – duke – earl – lord – peasant

French became the English king = owner of the land of England – divided up the country and gave it to 20/30 dukes “hold this land for me under the condition that every year you will provide to me a certain number of soldier, wheat, weapons, cows, chicken…” these dukes subdivided their holdings to earls ‘you hold this land on same condition” → for the dukes to pay the king + own needs (same for earl to lord and lord to peasant)

On different terms → dukes hold their estate and transfer to son

This system got abolished and today two systems: free holder and lease hold (lease some land or properties for a period of time – up to 99 years)

Difference b/n holding and owning:

Possess/holder of the thing for a period of time with the obligation to return it to the owner

→ car or lease an apartment (holes – pay for the repair), if it gets damage when is possessing you pay for the damages (you have to return the car in the same condition you got it)

Owning smth: if you damage it, it’s your loss, you’re also able to sell and deal with it however you want

Today, in England there is a concept called “free hold”, if you’re the free holder of land = owner of land same in the CiL system (practically the same)

• Theory: no absolute ownership of land

In CmL, real estate of personal property can be hold by two owner

•  2 types of ownership:

1.  Real – who the estate is registered name
2.  Beneficial – owns the property through a trust

• Origin and Concept of “Trust”: when William conquered England, no legal system, if there was a disput → settled by strongest or the parties could ask the king to settle – but if king settle, only settled what he wanted (access to the king – not choice of parties)

King set a court to settle disputes court exercise through a system of writs (court order for the parties to appear before the king judges to settle a particular dispute), limited number of writs (of dispute which the royal court could settle)

Best know: Lord Haw-Haw (https://en.wikipedia.org/wiki/William_Joyce)

        → ask for condemnation of damages: “where there is a writ or remety, theirs is a right, if no writ, no access to the court”

• System of writs:
• 2nd best known → Trespass (tort): someone had a claim for damages against somebody else
• Habeas corpus (produce the body):  is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order
• “Where there is a remedy (ie. a writ) – there is a right”

injunction: court order telling somebody do to or not to do something

• lead to a parallel system of justice called “Equity”

Chancellor – head of government; when find something unfair, goes to individual “I heard you stole the old lady, I want you to know what you did offense the king, return it” – do something to correct the situation

Got so busy that he didn’t got time for this – create the chancellor’s court (court of equity) – no writ, so by the time the chancellor court were set up (if pbs not in royal court go to court of equity)

What the right thing to do was – two courts system merge into one

• lead to new legal concepts such as the TRUST

two things in life: death and taxes

when died, estate tax – (heirs had to pay % of the value of your estate)

find ways around the tax laws: one of it – if a rich person wanted to avoid a state taxes, he could do so by giving his estate to his heirs (although estate tax, no gift tax) but most of the time heirs was his children → pbs: if children not of age (18) they couldn’t inherit – go to trusted friend and give to him but when child reach 18 you give my estate to my child

Work well until trusted friends after certain time keep the estate – children went to court of equity (explained the situation), friend “given promise, but you can’t hold me to this promise” court of equity believe the kid and said “you receive this estate on the faith of the promise that you made to trust friend – order him to turn over the land to his children because you received it in trust for their benefit. – INSTITUTION OF TRUST

• Trust difficult to define,

Underhill gave one of the best definitions:

“An [1] equitable obligation,