Categories of Law: Civil vs. Common, Criminal & More

Categories of Law

• Civil law is based on codified statutes and is used in countries like Germany, France, and Italy.
• Common law relies on judicial precedents and is used in the UK, USA, and Australia.
• Civil law emphasizes statutes, while common law emphasizes case law.
• Criminal law addresses crimes against society, with the state prosecuting to punish or deter, and requires proof “beyond a reasonable doubt.”
• Civil law resolves disputes focusing on compensation or remedies, with a "balance of probabilities" standard for proof.
• In the O.J. Simpson case, he was acquitted in the criminal case due to insufficient proof but found liable in the civil case based on the balance of probabilities.
• Private law governs relationships between individuals, such as contract law and family law.
• Public law governs relationships between individuals and the state and includes constitutional and criminal law.
• Administrative law regulates government agencies and allows challenges to public decisions.

The Legal Profession and Civil Procedure

• A lawyer is a general term for legal professionals.
• An attorney is licensed to represent clients in court (US).
• A solicitor provides legal advice and handles documents (UK).
• A barrister specializes in court advocacy (UK).
• A prosecutor represents the government in criminal cases.
• A notary certifies documents.
• An advocate represents clients in court in civil law countries.
• In civil law systems, judges actively investigate cases, and lawyers focus more on advice and contracts.
• Common law systems have an adversarial system where lawyers argue cases, and judges ensure fairness.
• Corporate law deals with business transactions and mergers.
• Criminal law involves the defense or prosecution of crimes.
• Family law covers divorce, custody, and inheritance.
• IP law protects inventions, trademarks, and copyrights.
• International law regulates cross-border legal matters.
• Time-barring refers to legal deadlines to file claims.
• In Germany, the general limit is 3 years, but up to 30 years for serious cases.
• In the UK, the limit is 6 years for contracts and 3 years for personal injury claims.
• Starting a legal claim involves filing legal documents and officially notifying the defendant.
• In Germany, small claims are handled by local courts (Amtsgerichte), while larger cases go to regional courts (Landgerichte).
• In England, simpler cases are heard in County Courts, while complex, high-value cases go to the High Court.
• Forum shopping is choosing the most favorable court.
• Case transfer involves moving cases for fairness.
• Common law systems feature lawyers arguing cases, with judges acting as referees.
• Civil law systems have judges lead investigations.
• In Liebeck v. McDonald’s, Stella Liebeck was burned by hot coffee and awarded damages for negligence.
• Common law litigation is criticized for being expensive, slow, and favoring wealthy parties. Civil law offers strengths like efficiency, judge-led investigations, and a focus on facts.
• Juries in civil trials are seen as reflecting community values but can lack expertise and be potentially biased.

Jurisdiction

• Sources of international law include treaties, customary law, judicial decisions, and academic writings.
• Territoriality grants jurisdiction over crimes within borders.
• Nationality grants jurisdiction over citizens abroad.
• Universality applies to serious crimes like piracy.
• The effects principle grants jurisdiction for acts with domestic effects, as seen in the SS Lotus case.
• The David Carruthers case illustrates jurisdictional issues when activities legal in one country are illegal in another.
• The EU's default jurisdiction rule is that cases are heard where the defendant resides.
• Exceptions to EU jurisdiction include contract location, location of damage, and consumer protection.
• The minimum contacts test determines if a U.S. court has jurisdiction.
• VW v. Woodson established limited jurisdiction due to minimal contact.
• Asahi Metal focused on fairness in international cases.
• Active websites create jurisdiction, while passive websites generally do not.
• The Google v. Costeja Gonzalez case established the right to be forgotten under EU law.
• Dow Jones v. Gutnick determined that defamation occurs where content is accessed.

Contract Law

• Freedom of contract allows parties to freely negotiate terms.
• Binding force (pacta sunt servanda) makes contracts enforceable.
• Some contracts require a specific written form, like real estate contracts.
• Fairness protects against unfair contract terms, such as under the EU Consumer Rights Directive.
• Sources of contract law include statutes, case law, international agreements, and EU directives.
• The EU Consumer Rights Directive (2011) includes a 14-day withdrawal right, clear information requirements, and prohibits unfair terms.
• Common law requires consideration for a promise to be valid.
• Civil law can enforce promises without consideration if formalized.
• An offer shows a clear intention to be legally bound.
• An invitation to treat is an invitation to negotiate, like shop displays.
• The Carbolic Smoke Ball case showed an advertisement that can be a binding offer
• Under common law acceptance is effective when communicated (postal rule applies).
• Under civil law acceptance is effective when received.
• The timing of acceptance determines when obligations begin.
• Silence generally does not equal acceptance, except in certain business relationships or prior agreements.
• The last shot rule means the last terms exchanged apply.
• The knock-out rule means conflicting terms cancel each other out.
• The first shot rule means that first terms apply unless rejected.
• Sharia law principles in contract include mutual consent, good faith, no interest (riba), and no uncertainty (gharar).
• There is a great emphasis on risk and profit sharing (e.g., mudaraba, musharaka).
• Also a focus on fairness and ethical compliance.
• Murabaha (buy-sell model) is used instead of interest.

Tort Law

• Key elements of a tort include a duty of care, breach of that duty, and resulting harm (causation and damage).
• Vicarious liability means employers are liable for employees’ wrongful acts during employment.
• Justifications for vicarious liability include control, risk distribution, and financial responsibility.
• Compensatory damages cover actual losses.
• Punitive damages punish misconduct, common in the U.S.
• Liebeck v. McDonald’s (hot coffee case) is an example of damages, where both Compensatory and Punitive damages came into play.

Intellectual Property (IP)

• Copyright protects creative works like books and music.
• Trademarks protect brand logos/names, like the Nike logo.
• Patents protect inventions for up to 20 years.

Business Forms

• A sole proprietorship is simple, but the owner has unlimited liability.
• A partnership involves shared profits and liabilities between partners.
• A private limited company (Ltd) offers limited liability with private shareholders.
• A public limited company (PLC) has shares traded publicly.
• Legal personality means companies are separate legal entities.
• Limited liability means owners are only liable up to their investment.
• Ltd companies have private shares and less regulation; PLC companies have public shares and stricter regulation.

Explore civil law's reliance on statutes versus common law's use of precedents. Understand criminal law's focus on societal crimes and the burden of proof. Differentiate between private and public law, including administrative regulations.