Common Law vs. Civil Law Systems

Common Law vs. Civil Law Systems: A Comparison

• Outlines fundamental differences in lawmaking, legal reasoning, and core principles between common and civil law systems.

Source of Law

• Civil Law relies on codification, where legislators enact general principles into written laws accessible to citizens.
• Judges apply general rules to specific facts under Civil Law.
• Common Law develops through judicial decisions rather than statutes.
• Stare decisis dictates that previous higher court decisions are binding on lower courts, creating a rule of precedent under Common Law.
• Ratio decidendi (material reason for the judgment) is binding, but obiter dicta (non-essential statements) are not.

Legal Approach

• Civil Law emphasizes general rules from the legislature, applied to specific cases, known as a top-down approach.
• Common Law focuses on specific cases decided by judges, deriving general legal principles, known as a bottom-up, inductive approach.
• A guiding principle of Common Law is to treat similar facts similarly on different occasions.

Core Principles in French Civil Law

• Liberté contractuelle (Freedom of Contract): Article 1102 C. Civ states everyone is free to contract or not, choose with whom, and determine the contract's content and form within legal limits.
• Devoir de bonne foi (Duty of Fair Dealing): Article 1104 C. Civ mandates contracts must be negotiated, formed, and performed in good faith.
• Force obligatoire du contrat (Binding Nature of the Contract): Article 1103 C. Civ (pacta sunt servanda) declares lawfully formed contracts have the binding force of law for those who made them.

Carlill v. Carbolic Smoke Ball Company [1893]

• Landmark English common law case demonstrating common law development through judicial decisions.

Key Takeaways:

• Offer and Acceptance: The advertisement was a unilateral offer to the world, accepted by performing the conditions, notification wasn't needed before performance.
• Consideration: The court stated the increased use/sales of their product constituted sufficient consideration.
• Intention to Create Legal Relations: The £1000 deposit showed sincerity, distinguishing it from a marketing puff.

Ratio Decidendi

• The advertisement constituted a unilateral contract (promise to perform an obligation).
• The deposit showed the advertisement was more than a "mere puff."
• Communication of acceptance wasn't necessary where acceptance is through conduct.

Legal Systems: UK, US, and France

• A brief overview of the legal systems of the UK, the US, and France, highlighting their structures and key constitutional principles.

United Kingdom

• Common law and equity interplay characterizes the legal system.
• Equity addresses common law rigidities with new rights/remedies.
• Parliamentary Sovereignty: Parliament is the supreme law-making body, the UK constitution is uncodified and developed through various sources.
• Hierarchy of Norms: Constitutional acts/conducts, legislation, royal prerogatives, precedent, equity, and customs.
• Court Structure is hierarchical with the UK Supreme Court, Court of Appeal, High Court, Crown Court, County Court, Magistrates' Court, and various tribunals like the Employment Appeal Tribunal.

Brexit Legal Battle: Gina Miller & others v Secretary of State (2017)

• Concerns the Crown's prerogative powers and parliamentary sovereignty when triggering Article 50.
• The Supreme Court ruled the government needed an Act of Parliament to trigger Article 50.
• The 1972 Act's incorporation of EU law was conditional on EU membership.

United States

• Has a federal system with distinct federal and state court systems.
• The US Constitution establishes government framework, including separation of powers and fundamental rights (Bill of Rights).
• Federal Powers include taxation, commerce, intellectual property, and declaring war.
• Marbury v. Madison (1803) established judicial review, allowing courts to interpret and apply the Constitution.
• A six-step impeachment process exists, involving the House and Senate.

France

• A civil law system with a codified constitution (Constitution of the V Republic, 1958) including fundamental rights (Declaration of the Rights of Man and of the Citizen of 1789).
• Hierarchy of Norms: Constitution, laws adopted by referendum, international treaties, organic/ordinary laws, and government ordinances/regulations.
• Separation of Powers: Legislative (Sénat & Assemblée Nationale), Executive (President, Government), and Judicial (Cour de cassation, Conseil d’état, Conseil Constitutionnel).
• A dual court system; judicial order (civil/criminal) and administrative order.

Application in Different Areas of Law

Contract Law

• Consideration (Common Law): A promise is legally enforceable only if supported by reciprocal benefit or detriment, which doesn't exist in civil law systems.

Tort Law

• Common Law (Negligence): Requires duty, breach, causation, and damages.
• Donoghue vs. Stevenson establishes negligence duty of care
• Civil Law (Article 1240 French Civil Code): a broader principle of liability for causing harm through fault, tort, contract, and administrative violations differ, with rules regarding choice of legal basis.

Duty of Good Faith

• Common Law (UK): no overarching duty in negotiations, considered adversarial.
• Civil Law (France & US (UCC)): Emphasizes a general duty to conduct negotiations, formation, and performance of contracts in good faith and with fair dealing.

Duty to Mitigate Damages

• Both recognize the duty to minimize the financial impact of harm.

Remedies

• Common Law: Compensatory damages to restore pre-loss position, punitive damages may be awarded, with equitable remedies available.
• Civil Law: Focus on compensating the full loss.

Property Law

• Common Law & US have utilitarian/natural rights philosophies, emphasizing individual liberty and the right to property.
• Civil Law (France): Article 544 defines ownership as the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.

Intellectual Property (Copyright/Author's Rights):

• Common Law (UK & US) focus on copyright as a "right to copy”, and registration is needed.
• Civil Law (France) focuses on "author's rights" (economic/moral) existing at creation without registration.

Procedural Differences: Adversarial vs. Inquisitorial Systems

Adversarial (Common Law)

• Judges are relatively passive referees in the adversarial system.
• The process is a contest where each side presents their evidence and arguments.
• Attorneys have freedom to develop arguments based on various factors.
• Pre-trial discovery is a phase for exchanging information between parties.
• Attorneys directly examine and cross-examine witnesses.

Inquisitorial (Civil Law)

• Judges take an active role in discovering/evaluating evidence and questioning witnesses.
• Judges determine which witnesses to call and the order of testimony.
• Fact-finding is limited to materials support their position.
• Discovery is less common, the judge controls investigative aspects.

Key Procedural Concepts in Common Law

• Dr. Bonham's Case illustrates common law where an Act of Parliament could be void if against common right/reason.
• Witness Credibility is emphasized (Rebekah Vardy vs. Coleen Rooney), for assessing honesty and reliability.
• Spoliation: The intentional destruction of relevant evidence can lead to a negative presumption.
• Right to a Jury Trial is in the Magna Carta, and prominent in the US.
• Courts interpret laws considering similar cases (precedent) and legislative intent.

Intellectual Property Rights(IPR): History, Concepts, and EU Framework

• Briefing document on IPRs, including historical roots, fundamental nature, the EU framework, and types.

A Short Walk in the History Regarding IPRs

• Highlights early recognition of authorial/commercial ownership.

Early Forms of Exclusive Rights

• Exclusive rights to creators date back to ancient times; chefs received rights to their culinary dishes in 500 BCE.

Assertion of Authorial Property

• In 1st-century Rome, ideas about authorial property had begun to emerge.

The Cathach of Columba Case (VI Century Ireland)

• An early example of a dispute about book reproduction, where ownership can belong to the creator.

Early Use of Marks for Commercial Origin

Use to indicate ownership is ancient, including pottery marks, Chinese seals, and English laws.

Early Trademark Cases

Cases were on wide distribution of goods, distinctiveness, long use, considerbable fame of the mark, actual consumer confusion, proof of damages, unjust enrichment of the defendent and loss of reputation and goodwill.

The Statute of Monopolies (Venice, 1474)

Is highlighted as an early form of patent protection and had government use provisions.

The Statute of Anne (England, 1710)

• Focused on authors' rights for printing books to encourage learned individuals and writing.

Donaldson v Becket (England, 1774)

• Addressed common law copyright and ruled authors could only defend copyrights for the fixed period.

The DNA of IPRs

• Outlines the fundamental characteristics common to different types of Intellectual Property Rights.
• Concerns intangible creations of the mind.
• confers transferable exclusionary rights, enforceable in court.
• Despite differences, all have the rights conferred, the bar to reach the IP subject matter, the scope and the exceptions.

EU: A Unique Legal Systems for IPRs

Integration Through Crisis

• Highlights European integration driven by challenges.
• It aims to promote values/well-being of its people through a free market and free movement.
• IPR is a territorial exception that can create barriers and exclusivity.
• Balance territoriality with free movement.
• Strives to create unitary IP rights and harmonize domestic rules.
• Van Gend & Loos case established direct effect/supremacy over national laws creating rights for individuals that national courts must recognize and enforce.
• Lists the main EU institutions.
• Offers different forms of EU law that involves Regulations, Directives and Decisions/opinions that are not biding.

Principles of EU Law makes

• Decisions taken closely to citizens.
• Law that inclides the treaties and the Charter of Fundamental Rights, the regulations, directives, and decisions.
• Distinguishes between integration.

An Overview of IPRs

• Brief intro different IPs like the Paris Convention.
• Paris and Berne Conventions are key treaties.
• Discusses trade dress and what they protect, patents, trademarks and copyrights
• Outlines various types of IPRs like Patents Trademarks Designs Copyright Related + Neighboring rights, Trade Secrets with their durations.

Understanding Trademarks

Main theme

• Trademarks identifying the commercial origin distinguish the goods from those of the competitors.

key Ideas

• Has a definition of what a trademark is by identifying the source to distinguish them from other parties.
• They also serve as qualities to communicate, build, protect for advertising and contributing.
• It provides a limited monopoly to prohibit consumer confusion regarding its origins.
• Limitations to this exclusivity appliees on the first sale.
• The classifcation is categorizing goods into 45 classess and the class is updated frequently.

Types of trademarks

Non Traditonal trademarks

Key ideas

• Requirements in "clear precise, self contatined” marks
• Registration process involving an application.

Main theme about the EU registration with the US system

Features

• This features general process of US system.
• The are many factors discussed with key idea about EU that involve registration requirement.

Further Ideas

Utility Patent

Main theme

• Some application can be be refused through charactistics and conflict

Trademark distincteness

• Main for for trade mark
• They catogarize a spectrum that goes from generic.

Key Procedual Concempt

Main Theme is that trade marks infringement arises in unauthized settings

A case study involves having valid trademarks US ad EU are similuar if you are un familar Licenses

Trademark's Power

Trademark Rights are exclusive, Limited of specialty territoriality,protection Marks have rights, duration Trade marks can have origin, similarity, design Trademarks are a key design