Similarities between Common Law and Civil Law Legal System

Find out how to earn your Master`s degree in Legal Studies entirely online and advance your career with legal expertise. The distinction between civil law and common law systems is based on techniques and approaches of argumentation and not on the content of legal norms. Civil law and customary law pursue the same objective with different methods, and identical conclusions are often drawn by alternative reasoning. The fact that customary law and civil law arrive at identical or similar responses using different methods is not unexpected, since the object of legal regulation and the underlying values are more or less the same in all legal systems. Significant influence in some civil jurisdictions The common law dates back to the beginning of the English monarchy, when courts began to collect and publish legal decisions. Later, these published decisions served as a basis for ruling on similar cases. In many civil law countries, a separate administrative law governs PPP agreements. It is important to seek local legal advice to verify whether these rules apply in a particular civil system. It is also important to note that in a civil jurisdiction, the contract is performed by the administrative courts, unless the contract provides that the parties have agreed to arbitration.

Some of the main administrative provisions applicable to delegated administrative arrangements are listed below. Below is a discussion about the civil and customary law systems: Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content. As a rule, there is a written constitution based on specific codes (for example. B Civil Code, Codes of Company Law, Administrative Law, Tax Law and Constitutional Law) and enshrines fundamental rights and obligations; However, administrative law tends to be less codified, and administrative judges tend to behave more like common law judges; Many people do not consider the distinction between civil law and customary law until they encounter a legal problem. Both forms of legislation are applied in different countries around the world, depending on the nature of the event. Here are some of the main differences between the two systems – the civil law system is a codified legal system. It has its origin in Roman law. The characteristics of a civil law system include: A contract that takes up an administrative substantive principle and specifies exactly how it is to be applied will generally be effective. But the modification or repeal of an administrative principle may or may not be legally possible – this should be reviewed. For example, it may not be possible to completely eliminate the possibility for a contracting authority to unilaterally change service standards. In France, the law invalidates any attempt to derogate from the possibility for the contracting authority to unilaterally terminate a contract. Some civil codes also contain binding notice periods before termination for breach of contract, which cannot be avoided or cancelled.

Freedom of contract is very broad in common law countries, i.e. very few or no provisions are implicit by law in contracts. Civil law countries, on the other hand, have a more sophisticated contractual model with legal provisions. The legal systems of countries around the world are divided into two categories: common law systems and civil law systems. There are about 150 countries with predominant civil law systems, compared to about 80 countries with common law systems. A contract does not have binding effect at common law unless it is supported by consideration. The theory of consideration states that a contract must be supported by something of value, such as.B. a party`s obligation to deliver goods or services, or a promise to pay for goods or services.

A contract, on the other hand, cannot exist in civil law without a valid reason (causa). The reason a party enters into a contract and agrees to perform contractual obligations is called the cause. Cause differs from consideration in that the reason a party binds does not have to be to receive something in return. Legal systems around the world are very different, but they usually follow civil law or customary law. At common law, past precedents or responsible court decisions are used to decide specific cases. Under civil law, codified laws and regulations govern the country. Some countries, such as South Africa, use a combination of civil and customary law. A civil law system is generally more prescriptive than a common law system. However, a government has yet to consider whether a specific law is needed to limit the scope of a particular restriction in order to allow for the success of an infrastructure project, or whether it can require sector-specific legislation.

For more information, see legislation and regulation and “Organizing government to think PPP.” In civil law countries, apart from the main proceedings, only judicial decisions of administrative and constitutional courts are binding. Essentially, the concept of precedent, that is, past cases can determine the outcome of future cases, is not used. For an inexhaustible list of countries with common law and civil law systems, check out the global legal systems wikipedia However, in civil law countries, the judge is usually the chief investigator, and the role of the lawyer is to advise a client in court proceedings, write statements of claim and provide evidence favorable to the investigating judge. In civil law systems, on the other hand, codes and laws are designed to cover all eventualities, and judges have a more limited role in applying the law to this case. Past judgments are nothing more than cowardly signs. When it comes to court proceedings, judges in civil systems are more like investigators, while their counterparts in common law systems are more likely to be arbitrators between parties presenting arguments. Civil law in other European nations, on the other hand, generally dates back to the code of law of the Roman emperor Justinian around 600 AD. Authoritative legal codes with roots in these (or other) laws then developed over many centuries in different countries, resulting in similar legal systems, each with its own laws.

Summary of the differences between civil law and common law legal systems In some civil law systems, e.B. In Germany, the writings of jurists have a considerable influence on the courts; Each country has its own traditions and policies, so it is important for those who want to learn more about the role of legal practitioners in a particular country to do additional research. Historians believe that the Romans developed civil law around 600 AD, when Emperor Justinian began drafting legal systems. Current civil codes have developed around this Justinian tradition of codifying laws as opposed to court decisions. Common law systems offer greater flexibility to provide different types of collateral on assets – an important feature of PPP agreements that involve commercial financing such as BOT. They also have the concept of trusts, which allow a trustee to hold collateral for lenders in a syndicated loan situation without the need to formally transfer or re-register collateral on behalf of new lenders. Civil law does not have such a concept, so collateral usually has to be re-registered in the name of the new lender (with additional registration fees and notary fees). France is introducing a trust law that will address a number of these issues. However, in OHADA countries, deposits involving a notary public are necessary to formalize security interests. There are generally different constitutional, administrative and civil judicial systems that decide on the compatibility of laws and administrative acts and also interpret the underlying codes. The common law is intrinsic to England in its origins. Until the Norman Conquest, there were different rules for different parts of the country.

But as the laws and the country began to unite, a common law was created based on customs and regulations throughout the country. These rules developed organically and were rarely written. Canada is a bijurel country where common law and civil law coexist, with the exception of the province of Quebec, the common law tradition applies throughout Canada in all aspects of public law (e.B. Criminal Law, Administrative Law). In Quebec, civil law governs all aspects of private law, including family law and children`s law. Below are some important differences between the common law and civil courts. The common law legal system in England is based on the subject matter heard in previous cases as well as the law promulgated by the judges. It began during the reign of King Henry II (1154-89), when many local dress rules were replaced by new national laws that applied to all and were therefore “common to all”. Only legislative decrees are binding on all. There is little room for judicial law in civil, criminal and commercial courts, although in practice judges tend to follow previous court decisions; Constitutional and administrative courts may repeal laws and regulations and their decisions in such cases are binding on all. The laws that govern a case are based on both legal precedents established by judges and statutory laws established by legislators. In an adversarial system, the judge acts as a neutral arbitrator between the competing parties in a dispute.

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