Common law vs Civil law Flashcards
(20 cards)
What is the main difference in how law is created in common and civil law systems?
Common law is made through court decisions (precedents). Civil law is based on codes written by legislators. Example: In the UK, courts follow previous rulings. In France, courts follow the Code Civil.
How do courts interpret contracts in each system?
Common law focuses on the exact wording. Civil law looks at what the parties intended. Example: In England, a delivery term means what it says. In Germany, emails or talks before the contract may help interpret it.
What is the Four Corners Rule?
In common law, only what’s written in the contract matters — no outside context. Example: A judge in Canada won’t look at draft emails to interpret a clause.
What is good faith in each system?
Civil law expects parties to act fairly in negotiation and contract performance. Common law usually doesn’t — unless the contract says so. Example: A Dutch court may punish unfair bargaining. A US court might not.
Is “consideration” needed for a contract?
Only in common law. Both sides must give something. Civil law doesn’t require this. Example: A UK contract with no exchange may be invalid. In Italy, it could still work.
What is “culpa in contrahendo”?
A civil law rule: you can be liable for bad faith during negotiations. Example: A Belgian firm lets the buyer invest money, then backs out — it may owe damages.
Can you freely walk away from negotiations?
In common law: yes, unless promised otherwise. In civil law: only if done fairly. Example: A Greek court may expect notice and reasons before walking away.
Which system has more default rules in contract law?
Civil law provides more built-in rules. Common law expects detailed drafting. Example: A Spanish seller must deliver goods unless the contract says otherwise. In the US, duties must be spelled out.
Are oral contracts valid?
Yes in both systems, but civil law sometimes needs writing (e.g. real estate). Example: In Denmark, some deals must be written. In England, most oral agreements are binding.
How are unclear contract terms treated?
Civil law looks at the parties’ intent. Common law interprets it against the drafter. Example: In Austria, a court asks what was meant. In New York, the unclear clause hurts the one who wrote it.
What role does equity play?
In common law, equity is a separate tradition that gives fair outcomes where strict rules fail. Civil law blends fairness into its codes. Example: In the US, equity may allow a remedy not written in the contract. In France, fairness is part of the written law.
What is the role of judges in each system?
Common law judges make law by deciding cases. Civil law judges apply written law. Example: A UK judge might create a new rule. A German judge checks what the law already says.
How does the contract drafting style differ?
Common law contracts are longer and more detailed. Civil law contracts rely more on background law. Example: A US contract may be 20 pages. A French one could be 5.
How do the systems differ on non-performance?
Civil law may allow renegotiation or adaptation. Common law focuses on damages. Example: A Czech supplier facing price hikes may ask to adjust the deal. A UK supplier must perform or pay damages.
Are model clauses treated the same way?
Civil law may assume model terms apply via usage. Common law needs express agreement. Example: In Italy, Incoterms may apply by custom. In Canada, they must be included clearly.
What is the doctrine of precedent?
Only in common law: lower courts must follow higher court decisions. Example: An English court must follow a prior ruling from the Court of Appeal.
How are damages for breach handled?
Civil law often needs fault and causation. Common law just needs a breach. Example: A French buyer must prove the seller caused loss. In Australia, breach alone may trigger payment.
Do both systems accept limitation of liability clauses?
Yes, but civil law may restrict unfair clauses. Common law is more tolerant. Example: A limitation clause might be invalid in Denmark if unfair. In the US, it’s likely enforced.
Is legal certainty stronger in one system?
Civil law offers more certainty in many areas because rules are codified and available in statutes. Common law relies on past cases and contractual remedies, so if no case fits, outcomes are less certain.
What is the difference between mandatory law and dispositive law in civil law systems?
Mandatory law (ius cogens) cannot be changed or ignored in a contract. Dispositive law (ius dispositivum) applies only if the parties don’t agree otherwise.
