Common law thread?

Common law thread?

Let's start with discussing [Donoghue v Stevenson]

Facts:
On the 26 August, 1928, May Donoghue and a friend were at a café in Glasgow (Scotland). Donoghue's companion ordered and paid for her drink. The cafe purchased the product from a distributor that purchased it from Stevenson. The ginger beer came in a Dark bottle, and the contents were not visible from the outside. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. The remains of a snail in a state of decomposition dropped out of the bottle into the tumbler. She was unsuccessful at trial and appealed the decision to the House of lords. Finally, her claim was successful.

Issue: Does the defendant owe a duty of care to the plaintiff being as there is no contractual term?

Decision: Appeal allowed.

Ratio and Analysis: Manufacturers owe the final consumer of their product a duty of care (at least in the instance where the goods cannot be inspected between manufacturing and consumption). There need not be a contractual relationship, or privity, in order for the final consumer to sue in negligence.

Other urls found in this thread:

en.m.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement
twitter.com/SFWRedditImages

To a Continental, this system seems so archaic and provincial.

>it took until 1928 to establish that manufacturers are liable for selling tainted food and drink
Real beacon of civilization there, Britain.

...

Why did this meme happen, when common law countries like USA have ridiculously huge body of written law?

Common law is literally "I don't understand the division of powers-tier".

>Common law is literally "I don't understand the division of powers-tier"
what? Common law works great in Canada with a division of powers with the provinces.
In my next post I'll explain something with precedents.

Okay so what happens often with us common law countries, main ones being UK, USA, Canada, Australia, sometimes New Zealand, is there will be a KNOWN hole in the common law to deal with a certain issue. For example in common law 3rd party privity in a contract was an issue for a long time, and courts kept trying to move slowly and slowly away from it in their rulings. Eventually, parliaments just passed legislation in all commonwealth countries except a few Canadian provinces which allows for third parties to sue if even if they benefit but are not privy to the contract.

The other way holes in the common law are dealt with is by a precedent, like waiting for the perfect case. So for example; the "battle of the forms" in contract law was a known hole for a while. Meaning if 2 standard forms are used in a transaction and have competing clauses, which one would win.

Facts: Butler Machine Tool Co. v Ex-Cell-O Corp

Butler made and sold machine tools. They sent a letter to E-Cell on May 23, 1969 offering Ex-Sell some new machines for £75k. Included in this offer was a price variation clause to allow them to charge more if materials cost more.
Ex-Cell replies a few days later with their own standard forms about making a purchase of the tools.
Butler accepted this, then the price of steel went up so they charged Ex-Cell £2k extra. Ex-cell took them to court over the 2k and said that's no fair.

Issues: On who's terms was the contract made?

Decision: For Ex-Cell

Ratio: In battle of the forms if there is discrepancy between 2 forms, use the industry standard, or which ever side made their terms the most clear to the other party are the terms the contract is on.

K the guy who wrote this decision was Lord Denning of House of Lords. He was an awesome adjudicator so a lot of high courts in other Common Law jurisdictions will look at his rulings to see how he patched a part of the common law.

Cont.

So in Canada, parliament didn't pass any legislation resolving the known battle of the forms issue in our common law even though we know the British solved it, so the Supreme Court of Canada waited for a case, and eventually one came Tywood Industries v Anne Pulp & Paper CO.

The Canadian Supreme Court referenced Lord Denning's ruling like, look how the British resolved the case, this makes sense, so this is our we're going to resolve the case.
Since it's a Supreme Court ruling, that is now law across all of Canada.

Most contract law has been patched up with statutes here and there, but I'm sure there are still a few holes judges are waiting to fill with their ruling

ho ho ho

SCC has best robes

Thanks for this friend, I'm doing law in 6th form rn.

Why do they look like Santa?

I don't know. It's much more similar to the French Supreme Court than the British which I find ironic, but yeah no idea the history behind their robes.

is that in the uK? I'm in la school in Canada

The UK. We've just finished judicial precedent. Hbu?

Wrote my constitutional exam today, had Torts on Friday and Contracts last Monday.

Ah, I did some mock exams a couple of weeks ago myself, I didn't revise so I scored pretty terribly, how did you do?

Our exams are open book, not sure about you. So We make course summaries like pic related is the index for my Torts summary. Then we bring in our summaries and our exams are usually fact patterns, like my constitutional exam today was a fact pattern of the Prime Minister trying to fire the chief justice, and we had to go through all these different principles to argue whether or not he could do it.

So I think today went okay but my Torts exam went really well too

B-brainlet here, what the fuck even IS 'common law'? How is it different from normative law?

What country are you from?

Common law is law made by judges as opposed to legislature, and more broadly, a system that allows for such.

When you look at a country like the U.S., and their supreme court says so and so constitutional provision means X, it's not

>We're the best judges and we have great collective wisdom and because of that we are in the best position to understand it.

It's

>We are the Supreme Court; we say it means X, and because we say it, it is X.

Nice, well good luck with the rest of your course f a m

most of our private law is judge made law, like in my summary here
All these cases are the relevant decisions that made up the law in that area. So like, Horsley v McLaren determined that you do not owe a duty to anyone to rescue them from a perilous situation unless you caused that parilous situation. The law is just the decision, there's no written statute for it. In the future if someone was sued for not rescueing someone they could just point to that case and say look this is the law.

You're not brainlet. Lawyers think they're hot shit but men with guns make the law. They're just peace time pencil pushers.

bumo

>common law

FUCK YOU UNI, I JUST WANTED TO LEARN ACCOUNTING

Interestingly the case never went to proof. There was no evidential snail. The matter in the HL was just on liability. Thus means that the little snail which is the capstone of the common law tort of negligence remains to this day, the alleged snail.

I love that.

Holy shit I'm old.
>t. 3 years call.

>The alleged tort liability

Torts is fun

Most appellate level law (and while I'm not all that certain about how British courts function, I think it's the same as the U.S. in that case) is about law itself, not about factual arguments. You will often get cases where a standard of evidence is changed, or a tort claim is formulated, and then it's sent back to the lower courts, where the original litigant still loses despite a favorable higher court ruling for a more broadly applicable standard of whatever. U.S. vs O'Brien is probably the poster child for that, at least in my mind. What's so special about it?

>what's so special
The second half of the post user.

Again, so what? You will get the exact same thing any time you have an interlocutory appeal about anything.

From this tiny little snail that may or may not have existed we get Lord Atkins neighbour principal and the great thumping authority of donoghue v Stevenson referred to as precedent throughout the common law. If there's not something fun in that you have no soul.
>From little snails do great cases grow

>duty to rescue

liberals are really pathetic

That's mostly a French thing IIRC. I don't know much about canuck law aside from the bong bits. How much influence did the frog bits have on their legal system?

We don't have a duty to rescue unless you caused the perilous situation

>How much influence did the frog bits have on their legal system?
Quebec uses civil code, the rest is common law and criminal is federal

At least in the U.S., there are also duties to rescue if you're in a position of authority over a dependent, things like parents towards their children, caretakers over the mentally disabled, wardens over prisoners, that kind of thing.

Yeah, but those cases are about stuff like watching a person drown on their own accord, or causing a perilous situation where someone drown. You only owe the duty of care if you caused their drowning

>Yeah, but those cases are about stuff like watching a person drown on their own accord, or causing a perilous situation where someone drown. You only owe the duty of care if you caused their drowning
That is not completely correct. Certain peoples do have a duty to care even if they are not themselves the creators of the hazard; if you have say a school trip to a river, and a kid falls in and starts drowning, you a passerby has no duty to rescue, and legally can face no repurcussions, civil or criminal for standing around and watching the kid drown, but someone like the school official who is chaperoning the event is not in the same category. Dependents various wards are almost always saddled with that sort of obligation.

Well yeah those are pre established duties,

That was on my birthday. Oh god.

You're 89?

>Go to bar
>Purchase drink that doesn't explicitly say that it doesn't carry a dead snail
>It ends up carrying a dead snail
>Obviously, the drink wasn't meant to carry a snail, as the common man drinks his drinks without snails
>Go to court
>Jury of peers (common men who drink their drinks without snails)
>Jury finds the defendant guilty of selling a defective product

Simple

Before I give you a proper answer can you confirm this is really your understanding of the common law (of England & Wales) tort of negligence with reference to Donoghue and Stevenson?

The importance of Donoghue v Stevenson is it is the first time manufacturers were found negligent, instead of just breach of contract. Also estblished the duty of care manufacturers have to their consmers

And thus the ambulance chaser was born.

Bought a bottle of Tequila and there was a worm in it. Can I sue?

Not exactly. A supreme court ruling means does not negate or remove a law on the books, but rather declares it in essence "unenforceable". The law remains on the books and (if the people's representatives will it) must be amended to conform to the new legal precedent set by the S.C. Effectively any attempts to enforce that law are quelled because an appeal is certain to win, because it is backed by the precedent set by the S.C. ruling.

It's a little odd...

in Canada we call this dialogue theory. Dialogue between the courts and legislature through judicial decisions and statutes

While correct, that doesn't really address the point I made. Judge made rulings on this, that, or the other subject, due to Stare Decisis, ARE law. They're not statutory law, but they are law nonetheless. When a court lays down whatever principle, they aren't illuminating or revealing something implied in a previous body of law, they are creating it on the virtue of their own authority.

Ordered some escargot and it had a snail in it

Common law originates with the civilization that invented the concept of division of powers

This

Like prior to Donoghue people would only be able to sue for breach of contract with the manufacturer. After Donoghue, the courts decided naw manufacturers owe consumers a duty of care. That is now law, even though it's not codified as such

Gump

...

Ordered some ciggarettes and they gave me cancer. Who do I sue?

This already happened 20 years ago

en.m.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement

Bump

again

Why doesn't the government just pass laws about consumer protection instead?

>except a few Canadian provinces
99% chance that Newfoundland is one of that few, on their confederation in '49 they were able to keep their own antique law system with some adjustments
for example, it's the only province where wild game is allowed to be sold directly to markets and restaurants afaik

what bullshit.

If Butler made the offer, and Ex-Cell responded positively, then it's butler's contract

fucking jew judges

Because if you have a more or less standard legislative system, they've got a lot to do and insufficient time, budget, and information to pass legislation on everything that needs it before some problem somewhere explodes.

By passing the job to the judiciary, nobody needs to foresee both the foreseeable and the unforeseeable (and be able to tell the difference well in advance). Problem comes up, you make a judgment on the facts at hand, and you use that reasoning in future, similar cases.

No, butler accepted by signing the other party's standard forms.

It's pretty much all provinces except for Alberta and Quebec that still require privity to sue even if you are beneficiary of the contract

That's partly due to the seal hunt
Nfld wants to sell seal products to consumers

This seems incredibly archaic. Is your criminal law like this?

In Canada all crime is codified, but common law defences are still allowed