Task 7. Match the phrases in column A with their Ukrainian equivalents in column B.

A	B
1.Закони сучасних англомовних країн зазнали впливу Римського права.	a. The Law of the Twelve Tables remained in use for over 1000 years, though the bronze tables were destroyed when Rome was sacked in 410 AD.
2. Закон Дванадцяти таблиць стосувався всіх громадян. Він був викарбуваний на дванадцяти бронзових таблицях, розташованих у Форумі, де кожна людина могла їх побачити.	b. The Roman empire had spread over much of Europe. It remained intact until the fifth century AD. As a result, the laws of all European countries, including France and England, were much influenced by the two Roman Codes.
3. Закон Дванадцяти Таблиць діяв 1000 років, хоча таблиці були знищені, коли Рим був пограбований.	c. The law of France underwent further changes in the late eighteenth century, when Napoleon Bonaparte compiled the Code of Napoleon.
4.Юстиніан переймався ліквідацією корупції та прагнув зробити правосуддя доступним кожному.	d. The Law of the Twelve Tables covered all citizens. It was inscribed on twelve bronze tables set up in the Forum for everyone to see.
5. Римська Імперія простяглася по всій Європі і як результат всі Європейські країни зазнали впливу двох Римських кодексів.	e. Law in the modern English-speaking countries was also greatly influenced by Roman Law.
6. Закон Франції зазнав впливу у 18 столітті, коли Наполеон Бонапарт уклав Кодекс Наполеона.	f.Justinian was concerned with elimination of corruption and making justice available to everyone.

Task 8. Law has its origins in the early developments of civilized society, and through time there have been major influences on the laws that we follow today. Match these sources of law with the descriptions below:

 

Common law, Roman law, Napoleonic Code, The Ten Commandments

 

_________, which evolved in the 8^th century BC, was still largely a blend of custom and interpretation by magistrates of the will of the gods. _________, evolved from the tribal and local laws in England. It began with common customs, but over time it involved the courts in law-making that was responsive to changes in society. In this way the Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that replaced the rules laid down by earlier societies. _________ formed the basis of all Israelite legislation. They can also be found in the law of other ancient people. _________ refers to the entire body of French law, contained in five codes dealing with civil, commercial, and criminal law.

Task 9.Agree or disagree with the following statements.

1. The Ten Commandments are based on moral standards of behaviour.

2. In common law, judges resolve disputes by referring to statutory principles arrived at in advance.

3. Roman law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies.

4. The Napoleonic Code was introduced into a number of European countries, notably Belgium, where it is still in force. It also became the model for the civil codes of Quebec Province in Canada, the Netherlands, Italy, Spain, some Latin American republics, and the state of Louisiana.

 

Task 10.Make up the sentences with the following words:

influence, development, resolve, origin, reference, be in force, previous, will, tribal.

 

Task 11. Read and translate the text into Ukrainian:

Sources of English Law

English law has developed from a number of sources: custom, the rules worked out by the common law courts and the courts of equity, canon law, the law merchant, legislation, etc. Moreover, the growth of substantive civil law has at common law been bound up with procedure, since a right existed only if it could be enforced.

The following is an outline of the sources of English law and of the courts and other institutions involved.

In Anglo-Saxon times there existed three fairly distinct legal systems: The Dane Law, which had been adopted after the invasions and settlement of Danish and Scandinavian warriors in the coastal areas of northern and northeastern England; Mercian Law, which bore traces of Germanic origin, following the Saxon invasions, and extended around the Midlands; Wessex Law, which applied in south and west England.

In each of the three systems the law was based on customs, and the customs varied from place to place and shire to shire. There was little distinction between criminal wrongs and civil wrongs at this time; the laws were generally primitive but nevertheless served to produce such good order as could be expected. But there were courts of law where cases were heard. The Anglo-Saxon courts before 1066 were:

1. The Shire Court (or Moot), presided over by the Sheriff, the Bishop, and the Ealdorman, and attended by the lords and freemen of the county, with the priest. This court sat twice a year.

2. The Hundred Court (“hundred” means a division of a shire), presided over by the Hundredman, assisted by twelve senior thanes.

3. The Franchise Courts, granted to certain persons by the monarch. The grantees were entitled to the profits, for the suitors or litigants who brought their cases to court for trial were required to pay fees. In Norman times the franchise courts were sometimes taken over by the lords of the manor who, in deciding disputes between tenants of land, continued the practice of charging fees.

Of these three courts the shire court was the most important, but all enforced the local laws and all had jurisdiction to deal with obvious criminal offences, such as murder, theft, violence to person and property, and also the civil claims concerning ownership or possession of land or cattle - both very important sources of wealth.

The Anglo-Saxon system of keeping the peace was based on frank-pledge, a police organization which required every male over the age of 12 to belong to a “tithing”, a group of ten or more persons under a headman. All in the tithing were mutually responsible for the offences of the others and were bound to produce the offender in court if called upon. Those who did not submit to justice in the courts were declared outlaws and could be killed with impunity. In most parts of England the succession to land on the death of an owner was determined by the rule of primogeniture, i.e. the first-born son inherited his father's land. But in some places it was different, e.g. in Kent the system of landholding was known as gavelkind and under it all sons inherited equally. In Bristol and Nottingham a system of borough-English applied, which provided that the youngest son inherited.

The procedure and the proof of guilt in Anglo-Saxon courts were primitive. Trial might be by ordeal, which was in effect an appeal to God or the supernatural. It might consist of ducking someone in a pool, and he was guilty if the water “rejected” him and innocent if he sank; or in an ordeal by fire a red-hot iron would be carried a distance of nine feet, whereby if the hands had not festered within a certain period after carrying the iron the offender had established his innocence.

Another form of proof in civil cases was compurgation. This consisted in the litigant repeating an oath word-perfect without stumbling. Sometimes the claimant was assisted by kinsmen who were oath helpers (or compurgators) and similarly swore. If they too repeated the oath successfully the claimant had “waged his law” and won his claim. Juries later superseded ordeal and compurgation.

Before the Norman Conquest there was no strong central government. The king with his council (or witan) had little control over his kingdom. Royal justice was difficult to obtain.

English legal development stems from 1066 when William of Normandy gained the Crown of England by right of battle. William and his Norman successors distinguished themselves in many ways. They possessed orderly minds and were efficient administrators. They crushed the rebellious English into submission and established a strong central government.

William owned all England: all other persons possessed land either as tenants (not owners) or sub-tenants of the King himself. Feudalism, based on land tenure, was introduced into England. No immediate change was attempted in regard to the customary laws of the English, for this would have been an insuperable task. Primitive people do not take kindly to radical alterations in their way of living.

The changes made by William I include the following:

a. The King’s Council (Magnum Concilium) was set up. Here foregathered the barons, lords, bishops, and other important figures of the kingdom on whose advice and wisdom the monarch relied. Here was the strong central government.

b. A new feudalism was introduced. The King owned (in theory) all the land, and the barons, lords, bishops, and freemen held of him as tenants or sub-tenants. All tenants, whether barons or freemen, were compelled to swear an oath of allegiance to the King himself. Freemen owed allegiance as sub-tenants not only to a lord of the manor but also to the King, an important fact making for closer royal control.

c. Separation of lay courts and church (or clerical) courts, each with a definite jurisdiction. Bishops and clergy were henceforward to be tried in their own courts and Church (or canon) law was to be applied therein.

d. William and his successors achieved the uniformity of the law, making it the common law, by introducing the general ere.

 

Task 12. Review the text using the vocabulary notes:

 

Vocabulary notes:

common law	загальне право
litigants	сторона в судовому процесі
relief	допомога
Chancellor	Лорд Канцлер
special court	спеціальний суд
Court of Chancery	суд справедливості
petition	прохання, клопотання
branch of equity	гілка права справедливості
law of trusts	правові норми про довірчу власність
equitable remedy	засіб судового захисту по праву справедливості
equitable rules	безсторонні (неупереджені) правила
specific performance	реальне виконання прийнятого зобов’язання
injunction	судова заборона, заборонна норма
common law action	дії на основі норм загального права
Supreme Court of Judicature	Верховний суд Англії
maxims of equity	максими права справедливості
court rulings	судові рішення, постанови судді
to fail to give redress	не спромогтися надати відшкодування
to petition smb.	подавати прохання, клопотання, петицію, позикову заяву до суду
to harden into law	закріпити законом
to supersede	заміняти, витісняти, заміщати
to injustice	бути несправедливим до
to abolish	скасовувати
to administer law	провадити в життя закони
to achieve fairness	досягти законності
to govern the application of equity	контролювати застосування норм права справедливості
to overrule a precedent / to reject a precedent	відхиляти прецедент
irreparable damage	збиток, шкода, що не піддається точній оцінці
a spite fence	злісне ухилення
citation	повістка до суду, посилання на прецедент
contempt of court	зневага до суду

EQUITY LAW

In a general sense equity means fairness. In English law, equity means that body of rules originally enforced only by the Court of Chancery. Equity has been described as “a gloss (meaning a supplement) on the common law”, filling in the gaps and making the English legal system more complete.

Petitions from persons unable to obtain justice in the common law courts were sent to the King as “fountain of justice”. These petitions were sometimes examined by the King and Council and the relief was granted or refused. Later, due to pressure of business in the Council, the petitions were sent to the Lord Chancellor who, as Chief Secretary of State and “Keeper of the King’s Conscience”, dealt with them alone. The petitions were usually in the form of allegations that:

a. The common law was defective, e.g. the law of contract was undeveloped and inadequate to serve the growing needs of suitors.

b. The remedy of the common law courts, namely damages, was not always a satisfactory relief.

c. The defendant was too powerful; people of wealth and power in a county could overawe a court and intimidate jurors.

d. The court lacked jurisdiction to decide certain cases, e.g. where foreign merchants were suitors.

By the end of the fifteenth century the Chancellor had set up a separate court which dealt with petitions for relief. The Chancellor was not bound by the writ system or the technical and formal rules of the common law, and considered petitions on the basis of conscience and right.

At first the Chancellor used to consult the Council and sometimes the common law judges, but eventually it became customary to summon the parties to the dispute to appear before the Chancellor alone to answer “interrogatories” (specific questions relevant to the issue) and to unburden their consciences so that the truth could be ascertained and justice done.

The Court of Chancery proved popular with litigants and this caused friction with the common law courts. Jurisdiction was lost to the Chancery Court. Sometimes the courts of common law and the Chancery Court issued contradictory verdicts, and relations between the courts became difficult. The dispute came to a head under James I (1603-25) in the Earl of Oxford’s case (1616). The common law courts, headed by Chief Justice Coke, gave a judgment which was alleged to have been obtained by fraud. The Chancellor, Lord Ellesmere, issued an injunction preventing the successful party from proceeding to enforce the judgment, whereupon the dispute was referred to the King for decision. The King sought the views of Sir Francis Bacon (Attorney-General) who advised that where common law and equity conflicted, equity should prevail. Although competition between the courts of common law and equity continued, the right of the Chancellor to grant injunctions thereafter was not seriously challenged. Matters were finally resolved by the passing of the Judicature Acts, 1873-5.

Despite its early popularity, equity as administered in the Chancery was subject to criticism. Its initial flexibility led to uncertainty in the seventeenth century, and the jurist John Selden observed that “Equity varies with the length of the Chancellor’s foot”. Whatever the demerits of the common law, it was possible to estimate a probable verdict by considering similar cases already decided and the statutes enforced. Equity, which was dispensed as a matter of conscience, was unpredictable and the relief granted by one Chancellor might be refused by his successor. Between flexibility and certainty there is much tension. Flexibility was advantageous because it gave relief from the rigidity of law, but could be disadvantageous if it led to uncertainty and hardship. With the adoption of the system of precedent, equity became predictable and intelligible.

Lord Eldon (Lord Chancellor in 1801-6 and 1807-27) further developed equity, establishing a system of case law, so that by the beginning of the nineteenth century equity became nearly as rigid as the common law.

The latter half of the nineteenth century was also a period of judicial reform, which culminated in the Judicature Acts, 1873-5. These Acts set up a new structure of courts known as the Supreme Court of Judicature. In addition the Acts laid down four important principles:

a. Equity and common law should in future be administered side by side in all courts.

b. Where there is a conflict between a rule of equity and a rule of common law with reference to the same matter, the rule of equity should prevail.

c. Evidence could be given in court orally.

d. Rules of the Supreme Court of Judicature were to be formulated with regard to procedural matters.

The final result of the Acts was the fusion of administration of both common law and equity. Certain matters, e.g. trusts, originally dealt with by the Court of Chancery were assigned with other matters to the Chancery Division of the High Court. All courts could henceforward award common-law remedies, e.g. damages, and grant the special equitable remedies of which the following are the most important:

a. Injunction, an order of the court in the form of a decree compelling the defendant in a case to cease from doing certain acts.

b. Specific Performance of contracts where the common law remedy of damages is inadequate to compensate the plaintiff.

c. Rescission of Contracts.

d. Rectification.

e. Relief against Penalties, Fraud, and Undue Influence.

These remedies are at the discretion of the court unlike the common law remedy of damages which is “of right”. The discretion is exercised on equitable principles, e.g. “He who comes to equity must come with clean hands”.

 

Task 13. Match the following words and expressions with their Ukrainian equivalents:

 

I.

1. court of common law	a. судова заборона
2. litigant	b. міри покарання за правом справедливості
3. law of trusts	c. засіб судового захисту
4. equitable remedies	d. Акт про судоустрій
5. injunction	e. максими права справедливості
6. equitable rules	f. позивач
7. relief	g. норми звичаєвого права
8. Court of Chancery	h. правові норми про довірчу власність
9. maxims of equity	i. суд звичаєвого права
10. rules of common law	j. норми права справедливості
11. Judicature Act	k. канцлерський суд

 

II.

1. to achieve justice	a. створити Верховний суд
2. to set up a special court	b. займатися, мати справу
3. to fail to give redress	c. дійти (дістати) правосуддя
4. to deal with	d. створити спеціальний суд
5. to prevail	e. скасовувати забороняючи норми загального права
6. to petition smb.	f. бути неспроможним надати відшкодування
7. to abolish common injunctions	g. застосовувати норми права справедливості
8. to supersede common law principles	h. подавати прохання до когось
9. to establish the Supreme Court	i. переважати
10. administer equity	j. витісняти (заміняти) принципи загального права

 

Task 14. Find in the text the words that correspond to the following definitions and translate them into Ukrainian:

a. body of law developed by the Court of Chancery;

b. court order prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury;

c. someone involved in a lawsuit;

d. a written application, as for court action in certain legal proceedings;

e. the redress of a wrong;

f. to prove to be guiltless or blameless;

g. to put an end to, as laws, customs, or conditions of existence.

 

Task 15. Read the text carefully and decide if the following statements are true or false. Add some other information:

1. Common law was always able to give redress to all litigants.

2. The disappointed litigants petitioned the Supreme Court.

3. In the Middle Ages there was a single court system.

4. The King created a special court that dealt with all litigants’ petitions.

5. The Court of Chancery provided equitable relief when the common law remedy was inequitable.

6. When the common law and the laws of equity conflict the laws of equity prevail.

7. The purpose of equity is to achieve fairness.

8. Equitable maxims are the rules that govern the application of equity.

9. There are no differences between common law and equity now.

 

Task 16. Use the information given in the text to answer the following questions. Discuss your answers with other members of the class:

1. Why was the Court of Chancery set up?

2. What is the most important branch of equity?

3. What are equitable remedies?

4. Which rules prevail in case of conflict between rules of law and equity?

5. What is a common injunction?

6. What was the result of the Judicature Act 1873?

7. Do the rules of equity remain different from the rules of common law?

 

Task 17. Find English equivalents of the following sentences:

1. В середні віки суди звичаєвого права були неспроможні надавати відшкодування в тих справах, що потребували цього; пригнічені позивачі звертались (подавали прохання) до короля, який вважався “сувереном правосуддя”, за додатковим засобом судового захисту.

2. Король через канцлера, фактично, створив спеціальний суд, канцлерський суд, який займався цими проханнями.

3. У разі розбіжності між нормами звичаєвого права та права справедливості, право справедливості переважає.

4. Таким чином, справедливість діяла поза сферою дії звичаєвого права; принципи звичаєвого права теоретично залишились недоторканими (незмінними), але через такий заплутаний механізм вони витіснялися нормами права справедливості у всіх випадках “розбіжності”.

5. Така система діяла до 1875 року, коли в результаті Акту (Закону) про судоустрій 1873 року старі суди звичаєвого права та канцлерський суд були ліквідовані, а замість них був створений єдиний Верховний суд, кожна гілка якого мала всі повноваження застосувати норми як звичаєвого права, так і права справедливості.

6. Суди розробили систему правових норм, щоб контролювати застосування норм права справедливості.

7. Право справедливості базується на законі (“Справедливість йде за законом”).

8. Позивач повинен мати чисті руки.

 

Task 18. Read the text and pick out the main points about common law and equity. Swap the information using the following words and expressions:

To be decentralized to create a permanent royal court, the King’s Bench;to hear civil and criminal cases; legal issue; to be applied to; regional courts; judge-made system of law; common law; rules and principles; to decide court cases; to base decisions on; legal precedents; court rulings; to overrule precedents; to be in error or outdated; law made by judges; judicial decisions; common law courts; courts of equity; remedies; disappointed litigants; to provide redress for; to administer common law and equity; maxims of equity.

* * *

Before the Norman Conquest the law in England was decentralized. Fear of the power of local barons led Henry II to create a permanent royal court in London called the King’s Bench. Judges from this court would travel the country hearing civil and criminal cases. The central court in London decided the legal issue in a case and this would be applied to the facts in the regional courts. In this way a judge-made system of law was developed which was common to most parts of the country. So the English called their system the common law.

Thus, English common law developed from the rules and principles that judges traditionally followed in deciding court cases. Judges based their decisions on legal precedents – that is, on earlier court rulings in similar cases. But judges could expand precedents that they considered to be in error or outdated. In this way, judges changed many laws over the years. So, the common law came to be law made by judges.

Thus, common law:

1) It is law, which is common to the whole country – national law in contrast to local law.

2) It is law, which is based on judicial decisions (case law) in contrast to the law, which is made by Parliament (statute law).

3) It distinguishes the common law legal systems based on precedents from civil law jurisdictions based on civil codes.

4) It comprises the rules developed by the common law courts in contrast to the rules developed by the courts of equity.

Equity was developed by the Court of Chancery. It introduced new remedies to provide redress for disappointed litigants. The common law courts were separate from the Court of Chancery until a single court was established by the Judicature Act 1873. Each branch of the Supreme Court of Judicature can administer common law and equity. However, the difference between the two is still important because of the maxims of equity. These illustrate that equity is based on justice and fairness.

 

Task 19. Discuss your ideas in pairs and then exchange opinions with the whole class:

1. Does your legal system contain rules of equity?

2. Was equity developed because in many situations there was no legal remedy available at common law?

3. Do the rules of equity remain different from the rules of common law?

4. You have seen that in England equity and common law are two separate bodies of legal principles, which are now administered by the same courts. What is your opinion of this system?

Task 20. Read and translate the text into Ukrainian:

 

EQUITY

Equity is a branch of English common law that was developed to cover limitations in the traditional civil law. In medieval England the courts had restricted powers and could not handle every case that arose. When a person could not go to the regular courts for relief, he or she would petition the king for relief, and the king would refer the matter to his chancellor, the next most important government official. In the late 15^th century the chancellor began to decide these extraordinary cases directly or through assistants called masters, and the Court of Chancery developed. The purpose of that court was to supply a remedy when the regular common-law courts could not or would not do so. The law it developed became known as equity, to distinguish it from the law applied in the regular common-law courts. This is the function of equity today. Some states apply both legal and equitable principles in the same courts; other assign judges to sit either as equity judges or as law judges.

Equity offers a wide variety of remedies; law has only one basic remedy. In cases at law the basic remedy is money damages. Sometimes, however, money is not a satisfactory remedy. Equitable remedies permit the court to order the defendant to do or not to do a given act. Orders to perform a contract (specific performance), to tear down a spite fence (mandatory injunction) and to stop excessive smoke or noise (injunction) are examples of equitable, non-monetary remedies. The penalty for refusing to obey an equitable order is a possible citation for contempt of court. Equitable principles are also applied when a contract must be reformed to reflect the true understanding of the parties and when a contract must be rescinded because it was the result of fraud.

Another application of equitable principles is enforcing imposed by relationship of trust and confidence, such as the duties of a trustee to the beneficiaries of a trust, the duties of the executor of an estate of a deceased person, and enforcement of the duties of a partner to a partnership or a director to a corporation.

There is no right to a jury trial when a case is based on equitable principles. The judge finds both the law and the facts. The reason for this is purely historical. There was no jury in the English Court of Chancery, and U.S. federal and state constitutions only guarantee jury trial in the kinds of cases that were entitled to a jury trial when the nation was founded. Therefore, even where the distinction between equity and law has been abolished, it is still necessary to determine which principles to apply in order to know whether the parties are entitled to trial by jury or not.

In suits at equity one does not have to bring suit within a specific period of time. Rather than having a specific statute of limitations, such as four years, in which to bring suit at law for damages on a breach of contract for the sale of goods, an equity suit must be brought without undue delay – a period of time that is decided by the judge or chancellor.

 

Task 21.Review the text:

Canon law

After the Norman Conquest, William I separated the courts of law into lay courts administering the common law, and ecclesiastical (or church) courts. In the early days the church courts were very important locally and nationally and assumed a wide jurisdiction. The law enforced in the church courts was Canon law which was influenced by Roman law. The matters dealt with:

a. clergy discipline;

b. offences by clergy and laity against church doctrine, faith, and morality;

c. marriage, e.g. declaring whether a lawful marriage had in fact taken place (if there was no valid marriage it was declared null); judicial separation (ordering that the parties be no longer bound to cohabit as man and wife, though not dissolving the marriage tie); and divorce (dissolving the marriage);

d. legitimacy, e.g. declaring whether a child of a marriage was legitimate or the heir;

e. wills of personalproperty, e.g. declaring whether a document was a lawful will, and the administration of the estates of deceased persons so far as personal property was concerned where the deceased left no will (i.e. was intestate). Realty (land) descended to the heir or other person in accordance with strict common law rules, and disputes as to ownership and possession of realty fell exclusively within the jurisdiction of the common law courts.

For church purposes England was divided into the Province of Canterbury and the Province of York, each in the charge of an archbishop. The two provinces were each divided into dioceses, each in the charge of a bishop. Each bishop had his Consistory Court for the diocese which he administered and which was in his spiritual charge. The presiding officer of this diocesan court was called a Chancellor and was appointed by the bishop as his representative in the court. Appeal from the bishops’ diocesan courts went to the respective provincial courts of Canterbury (called the Court of Arches) and York (known as the York Chancery). From the provincial courts appeal lay to the Pope, until this right was abolished after the Reformation by the Statute of Appeals Act, 1532. The Statute of Appeals Act brought the church courts in England more and more under the control of the State, but their separate jurisdiction continued on into the nineteenth century.

However, in 1857, the jurisdiction in divorce, judicial separation, nullity and legitimacy was transferred to the Divorce Court which was set up in that year by the Matrimonial Causes Act. Testamentary matters relating to wills were also transferred in 1857 from the church courts to a new Court of Probate.

The new civil courts of Probate and Divorce were staffed by civil lawyers who replaced the ecclesiastical lawyers, and the legal principles which had hitherto been enforced in the church courts and which had been based on canon law were incorporated in the law of England.

In 1875 the Probate Court and the Divorce Court were incorporated into the Supreme Court of Judicature set up by the Judicature Act, 1873. Probate is now dealt with in the Family Division and Chancery Division of the High Court. Divorce falls within the Family Division.

 

Task 22. Read and translate the text into Ukrainian:

The merchant law

Mercantile law, or “law merchant”, has been described as “Neither more nor less than the usages of merchants and traders … ratified by the decisions of the Courts of law which, upon such usages being proved before them, have adopted them as settled law” (Goodwin v. Robarts, 1875).

The law merchant in medieval times was applied in (a) maritime courts found in coastal towns, and (b) local courts found in certain market towns.

(a) The Maritime Courts applied the customary maritime law which operated generally in western Europe and which was derived from the Laws of Oleron, the Consolato del Mare, the Laws of Wisby, and other Mediterranean maritime laws.

Jurisdiction included such matters as the hiring of ships, charter-parties, carriage of goods by sea, marine insurance, piracy and crimes on the high seas.

As England became a trading and seafaring nation the jurisdiction of the maritime courts increased. In 1482 the Lord High Admiral of England appointed on behalf of the Crown a special judge to take over the jurisdiction of the local maritime courts and extended their jurisdiction to include prize matters. Prize jurisdiction determines whether a ship, with its cargo, captured during time by war by a belligerent is “prize”, and, if so, how it is to be disposed of.

(b) Local Courts administering mercantile or commercial law were of two kinds. In towns holding fairs at fixed times and places, courts were constituted on the spot and usually included the mayor assisted by one local trader and one foreign merchant. Justice was speedy and the unwritten law applied was based on the customs of merchants in buying, selling and delivering goods, bills of exchange, negotiable instruments and the like. The courts were sometimes called “Piepowder” courts, because the merchants attending them often came into court with dusty feet (pieds poudres). The second group were known as the Courts of the Staple and were set up in certain “staple” towns which had a monopoly in trading in such staple goods as wool and leather. These courts also applied the law merchant.

In both the local courts and the staple courts the law contained an international flavour. This was because the Crown, wishing to encourage Continental trade, gave the foreign merchants and traders the protection of the law which applied to men of their kind generally throughout Europe. Accordingly justice was administered on the spot by the special courts constituted by the mayor with one local and one foreign merchant, Merchants and traders moving from one fair to the next could not wait for the justice of either the ordinary English local courts or the royal courts. In any case the common law of England was inadequate to deal with the contractual disputes of the traders.

Gradually, however, the courts merchant declined in importance as the common law courts became more efficient and reliable and became centralized in London. Moreover, limitations were imposed by statute in 1477 on the jurisdiction of the local courts merchant.

By the middle of the eighteenth century the common law courts had absorbed nearly all the jurisdiction of the courts merchant, except for the maritime law and prize law applied in the maritime courts.

Lord Mansfield, Chief Justice in 1756, was notable for his work in regard to the law merchant. He established the principle that once a judgment had been given on a mercantile custom, that custom became judicially recognized and no further proof of it needed to be given in a similar case in the future. Specially selected juries of merchants ensured continuity in the administration of mercantile law. Mansfield's work was carried on by other judges and resulted in the absorption of this branch of the law into the common law of England.

 

Local custom

A local custom is a usage or rule which has gathered the force of law and is binding within a defined area upon the persons affected thereby. Common examples are local rights of way or rights of common. A useful case which exemplifies the operation of law is the following:

Mercer v. Denne (1905)

Defendant owned part of a beach and proposed to erect houses thereon. Local fishermen sought to stop him by claiming that they had a local customary right to dry their nets on the land. Witnesses proved that the custom dated back for some seventy years and reputedly earlier. This raised the presumption of antiquity. Held: that the defendant must not build the houses on the land: the local customary right was upheld.

The onus of proof of a local custom rests on the person claiming that such a custom exists. Judicial recognition will be given and the custom will be enforced if it is:

a. Reasonable.

b. Certain as to the subject-matter of the right, the persons benefited by it and the locality.

c. Local, in the sense that the custom must be applicable to a district known to law, e.g. a parish, manor, or shire.

d. Of immemorial existence, i.e. must have existed from “the commence­ment of legal memory”: arbitrarily fixed at 1189, the first year of the reign of Richard I. Because of the difficulty of proving this, courts presume that the custom existed then unless there is clear evidence of the contrary.

e. Peaceably used. The custom must have been exercised peaceably, openly and as of right (neeper vim, nee dam., necprecario). If a right is exercised by permission, then it cannot be claimed to be exercised “of right” for the right can only be exercised in accordance with the permission.

b. Continuously observed. This does not mean that the right must have been continuously exercisedbut that it could have been the right to do so being observed without interruption.

c. Compulsory. Once established the custom must be local common law and legally effective because it is right and enforceable.

d. Not contrary to any statute.

e. Consistent, in the sense of being consistent with other customs and not contradictory to them.

Local customs must be distinguished from conventional usages, which are found and observed in particular occupations, trades or business or among professional groups. Following the analogy of the local custom, the courts have laid down certain principles. Every usage must be certain and reasonable and must have acquired notoriety (in the sense that the usage is well known and observed) in the trade or business to which it relates. In contracts, for example, there will usually be express terms, but in addition to these the court may, in construing the contract, imply a term or terms where the parties are deemed to have contracted on that basis. Thus, if a usage is shown to exist in a class of workers entitling members to, say, three months' notice terminating their engagements, this usage or trade custom will apply unless expressly negatived by the contract itself.

Dashwood v. Magniac (1897)

A had devised an estate to В with “a power to cut timber for the repair of the estate”. Evidence was admitted to show what trees were included in the term “timber” in the locality. Held: that “timber” included beech in addition to the usual meaning of oak, ash, and elm.

Grant v. Maddox(1846)

Evidence was admitted in this case of a theatrical usage to show that the word “year” in a theatrical contract means those parts of the year during which the theatre is open.

Smith v. Wilson (1832)

A usage was proved and admitted that in a lease of a rabbit warren the words 'thousand rabbits' meant in that particular locality twelve hundred,

A more recent example is Egerton v. Harding (1974), where the duty to fence was held to be based on custom.

SYSTEMS OF LAW

Warming-up: