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What Does Common Law Mean

Written by: Peter Macrae Dillon

Article Overview: Often times we hear the expression "Common Law" in reference to a type of law that will apply to regulate an issue or resolve a dispute. What does this expression mean?

What Does Common Law Mean

Common law is sometimes referred to as “judge-made law” because it is comprised of decisions made by judges. Judges of lower courts are bound to follow the decisions of higher courts in situations dealing with similar issues. A leading case, usually from a higher court, that deals with a new issue or with an old issue in a new way, is referred to as a “precedent”.

Courts are only permitted to decide issues of law arising from the particular set of facts before them. They cannot decide issues of law on the basis of hypothetical facts. This means that the common law sometimes develops in a patchwork fashion.

At times, seemingly opposite conclusions are reached by judges on the same legal issue, sometimes as a result of the differing facts before them. A law may then be passed by parliament (in Canada, the UK, Australia) or Congress (in the USA) to resolve conflicting decisions, or to fill a gap in a patchwork of decisions, or indeed to reverse a judge-made decision that the legislators do not wish to see become a precedent for other similar fact situations.

More information. For more information on franchising in Canada, the United States and internationally, please contact Peter Macrae Dillon, head of Siskinds Franchise Law Group. Peter is the author of the annotated Ontario Franchise Disclosure Act and the annotated Alberta Franchises Act and over 30 other publications on the subjects of franchising, licensing and distribution. He is licensed in Ontario and New York. Peter can be contacted at 800-816-9596 ext. 389 or by email at peter.dillon@siskinds.com. The information contained in this note is for general reference only, and should not be relied upon as constituting legal advice.

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