Comparative Law Civil Law Vs. Common Law

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[2] binding a person (trustee),

[3] to deal with property over which he has control (trust property),

[4] for the benefit of persons (beneficiaries), of whom he may be one,

-- trustee can ne one of the beneficiaries

[5] any one of whom may enforce the obligation”

Grew out of the court of equity

2 ways trust can be created:

- trust agreement or will – person called “settler” provides trust property who will be administered by trustee in the benefit of beneficiaries

Example: somebody leaving part of estate to children, hold to estate trust and not hand over estate to children until 18

- Putting shares in someone else’s name – Simple decoration of trust by a person indicating that she/he is holding property for beneficiary

Example: client of Beck – shareholder 100% given to Beck, beneficial owner: the client

Written promise – if not ok go to court with this paper to explain the rights

“blind trust”: Wealthy man – elected to high position, want your business hold by kids but still want to own them – one solution: put businesses into trust, never know what trustee do

“Family trust”: avoid taxation in certain cases – if you buy a house or real estate, when you go to sign for the property, money had to by hold in trust until the sale is registered and sure that you are the registered owner of the property and then – money handled to the seller (“escrow”)

“Chartable trust”

- differences between civil law and common law ownership:

If you buy mutual funds and find that these are structured as trust, trust set for any legitimate cause but under CmL system of ownership, it is possible to have 2 owner (registered and beneficial), different from CiL (right of dispose to the thing)

2 Sources of law and method of judicial reasoning

- both systems have 3 sources:

- Judicial Precedent ie. Court decisions

- Legislation

- Doctrine ie. scholarly writings

→ the difference between the two systems is the weight and importance of each source:

Common Law

Supreme court (high) → appeal court → trial court (low)

Sources of Law

Great deal given to

- JUDICIAL PRECEDENT

Principal known as “stare decisis” = “stand by the past” - the legal principle of determining points in litigation according to precedent.

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How does it work?

In 1850, case where someone punch someone else, here comes the trial and the defendant says “I punched him bc he provoked me by calling by calling my mother ugly” – defendant dismissed

2016, defendant says the same – defendant proven wrong, bound by this decision

1925, between two dates, same pb, “in 1850 decision wrong” – called the appeal court

1950, another case, same pb, trial court bound by appeal court judgment – appeal looked at 1925 judment → takes the case to supreme court “calling sb ugly unjustified defendant shouldn’t have to pay any damages”

1/ Trial court different names (supreme court, régie du logement is a trial court, state court, commission, board)

→ Appeal court bounded by previous decision except if supreme court new decision

When supreme court goes against its precedent:

Examples from US:

- Brown versus board of education: https://en.wikipedia.org/wiki/Brown_v._Board_of_Education

after American civil war, prohibiting slavery etc, new regime allowed segregation, and under the system of segregation, “blacks treated equally to the rights, separate but equal” → went to supreme court: ruled that segregation was constitutional. Law of land, until Brown versus board of education went to court, the lawyer showed the effect that this concept of segregation had on people. Two effects: 1. Showed that the part of segregation “separate” worked very well (back of the bus, can’t go to same hotel), couldn’t go to counter and get food; 2. The psychological effect of this segregation on black children. Supreme court overturned the precedent, that judgment was the beginning of the desegregation movement. (gave the legal basis)

- Roe versus Wade: http://www.encyclopedia.com/social-sciences-and-law/law/court-cases/roe-v-wade

try to get an abortion, assist to an abortion, no matter the reason why she got pregnant. Before this trial, women who need abortion had to get “back alley abortion” (performed by disbarred doctors or people who knew of to do, not sanitary conditions). Court has to say if state law was good, “abortion is a medical procedure like any other one, right to privacy – includes the right to privacy b/n a women and doctor. Abortion became unconstitutional. Now, controversial.

Canada v Bedford (https://en.wikipedia.org/wiki/Canada_(AG)_v_Bedford)

Courts can change precedent

In Canada any level of court (trial to supreme) can overturn precedent, in US only supreme court.

What portion of a judgment is actually the precedent?

When you get a judgment, the judge gives various element and various reasons for his judgment, not all the element of the judgment that is portion of precedent → Ratio

- Conditions for decision to be binding

- Decisions