The Concept of Precedents and Their Application - Essay Example

? Business Law By Due This document discusses the concept of precedents and their application. It also discusses their significance, purposes and importance in the operation of courts. In the second part, it discusses the rights and duties of finder of goods, the formation of a quasi contract as a result and answers the given case in the light of relevant cases. Keywords: Precedent, Stare Decisis , General Fairness, Efficiency, Offer, Acceptance, Revocation, Bailment, Finder of Goods, Quasi Contract, Privity of Contract, Legal Relations.. Q 1 (a) Precedent Precedent is a legal case which a court may use to decide a case. It is an established rule that helps the courts from extra labor. Every decision by courts becomes a precedent and if appeals are made in a higher court and the original decision is altered, the overriding decision becomes a precedent and the original decision is discarded as a precedent. It is at the very base of the common law system. There are two types of precedents Binding Precedent A precedent that is mandatory to follow is a binding precedent. The lower courts are bound to follow and honor the decisions made by higher courts for a given set of circumstances. For example, Dickinson v. Dodds is a very famous case that acts as a precedent regarding those cases which raise the question of valid acceptance and proper revocation of offer. Judges are bound to treat binding precedents as rules and principles. It is to be taken into account that in what hierarchical capacity, the court is performing. A precedent of a lower court may be used for help but it is not binding on the court. Another important factor is that of whether the case in question falls within the scope of the precedent. Persuasive Precedent A precedent that covers the case in question in its scope but is not binding on the court is a persuasive precedent. These precedents can be used by the courts for guidance and assistance. These precedents come from lower courts, courts of the same rank in hierarchy and foreign courts. A dissenting opinion can also be used as a precedent. In higher courts, sometimes a decision is not unanimous and some judges dissent from the precedential opinion. The dissenting opinions also can serve as persuasive precedents for lower courts. In common law system, the precedents form a part of the law along with the statutes. This helps in ensuring uniformity and consistency of the law. When a decision is made according to stare decisis, the personal involvement of a particular judge is eliminated; law prevails. In some situations, if the circumstances of a particular case are novel and no precedent is fully applicable, then the court looks at statutes for guidance. If statutes also do not help, then the court makes a just and equitable decision based on critical assessment of the facts of the case. The principle of Stare Decisis governs the use of precedents and enables the courts to uphold general fairness (Tribe & Dorf, 1990). The words ‘Stare Decisis’ emanate from the Latin maxim: Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." (Adeleye, Gabriel et al, 1999). A common man is not afraid to go to the courts because he knows that standards are maintained. They are able to make estimates of what they would gain and what they would lose as a result of a lawsuit. All like cases are treated in a same way (F. Schauer, 1987). However, the binding precedents have a drawback of being too rigid at times and there are always some areas of the law that are needed to be reformed. The legitimacy of a court following stare decisis can never be seen with skepticism. It has veritable social interests (L.J. Strang, 2006). A court is bound to provide with sufficient explanations if it does not follow a binding precedent in a particular case. Decisions hence made are impartial and free from bias. It is very unlikely that such a decision would be challenged as being unlawful. If the decisions of a court become predictable, it means that the courts are fair (C.M. Rose, 1983). Another major objective achieved by stare decisis is efficiency of courts. If every case is brought into thorough consideration, it would make courts lazy in their working. Cases are brought in huge numbers and it is not in the best of interests of all the parties involved that the cases go undecided for long periods of time. Also, without precedents, the judges would be having a heavy burden on their shoulders and it would be really hard for them to work efficiently. Therefore, it can be said with assurance that precedents assist the judges in working efficiently. They are readymade decisions and their usage saves a lot of time without jeopardizing effectiveness, lawfulness, fairness and efficiency. However, there is a debate that precedents are sometimes not clear as to how and when they could be applied to sub-decisions. The decisions in the precedents are, of course, made by the application of statutes but some of them are made in atypical cases. Their application in other cases becomes very hard and judges have to face difficulties in situations in which the only available and binding precedent for a particular case is too vague. If the courts are convinced that a previous decision was erroneous, they are entitled to overrule that decision. In such cases, a coherent approach is applied. Precedents are part of a law; they make its scope wider and help it in making the true benefactor for the people who seek help from it. They are used with the statutes and the reasoning becomes easier and lawful. “It is important to note that there is considerable gray area, if not discretion, inherent in the judicial act of synthesizing previous cases” (Gerhardt, 1991). Judges generally do not overrule precedents. They prefer to distinguish the facts of a case and limit the scope of a precedent. This makes the courts different from automated bodies and they base their decisions on logic and reason. The use of precedents in the real world, sometimes, depends on the judges. Not every judge shares the same background as others. Some judges gain their experience in elite law schools and practice in elite law firms while so many of them do not. Judges have different backgrounds and how much they would rely on precedents depends a lot on the fact that how their judgment has been molded throughout their careers (T.E. George, 2001). Some Judges opt to overrule a precedent but most of them prefer to distinguish the facts of the case and limit the scope of a particular precedent. New precedents widen the scope of the law. While the usage of precedents saves the judges from extra labor, the creation of new precedents is also useful. A handful of cases involve the application of previously decided cases (L.F Powell, 1990). Therefore, the system of precedents is beneficial either way. However, the ‘different background’ situation puts a question mark on the consistency of courts. There also have been circumstances where a judge gives a ruling against his views out of respect for his colleagues. The judges need to be free from this pressure in order to reach a fair decision. Whether a judge should stick to a precedent or not? This is a question that must be answered with logic as to whether a particular precedent is applicable or not. The influence of colleagues affects the consistency of courts. Every decision that becomes a precedent is backed by a reasonable explanation. In order to overrule a precedent, the court needs to provide sufficient explanation that how, where and in what way the precedent was erratic. The errors are required to be pointed out and rectified. The precedents should be used with consistency so that the purpose of general fairness is achieved. When a precedent is used in a decision of a case, the courts feel free to cite the precedent instead of a statute. Every precedent is present with lawful and logical explanation. Therefore, by citing a precedent, the courts do not have to give an explanation anew. Similarly, it has also been seen that courts distinguish the facts of a case to escape overruling of a precedent so that they do not have to explain why the precedent was not applied. All of this proves how the use of precedents helps the courts by curtailing their labor. Courts sometimes cite precedents in sub-decisions and sometimes synthesize them with textual canons and across various substantive areas of the law. They do not issue detailed analysis; citation is enough. Sub-decisions made methodologically can also be treated as precedent. There is, however, a problem with treating sub-decisions as precedents as sometimes, these decisions do not reflect the views and judgment of the entire bench. Therefore, the courts adopt a more coherent approach and that is to apply system of precedents in an orthodox manner. “A principled decision . . . is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved” (Wechsler, 1959). It is a basic argument that judicial doctrines must be based on neutral principles. The neutrality of courts is depends on whether its principles are neutral or not. Neutrality of principles ensures efficiency. The precedents must be followed properly and on regular basis. This doctrine is also very economical. Trying to sort out the facts of each case and then reaching at a decision and preparing a detailed analysis are time-taking and tiring processes. The efficiency of the courts is affected. Delaying the cases that could be decided by simply citing a precedent adds to procrastination and overall cost. This also results in lesser number of cases decided in a relatively longer period of time. Q 1 (b) Liability to Stan According to the given facts, Stan, the shepherd found Andy’s dog on Tuesday. The reward was offered on Monday. Contract Law provides that the finder of goods stands in the same position as a bailee does in a contract of bailment. Stan has acquired a special property in goods and he can hold Cassey against anyone in the world except Andy. In Hollins v Fowler, it was held that the finder of goods has a right to possess the goods and hold them against anyone in the world except the true owner. It is his obligation to take reasonable steps to find the true owner i.e. Andy. If Stan uses Cassey for his own purpose while knowing that Andy is the true owner, he can be accused of larceny. However, a lot depends on the fact whether the court is convinced that Stan could have found the owner. In Merry v Green, it was held that when the real owner has no intention to part with the goods and the finder had no intention to receive them, the finder has no right to appropriate the goods to his usage in any way. The given case differs from Merry v. Green in many respects. Stan, therefore, stands in the capacity of a bailee. Stan came to the knowledge of the reward after he found Cassey. It is immaterial whether the reward was revoked in time or whether it was communicated effectively. Therefore, Stan would not be able to claim the reward successfully. According to the law, the finder of goods can sue for reward if he finds the goods after the announcement of the reward but it has also created the exception that if a person finds the goods after the announcement but has no knowledge of the reward, it has to be treated like he did not find the goods after the announcement. Therefore, the situation would have been different if Stan had the knowledge of the reward offered. However, if Cassey did some damage to Stan’s cattle and Stan had to incur some expenses while looking after Cassey, he can claim those charges from Andy but he cannot sue Andy for those charges. In Wilson v Anderson, it was established that a finder of goods can claim the charges that he had to incur in order to take care of the goods and preserve them. He cannot sue for recovery of those charges but he can exercise his right of lien for the recovery of those charges. However, if he lets go of the goods and gives them to the owner, he loses his right of lien and cannot exercise it afterwards. Stan can exercise his right of lien by keeping Cassey with him until he is paid off by Andy. Liability to Bolam When Bolam came to knew about the reward of ?5000 for a lost dog, he purchased special equipment costing $500 to find and capture the dog on Wednesday. According to the given facts, there is no point at which Andy was aware of this fact. Andy and Bolam never entered into a contract of any kind. The announcement of reward by Andy is an offer and not an invitation to offer. However, it is the type of offer that is not open for acceptance. It is the offer that is accepted automatically only by the person who finds the lost goods. This offer would bind Andy to pay the reward to the finder when he returns Cassey to him. There has been no indication that Bolam tried to communicate with Andy at any point. The reward offered was, however, communicated to Bolam but as Bolam never found Cassey, no contract was formed. If Bolam had found Cassey instead of Stan, a quasi contract would have came into existence between Andy and Bolam in which Andy would have been liable to pay Bolam the reward. Bolam would have been entitled to sue for reward and would have obtained the right of lien for the recovery of the sum of $500 by the application of Wilson v Anderson. As Bolam did not find the dog, Andy is not liable to Bolam for anything. The only contract that came into existence in this case was a quasi contract between Andy and Stan. Bolam serves as a third party that is stranger to the contract. There is no privity of contract with Bolam. If Stan is younger brother of Andy If Stan is younger brother of Andy, the situation would be the same. The pivotal point is the knowledge of the reward. Being brothers, if it is assumed that Stan had the knowledge of Andy’s announcement, Stan would be able to sue Andy for the reward offered. According to the facts, Andy revoked the offer on Thursday. It is matter of chance whether this revocation has reached Stan before he knows of the offer and makes a claim. If it happens, then Andy’s revocation would be effective. In Dickinson v Dodds, the offeree had sufficient notice of the fact that the offer was revoked and was not valid for acceptance anymore. The offeree’s attempt to accept it after it had been revoked was futile. It was held that if the revocation of an offer is effectively communicated to the offeree before its acceptance, the revocation is effective. An offer can be revoked at any time before its acceptance but not afterwards. If Stan knows of the reward before the news about revocation, the revocation would become ineffective. Another important point is ascertainment of the fact whether Andy’s notice of revocation was sufficient to bring his intention to the notice of Stan. According to the given facts, Andy placed a notice in a local shop. It is not mentioned that what is kind of the location of the shop and whether it was frequented by the general public. Commonly, notices meant for general public are not given at only one place. Redundancy is considered to be a good option while trying to communicate such notices. If the jury is satisfied that the notice was sufficient, the revocation would be effective. In the given set of circumstances, Stan was not aware of the announcement of reward and neither of its revocation until Friday when he took Cassey down to the town of Oldcastle. The Contract law regards only one relation in the formation of a contract and that is legal relation. Other relations do not matter except if there is a suspicion of undue influence. The principles of offer, acceptance and revocation of offer would prevail over the fraternal relationship of Andy and Stan. If Cassey dies before it could be returned to Andy. It is the duty of finder of goods to take good care of the found goods as a man of ordinary prudence would protect his own things. If Cassey dies before it could be returned to Andy, it is of no use to Andy. Andy would not be able to be held liable for anything in this case. Stan has a duty of care in this case. If Cassey dies due to negligence of Stan, Andy would be entitled to recover the cost of Cassey from him. In Coggs v Bernard, the defendant acted as a bailee and was negligent in performing his duties. Due to his negligence, 150 gallons of Brandy were lost. The plaintiff made a claim for the loss. It was held that the defendant was liable for the loss. Stan acts a non-gratuitous bailee in this case as he is the finder of Cassey. If the jury is convinced that Stan took good care of Cassey like a man of reasonable prudence would have taken care of a dog of the same breed as Cassey, Stan would not be held liable. It was vividly explained in Coggs v Bernard that a non-gratuitous bailee is only liable for the loss if he was negligent. Stan is entitled to claim any sum which he had to spend while taking care of Cassey or the loss that he had to suffer when Cassey attacked his cattle. However, the claim needs to be made indirectly and Stan cannot sue Andy for the sums involved. His right of lien is also, of course, lost. References 1. Adeleye G, Dadzie K.A & Sienkewicz T.J 1999, World Dictionary of Foreign Expressions: a Resource for Readers and Writers, page 371. 2. Coggs v. Bernard [1703] 2 Ld Raym 909. 3. Dickinson v. Dodds [1876], 2 Ch. D. 463 (C.A.). 4. George T.E 2001, Court Fixing, 43 Ariz. L. Rev. 9, 27. 5. Gerhardt, M.J 1991, The Role of Precedent in Constitutional Decision-making and Theory, 60 Geo. Wash. L. Rev. 68, 98–109. 6. Hollins vs. Fowler, L R. 7 H. L. 757.. 228. 7. Merry v. Green [1841] 7 M. & W. 623. 8. Powell L.F Jr 1990, Stare Decisis and Judicial Restraint, 47 Wash. & Lee L. Rev. 281, 284. 9. Rose C.M 1983, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 Cal. L. Rev. 837, 907–08. 10. Schauer F 1987, Precedent, 39 Stan. L. Rev. 571, 572, 595–97. 11. Strang L.J 2006, An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. Rev. 419, 423–24. 12. Sunstein C.R 1993, On Analogical Reasoning, 106 Harv. L. Rev. 741, 790–91. 13. Tribe L.H & George M.C 2001, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1067–68. 14. Wechsler, H 1959, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 15. Wilson v. Anderson [19830], 109 ER 1504. Read More