Comparison of the Different Types of Traditional Legal Systems: Florida and English Common Law - Coursework Example

COMPARATIVE LAW AND BUSINESS Name: Course: Tutor: Date: COMPARATIVE LAW AND BUSINESS Introduction Few are aware of it, but the law of Florida has a very ancient history. In 1845, the State of Florida, as a young state, drew its legal doctrines from England and the English law. Up to date, several centuries down the line, the State of Florida still retains these legal doctrines. Adoption of the common law was one of the first acts to be implemented by the Florida Legislative Council as it was in existence in England on July the 4th 1776. The English common law dates back to close to 1000 A.D. This therefore implies that the present law in Florida has been around for close to one millennium which is far much older compared to the time frame that the state has been in existence (Wasserman, 2009, p 9: Tebeau, 2009, p 138-469). Presently, the English common law is one of the main legal systems practiced all over the globe. The adventurous English who established several colonies all over the globe, implemented common law wherever they established a colony. Consequently, the law system developed by the English is the law embodied by not only the State of Florida, but by several foreign nations. Even though England had a significant impact in shaping Florida law, it is not the only country credited for influencing the Florida law. The Spanish empire which had one time colonised Florida also played a role in developing this State’s laws. As a matter of fact, the United States only acquired Florida in 1800 after Spain entered into an agreement to relinquish Florida to the United States. Prior to this period, Florida law was basically a colonial version of the Spanish law which was founded under the Civil law system, which interestingly, had been inherited from ancient Rome by Spain. Upon acquiring Florida, the United States, transferred the English common law system to it’s presently acquired State, that is, the State of Florida. However, the civil law attributing to the Spanish colony was not entirely abolished in spite of the transferred in common law, some elements were retained. In the early history, for several years, legal suits were more often than not inclined towards the Spanish Law interpretation. This was frequently common in land related disputes, particularly those acquired in the period when the Spanish law was still in effect. Under the agreement reached by the Spanish empire, the land owner was entitled to exclusive rights over land, rights that would have been in existence had Spain still colonised Florida. Frequent problems arose because there were times that the Crown of Spain conferred land rights that would not have been present under the Florida law. For instance there were times that the Spanish crown conferred rights to land beneath the State’s waters. However, the State of Florida has long maintained a policy that all underwater lands are a property of the state, save for those acquired from the Spanish crown. It is also worth noting that the law of Florida was influenced by those of other nations as well, not only those of England and Spain. In the 1700s, the State of Florida was governed by three different European powers comprising of: Spain, England, and France. Literally, the State has paid allegiance to all these flags (McGovern 2008, p 588). Legal Traditions To facilitate comprehension and better comparison of the different types of traditional legal systems, it is imperative that each be defined and looked at on a separate basis: There are two influential and common legal systems in the world. These are identified as common law and civil law (David and Brierly, 2000, p 1-10). States embracing common law are those greatly influenced by the Anglo-Saxon tradition like Australia, the United Kingdom, and British territories. On the other hand, civil law system is embodied by those states that were influenced by the Roman legal tradition like Austria, Germany and France. Both the common and civil law encompass legal tradition. The legal tradition attributing to civil law is derived from the Roman law, which brought about codification as corpus juris civilis during emperor Justinian’s reign. Before these codified laws spread to other regions influenced by the Roman Empire, they had already dispersed all over Continental Europe. With the development of civil law, this evolved into two schools of thought. One school of thought contained those jurisdictions that submitted to the codified Roman law like Germany, France, and Austria that had held on to the Roman tradition. The other school of thought pertains to those jurisdictions that implemented the un-codified Roman law like Scotland and South Africa. However, even though civil law evolved into two schools of thought, a basic characteristic of civil law is its structured and systematic nature together with its heavy dependence on general principles that leave details to the court (Bouvier, 2004, p 574: Freeman and Goodenough, 2009, p 271). Common law emerged in the 11th century; it embraces the legal tradition that materialised in England. Common law developed to form the foundation of private law in Ireland, Wales, and England. Former colonies of British and other nations within its jurisdiction of influence adopted common law. Incidentally, there are states that adopted common law system out of their own volition. This includes those states that were previously Spanish territories the State of Florida being among these. Common law, as a legal system, does not take formal codification into account. Therefore common law principles materialise from recorded judgements, particularly those of the highest court, dealing with matters relating to specific situational facts within the context of already resolved disputes. Common law therefore, concentrates on details in giving prescriptions (Friedman, 1999, p 52-89). An objective that is common with both the common law is achieving personal rights, individualism, and liberalism values. These core similarities enhanced inclusion of the legal traditions attributing to the two in the Western law because of their functional similarities. However, a difference arises between the two with respect to doctrine and jurisprudence. Civil law gives priority to doctrine over jurisdiction because its objective is basically on the provision of general objectives. Common law on the other hand, gives priority to jurisprudence as opposed to doctrine because its aim is to offer a particular guidance in the resolution in specific sets of situational facts. This gives the rationale behind the function of legislation in the legal traditions of both laws. Civil law one hand adheres to the separation of power principles. This implies that it is the legislator’s role to draft statutes while the judges execute these laws which highlights the level of magnitude with regards to the role played by legislators when it comes to creating general principles to guide the court. Common law on the other hand entails different principles. Core laws are constituted by judicial precedents so much so that priority is the establishment of rational judicial precedents for the creation of laws (De Cruz, 1999, p.42). Another difference between these two principles is in the functions of the inherent doctrines. Doctrines relating to civil law function through drawing rules and principles from the bulk of cases and legal sources so as to clarify its application s as well as the meaning. By so doing, civil law provides the courts with adequate guidelines in resolving particular cases. Common law doctrines’ is way much simpler compared to that of civil law. However, the functions of doctrines in common law could encompass more criticisms with respect to court cases. Incidentally, the rate of change of common law is more rapid based on its reliance to court cases. (Reimann and Zimmerman 2008, p 304) Another common difference between both common law and civil law is in their style of doctrine. Civil law revolves around legal principles in the legal development on civil law entails tracing the past of these legal principles, functionality changes, shifts in the area of application, impact changes on rights and obligations. Therefore, civil law processes to a large extent, involve legal scrutiny as well as deriving practical prescriptions from resolved cases. Common law on the other hand is more inclined towards fact patterns, cases are analysed by comparing them to similar cases to draw legal principles as well as to establish the extent of application of legal rules to cover differences arising from factual situations that can be distinguished from facts of cases already in existence (Glenn 2007 p158-164: Friedman 1997, p 34). The doctrine of stare decisis therefore materialised from common law to determine focus on the impact of legal principles arising from higher courts whereas decisions attributed to civil law rely on the authority of reason. (MacCormick and Summers 1997, p 34). Differences in common law also arise with regards to style and form of cases or jurisprudence. Court judgements under civil law apply a more formal style in contrast to common law. This is why civil law case reports are much shorter compared to those of common law. Under civil law, the case report contains two elements which form the justifications or basis for court rulings or decisions. Civil law judges get trained for this purpose, while civil law judges on the other hand don’t undergo any form of training on case reporting, from legal training, they directly rise to their status (Glenn 2007 p 158: Dainow 1966, p 419-435). Incidentally, a difference between the two types of law is also evident in case write ups. Civil law puts emphasis on comparison of facts of previous cases to establish the relevant principle that should be applied depending on the situation at hand (Thornton, 1979, p102-107; Friedman 1997 p 34). A common element in common law and civil law is they both develop statutes. However, the differences in the interpretation, functions, and style of statutes are quite significant. For instance, differences in these three areas take the following form: In the functions of laws, civil law codes constitute the core statutes, with the general statutes systematically and exhaustively incorporated in the codes and particular statutes. In common law, case laws are completed by statutes, which in effect contain the essential law comprising of definite rules that ought to be applied to specific facts (MacCormick and Summers 1993, p 31). The style of drafting legal statutes is also different. Codes and laws drafted under civil law are concise; those drafted under common law on the other hand are quite precise. Civil law rules don’t give definitions; rather, they provide general or broad phrases. Common law rules on the contrary, give definitions with respect to legal concepts and principles. The statutes also give particular guiding rules in a long process so as to set the application scope as well as any exception therein. Civil law statutes do not need concise statutes as these are non restrictive general statutes. Under common law, precision in relation to drafting rules is a requirement so as to effectively set out the rules specifics to back application in actual case facts so that drafting doesn’t necessarily have to be precise (MacCormick and Summers 1993, p 31). Another form of traditional legal system is Islamic law commonly practiced in the Middle East. Basic sources from where Islamic law is derived are the Sunna and the Quran. Shariah literally means the path to be followed. However, Shariah technically refers to God’s commands in entirety. Fiqh on the other hand, refers to human knowledge, reason and understanding. Fiqh is a logical attempt and to a large extent a product of speculative analysis whose command of authority is not the same to that of Shariah (Kamali, 1999, p108). Shariah therefore, is a path laid by God as well as his prophets. Fiqh on the other hand is the product of human effort. Shariah signifies a path that is divinely ordained by rectitude whereas Fiqh is the science of law. However, it is not easy to make a clear distinction between these two terms as Islamic law is deeply intermixed. Practically, both terms are synonymously applied as the decisive factor of all human actions; seeking God’s approval through conformity of an ideal code. Apparently, Shariah has the clear rulings on the Islamic fundamentals. Resolutions attributing to Shariah are based on that which is lawful or that which is unlawful. However, Shariah law is flexible on matters of criminal law and only offers general guidelines. Fiqh on the flipside is the practical knowledge of rules as drawn from the Quran and Sunnah. It is worth noting that even though Islamic law and jurisdiction is formed on the basis of human reasoning, it does not go against the Law’s basic sources, that is, the Sunnah and the Quran (Blazer and Zimmer, 2005, p 54). Executive Summary For a company to venture into a foreign market, enter into business agreements and carry out business transactions, it is essential that it takes a number of factors into consideration. The company has to consider the business potential that its products are likely to realise in the target market. What the foreign country market states with regards to foreign transactions is also important. Of equal importance is what the home country or home law states with regards to foreign transactions. Also of significant importance is what the international law states with respect to the transaction that the company is on the verge of carrying out. Report The law of contract deals with enforceable agreements. Parties that seeking to enter a contract must take the following basic elements into account: A lawful offer that is either implied or expressed must be present in every contract, this lawful offer must be made by the offeror to the offeree. Another basic element in the law of contract is lawful acceptance, this must move from the offeree to the offeror. The lawful acceptance must be specific and clear. Acceptance is an expression of the offeree’s intention to contract with the offeror after specific conditions have been met. Immediately an offeree accepts an offer, a binding contractual relationship is established, this is because a basic contractual equilibrium is clearly present. Lawful consideration is also a basic element of contract law. This element is based on the ideology that the law of contract shall not support bare promises; consideration must therefore be present in every contract. Consideration is referred to as that price for which the promise of another is bought. Another element that also cannot be overlooked consensus of parties to the contract. Parties to a contract must understand one another’s aims and objectives clearly. A contract’s purpose must also be lawful, it should not be against public policy neither should it be repugnant. An element that must also be present in the law of contract is the intention to create a, this implies that before entering a binding contract, it is imperative that parties to these contracts create legal binding relationship amongst themselves. Another basic element to a contract is the agreement formalities. Formalities depend on the specific nature of a transaction. Whereas some contracts will require particular procedures, others are just informal in nature. A party’s ability to enforce their contractual rights is significantly reduced in cases where they fail to honor the type of formality agreed upon. In jurisdictions that apply common law, like the state of Florida for instance, key elements that must be present when creating a contract are three, these are: offer and acceptance, intention by involved parties to create legal relations, and consideration (Richards, 2009, p 5-55). It is worth noting that some jurisdictions that embrace the common law system are shifting away from the classical notion with regards to the key elements that ought to be present whilst creating a contract. A typical example is taken from Australia that is slowly drifting away from the classical notion more specifically consideration as a necessary requirement in reaching contractual obligations. In contrast to the typical common law system, jurisdictions that embody civil law do not necessarily require consideration for a contract to be enforceable. In France for instance, an ordinary contract is simply formed on the basis of a consensus. Therefore, an IT company that adheres to common law systems and seeks to negotiate water tight binding pro forma contracts that are inclined to favor it should first take the elements highlighted above into consideration. Additionally, it is imperative that the company’s target market be lucrative so as to achieve the profit making objective, towards this end, it is essential that the target market be familiar with the product aimed at it. Finally, it is imperative that the company familiarise itself with the form of legal principles that the target market embraces so as to ascertain ways on how to circumvent any legal dispute that is likely to arise, incidentally reaching into a contractual agreement that favours the organisation is of equal importance. The target market in this case is Taiwan. Taiwan’s legal system is codified in that its Constitution is the land’s supreme law. The law codes are traditionally derived from other countries with the same legal systems. All civil cases are substantively governed by the civil code and by the code of civil procedure procedurally. Regulation by the civil code is applicable in all areas of agency, trade, leases, employments, loans, partnership, mandate, suretyship, torts, and contracts. Being a civil jurisdiction that embraces common law, references with regards to legal traditions are made along the codes’ judicial interpretation as well as precedents. However, in comparison with jurisdictions that embrace common law, the degree of dependence on case law is not much (Chang-fa lo, 2006 p 15). The issue of enforcing judgements is quite important for a foreign company that desires to enter into a binding contract with another company based in Taiwan. A company based in the State of Florida, would consider taking the following issues into account, more so if its target market is in Taiwan, this considering that the state of Florida and Taiwan embrace different forms of law, that is, common and civil legal traditions respectively. In Taiwan, foreign judgements are only enforceable and recognizable where: the foreign court passing judgement has jurisdiction over the matter at hand with respect to Taiwan laws, the foreign court passing the judgement serve the defendant with proper notice, the foreign court judgement does not go against public policy or sound morals of the Taiwanese people, and finally the mutual judgement recognition between the respective jurisdiction and Taiwan (Chang and Chao, 2004). It is also essential to take international law into account, especially in situations where disputes arise between companies based in different countries applying different legal principles. International law is different compared to other legal systems in the sense that it basically deals with sovereign political states. International law is made up of three distinctive disciplines; there is the public international law which administrates over relationship among global entities and provinces, this includes law of the sea, treaty law, international humanitarian law, and international criminal law; private international law which concerns legal jurisdiction; and supranational law, a legal structure within which countries are interconnected by regional agreements in which individual member country laws are not applicable in a situation where conflicts with supranational laws abound (Oppenheim, 2005, p 429-466). To ensure that the organisation enters into a contract that can be enforced within its jurisdiction, in this case the state Florida, it is imperative that rules relating to contract writing are applied during the process of signing the agreement. These rules take the following form: First the organisation has to make sure that the contract to be agreed on is reached against the home country rules. The organisation must ascertain from its client what the deal points are, this could be in list form, a narration or even an outline, doing this would assist the client to focus on the agreement terms. The organisation should be open enough to engage the client in “what if” situations; a good contract predicts factual situations likely to arise. It is essential that these situations are laid open for all the parties entering into a contract to avoid future tussle, incidentally, discussing such situations with the client prior to signing a contract agreement has the benefit of exposing hidden issues that would otherwise not have been exposed. Correct legal names of parties to a contract are also a necessary requirement when signing an agreement. Despite the fact that this is an obvious action during the process of a contract signing agreement, it is a common problem in contract agreements. It should include full first and last names in the case of individuals, other identifying details should also not be left out wherever appropriate. In case of body corporate, information can be obtained from the secretary of state where the body corporate was incorporated. Recitals should be included for background purposes. Recitals refer to the where as clauses that precede a contract's body. They assist any one who seeks to read the contracts details by simplifying the contract's details, identity of the parties to a respective contract, why the contract was signed and so on. The first paragraph of a contract's body can include recitals through reference and state that the contract's details are correct and true. It is also important to make the organisation's client aware of possible risks, one way of doing this is by writing the client a letter as the contract is being written, there are inherent risks in any form of business agreement, these risks could assume the form of; those things likely to go wrong with the agreement being reached, things that have gone wrong and had to be rectified in past, similar agreements and so on. Incidentally, the benefits arising of entering that particular agreement should be passed on to the client. Additionally, it is imperative that each paragraph be completed by writing the contract’s applicable terms with respect to that particular paragraph. This can simply be done by explaining in each paragraph on what the parties have agreed on or not agreed on. It is also essential that the paragraphs flow in an organised, neat, logical pattern. The paragraphs should not necessarily be written at once, they can be written as the parties think through. (Nickel, 2006, p 105) The parole evidence rule must also be taken into account prior to reaching a contract agreement. Despite it not being evidence to a contract, this rule may alter a contract's terms as well as change the way that particular contract is enforced. Simply put, in a situation where a written contract's terms are in dispute in court proceedings, the parole evidence rule bars the introduction of any form of agreement reached by the conflicting parties to a contract prior to signing the contract agreement. The court will regard the written contract as embracing the expressions of the parties’ agreements in full as at the date the contract was written. Therefore, when creating contracts, it is essential to include all the agreement terms into the contract. The parole evidence rule does not does not take into account any agreement reached subsequent to the contract agreement already signed. This is based on the reason the post contract agreements may alter the written document already signed (Peritt, 1999, p 332). Another issue that the organisation should not overlook is the statute of fraud; it provides that some types of contracts cannot be enforced unless given in writing. Under the State of Florida law, contracts attributing to goods whose value exceed or are equal to 500 US dollars must be in writing for them to be valid. Florida law statute 672.201 defines the statute of fraud thus: Except as otherwise stated under this section, a contract attributing to the sale of goods whose value is equal to or exceeds 500 US dollars cannot be enforced through any form of action or defence except if they are in written form properly signed and all contract details sufficiently included in a manner showing that a sale contract has been reached between parties. Writing is not inadequate because it leaves out or states a term already agreed upon incorrectly, but a contract cannot be enforced under this statute past the goods sold but not stated in writing. Between traders, if it is within what is termed as reasonable time, a contract confirmed in writing and adequate against the sender and the receiving party has reasons to know what its details are. Once the receiving party is aware of the contract's details and consents to the same, then the contract becomes legally enforceable against that party and any other party to the contract in case of breach or should any dispute arise. The statute of fraud is amplified by the “equal dignities rule”; this rule requires that a party must have authority to execute certain acts on behalf of another part (Florida law statute) Legal Personality Legal personality, also referred to as juristic, juridical, or artificial personality is a character held by non- human bodies like companies and so on where the law regards them as having a natural person’s status. A legal person is protected, has privileges, responsibilities, and liabilities in accordance with the law. The legal personality concept is one of the most basic legal fictions. It is relevant to the law philosophy as well as law of corporations. Through legal personality, one or more persons are allowed to act as a single entity. Legal personality in several jurisdictions authorises such complexities to be taken into account under law separate from its shareholders or individual members. They may sign contracts, sue other parties as well as get sued, incur debt, and own property. Bodies with legal personality could be subject to specific legal obligations, a typical example is the payment of tax. Members or shareholders to bodies with legal personality have limited liability, that is, the law of legal personality protects them against any personal liability that may arise from the body per se (Talbot, 2007, p.23). The legal personality ideology is not absolute. Piercing the veil of incorporation means a legal decision where rights or duties of a corporation are treated the same way as the liabilities or rights of the corporation’s directors, shareholders or individual members. Bodies with legal personality do not possess the same rights as those of natural persons in totality. For example right to freedom of speech, this is a right attributed to human rights. Even though the concept of legal personality is more inclined towards Western law, in jurisdictions that embrace both civil and common law, it is also common in every legal system (Talbot, 2007, p.23). The State of Florida recognises the law of persons, under chapter 607 of the Florida statutes. Under the law of Florida a legal person or a body corporate is defined as a shareholders' association, developed by the law, and viewed by the courts as an a artificial person with a distinct legal identity. There are two forms of legal persons or corporations, the C corporations and the S corporations. What distinguishes the two is the mode of paying taxes. An entity has to be registered for it to have legal recognition. Subsequent to registration, the incorporated entity bears the following characteristics: It becomes an artificial person different from those who formed it. Perpetual succession in the sense that the entity’s existence is not terminated on the basis of a member’s death. It has the capacity to sue or be sued in its own name. Its liability is limited. A registered entity as an artificial person has the ability to own both movable and immovable property. This property legally belongs to the entity as opposed to the owners irrespective of the number of shares held. An incorporated entity can obtain loans from other companies which they can secure from other institutions or organisations against the property they own or through undertaking debentures (Humphreys, 1998, p 2-11). Reference List: David, R., and Brierly, J. (2000). Major legal systems in the world today, Legal classics library Tebeau, W. C. (2009). A History of Florida. Florida: University of Miami Press Wasserman, A. (2009). A People’s History of Florida 1536-1876: How Africans, Seminoles, Women, and lower Class Whites Shaped the Sunshine State. Florida: Adam Wasserman Mc Govern, B. (2008). Florida Almanac, Florida: Pelican Publishing Freeman, M., and Goodenough, O. (2009). Comparative legal studies: traditions and transitions, Ashgate publishing library. Friedman, L.M., (1999). The horizontal society, New Haven: Yale University Press Nickel, M, G., (2006). Probate and Settle an Estate in Florida, Illinois: Sphinx Publishing Peritt, H. (1999). Employee dismissal: Law and practice, Canada: Aspen law and business publishers Chang fa lo, (2006). The legal culture and system of Taiwan, Kluwer International Glenn, H., (2007). Legal traditions of the world: Sustainable diversity in law, Oxford: Oxford University Press Thornton, G. C., (1979). Legislative drafting, London: Butterworths publishers Richards, P. (2009). The law of contract: The Foundation Studies in Law: England Pearson Longman publishers Bouvier, J. (2004). A law dictionary adapted to the constitution and laws of the USA, Harvard: Estate of John Bouvier Kamali, M.H., (1998). Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, University of Michigan: Ilmiah Publisher De Cruz, P. (1999). Comparative law in a changing world, London: Cavendish publishing ltd. Reimman, M. and Zimmerman, R. (2008). The Oxford handbook of comparative law, Oxford: Oxford University Press. Dainow, J. (1966). ‘The civil law and the common law. Some points of comparison’, The American Journal of Comparative Law, vol. 15, no. 3, pp. 419-435. Friedman, L.M., (1997). The concept of a legal culture: A Reply Aldershot: Dartmouth publishers MacCormick, D.N., and Summers, R.S., (1993). Interpreting Statutes: A comparative study, Aldershot: Dartmouth publishers Chang, V, and Chao, M. (2004). Taiwan: The legal system, The Strategy Publication for Professional Service Firms in the Asia Pacific. Available: http://psfjournal.com/ Blazer, S. and Zimmer, E. (2005). The embryo—scientific discovery and medical ethics, Switzerland: Library of congress publication data Oppenheim, L. (2005) International Law: A Treatise Volume, New Jersey: Statute of Frauds. Florida Law Statutes 672.201 (State of Florida) Talbot, L. (2007). Critical company law, Milton Park UK: Routledge Cavendish Humphreys, T. A., (1998) Limited liability companies, New York: Law Journal Press Read More