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good morning sir
In your lectures you mention that (in civil law cases) for precedent to be applied to a particular case , the material facts of each case must be the same as one of the previously handled cases. My question is what happens (in civil law cases) in the event that we encounter a new case which was never handled before, how do we resolve issues in such circumstances
Good question Agnes
Accept, first of all, that the concept of judicial precedence was established in 1285 and has grown in its application and ‘rules’ for the last 730+ years
That effectively means that nearly all (99+%?) of all situations involving disputes have some sort of precedent upon which a current decision may be based
But what of the other ‘new’ cases that you mention?
With exceedingly rare exceptions, most of these new cases involve a dispute relating to changes in society, science, education, social mores ….
For example, there were no situations involving surrogate motherhood back in 1285 (nor even back to the first 80 years of so of the last century)
There were no 14th century cases about air travel, space travel, car sharing nor railway disputes
So substantially all ‘new’ cases relate to these changing circumstances
And, in those cases, a judge will need to apply experience (and a lot of common sense) to arrive at some decision. That same judge may well recommend (or even instruct) the litigant parties to appeal to higher courts
Just occasionally, courts will ‘create’ precedent. In the case Ebrahimi v Westbourne Galleries, the courts established the concept of a quasi-partnership company. This had never been thought of as a viable idea before Ebrahimi
So, where a new situation faces the courts, somehow a decision has to be reached that is not based on precedence
But, as I said at the start, these situations are very few and far between
OK?
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