Key Features of Common Law or Civil Law Systems
Full Description
Common Law System
Countries following a common law system are typically those that were former British colonies or
protectorates, including the United States.
Features of a common law system include:
There is not always a written constitution or codified laws;
Judicial decisions are binding – decisions of the highest court can generally only be overturned by that
same court or through legislation;
Extensive freedom of contract - few provisions are implied into the contract by law (although
provisions seeking to protect private consumers may be implied);
Generally, everything is permitted that is not expressly prohibited by law.
A common law system is less prescriptive than a civil law system. A government may therefore wish to
enshrine protections of its citizens in specific legislation related to the infrastructure program being
contemplated. For example, it may wish to prohibit the service provider from cutting off the water or
electricity supply of bad payers or may require that documents related to the transaction be disclosed under a
freedom of information act. There may also be legal requirements to imply into a contract in equal bargaining
provisions where one party is in a much stronger bargaining position than the other. Please see Legislation
and Regulation for more on this.
There are few provisions implied into a contract under the common law system – it is therefore important to
set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This
will often result in a contract being longer than one in a civil law country.
Civil Law System
Countries following a civil law system are typically those that were former French, Dutch, German, Spanish
or Portuguese colonies or protectorates, including much of Central and South America. Most of the Central
and Eastern European and East Asian countries also follow a civil law structure.
The civil law system is a codified system of law. It takes its origins from Roman law. Features of a civil law
system include:
There is generally a written constitution based on specific codes (e.g., civil code, codes covering
corporate law, administrative law, tax law and constitutional law) enshrining basic rights and duties;
administrative law is however usually less codified and administrative court judges tend to behave
more like common law judges;
, Only legislative enactments are considered binding for all. There is little scope for judge-made law in
civil, criminal and commercial courts, although in practice judges tend to follow previous judicial
decisions; constitutional and administrative courts can nullify laws and regulations and their decisions
in such cases are binding for all.
In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the
courts;
Courts specific to the underlying codes – there are therefore usually separate constitutional court,
administrative court and civil court systems that opine on consistency of legislation and administrative
acts with and interpret that specific code;
Less freedom of contract - many provisions are implied into a contract by law and parties cannot
contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a government will
still need to consider whether specific legislation is required to either limit the scope of a certain restriction to
allow a successful infrastructure project, or may require specific legislation for a sector. Please go to
Legislation and Regulation and “Organizing Government to think PPP” sections for more information on
this.
There are a number of provisions implied into a contract under the civil law system – less importance is
generally placed on setting out ALL the terms governing the relationship between the parties to a contract in
the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law. This will
often result in a contract being shorter than one in a common law country.
It is also important to note in the area of infrastructure that certain forms of infrastructure projects are
referred to by well-defined legal concepts in civil law jurisdictions. Concessions and Affermage have a
definite technical meaning and structure to them that may not be understood or applied in a common law
country. Care should be taken, therefore, in applying these terms loosely. This is further considered under
Agreements.
Summary of Differences between Civil law and Common law legal systems
Set out below are a few key differences between common law and civil law jurisdictions.
Feature Common Law Civil Law
Written constitution Not always Always
Not binding on 3rd parties; however, adminis
Judicial decisions Binding constitutional court decisions on laws and reg
binding on all
Writings of legal
Little influence Significant influence in some civil law jurisd
scholars
Extensive – only a few provisions implied by More limited – a number of provisions impli
Freedom of contract
law into contractual relationship into contractual relationship
Full Description
Common Law System
Countries following a common law system are typically those that were former British colonies or
protectorates, including the United States.
Features of a common law system include:
There is not always a written constitution or codified laws;
Judicial decisions are binding – decisions of the highest court can generally only be overturned by that
same court or through legislation;
Extensive freedom of contract - few provisions are implied into the contract by law (although
provisions seeking to protect private consumers may be implied);
Generally, everything is permitted that is not expressly prohibited by law.
A common law system is less prescriptive than a civil law system. A government may therefore wish to
enshrine protections of its citizens in specific legislation related to the infrastructure program being
contemplated. For example, it may wish to prohibit the service provider from cutting off the water or
electricity supply of bad payers or may require that documents related to the transaction be disclosed under a
freedom of information act. There may also be legal requirements to imply into a contract in equal bargaining
provisions where one party is in a much stronger bargaining position than the other. Please see Legislation
and Regulation for more on this.
There are few provisions implied into a contract under the common law system – it is therefore important to
set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This
will often result in a contract being longer than one in a civil law country.
Civil Law System
Countries following a civil law system are typically those that were former French, Dutch, German, Spanish
or Portuguese colonies or protectorates, including much of Central and South America. Most of the Central
and Eastern European and East Asian countries also follow a civil law structure.
The civil law system is a codified system of law. It takes its origins from Roman law. Features of a civil law
system include:
There is generally a written constitution based on specific codes (e.g., civil code, codes covering
corporate law, administrative law, tax law and constitutional law) enshrining basic rights and duties;
administrative law is however usually less codified and administrative court judges tend to behave
more like common law judges;
, Only legislative enactments are considered binding for all. There is little scope for judge-made law in
civil, criminal and commercial courts, although in practice judges tend to follow previous judicial
decisions; constitutional and administrative courts can nullify laws and regulations and their decisions
in such cases are binding for all.
In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the
courts;
Courts specific to the underlying codes – there are therefore usually separate constitutional court,
administrative court and civil court systems that opine on consistency of legislation and administrative
acts with and interpret that specific code;
Less freedom of contract - many provisions are implied into a contract by law and parties cannot
contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a government will
still need to consider whether specific legislation is required to either limit the scope of a certain restriction to
allow a successful infrastructure project, or may require specific legislation for a sector. Please go to
Legislation and Regulation and “Organizing Government to think PPP” sections for more information on
this.
There are a number of provisions implied into a contract under the civil law system – less importance is
generally placed on setting out ALL the terms governing the relationship between the parties to a contract in
the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law. This will
often result in a contract being shorter than one in a common law country.
It is also important to note in the area of infrastructure that certain forms of infrastructure projects are
referred to by well-defined legal concepts in civil law jurisdictions. Concessions and Affermage have a
definite technical meaning and structure to them that may not be understood or applied in a common law
country. Care should be taken, therefore, in applying these terms loosely. This is further considered under
Agreements.
Summary of Differences between Civil law and Common law legal systems
Set out below are a few key differences between common law and civil law jurisdictions.
Feature Common Law Civil Law
Written constitution Not always Always
Not binding on 3rd parties; however, adminis
Judicial decisions Binding constitutional court decisions on laws and reg
binding on all
Writings of legal
Little influence Significant influence in some civil law jurisd
scholars
Extensive – only a few provisions implied by More limited – a number of provisions impli
Freedom of contract
law into contractual relationship into contractual relationship
