SV Legal English AJ 2024-25 Sofie Declerck
KUL Campus Brussel
Legal English
Unit 1: Of common law and civil law
Section 1: From the Anglo-Saxons to the Norman invasion
- English legal system: often referred to as a “common law” legal system
o <-> civil law:
Civil law originates from particular sets of texts
Common law originates from “tradition expressed in action”
or jurisprudence
Section 2: The writ system
- Writ = royal order to do something or to refrain from doing something
o Most important one: habeas corpus
- it became increasingly important to know how to get access to the
King’s court and to know what procedures were to be followed
Section 3: The development of Parliament
- John Lackland magna carta (because he had lost so much of England’s
property in France the King’s power continued to decline doctrine of
parliamentary sovereignty = the principle that all legislative power in
England is vested in Parliament or is derived from the authority of
Parliament
Section 4: The development of equity (billijkheid)
- End 13th century: development of common law had stagnated, developed
rigidity
- The only available legal remedy in common law courts = damages (=
monetary compensation)
- Under the Lord Chancellor
o = secretary of the King
o = always a man of the Church
o Legally binding documents
o New procedures like
Subpoena (: requires a witness to attend court)
o New remedies like
Injunctive belief or injunctions
= an order of the court requiring a person to refrain
from doing something or to do a particular thing
= an equitable remedy: will only be ordered if damages
aren’t a sufficient remedy
Specific performance
= uitvoeringsbevel
= an order requiring a party to a contract to carry out
his or her obligations under that contract
= positive obligation
failure to comply with an order for specific
performance = a contempt of court (minachting vh hof)
,SV Legal English AJ 2024-25 Sofie Declerck
KUL Campus Brussel
o = punishable by imprisonment or fine
= only granted where an award of damages wouldn’t
be an adequate remedy
o New rights
Like rights under trusts
o In case of breach of contract: rescission (ontbinding) is the equitable
remedy
brings an end to the contract, restores the parties to their
original positions
Allows the innocent party to perform no further contractual
obligations
o The Court of Chancery (= Court of Equity): applied its discretion to
grand equitable relief
- Equity came not no destroy the common law but to fulfil it
- 2 important distinctions between the common law and equity
o 1)
Common law actions:
Could only be commenced by means of a writ
Formal
Language: Latin
Actions in the Court of Chancery:
Commenced by an informal bill of complaint (a petition)
asking for the King’s grace
Informal: could even take place in the house of the
Chansellor
Language: English
o 2)
Courts of Equity: granted ‘in personam’ relief
courts of equity would enter decrees requiring the
defendant to engage in, or refrain from engaging in,
specific acts
if this order was not followed: ‘in personam’ decree
could be enforced through sanction of contempt of
court defendant could be imprisoned or fined for
non-compliance
Common law courts:
Could only enter monetary judgements against the
defendant, could not impose fines or order
imprisonment
- Equitable remedies ≠ available as of right (van rechtswege) but only at the
discretion (oordeel) of the court
- BUT the granting of equitable relief = discretionary, not arbitrary
o => to assist the court in making equitable decisions: certain
maxims of equity have been established
Derive from the principles of common law
≠ binding rules, they do not provide solutions for every
situation
= tools to assist the application of justice in the common law
They all hold equal weight
Most common ones:
,SV Legal English AJ 2024-25 Sofie Declerck
KUL Campus Brussel
People seeking equitable relief must come with clean
hands
o Equity will not grant relief where the seeker of
equity has committed a wrong himself
Those who seek equity must do equity
o The person seeking the equitable relief must act
fairly towards the person he or she is seeking the
relief from
Equity will not suffer a wrong without a remedy
Equity regards as done that which ought to be done
o Acts in favor of the party who was entitled to
performance of contract
Equity follows the law
o Equity does not replace statute law or common
law
o Equity applies where there is no remedy by
virtue of statute or common law
Delay defeats equity
o A party who delays in enforcing rights will not be
able to seek equitable relief
Where the equities are equal, the law prevails
o Used to determine priority of interest where
there is conflict (eg the determination of a bona
fide purchaser)
When the equities are equal, the first in time prevails
o Priority in order of their creation
Equality is equity
o Equity will divide funds equally between all
people to whom those funds are entitled
Equity looks to the intent rather than the form
o Courts of equity make a distinction between that
which is matter of substance and that which is
matter of form
Section 5: An example of equity in action: trusts
- The use of land = a trust
- The crusader = beneficiary
- The acquaintance = the trustee
- If a crusader left his land in the hands of someone else while he went to
fight in the crusades, and he came back home to ask back his property,
often he would encounter refusal
o As the crusader went to the King’s courts: decided that the person
who was physically occupying the land was the owner
o As the crusader petitioned the King he was referred to the Lord
Chancelor: found in favor of the returning crusader
Section 6: Common law: what’s in a name?
- Common law can have 3 different meanings: Common law
o Stands for the legal system the preceded equity
, SV Legal English AJ 2024-25 Sofie Declerck
KUL Campus Brussel
o Means the law of the courts as expressed in judicial decisions
o That is the family of related legal systems that are based on the
English common law
This third meaning distinguishes the common law from civil
law (= the codified legal system that has its roots in Roman
law and in which judges are not bound by precedent)
Section 7: What are the main features of ‘common law’?
- Common law represents the law of the courts as expressed in judicial
decisions (case law)
o The grounds for deciding cases are found in the principles provided
by pas court decisions
7.1 The Principle of Stare Decisis – the Doctrine of Binding Precedent
- The defining principle of the common law = the requirement that courts
follow decisions of higher level courts within the same jurisdiction
- Stare decisis AKA the doctrine of binding precedent: ‘to stand by things
decided’
o Gives legal certainty, ensures flexibility
o Operates both horizontally and vertically
Vertical stare decisis
It is the opinion of the higher level court that will
constitute the precedent, it will abrogate (intrekken)
the lower level court opinion in the same case
Horizontal stare decisis
A court adhering to its own precedent, or what other
cases have said about the initial case
o ! a precedent should not be followed where the case can be
distinguished from that precedent: cases can only be distinguished
on their facts
Must be different in some important way (material) from the
facts or fact in that precedent case
Material = any relevant fact that was not common to the case
that came before
o A judge is only bound by the ratio decidendi of the precedent
the judge is only bound by the grounds for the reasoning
Everything that doesn’t belong to the ratio decidendi of the
case = obiter dictum
Things said by the way
Does not bind any judge
Eg: dissenting opinion (afwijkende mening) by one of
the judges
o = normally published with the judgement
<-> when judges agree with each other: concurring
opinions
o = also published with the judgement
7.2 Jurisdiction and court hierarchy
- The term jurisdiction has 2 different meanings
KUL Campus Brussel
Legal English
Unit 1: Of common law and civil law
Section 1: From the Anglo-Saxons to the Norman invasion
- English legal system: often referred to as a “common law” legal system
o <-> civil law:
Civil law originates from particular sets of texts
Common law originates from “tradition expressed in action”
or jurisprudence
Section 2: The writ system
- Writ = royal order to do something or to refrain from doing something
o Most important one: habeas corpus
- it became increasingly important to know how to get access to the
King’s court and to know what procedures were to be followed
Section 3: The development of Parliament
- John Lackland magna carta (because he had lost so much of England’s
property in France the King’s power continued to decline doctrine of
parliamentary sovereignty = the principle that all legislative power in
England is vested in Parliament or is derived from the authority of
Parliament
Section 4: The development of equity (billijkheid)
- End 13th century: development of common law had stagnated, developed
rigidity
- The only available legal remedy in common law courts = damages (=
monetary compensation)
- Under the Lord Chancellor
o = secretary of the King
o = always a man of the Church
o Legally binding documents
o New procedures like
Subpoena (: requires a witness to attend court)
o New remedies like
Injunctive belief or injunctions
= an order of the court requiring a person to refrain
from doing something or to do a particular thing
= an equitable remedy: will only be ordered if damages
aren’t a sufficient remedy
Specific performance
= uitvoeringsbevel
= an order requiring a party to a contract to carry out
his or her obligations under that contract
= positive obligation
failure to comply with an order for specific
performance = a contempt of court (minachting vh hof)
,SV Legal English AJ 2024-25 Sofie Declerck
KUL Campus Brussel
o = punishable by imprisonment or fine
= only granted where an award of damages wouldn’t
be an adequate remedy
o New rights
Like rights under trusts
o In case of breach of contract: rescission (ontbinding) is the equitable
remedy
brings an end to the contract, restores the parties to their
original positions
Allows the innocent party to perform no further contractual
obligations
o The Court of Chancery (= Court of Equity): applied its discretion to
grand equitable relief
- Equity came not no destroy the common law but to fulfil it
- 2 important distinctions between the common law and equity
o 1)
Common law actions:
Could only be commenced by means of a writ
Formal
Language: Latin
Actions in the Court of Chancery:
Commenced by an informal bill of complaint (a petition)
asking for the King’s grace
Informal: could even take place in the house of the
Chansellor
Language: English
o 2)
Courts of Equity: granted ‘in personam’ relief
courts of equity would enter decrees requiring the
defendant to engage in, or refrain from engaging in,
specific acts
if this order was not followed: ‘in personam’ decree
could be enforced through sanction of contempt of
court defendant could be imprisoned or fined for
non-compliance
Common law courts:
Could only enter monetary judgements against the
defendant, could not impose fines or order
imprisonment
- Equitable remedies ≠ available as of right (van rechtswege) but only at the
discretion (oordeel) of the court
- BUT the granting of equitable relief = discretionary, not arbitrary
o => to assist the court in making equitable decisions: certain
maxims of equity have been established
Derive from the principles of common law
≠ binding rules, they do not provide solutions for every
situation
= tools to assist the application of justice in the common law
They all hold equal weight
Most common ones:
,SV Legal English AJ 2024-25 Sofie Declerck
KUL Campus Brussel
People seeking equitable relief must come with clean
hands
o Equity will not grant relief where the seeker of
equity has committed a wrong himself
Those who seek equity must do equity
o The person seeking the equitable relief must act
fairly towards the person he or she is seeking the
relief from
Equity will not suffer a wrong without a remedy
Equity regards as done that which ought to be done
o Acts in favor of the party who was entitled to
performance of contract
Equity follows the law
o Equity does not replace statute law or common
law
o Equity applies where there is no remedy by
virtue of statute or common law
Delay defeats equity
o A party who delays in enforcing rights will not be
able to seek equitable relief
Where the equities are equal, the law prevails
o Used to determine priority of interest where
there is conflict (eg the determination of a bona
fide purchaser)
When the equities are equal, the first in time prevails
o Priority in order of their creation
Equality is equity
o Equity will divide funds equally between all
people to whom those funds are entitled
Equity looks to the intent rather than the form
o Courts of equity make a distinction between that
which is matter of substance and that which is
matter of form
Section 5: An example of equity in action: trusts
- The use of land = a trust
- The crusader = beneficiary
- The acquaintance = the trustee
- If a crusader left his land in the hands of someone else while he went to
fight in the crusades, and he came back home to ask back his property,
often he would encounter refusal
o As the crusader went to the King’s courts: decided that the person
who was physically occupying the land was the owner
o As the crusader petitioned the King he was referred to the Lord
Chancelor: found in favor of the returning crusader
Section 6: Common law: what’s in a name?
- Common law can have 3 different meanings: Common law
o Stands for the legal system the preceded equity
, SV Legal English AJ 2024-25 Sofie Declerck
KUL Campus Brussel
o Means the law of the courts as expressed in judicial decisions
o That is the family of related legal systems that are based on the
English common law
This third meaning distinguishes the common law from civil
law (= the codified legal system that has its roots in Roman
law and in which judges are not bound by precedent)
Section 7: What are the main features of ‘common law’?
- Common law represents the law of the courts as expressed in judicial
decisions (case law)
o The grounds for deciding cases are found in the principles provided
by pas court decisions
7.1 The Principle of Stare Decisis – the Doctrine of Binding Precedent
- The defining principle of the common law = the requirement that courts
follow decisions of higher level courts within the same jurisdiction
- Stare decisis AKA the doctrine of binding precedent: ‘to stand by things
decided’
o Gives legal certainty, ensures flexibility
o Operates both horizontally and vertically
Vertical stare decisis
It is the opinion of the higher level court that will
constitute the precedent, it will abrogate (intrekken)
the lower level court opinion in the same case
Horizontal stare decisis
A court adhering to its own precedent, or what other
cases have said about the initial case
o ! a precedent should not be followed where the case can be
distinguished from that precedent: cases can only be distinguished
on their facts
Must be different in some important way (material) from the
facts or fact in that precedent case
Material = any relevant fact that was not common to the case
that came before
o A judge is only bound by the ratio decidendi of the precedent
the judge is only bound by the grounds for the reasoning
Everything that doesn’t belong to the ratio decidendi of the
case = obiter dictum
Things said by the way
Does not bind any judge
Eg: dissenting opinion (afwijkende mening) by one of
the judges
o = normally published with the judgement
<-> when judges agree with each other: concurring
opinions
o = also published with the judgement
7.2 Jurisdiction and court hierarchy
- The term jurisdiction has 2 different meanings
