Week 1 Topic 1: Introduction to Contract Law: The Nature and Importance of Contract Law Today's Agenda · Introduction, Unit Overview and Information . Introductory Lecture on 'Introduction to Contract Law: The Nature and Importance of Contract Law' & Seminar THE AUSTRALIAN LEGAL SYSTEM: THE COMMON LAW TRADITION Common Law Tradition · Australia has a 'common law' system . This was inherited from England and is shared by many former colonies - such as Canada, the United States, Ireland and New Zealand · The other major system is the 'civil law' system; it is the oldest legal tradition having its origins in the laws of ancient Rome Characteristics of the Common Law · A common law system is recognisable by the important role played by judges in the making and interpretation of the law; Judges are a source of law · In civil law systems, much of law is found in comprehensive Codes (the Civil Code, the Commercial Code, the Penal Code and the Codes of Civil and Criminal Procedure) and a judges' role is to find the relevant provision in the relevant Code and apply it to the matter at hand Essence of a common law system . The common law system is adversarial - the parties present their case and question the other side; the judge typically does not play an active role in how a party presents the case · The civil law system is inquisitorial - the judge is an active participant - asks questions, calls witnesses and seeks relevant materials
Sources of law in Australia Two sources of law : Sources Parliament Judges Federal State Common Law Important: · Statutory law prevails over judge-made law. . These are referred to a 'primary' sources of law. Equity Judges as a source of law: The Doctrine of Precedent · Law is made by judges when deciding cases . When deciding a case, the court will be guided by earlier decisions; this is known as the doctrine of precedent. · The doctrine is a fundamental aspect of a common law system . The major advantages of the doctrine are certainty and consistency . The major difficulty is often the time it takes to change a bad law Types of Precedent: The Doctrine of Precedent · Binding Precedent = Ratio Decidendi . What part of a previous decision binds a court? " Only the 'ratio decidendi' is binding - this is the reason for the decision o Which decisions bind a court? " A court is bound by the decisions of a court above it in the 'hierarchy of courts'; known as the 'principle of stare decisis' · Persuasive Precedent = Obiter Dicta · Comments by the way 'obiter dicta' are not binding, by may be useful What is equity? · English legal creature known as 'equity' . Courts of Common Law, and the Court of Chancery (Equity)
o Courts of Common Law developed basic rules and principles that we now recognize as the law of torts (civil wrongs),