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One of the frequently assumed major differences between civil law and common law systems is the standard of persuasion applied by each in civil (non-criminal) cases. In most civil law jurisdictions, it is commonly assumed that the standard of persuasion is the same for criminal and civil proceedings. The plaintiff in a civil case, as well as the prosecutor in a criminal case, must provide sufficient proof to convince the trier of fact of the truth of the facts at issue on the particular occasion. Although it is recognised that absolute certainty is impossible to achieve, the required degree of belief is often expressed in terms of a virtual certainty, or at least a very high probability. However, a mere statistical probability, no matter how high, will not suffice in the absence of the required conviction or belief in the truth of the facts at issue. In common law jurisdictions, there is an explicit distinction between the standard of persuasion in criminal and civil proceedings. In criminal proceedings, the standard is very high: the prosecutor must prove the defendant’s guilt ‘beyond a reasonable doubt’. In civil proceedings, however, the plaintiff generally only needs to prove his case by the much lower standard of a ‘preponderance of the evidence’ (the usual formulation in the United States) or a ‘balance of probability’ (the usual formulation in the British Commonwealth and Scandinavia). Both standards are often interpreted by academics, and sometimes by judges, as merely requiring a 50 per cent probability. For both standards, as so interpreted, it would be better to employ the term ‘standard of proof’ rather than ‘standard of persuasion’, since the latter implies an element of conviction or belief that is lacking when all that is involved is a class-based statistical probability. I have argued that the supposed major differences between the standards of persuasion in common law and civil law jurisdictions are greatly overstated. I retrace that argument in section II of this paper. I conclude that, in general, the common law as well as the civil law continues to view the applicable standards of persuasion in civil as well as criminal actions as requiring the formation of a belief in the truth of the facts at issue in the particular case, rather than a mere class-based statistical probability, and that concrete ‘particularistic evidence’ specific to the particular case is necessary to support such a belief. Although the available evidence is slim, I also conclude that in the civil law as well as the common law the strength of the required belief is lower in civil actions than in criminal actions. In section IV of this paper, I consider various types of problematic causal situations that courts around the world have struggled to deal with in recent decades. Clear recognition of the issues in these cases and their proper resolution has often been hindered by an unanalysed assumption that the standard of persuasion in civil actions is a mere statistical probability standard, which however is not consistently applied, since doing so would generate significant problems and paradoxes. The considerable confusion that now exists could and should be greatly reduced simply by replacing the highly misleading phrases ‘more likely than not’ and ‘balance of probability’, and even the less misleading phrase ‘preponderance of the evidence’, with ‘a minimal belief’.
3Criminal Liability of Corporations: A Comparative Approach to Corporate Criminal Liability in Common Law and Civil Law Countries
Criminal Liability of Corporations: A Comparative Approach to Corporate Criminal Liability in Common Law and Civil Law Countries
Read moreAppraising Contractors’ Tortious Liability Under the Tort of Negligence. Perspectives from Common Law and Civil Law Jurisdictions
This article examines the tortious liability of contractors under the tort of negligence, comparing approaches in common law and civil law jurisdictions. It analyzes the key elements of negligence—duty of care, breach, and resulting damage—focusing on the contractor’s liability for negligent acts and negligent advice on construction projects. The study highlights how common law jurisdictions impose liability based on established legal precedents while civil law systems, exemplified by the French Civil Code, adopt a broader codified approach. The article also explores how contractors may still be held liable beyond contractual limitation periods and how liability can arise even in the absence of a formal duty of care in civil law jurisdictions. Understanding these differences is crucial for contractors and employers operating in multiple legal frameworks.
Read moreTheory of the Firm and Organisational Contracts: The Remedial Aspects of Good Faith
The aim of this paper is to investigate which conceptual place long-term contracts have within the legal system and how the theory on relational contracts fits within a general theory of justice that has an objectification in a doctrine of good faith. We present a definition of commercial long-term contracts and give examples as to understand how, within the wide range of contracts that can fall within this definition, some can have an organisational colour. After this, we examine the good faith doctrine as understood and employed in both common and civil law jurisdictions; the paper provides the analysis of a recent civil law case involving a distributorship agreement and the function of abuse of right. Nevertheless, the focus is mainly on good faith as a generally accepted clause in European jurisdictions, that is paving its way to general acceptance in common law jurisdictions too. Lastly a brief explanation on how law and economics can help us in descriptively understanding the interplay between contract law and trust games is given, so as to have also a normative insight on why granting judges such a discretional power does not only achieve justice and fairness but also efficient outcomes for business players.
Read moreComparative Law as an Instrument in Transnational Law: the example of petroleum regulation
This paper argues that comparative law is a powerful tool in areas of law that transcend national legal systems. It examines the petroleum regulatory framework in Australia and Norway both of which use the petroleum licencing and concession system. It identifies common functions within the licencing and concession systems, including the legislative framework, award of licence, the property rights the licence confers, and the development of petroleum fields. These similar functions enable comparison between the two jurisdictions which transcends the usual difficulties of comparing common and civil law jurisdictions. It concludes that these common functions of the petroleum licencing concession systems enable the use of comparative methodology to compare regulatory functions in civil and common law jurisdictions to identify solutions to regulatory issues in the Australian petroleum regulatory framework. This article is available in Bond Law Review: http://epublications.bond.edu.au/blr/vol21/iss3/2 42 COMPARATIVE LAW AS AN INSTRUMENT IN TRANSNATIONAL LAW: THE EXAMPLE OF PETROLEUM REGULATION
Read moreChoice of Forum Clauses in Asia
This book compares and explains the approaches taken by Asian courts when choice of forum clauses in international commercial contracts are challenged in litigation. It examines key common law jurisdictions (Singapore, Hong Kong and Malaysia), civil law jurisdictions (China, Japan, and Indonesia), and hybrid jurisdictions (the Philippines). With Asia’s ascent in cross-border trade and investment, alongside a corresponding increase in cross-border litigation, understanding how Asian courts address choice of forum clauses in international commercial contracts has never been more critical. Employing a comparative law method, the book identifies and explains the relief and remedies used by Asian courts in enforcing choice of forum clauses, analysing how their classification as either contractual or procedural in nature shapes judicial approaches. It further distinguishes choice of forum clauses from arbitration agreements and explores their interaction with other contractual provisions. Party autonomy – as the parties’ freedom to determine the contents of the choice of forum clause and the freedom to control the flow of litigation – is also critically scrutinised. Furthermore, the book investigates the factors courts consider in resolving key choice of forum clause issues (ie, enforceability; specific relief to be granted; existence, validity, interpretation of choice of forum clauses; role of mandatory rules, public policy, and international interests) and explores the prospects for future development of this area of law in Asia. Crucially, the book highlights the unique approaches of Asian courts, while underscoring the differences and similarities among common law, civil law, and hybrid jurisdictions.
Read more6On the efficiency of the common law: an application to the recovery of rewards
Richard Posner’s influence on the field of law and economics cannot be overstated. Among his many contributions, Posner offered an early conjecture that remains fascinating and controversial to this day: the idea that common law rules are more likely than legislative codes to be concerned with efficiency. In this paper, I compare the efficiency of a common law rule of contracting to the efficiency of a civil law rule. In common law jurisdictions, claimants must have knowledge of a reward in order to recover. In civil law jurisdictions, however, no such knowledge is required. I analyze the efficiency of each rule by examining the incentives created by each rule. In a finding that agrees with Posner’s hypothesis, I argue that the common law rule is more efficient. The model has a number of applications beyond contract default laws. I use the model to discuss three legal questions previously analyzed by Richard Posner: (1) incentivizing innovation; (2) the finders-keepers rule in property law; and (3) salvage rights in maritime law.
Read more2Co-existence and harmonisation of different legal traditions in South Africa
This essay introduces a contemporary description of the mixed jurisdiction of South Africa. It depicts how in South Africa co-existence, harmonization and resistance are found in different fields of law and identifies both pitfalls and benefits of mixity. Several components are introduced: civil law, English common law, local customary law, the Bill of Rights and international legal instruments. The successful harmonisation of civil and common law is ascribed to introduction of the English administration of justice. The British institutions, structure and process placed the focus on legal procedure and succeeded to avoid conflict between different legal cultures as economic transactions ignored different value systems and doctrine. The same model was, however, not applied in respect of indigenous customary law, where from the onset choices between values and doctrine were cast in stone with the consequent conflicts. The new constitution of 1996 is transformative and the courts are instructed to develop common law and indigenous law to promote the rights, values, spirit and purport of the Bill of Rights. Thus, in all fields of private law court decisions attempt to realise such transformation by harmonising constitutional values with legal tradition while strong impetus has been provided by legislation. As it appears that the need for harmonisation between civil and common law is experienced mainly in the commercial field, the question arises whether civil law jurisdictions can transform themselves into a mixed jurisdiction by way of legal transplants to facilitate the global market. Mixed legal systems developed mostly as the result of colonial history. Civil law and common law were able to mix because the common law court system and procedure made it possible for English trained judges to successfully merge certain areas of private law, primarily in the commercial field. This means that the court system and the law of procedure, but especially training, qualification and selection of judges are of paramount importance.
Read moreUnderstanding Judicial Discretion: A Comparative Study of judge’s legal reasoning in Civil Law and Common Law Jurisdictions
This article examines the concept of judicial discretion within the two primary legal systems: Civil Law and Common Law.Judicial discretion is often perceived as the freedom granted to judges in decision-making, impacting the integrity and consistency of judicial rulings.Consequently, this study endeavors to bridge this gap by exploring how judicial discretion and judges' legal reasoning function in these dual legal systems.Employing a comparative qualitative method, this research includes data analysis from both legal frameworks.The result indicates that civil and common law judges possess similar levels of discretion.Although in common law, precedents bolster judicial discretion, it does not necessarily influence judicial decisions.This situation is particularly evident in the current climate, where judges face pressures to consider social and cultural norms, especially in an era of globalization and legal reform.This study contributes to understanding how judicial discretion operates across various legal traditions and its effect on justice enforcement.
Read more1(Un)enforceability of trust arbitration clauses in civil and common law
Arbitration clauses in civil and common law trusts are, in principle, unenforceable; the cause of this unenforceability is to be found in the lack of consent of the beneficiaries. To remedy this obstacle, theories have been created to try to explain the enforceability of trust arbitration clauses. Because these theories do not guarantee the enforceability of such clauses, legislative reform is needed and has occurred in both civil and common law jurisdictions.
Read moreEquity and its Operation
In terms of the world’s legal systems, common law was originated in England and permeated into nations colonised by Britain, in contrast to its counterpart – civil law which was well developed in the Western European continent. One of the distinctive features of common law that differs from civil law is ‘equity’ or the ‘equitable principles’. Often, quite a few lawyers from civil law jurisdictions misunderstand that equity means justice, fairness, or impartiality. In fact, equity is another branch of common law, providing equitable remedies when the application of common law rules would result in unfairness. In order to comprehend how equity functions, this paper needs to call the readers’ attention to the history of equity, starting from being a supplement of common law rules until becoming a rival before it eventually bequeathed its spirits (equitable principles) towards common law jurisdictions. It will end with a classic case of Australia, namely Garcia v National Australia Bank (1998) 194 CLR 395, where the equity played more significant role in giving justice to an inferior party (Mrs. Garcia) than that the common law rules did. This case will explain why the equity has been a vitally important element of the common law system so far.
Read more2Interpretation and Determinacy Reply to Brunet and Poggi
Pierre Brunet and Francesca Poggi advocate radical scepticism about the ability of lawyers and judges in civil law jurisdictions, when they interpret statutes, to discover objective meanings capable of resolving legal disagreements. Radical sceptics deny that there are any easy cases in which such objective meanings exist and can be discovered; legal disagreements can only be resolved by creative acts of judicial will. While I agree with their rejection of formalism and literalism, I am sceptical about their scepticism, and defend the orthodox view that there are easy cases in which objective meanings exist and are discoverable. I defend a theory of statutory interpretation as it is actually practiced in the common law world, which I argue is based mainly on the constitutional principle of legislative supremacy. This theory gives prominence to legislative intentions and purposes. I then compare this with Brunet’s and Poggi’s account of statutory interpretation as it is practised in the civil law world. I acknowledge that there may be substantial differences between the two worlds, with respect to the judicial interpretation of statutes. In particular, neo-constitutionalism—as described by Brunet and Poggi—seems to be less viable in common law jurisdictions. Nevertheless, I conclude that radical scepticism remains implausible in both worlds.
Read more16Good faith and fair dealing in contracts formed and performed by electronic agents
The development of electronic agents that increasingly play an active role in the contract formation and execution process has highlighted the need for the creation of law-abiding autonomous agent systems. The principle of good faith is an important guideline for contractual behaviour which permeates civil law systems. This paper examines how this principle is applied both during the negotiation of a contract and during its performance. Selected examples from civil law literature of precontractual duties of good faith, and of precontractual behaviour that is deemed to be contrary to good faith, are discussed. This is followed by a discussion of the extent to which such duties are recognised, or such behaviour proscribed, in common law jurisdictions. Some common standards for precontractual behaviour in civil and common law systems are identified. There is then a parallel analysis of the principle of good faith in contract performance with a view to identifying common traits or standards between civil and common law systems. These standards, in the situation where contracts are being negotiated and/or performed by or through electronic agents, would need to be reflected in the way such agents operate.
Read more7Convergence of Civil Law and Common Law Contracts in the Space Field
Convergence of Civil Law and Common Law Contracts in the Space Field
2Good Faith and Relational Contracts
This book explores the use of the doctrine of good faith in the common law when interpreting contracts and resolving disputes. This doctrine is well-accepted in civil law, is reflected in international commercial law, and is a fundamental aspect of private law in the USA. However, its use in the UK is extremely limited. Inconsistent application has given rise to confusion and uncertainty. This apparent antipathy is somewhat hard to fathom, given its previous widespread acceptance in English law. The book explains in depth the history of good faith in English law, and clarifies its current status in English, Australian and international law. It explores the relationship between good faith within contractual relations and the neighbour principle in tort law, and notes the workability of good faith in the commercial context of insurance. This will be welcomed by contract lawyers in both common law and civil law jurisdictions. A subsequent volume will explore how acceptance of good faith in the law might lead to a re-interpretation of existing contract law doctrine.
Read more16Legal Origins, Investor Protection, and Canada
Legal Origins, Investor Protection, and Canada
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