Civil law precedent Role of precedent in civil law General rule Exceptions Functional equivalent: Rota romana Some examples Louisiana (mixed system) Germany.

Civil law precedent

Role of precedent in civil law General rule Exceptions Functional equivalent: Rota romana

Some examples Louisiana (mixed system) Germany (judicial-centric)

General rule

“Civil law world does not regard judicial pronouncements as binding in subsequent cases.”

(principal touchstone: common law vs civil law)

Questions – Does this permit judicial/legal fluidity? (Jason)

What about “legal certainty”? (David, Elizabeth, Lucas)

Too much flexing with the times? (Kate, Caitlin)

Pop quizExceptions:A. Deviation from prior

decision of highest court requires en banc decision

B. Successive decisions become controlling

C. Constitutional courts’ decisions have force of law

D. Judge-made customary law is binding

E. Received code includes extant high-court interpretations

Match: (Caitlin)

__ Germany__ France__ Italy__ Puerto Rico__ Mexico __ Brazil

Pop quizExceptions:A. Deviation from prior

decision of highest court requires en banc decision

B. Successive decisions become controlling

C. Constitutional courts’ decisions have force of law

D. Judge-made customary law is binding

E. Received code includes extant high-court interpretations

Match:__ Germany

__ France

__ Italy

__ Puerto Rico

__ Mexico

__ Brazil

Pop quizExceptions:A. Deviation from prior

decision of highest court requires en banc decision

B. Successive decisions become controlling

C. Constitutional courts’ decisions have force of law

D. Judge-made customary law is binding

E. Received code includes extant high-court interpretations

Match:__ Germany

__ France

__ Italy

__ Puerto Rico

__ Mexico

__ Brazil

Pop quizExceptions:A. Deviation from prior

decision of highest court requires en banc decision

B. Successive decisions become controlling

C. Constitutional courts’ decisions have force of law

D. Judge-made customary law is binding

E. Received code includes extant high-court interpretations

Match:__ Germany

__ France

__ Italy

__ Puerto Rico

__ Mexico

__ Brazil

Pop quizExceptions:A. Deviation from prior

decision of highest court requires en banc decision

B. Successive decisions become controlling

C. Constitutional courts’ decisions have force of law

D. Judge-made customary law is binding

E. Received code includes extant high-court interpretations

Match:__ Germany__ France__ Italy__ Puerto Rico (David – curious

transplant)

__ Mexico __ Brazil

Pop quizExceptions:A. Deviation from prior

decision of highest court requires en banc decision

B. Successive decisions become controlling

C. Constitutional courts’ decisions have force of law

D. Judge-made customary law is binding

E. Received code includes extant high-court interpretations

Match:__ Germany__ France__ Italy__ Puerto Rico__ Mexico (5/split super-majority

– Erika) (“super precedent” – Reid)

__ Brazil

Pop quizExceptions:A. Deviation from prior

decision of highest court requires en banc decision

B. Successive decisions become controlling

C. Constitutional courts’ decisions have force of law

D. Judge-made customary law is binding

E. Received code includes extant high-court interpretations

Match:__ Germany__ France__ Italy__ Puerto Rico__ Mexico __ Brazil (sumula headnotes -

Erika)

Civil law precedent

What is the difference between“jurisprudence” and “doctrine”?

What is the difference between “jurisprudence constante” and “stare decisis”?

(Reid, Elizabeth, Jason, Erika, Caitlin)

What is “vertical/horizontal” stare decisis?(David)

Rota romana

Rota romana

Ius commune: procedure permitting judge to consult “wise men” (legal experts) Papal auditors meet in room with “wheel” floor

ornament Give statement of facts and conclusion / but no

legal analysis Notes by auditors (decisiones rotae) highly

persuasive in ius commune courts Opinion of Rota becomes “common doctrine” Rota qundoque rotat

Any US parallel? (Reid)

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Breedlove hires attorney Turner to collect on bill of exchange given by Fletcher. Turner sues in New Orleans parish – wrong court. Breedlove then brings malpractice claim against Turner.

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Did Turner wrongly disregard precedent of La. Sup Ct [Johnson v. Dunwoody (La. 1819)] that no jurisdiction in other than parish court where bill of exchange arose?

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Rejects all six defenses – attorney must be aware of precedent or be responsible for the consequences.

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Defense 1: Johnson v. Dunwoody (La 1819) was wrong. Correct interpretation allows suit in outside parish.

Court: Even though change in court membership, case law still good.

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Defense 2: Johnson v. Dunwoody (La 1819) is not law. Power to make law is legislative, not judicial.

Court: News to us. We interpret legislative will, using analogies. Not bound to “obscure commentator” who lived centuries ago. Decide in “light of age”

(But first a digression)

A digression … England: courts interpret

statutes and create law France: “science of

jurisprudence carried to great perfection” (referred to in doctrinal writings) Decisions of Court of

Cassation 250 collections of arrets

from Ancien Regime (reporters = arretistes)

“Why else collect and preserve?”

(and then some policy analysis)

Stare decisis produces – Uniformity General acquiescence

(rule of law) Predictability (“men not

acquainted with their rights”)

Transparency (decisions printed in reporters)

Stare decisis induces judicial humility (otherwise judicial power unbridled)

A digression … England: courts interpret

statutes and create law France: “science of

jurisprudence carried to great perfection” (referred to in doctrinal writings) Decisions of Court of

Cassation 250 collections of arrets

from Ancien Regime (reporters = arretistes)

“Why else collect and preserve?”

(and then some policy analysis)

Stare decisis produces – Uniformity General acquiescence

(rule of law) Predictability (“men not

acquainted with their rights”)

Transparency (decisions printed in reporters)

Stare decisis induces judicial humility (otherwise judicial power unbridled)

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Defense 3-5: Refer doubtful cases to the legislature. Attorney immune when giving counsel. Attorney not fraudulent or neglectful.

Court: No constitutional authority to refer (compare France). Attorneys not less, and perhaps more, responsible as counselor. Statute makes attorneys liable for neglect, including carelessness.

Breedlove v. Turner (La. 1821)

Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

Defense 6: The attorney only committed an error of judgment. Trial court and dissenting appeals court judge thought there was jurisdiction. And other attorneys rally in support.

Court: “No man is supposed to know any branch of the law perfectly” (the fix is in - Erika)

Breedlove v. Turner (La. 1821)

Is Louisiana a “civil law” jurisdiction –

Does court say it bound by code?(Lucas, David)

does court explain conclusion?(Jason, Caitlin)

are lawyers obligated to know case law?(Kate)

Civil law precedentDoes it make sense for a civil law system NOT to have stare decisis?

John Henry Merryman

Precedence in Germany German Civil Code:

Debtor “in default” must pay interest, unless holds reasonable opinion that not in “default”

What is “default”? Decision German Reichsgericht (1922): not reasonable if debtor holds view adversely determined by highest court

Obligation of lawyer to ascertain precedent

Decision German Reichsgericht (1984):

Facts: P held liable on pre-incorporation contract when acted on behalf of unregistered corporation (LLC). Issue: Is P’s lawyer negligent for not knowing of cases accepting “novation” theory – person acting for corporation released once corporation adopts contract? Holding: Yes, lawyer negligent for not knowing. Should have appealed erroneous lower court decision.

Neuerfasthof GmbH v. K (German Reichsgericht 1928)

Mrs. K

NeurfasthofGmbH

land

shares

Neuerfasthof GmbH v. K (German Reichsgericht 1928)

Mrs. K

NeurfasthofGmbH

land

shares

M Corp

mortgage

gold

Neuerfasthof GmbH v. K (German Reichsgericht 1928)

Mrs. K

NeurfasthofGmbH

land

shares

M Corp

mortgage

gold What’s reallyhappened?

Neuerfasthof GmbH v. K (German Reichsgericht 1928)

Facts: K transferred her land to a registered LLC set up by M Corp and got registered stock. M Corp obtained a mortgage on the land and gave a loan of 179.2 kg of gold.

K worries that M Corp will foreclose on mortgage and she will lose the land. She claims she was mentally insane (siphylis) when she transferred her land to the LLC. She wants the mortgaged canceled and the land returned to her.

Issue: Can K have her land transfer rescinded on the theory she was mentally deranged?

Relevant that land transferred in June 1923?

German HyperinflationNumber of German Marksto buy one ounce of gold

Jan 1919 170Sept 1919 499 Jan 1920 1,340 Sept 1920 1,201 Jan 1921 1,349 Sept 1921 2,175 Jan 1922 3,976 Sept 1922 30,381 Jan 1923 372,477 Sept 1923 269,439,000 Oct 2, 1923 6,631,749,000 Oct 9, 1923 24,868,950,000 Oct 16, 1923 84,969,072,000 Oct 23, 1923 1,160,552,882,000 Oct 30, 1923 1,347,070,000,000 Nov 5, 1923 8,700,000,000,000 Nov 30, 1923 87,000,000,000,000

German Hyperinflation

German Hyperinflation I

0

50000

100000

150000

200000

250000

300000

350000

400000

Jan-

19

Apr

-19

Jul-1

9

Oct

-19

Jan-

20

Apr

-20

Jul-2

0

Oct

-20

Jan-

21

Apr

-21

Jul-2

1

Oct

-21

Jan-

22

Apr

-22

Jul-2

2

Oct

-22

Jan-

23

DM per oz. gold

German Hyperinflation II

010,000,000,000,00020,000,000,000,00030,000,000,000,00040,000,000,000,00050,000,000,000,00060,000,000,000,00070,000,000,000,00080,000,000,000,00090,000,000,000,000

100,000,000,000,000

9/1/

1923

9/8/

1923

9/15

/192

3

9/22

/192

3

9/29

/192

3

10/6

/192

3

10/1

3/19

23

10/2

0/19

23

10/2

7/19

23

11/3

/192

3

11/1

0/19

23

11/1

7/19

23

11/2

4/19

23

DM per oz gold

Neuerfasthof GmbH v. K (German Reichsgericht 1928)

German Civil Code 138(2)… a jural act is void whereby aperson exploiting the difficulties … of another causes to be granted to himself … pecuniary advantages which exceed the value of the consideration … disproportion obvious ….

German Corporate Law (customary):Transfer of land to a registered corporation is binding since it is public act on which creditors rely. [many decisions – preservation of capital, public certainty]

German Civil Code 826One who intentionally injures another in a manner violating moral precepts is liable to the other ….

Some comparative law …

Is Germany a civil law or common law country?(Why follow custom? David)