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The Sources of U.S. Law:

Differentiating between

Common and Civil Law

NOTE:  This article is intended to be a brief summary of law only, parts of which may or MAY NOT be applicable to your situation and/or your local jurisdiction(s).  Any information you glean from this article DOES NOT constitute legal advice and should be supplemented with the advice of an attorney licensed to practice law in your locality.

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Civil Law: A Trend Toward Statutes

Although every modern society has both laws and means to enforce/apply those laws to particular legal issues and disputes, most societies do not use a common law system such as that described above. In Europe, for example, most countries other than the U.K. prioritize the use of civil law, or law that has been codified into statutes, ordinances, regulations, etc. Thus, in a civil law country such as Germany or France, a judge hearing a particular case does not look to the transcript or judicial opinion of a previous case to find the operable rule of law, but rather seeks out a relevant legislative or administrative statute to find the explicit text governing the point in question. Because of this, civil law countries adopt more statutes in the first instance than do common law societies, putting to paper a wide array of laws on everything from criminal offenses to the rules related to real property found within their borders.

Given these two basic forms of laws, one might wonder: Which category does the U.S. fall into today? The truth is that although, as described above, the U.S.’s laws were, in the nation’s inception, firmly rooted in the common law, during the past century, and particularly during the past fifty years, the American legal system has begun to resemble that of civil law countries to a much greater and increasing extent. Whereas 100 years ago, almost all state laws were to be found in judicial opinions, and not explicitly laid out by Congress or the state legislatures via statutes and regulations, today, the states have codified everything from criminal law to basic rules regarding contract formation. The Uniform Commercial Code (U.C.C.) is an example of a situation in which a legal area that was previously left to the common law of each state  rules governing the sale of goods and other commercial matters  has been codified in a systematic, uniform fashion by almost every state. Although the common law continues to play an important role not only in filling in the gaps where modern statutes have not yet displaced the ‘judge made law, the common law is also incorporated into many judicial opinions concerning issues that are of a primarily civil law nature. In this sense, the common law helps to explain (and sometimes expand upon) statutory law.

 

See Also:

The Statute of Frauds

Doctrine of Equitable
Conversion

Real Estate Sales
Transaction Overview

Preliminary Matters

v

The Role
of the Attorney

v

Hiring a Real Estate

Agent/Broker

Real Estate Seller’s Agent

Real Estate Buyer’s Agent

Real Estate Broker

v

Negotiating the
Real Estate Contract

‘For Sale By Owner’

Deciding Key Terms

v

Pre-Closing Matters
Inspections

Mortgage Issues

v

The Closing

The Deed

Affidavit of Title
ALTA Statement

 

 

 

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* Licensed to practice law in New York and Illinois.

© Roger Galer, 2004

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