Imagine you are walking down the street to do some shopping and suddenly a roof tile
lands on your head.
"What is that supposed to mean?"
you ask yourself and you go inside the department store from which the tile fell off to complain.
The owner of the department store shows little interest in your misfortune and says that
he cannot explain how it happened.
Of course, you also have no idea how exactly the tile landed on your head – but because
you have a concussion, you go to a lawyer and sue in court.
What happens next depends on whether the incident happened in a country that practices Civil
Law or one that applies Common Law.
Do you know which of the two is practiced where you live?
Let's say the whole thing happens to you in Germany, which belongs to the Continental
European Legal System, where Civil Law applies.
How does the judge evaluate your case?
She is looking for a legal provision that fits your case.
In the German Civil Code, article 838, she will find the general rule that a building
user has to maintain the structure and is responsible for the damage caused if parts
of the building break off.
The judge then examines the law.
She checks if the defendant really is the user of the building, if he has to maintain
the building by law, and whether he had negligently failed to do so.
If all those legal elements are fulfilled, the department store operator is liable, and
you, as the plaintiff who instituted the legal proceedings, will receive compensation for
the suffering caused by the event.
If you had taken your walk in the United States, which belongs to the Anglo-American Legal
System, the Common Law, the judge would proceed differently.
In the US, the judge would instead look for a comparable case – such as the English
case of Byrne v. Boadle from 1863, in which pretty much the same thing had happened to
a poor passerby, only it had not been a loose brick, but rather a barrel stored in the building.
In this case, the court held the department store owner responsible, even though the plaintiff
could not prove negligence on the part of the defendant.
So what are the differences between Civil Law and Common Law?
The legal systems are differentiated primarily on the basis of their way of thinking!
The Civil Law System is characterized by thinking on the basis of general and abstract legal
provisions, most of which are laid down in codifications - such as the Civil Code in
Germany.The judge works deductively by applying the general rule to the concrete case - a
technique known as subsumption.
The Common Law System is characterized by similar cases that happened in the past.
The so-called doctrine of stare decisis, Latin for “to stand by things decided”, binds
judges to precedents — cases that happened in the past.
That is why the judge works on a case-by-case basis and compares them with one another.If
the judge wants to deviate from a previous decision, the so-called “Distinguishing”
is used to determine the differences between the case at hand and the precedent.
In summary, to determine wrongdoing and compensation, the civil law system relies on the code of
law interpreted by judges, while the common law system relies on similar cases from the
past.
What are your thoughts?
Which legal system is better?
Share your thoughts in the comments below and tell us what type of law is practiced
in the country you are from.
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