We know that as a professional you feel the need to improve your knowledge of legal English, especially if you are a lawyer for a large company, work in an international law firm or are a translator specialising in legal and certified translation. We all know how important English is in the international legal context. The supremacy of this language in the field of international business and transactions is an undeniable fact. This means that more and more contracts and documents written in English are in the hands of lawyers and need to be translated. Of course, these documents are based on the legal system in force in Anglo-Saxon countries: Common Law.
We have produced this article with the intention of helping you and all those - jurists or translators - who, because of their work, often have to deal with legal texts written in English. In it we collect some articles already published on our website, many others newly created and others expanded and revised. All of them have been carefully selected and systematized in order to offer you a useful and coherent guide to help you enter the Common Law universe without fear.
It is not our intention to deal with such a broad subject in a single book. Nor do we pretend to have the last word on the issues dealt with here. We just want to offer you an approximation to some concepts that seem particularly complex, offering you our research on the subject, an explanation of them and some possible translations.
We hope you enjoy it!
What is Common Law?
Common Law is the "common law" or "customary law" in force in most AngloSaxon countries. Strictly speaking, we can say that it is the legal system created in England after the Norman conquest (1066). It was called common because it became the law of general application throughout the kingdom by the King's courts, which followed the same set of legal principles and rules. In a broader sense, Common Law refers to that legal system based primarily on the decisions made by the courts, in contrast to civil law systems such as ours, where the main source of law is the law.
Common Law is one of the great families of law that exist in the world and is currently applied in countries such as the United Kingdom, the United States, Canada, India, Australia, New Zealand and some Central African countries.
In the following map1 you can see in red the countries whose legal system is based on Common Law and in blue, the countries based on Roman-Germanic Law (which the Anglo-Saxons call Civil Law).
The Common Law - a term that should not be translated if it is not strictly necessary - is made up of a set of unwritten and unenacted rules. It is therefore based on adjective or formal law (adjective law) of an eminently jurisprudential nature. Hence the common saying used by the Anglo-Saxon jurists of Remedies precedes rights, which could be translated as "action creates law", and which refers to the fact that it is legal actions or proceedings brought before the courts that give rise to the decisions of the judges who, in turn, create law.
Before the Norman conquest, there were different legal systems in England - to call them in some way - in each region based mainly on custom and superstition. The Norman kings who conquered England in the 11th century abolished these practices by imposing a new "common" legal system on the entire kingdom. It was William the Conqueror who first attempted it, but the most important efforts in this regard were made during the reign of Henry II. This text reflects in a very summarised form the historical origin of this very peculiar legal system:
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law “common” to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system.
Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king’s judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge’s interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other’s decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name “common law.”
Common Law Sources
Everything we have seen so far helps us understand that one of the main differences between Common Law and our legal system is in the sources of law.
The Spanish legal system, as European continental law, is a system based fundamentally on written law. On the contrary, the main source of law in Common Law systems is different.
As you know, the sources of Spanish Law, according to article 1.1 of the Civil
Code are: law, custom and general principles of Law. Since the integration of Spain into the European Union (1 January 1986), the Treaties constituting the European Community have also formed part of our legal system. However, all lawyers know that the effective role of custom and general principles of law is very limited. On the other hand, as far as jurisprudence is concerned, only that emanating from the Supreme Court and the Constitutional Court has binding force for the other courts and is considered to create rules when interpreting legislation.
Anglo-Saxon law, for its part, is said to be a system based on custom, tradition and judicial decisions. In practice, there are two main creative sources of law in such systems:
1. Statute law.
2. Judge-made law, also called common law in a narrower sense, as we have seen before).
Although Anglo-Saxon countries consider Common Law (in the sense of the law emanating from the courts) as their main source of law, today the legislative law made up of the laws emanating from their corresponding legislative bodies is gaining more and more weight, although the rules coming from Common Law are still in force in everything that has not been expressly repealed by the legislature. In other words, the law also has primacy in these systems over the jurisprudence of the courts.
The main legislative body in the United Kingdom is the Parliament. Laws emanating from the British Parliament are referred to as Statutes or Acts of Parliament, while those promulgated by the government or local entities in the exercise of delegated legislation are referred to as ministerial orders or local by-laws, among others.
In the United States, Congress is the highest legislative authority and is responsible for enacting Federal Acts, while the States are responsible for enacting State Acts. The matters on which Congress and the States may legislate are regulated and compartmentalised in Article 3 of the Constitution of the United States.
It should be remembered at this point that the US Constitution, like our own, is a written rule (written or enacted, which could be translated as "sanctioned" or "formally promulgated"), whereas in the United Kingdom there is an unwritten Constitution (unenacted) composed of a set of rules or principles that have not been embodied in a written document. One of these principles, coined over time by judges and doctrine, is that of the supremacy of Parliament (parliamentary supremacy; also called parliamentary sovereignty), which gives rise to its laws, by virtue of this supremacy, having a higher rank than the law emanating from the courts and prevailing in case of conflict.
In relation to judge-made law, it must be said that it arises from the judiciary (known as The Bench in the United Kingdom, which is the generic name given to courts of justice). Jurisprudence is nothing other than rulings made by the courts in the resolution of cases brought before them. In them they interpret in a certain way the laws as well as the custom or the uses and principles of the Law. In Anglo-Saxon law, unlike continental law, case law has a binding character, i.e. the judges of the lower courts must follow the criterion set by the case law of the higher courts on a matter. It is what is known as judicial precedent or precedent.
What are Precedent and Case Law?
As we have just seen, the law in force in Anglo-Saxon countries, the Common Law, is a basic jurisprudential law3, as the following sentences summarize very well:
The Common Law is judge-made Law.
The Law is to be found in the cases.
We speak of judicial precedent when a court decision constitutes a binding authority for the same court and others of equal or lesser rank.
But not all cases or all judicial decisions (judgments or decisions) create Law. It is the decisions dictated in the most relevant judicial processes - called leading cases in the United Kingdom and landmark cases in the United States - that create the precedents. Such cases are those which deal with matters of special legal relevance and are normally submitted to the higher courts.
The judgments of the Anglo-Saxon courts are composed of several parts which it is important to know in order to know where to find the precedent. Although these parts do not usually appear as clearly differentiated as in the judgments of the Spanish courts, we can distinguish the following:
• Reasons: the legal reasoning, explanation or reasons that led the court to make such a decision. It is not exactly the same as the motivation of Spanish judgments which is subject to more stringent requirements.
• Ratio decidendi: these are the foundations of the decision. This would be the part of the judgment that creates the precedent.
• Obiter dictum: these are incidental observations on issues other than the main reason for the judgement. Finally, it should be noted that these precedents are contained in the so-called Law Reports, to
which Anglo-Saxon jurists constantly turn to find the law applicable to their case.
What are Law Reports?
We have already commented that Common Law is a jurisprudential law, that is to say, that it is a law created, for the most part, by the courts through decisions issued in specific cases. We have also highlighted, in this context, the importance of the doctrine of precedent and the Law Reports that contain the leading cases that give rise to the precedent. Well, from what we have seen so far we can deduce that the repertories of jurisprudence are the place where the Common Law is and to which every Anglo-Saxon jurist has to go to find the answer that the Law will give to your case. Hence its importance.
Formally, Law Reports are collections of books containing the jurisprudence of a particular court or territory. They may be published by an official reporter or by a commercial reporter.
Given the importance of precedent as a source of law, legal translators and jurists continually come across texts containing citations of judicial decisions, cases and repertoires of jurisprudence. Let's look at an example:
The Court held that the contract was null: See Miliangos v. George Frank (Textiles) Ltd. 1976 AC 443 (HL) 478.
It is those acronyms at the end of the quotation that contain the information about the court, the instance and the repertoire of jurisprudence where the case is located.
Despite the growing number of courts that publish their judgments directly on the Internet, Law Reports continue to be of great importance.
The origins of Equity
We have already explained how Common Law arose in 13th century England: as an elaboration of the judges that gave rise to what is known as judge-made law. We have also seen some important concepts such as binding precedent and the doctrine of stare decisis. It is time to study another of the key concepts of this legal system which is Equity.
Anglo-Saxon equity has little to do with what we Spanish jurists know as "equity". It is not an abstract concept of what is good or fair -even if it was so at the beginning-, but a much more concrete and tangible legal elaboration that came to take shape in a special court (the Court of Chancery, also known as Equity Court) that operated in parallel to the common law courts of England for 400 years.
The concept of Equity, understood as a branch of Anglo-Saxon Law, originated in the 15th century. Two centuries earlier, the new legal system set up by Henry II to unify the law applied throughout the country had been established in England, which, because of its common nature in all areas, became known as Common Law. Over time, however, the courts in charge of applying this common system began to present certain problems such as the slowness, the excessive cost of their procedures and an overly technical nature in their decisions. Therefore, as many citizens saw that their claims (grievances) did not find adequate satisfaction through these courts, the old custom of seeking justice directly from the king (Petition the King) continued in parallel. The king was the source from which all justice emanated, so citizens went directly to him in certain circumstances by appealing to the king's conscience or to his mercy.
For a time, the king was able to respond directly to these requests, until there were too many and began to address them to his chancellor (Chancellor) who, by delegation of the king, could decide in the cases presented to him. The king's chancellor was considered the keeper of the king's conscience. This was usually a cleric with knowledge of law who advised the king on many other matters. Eventually a special court (the Court of Chancery) was set up to deal with these petitions. The chancellor decided matters on the basis of his own conscience or what he considered morally right, without subjecting himself to the strict rules of precedent developed by the ordinary courts. It applied its individual sense of justice, but trying not to fall into arbitrariness, but taking into account certain maxims or principles of equity (equitable maxims). Their solutions were, of course, always much more flexible or "creative" than those of the ordinary courts and were much appreciated. If we want to compare any current institution, it could be assimilated to a kind of arbitration resolved on the basis of principles of natural law.
In 1474, the Court of Chancery became totally independent of the Common Law Courts and ceased to be a jurisdiction delegated by the king. It is now established as an independent, parallel and alternative judicial system. From then until 1873, this court developed, through its jurisprudence, many legal concepts that make Anglo-Saxon systems so peculiar. One of them is the concept of Trust, the equitable remedies, or the equity of redemption and many others.
In the 19th century, the Court of Chancery lost its independence and became part of the ordinary courts as a result of a major legal reform included in the Judicature Act 1873. By that date, this court had already begun to suffer from the same defects that gave rise to its birth, namely: extreme slowness of its proceedings, a very high cost when prolonged for years and too high a dose of arbitrariness.
That is why Parliament decides to integrate the two systems.
The merger of the two judicial systems does not, however, cause their developments to be lost. The legal concepts and solutions developed by this court throughout its history continue to be applied by the ordinary courts. Its doctrine and jurisprudence bring a dose of flexibility and innovation to the precedent system developed until then by the Courts of Law. Today, many of these preparations remain and are greatly appreciated and used by lawyers and judges.
What is the Trust
We will finish this article explaining in detail one of the most important legal institutions in the Anglo-Saxon world elaborated by the Court of Equity: The Trust. This is probably one of the most relevant private legal businesses at present (along with contracts), and one that causes most headaches to translators and jurists by its particular nature.
Following TransLegal3 we can say that the Trust is a legal instrument, typical of Common Law countries, used mainly for the transfer of goods or rights from one person (the settlor) to another (the trustee) in order for the latter to manage them on its behalf and for the benefit of a third party or third parties (beneficiary). The Trust can also be defined as the set of assets that constitute an asset assigned to a specific purpose by the will of the person constituting it.
The concept was developed extensively by the Court of Equity throughout its history, and has evolved very intensively since then. Today it encompasses a wide variety of diverse legal businesses under this same scheme.
Although its origins can be found in the trust of Roman law, it is in the twelfth century, during the time of the Crusades, when it began to develop in England. The reason lies in the interest of the nobles and knights who left to fight in the crusades to protect their property and ensure the enjoyment of them to their families. For this purpose, the knight placed his trust in another person to whom he entrusted the management and administration of his property in favour of his wife and descendants. Thus, the latter could enjoy such property in their absence or in the event of their death. It should be remembered that those relatives did not then have the legal capacity to own the property themselves. The Common Law Courts, however, did not recognize this institution, so it was the Court of Chancery, the one in charge of applying rules based on Equity, that began to regulate this matter.
Through the institution of the Trust a kind of shared property is beginning to be recognized in the Anglo-Saxon world between the legitimate owner or legal owner (the trustee), who will act with the same capacity as the original owner, and his beneficiaries (beneficiaries). This division of property is not uncommon within the England of that time, since, at that time, the only recognized owner of all the lands and properties of the kingdom was the king himself. He could grant his subjects a right of use and enjoyment over them and the power to devote them to various purposes. In this way, the above distinction between owner and beneficiary was legally recognised.
Due to its particular historical origins and its subsequent development, the figure of the Trust is considered to be one of the most genuine and unique legal institutions in the Anglo-Saxon legal systems (United Kingdom, United States or Commonwealth countries). Its use is very frequent within family and inheritance law, but also, increasingly, within commercial law, applying to financial products such as pension or investment funds, escrow accounts, mutuals, etc. In contrast, their application in continental law countries is very limited, with the exception of the Netherlands and a number of countries considered tax havens.
To be able to find a definition of the term we must go to one of the most prestigious Anglo-Saxon legal dictionaries, where we will find several possible definitions. Leaving aside the meaning of the term "cartel", we can find up to five definitions of this institution in the Black's Law Dictionary:
• The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title.
• A property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary).
• A fiduciary relationship regarding property and subjecting the person with title to the property to equitable duties to deal with it for another’s benefit.
• The confidence placed in a trustee, together with the trustee’s obligations towards the property and the beneficiary.
• The property so held (TRUST FUND).
In addition to the breadth of the above definitions, it should be noted that the next two pages of the dictionary are dedicated to defining up to 29 different types of trust.
Parts of the Trust
In the above definitions we already find some of the main elements that intervene in this institution. Let's analyze them in more detail:
• Settlor: the grantor, or the owner of the assets and who creates the Trust by transferring the assets subject to it to the trustee. In certain jurisdictions, such as the United States, it is also called a trustor, grantor, donor or creator, and in other non-native founder laws.
• Trustee: the administrator in charge of the property or assets for the purpose of managing them for the benefit of another. The English definition is very revealing: A person who holds property on trust. But he is not only a mere mandatary, he is also considered the legal owner of the goods he manages.
• Beneficiary: is the person who gives meaning to the existence of the Trust, since it is the beneficiary, or the third person in favour of whom the Trust is constituted and the goods object of the Trust are maintained. You may be entitled to receive the benefits of such property or capital, or both. They can be one or several people.
• Testator/Testatrix: on numerous occasions the Trust is constituted mortis causa, through a will (Will or Last Will and Testament), therefore, the person who grants the will is called testator, if it is a man, or testatrix, if it is a woman.
• Protector: In the United States, this newly-appearing figure is often used, which is no more than a third party normally appointed by the settlor to guide and supervise the trustee in the development of its functions. It is an optional figure that does not usually enjoy broad powers, but has sufficient authority to remove the trustee if it violates the letter or spirit of the Trust.
• Trust Instrument: the deed or document that grants and registers
the terms of the Trust. Normally written by the settlor.
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