Sources of Law - Case Law

Stare decisis

stand by what has been decided

for an English court, has to be from a court which binds it and relevant part is binding rather than just persuasive

Ratio decidendi

reason for the decision

obiter dictum

wen a judge comments on an area of law on which it is not necessary to reach a decision in the case

Following the decision

when a court considered the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed

Applying the earlier decision

when a court in a later case considered the facts of an earlier case to have similarities to those in the case before it and therefore applies the law in that earlier case

reversed

judgment is reversed if a case goes to appeal and the higher appeal court disagrees with the lower court

does not negate precedent

overruled

precedent is overruled if a superior court in a later case decided the original precedent set in a particular case is wrong and sets a new ‘correct’ precedent instead

Equitable remedies

• specific performance

• injunction

• declaration

• recession

• rectification

Specific performance

order by the court to compel a party to perform something they have promised to do under a contractual agreement

injunction

order that requires a party to legal proceedings to either do something (mandatory injunction) or to refrain from doing something (prohibitory injunction)

Declaration

legally binding statement by a court about the legal rights of the parties, the existence of facts or a principle of law

Recission

setting aside of a contract - discretionary remedy

needs to be the result of:

• misrepresentation

• mistake

• duress or undue influence

Rectification

corrects a document to reflect the parties’ contractual intention

if too fundamental then not possible