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Chapter 1-10

Management and Organizational Studies 2275A/B Chapter Notes - Chapter 1-10: Estoppel, Shoplifting, Mens Rea


Department
Management and Organizational Studies
Course Code
MOS 2275A/B
Professor
James Hildebrand
Chapter
1-10

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Chapter Notes
Chapter 1
Early Development of Law
- Word of mouth, from families, down generations
- As families became concentrated, villages formed and elders made decisions
- When cities formed, formal bodies were created (gov’ts) to deal with common
problems
- When cities became rich and weak from ‘easy living’, less civilized tribes invade
and take over, but also adopt their laws
Rise of the Courts and Common Law
Customary Law
- Rise of city-state established law-enforcement
- In the beginning tribunals forced restitution (return of items to rightful owner) or
undertook vengeance
- Eventually, due to them lacking sufficient power, they required certain formalities
that had to be undertaken before vengeance, and inducing monetary compensation
as a remedy, everyone was forced to use the tribunal or court
- Thus vengeance became a crime
Pre-Norman England
- Early courts and the law were imposed by successive invaders
- Areas under Roman control had uniform laws (in theory)
- Invasion of England by Germans produced a decentralized system of government
under a king
- System divided land into counties, which would have their own gov’t
- Laws were developed only according to local custom or need
- Only laws common throughout land were scarce written laws that several of the
kings had pronounced as laws relating to general crimes
- Penalty was in monetary terms, partly to the king and balance to injured
- Laws were enforced by weak central gov’t, called a witenagemot
Norman England + Common Law
- In 1066, more centralized system of administration  central judicial system
- Power of shires brought under power of king
- Central judiciary under King Henry II heard more serious cases
- After 1180, justices of royal court travelled to hear cases
- On return to London, cases were discussed and exchanged notes on decisions
- Amongst themselves the ‘Common Law had been created
- Written records were useful as statements
The Sources and Components of Modern Canadian Law
The Common Law
- Also known as case law
- Law is not found in a code but in recorded judgments
- In early cases reasons for decisions were rarely included

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- Judicial reasoning and the principles applied by the judges were readily available
by reports of cases, and the Common Law could be determined from them
through the doctrine of stare decisis
Stare Decisis
- “To let a decision stand” or “To stand by a previous decision”
- Means a judge must apply previous decision to similar case if the facts of the two
cases are the same, providing such a decision was from 1. Judges own court 2.
From a court of equal rank 3. From a higher or superior court
- In cases of identical facts, only the Supreme Court of Canada has the
unrestricted ability to overrule its previous decisions, but still with caution
- Decisions of Supreme Court are binding on all other courts
- Decisions of higher courts or courts of equal rank are persuasive but not binding
- Adoption of the theory of precedent provided stability without sacrificing
flexibility, however, courts became so reluctant to move from previous decisions
that decisions made no sense to case at hand
- Judges have maintained Common Law as a blend of predictable yet flexible
principles, capable of conforming to the needs of society
- The facts of two cases are seldom precisely the same, so the differences permit a
judge to decide that a particular obsolete precedent should not apply to case
before the court if the application of such precedent would produce an
unsatisfactory result
- Courts have often recognized long-standing practices in determining the rights of
parties at law
Canon Law
- Other laws were also incorporated into the Common Law as the courts in England
expanded their jurisdiction
- Church originally had jurisdiction over religion, family and marriage, morals,
and matters relating to inheritance. These were administered by ecclesiastic
courts, but gradually found their way before judges
- After the Reformation, ecclesiastic courts jurisdiction passed to royal courts
- Thus much of Canon Law (Church Law) became part of Common Law
Law Merchant
- Initially, most merchants sold their wares at fairs and markets, and any disputes
were settled by the senior merchants, whose decisions were final and binding
- Gradually, rules of law relating to commercial transactions emerged
- These courts only had jurisdiction over their guild members, so for a long period
of time the body of law (law merchant) was in the domain of merchant guilds
- When non-guild member started trading, judges applied the Law Merchant
Equity
- Rules of equity are a body of legal principles that takes precedence over the
Common Law when the two conflict
- Developed because the Common Law in England had become rigid in its
application, and the litigants often didn’t obtain satisfactory remedy
- To obtain desired relief, they often petitioned the king
- King and his chancellor heard the cases and made an equitable decision, one not
necessarily based upon the law, but one the king considered to be fair

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- The idea of ‘fairness’ took on the form of rules of law
- Judge may apply either the Common Law rules or the principles of equity to a
case before the court and if inappropriate, the equitable remedy is usually
available to ensure a fair and just result
Statue Law
- Established by the governing bodies of particular jurisdictions
- Root in the latin word statum, meaning it is decided
- Statutes are the product or end result of a legislative process
- Wishes of the people are interpreted by members of provincial
legislature/Parliament of Canada, then brought forward for debate in legislative
assembly
- Become law when the majority of legislators believe it is necessary
- Process provides time for study and amendment of the proposals and a thorough
examination by the House of Commons and the Senate.
- A bill is a proposed law presented to a legislative body
- The bill then requires a motion (or decisions) to have the bill rad a first time and
printed for circulation
- Members of the legislature are given a period of time to read the bill and debate
its content, before it comes for a second reading, where it is then debated in
principle
- If bill passes second reading, it is sent to a committee of the House for study on a
clause-for-clause basis
- Once the bill has been passed by the committee, the Chair of the Committee
reports the bill in final form to the legislature
- Report of bill may be subject to further debate before given a third reading
- If passed, the bill is sent to the Senate at the federal level
- Once bill has been passed by the House of Commons and Senate, it must receive
royal assent by the Governor General (federally) or the Lieutenant-Governor
(provincially)
- Royal assent has never been refused at a federal level but has been refused on
numerous occasions in the past
- Bill doesn’t become law until it receives royal assent, but may not be
implemented until the future. It these cases, the bill will not become law until it is
proclaimed or becomes effective
- A consolidation of laws and their changes (revised statutes) was usually only
printed by governments once a decade (prior to digitization)
- Printed statute books are obsolete today, with full text updates of current law
- Common Law is generally very slow to respond to changing societal needs.
Statute law may be quickly changed to respond to the demands of the public
- Disadvantage is that it will be strictly interpreted by the courts
- Unless properly drafted, it may not achieve its intended purpose
Quebec’s Civil Code
- A body of written law that sets out the private rights of the citizens of a state
- May be consulted in the determination of rights and duties
- Same rights and duties would be found in the Common Law
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