Civil law precedent

Role of precedent in civil law
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General rule
Exceptions
Functional equivalent: Rota romana
Some examples
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
Louisiana (mixed system)
Germany (judicial-centric)
General rule
“Civil law world does not regard judicial
pronouncements as binding in subsequent
cases.”
(principal touchstone: common law vs civil law)
Questions –



Does this permit judicial/legal fluidity? (Jason)
What about “legal certainty”? (David, Elizabeth, Lucas)
Too much flexing with the times? (Kate, Caitlin)
Pop quiz
Exceptions:
A.
B.
C.
D.
E.
Deviation from prior
decision of highest court
requires en banc decision
Successive decisions
become controlling
Constitutional courts’
decisions have force of law
Judge-made customary
law is binding
Received code includes
extant high-court
interpretations
Match: (Caitlin)
__ Germany
__ France
__ Italy
__ Puerto Rico
__ Mexico
__ Brazil
Pop quiz
Exceptions:
A.
B.
C.
D.
E.
Deviation from prior
decision of highest court
requires en banc decision
Successive decisions
become controlling
Constitutional courts’
decisions have force of law
Judge-made customary
law is binding
Received code includes
extant high-court
interpretations
Match:
__ Germany
__ France
__ Italy
__ Puerto Rico
__ Mexico
__ Brazil
Pop quiz
Exceptions:
A.
B.
C.
D.
E.
Deviation from prior
decision of highest court
requires en banc decision
Successive decisions
become controlling
Constitutional courts’
decisions have force of law
Judge-made customary
law is binding
Received code includes
extant high-court
interpretations
Match:
__ Germany
__ France
__ Italy
__ Puerto Rico
__ Mexico
__ Brazil
Pop quiz
Exceptions:
A.
B.
C.
D.
E.
Deviation from prior
decision of highest court
requires en banc decision
Successive decisions
become controlling
Constitutional courts’
decisions have force of law
Judge-made customary
law is binding
Received code includes
extant high-court
interpretations
Match:
__ Germany
__ France
__ Italy
__ Puerto Rico
__ Mexico
__ Brazil
Pop quiz
Exceptions:
A.
B.
C.
D.
E.
Deviation from prior
decision of highest court
requires en banc decision
Successive decisions
become controlling
Constitutional courts’
decisions have force of law
Judge-made customary
law is binding
Received code includes
extant high-court
interpretations
Match:
__ Germany
__ France
__ Italy
__ Puerto Rico (David – curious
transplant)
__ Mexico
__ Brazil
Pop quiz
Exceptions:
A.
B.
C.
D.
E.
Deviation from prior
decision of highest court
requires en banc decision
Successive decisions
become controlling
Constitutional courts’
decisions have force of law
Judge-made customary
law is binding
Received code includes
extant high-court
interpretations
Match:
__ Germany
__ France
__ Italy
__ Puerto Rico
__ Mexico (5/split super-majority
– Erika) (“super precedent” –
Reid)
__ Brazil
Pop quiz
Exceptions:
A.
B.
C.
D.
E.
Deviation from prior
decision of highest court
requires en banc decision
Successive decisions
become controlling
Constitutional courts’
decisions have force of law
Judge-made customary
law is binding
Received code includes
extant high-court
interpretations
Match:
__ Germany
__ France
__ Italy
__ Puerto Rico
__ Mexico
__ Brazil (sumula headnotes Erika)
Civil law precedent
What is the difference between
“jurisprudence” and “doctrine”?
What is the difference between
“jurisprudence constante” and “stare decisis”?
(Reid, Elizabeth, Jason, Erika, Caitlin)
What is “vertical/horizontal” stare decisis?
(David)
Rota romana
Rota romana


Ius commune: procedure permitting judge to consult
“wise men” (legal experts)
 Papal auditors meet in room with “wheel” floor
ornament
 Give statement of facts and conclusion / but no
legal analysis
Notes by auditors (decisiones rotae) highly
persuasive in ius commune courts
 Opinion of Rota becomes “common doctrine”
 Rota qundoque rotat
Any US parallel? (Reid)
Breedlove v. Turner (La. 1821)
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Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Breedlove v. Turner (La. 1821)
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Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Breedlove hires attorney
Turner to collect on bill of
exchange given by
Fletcher. Turner sues in
New Orleans parish –
wrong court. Breedlove
then brings malpractice
claim against Turner.
Breedlove v. Turner (La. 1821)
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

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
Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Did Turner wrongly
disregard precedent of
La. Sup Ct [Johnson v.
Dunwoody (La. 1819)]
that no jurisdiction in
other than parish court
where bill of exchange
arose?
Breedlove v. Turner (La. 1821)





Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Rejects all six defenses –
attorney must be aware of
precedent or be
responsible for the
consequences.
Breedlove v. Turner (La. 1821)
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
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Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Defense 1:
Johnson v. Dunwoody (La
1819) was wrong. Correct
interpretation allows suit in
outside parish.
Court:
Even though change in court
membership, case law still
good.
Breedlove v. Turner (La. 1821)
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



Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Defense 2:
Johnson v. Dunwoody (La
1819) is not law. Power to
make law is legislative, not
judicial.
Court:
News to us. We interpret
legislative will, using
analogies. Not bound to
“obscure commentator” who
lived centuries ago. Decide
in “light of age”
(But first a digression)
A digression …


England: courts interpret
statutes and create law
France: “science of
jurisprudence carried to
great perfection” (referred to
in doctrinal writings)
 Decisions of Court of
Cassation
 250 collections of arrets
from Ancien Regime
(reporters = arretistes)
 “Why else collect and
preserve?”
(and then some policy analysis)


Stare decisis produces –
 Uniformity
 General acquiescence
(rule of law)
 Predictability (“men not
acquainted with their
rights”)
 Transparency (decisions
printed in reporters)
Stare decisis induces
judicial humility (otherwise
judicial power unbridled)
A digression …


England: courts interpret
statutes and create law
France: “science of
jurisprudence carried to
great perfection” (referred to
in doctrinal writings)
 Decisions of Court of
Cassation
 250 collections of arrets
from Ancien Regime
(reporters = arretistes)
 “Why else collect and
preserve?”
(and then some policy analysis)


Stare decisis produces –
 Uniformity
 General acquiescence
(rule of law)
 Predictability (“men not
acquainted with their
rights”)
 Transparency (decisions
printed in reporters)
Stare decisis induces
judicial humility (otherwise
judicial power unbridled)
Breedlove v. Turner (La. 1821)





Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Defense 3-5:
Refer doubtful cases to the
legislature. Attorney
immune when giving
counsel. Attorney not
fraudulent or neglectful.
Court:
No constitutional authority to
refer (compare France).
Attorneys not less, and
perhaps more, responsible
as counselor. Statute makes
attorneys liable for neglect,
including carelessness.
Breedlove v. Turner (La. 1821)





Facts:
Issue:
Holding:
Analysis (6 defenses):
Conclusion:
Defense 6:
The attorney only committed
an error of judgment. Trial
court and dissenting appeals
court judge thought there
was jurisdiction. And other
attorneys rally in support.
Court:
“No man is supposed to
know any branch of the law
perfectly” (the fix is in Erika)
Breedlove v. Turner (La. 1821)
Is Louisiana a “civil law” jurisdiction –
Does court say it bound by code?
(Lucas, David)
does court explain conclusion?
(Jason, Caitlin)
are lawyers obligated to know case law?
(Kate)
Civil law precedent
Does it make sense for a civil law
system NOT to have stare decisis?
John Henry Merryman
Precedence in Germany


German Civil Code:
Debtor “in default” must pay
interest, unless holds
reasonable opinion that not
in “default”
What is “default”?
Decision German
Reichsgericht (1922): not
reasonable if debtor holds
view adversely determined
by highest court
Obligation of lawyer to ascertain precedent
Decision German Reichsgericht
(1984):
Facts: P held liable on preincorporation contract when
acted on behalf of unregistered
corporation (LLC).
Issue: Is P’s lawyer negligent for
not knowing of cases accepting
“novation” theory – person acting
for corporation released once
corporation adopts contract?
Holding: Yes, lawyer negligent
for not knowing. Should have
appealed erroneous lower court
decision.
Neuerfasthof GmbH v. K (German Reichsgericht 1928)
Mrs. K
shares
land
Neurfasthof
GmbH
Neuerfasthof GmbH v. K (German Reichsgericht 1928)
M
Corp
Mrs. K
shares
mortgage
land
Neurfasthof
GmbH
gold
Neuerfasthof GmbH v. K (German Reichsgericht 1928)
M
Corp
Mrs. K
shares
mortgage
land
Neurfasthof
GmbH
gold
What’s really
happened?
Neuerfasthof GmbH v. K (German Reichsgericht 1928)
Facts: K transferred her land to a
registered LLC set up by M Corp
and got registered stock. M Corp
obtained a mortgage on the land
and gave a loan of 179.2 kg of
gold.
K worries that M Corp will foreclose
on mortgage and she will lose the
land. She claims she was mentally
insane (siphylis) when she
transferred her land to the LLC.
She wants the mortgaged canceled
and the land returned to her.
Issue: Can K have her land transfer
rescinded on the theory she was
mentally deranged?
Relevant that land transferred
in June 1923?
German Hyperinflation
Number of German Marks
to buy one ounce of gold
Jan 1919
Sept 1919
Jan 1920
Sept 1920
Jan 1921
Sept 1921
Jan 1922
Sept 1922
Jan 1923
Sept 1923
Oct 2, 1923
Oct 9, 1923
Oct 16, 1923
Oct 23, 1923
Oct 30, 1923
Nov 5, 1923
Nov 30, 1923
170
499
1,340
1,201
1,349
2,175
3,976
30,381
372,477
269,439,000
6,631,749,000
24,868,950,000
84,969,072,000
1,160,552,882,000
1,347,070,000,000
8,700,000,000,000
87,000,000,000,000
German Hyperinflation
German Hyperinflation II
DM per oz gold
350000
300000
250000
200000
150000
100000
50000
Jan-23
Oct-22
Jul-22
Apr-22
Jan-22
Oct-21
Jul-21
Apr-21
Jan-21
Oct-20
Jul-20
Apr-20
Jan-20
Oct-19
Jul-19
Apr-19
Jan-19
0
11/24/1923
11/17/1923
11/10/1923
11/3/1923
10/27/1923
10/20/1923
10/13/1923
10/6/1923
9/29/1923
9/22/1923
DM per oz. gold
400000
9/15/1923
German Hyperinflation I
9/8/1923
9/1/1923
100,000,000,000,000
90,000,000,000,000
80,000,000,000,000
70,000,000,000,000
60,000,000,000,000
50,000,000,000,000
40,000,000,000,000
30,000,000,000,000
20,000,000,000,000
10,000,000,000,000
0
Neuerfasthof GmbH v. K (German Reichsgericht 1928)
German Civil Code 138(2)
… a jural act is void whereby a
person exploiting the difficulties …
of another causes to be granted to
himself … pecuniary advantages
which exceed the value of the
consideration … disproportion
obvious ….
German Corporate Law (customary):
Transfer of land to a registered
corporation is binding since it is public
act on which creditors rely. [many
decisions – preservation of capital,
public certainty]
German Civil Code 826
One who intentionally injures another in
a manner violating moral precepts is
liable to the other ….
Some comparative law …
Is Germany a civil law or
common law country?
(Why follow custom? David)