What are common law cases &quot;lost in the mists of time&quot;? A respected user writes in another answer: Long-standing precedents whose origins are lost in the mists of time What are these long standing precedents, how are they known, and how can they be authoritatively understood, litigated, and ruled on, when they have been &quot;lost in the mists of time&quot;? What are some examples of these precedents?
Time immemorial is 1189 CE Do you know how many documents survive from 1189 CE? F#*k all, that’s how many. We don’t have the original case law because, quite simply, we don’t have the original case law. In any event, “time immemorial” is simply a legal fiction stating the date to which you had to be able to trace land ownership before you had indefeasibility of title. Common law goes back way beyond that and even way beyond the Norman conquest in 1066. At a certain point, it doesn’t matter. Things are done that way because things are done that way. For example, Pythagoras’ Rule (the square of the hypotenuse of a right triangle is equal to the sum of the squares of the other two sides) was not discovered by Pythagoras. It was known to both the Babylonians and Egyptians 1,000 years before Pythagoras was born yet it will likely be Pythagoras’ Rule for as long as the human race endures.
If the common law applies (i.e. there is no statute that changes it) then it depends on if the item was lost, mislaid or abandoned. The US has statute law dealing with lost money but that is not the question here. Property is generally deemed to have been lost if it is found in a place where the true owner likely did not intend to set it down, and where it is not likely to be found by the true owner. At common law, the finder of a lost item could claim the right to possess the item against any person except the true owner or any previous possessors. Property is generally deemed to have been mislaid or misplaced if it is found in a place where the true owner likely did intend to set it, but then simply forgot to pick it up again. For example, a wallet found in a shop lying on a counter near a cash register will likely be deemed misplaced rather than lost. Under common law principles, the finder of a misplaced object has a duty to turn it over to the owner of the premises, on the theory that the true owner is likely to return to that location to search for his misplaced item. If the true owner does not return within a reasonable time (which varies considerably depending on the circumstances), the property becomes that of the owner of the premises. Property is generally deemed to have been abandoned if it is found in a place where the true owner likely intended to leave it, but is in such a condition that it is apparent that he or she has no intention of returning to claim it. Abandoned property generally becomes the property of whoever should find it and take possession of it first, although some states have enacted statutes under which certain kinds of abandoned property – usually cars, wrecked ships and wrecked aircraft – escheat, meaning that they become the property of the state. For your specifics: If I purchase merchandise in a physical store, and then (accidentally or not) leave the merchandise at the store after I've paid for it, is the store allowed to resell that merchandise to another customer? This would be mislaid property and if they cannot find you and you do not return to claim it after a reasonable time (which would be different for a Mars bar and a Boeing 747) then it is theirs and they can do what they want with it: including sell it to someone else. How does this scenario differ from leaving personal items at the store that I purchased elsewhere? It doesn't.
Pretty much any time a contractual, statutory or case law precedent uses the word &quot;reasonable&quot; what it means is that the decision regarding what is and is not reasonable is vested in the trier of fact (i.e. the judge in a U.K. landlord-tenant case) to decide on a case by case basis in light of all of the facts and circumstances presented at trial, rather something to be decided as a matter of law by an appellate court absent of extreme abuse of discretion by the judge in determining what is reasonable. Put yourself in the judge's shoes and consider the range of opinion that people who are judges in a case like this might have, and you have your answer. A reasonable amount of time balances out factors like the availability of repair contractors at a reasonable price, the magnitude of the repair, and the extent to which the repair impairs the habitability of the premises, and assumes a time frame that would apply if the landlord is diligent and trying to solve the problem in good faith. A reasonable time to fix a broken heating element is different in July than in January. If three different inspectors failed to determine the cause of the problem, that is going to work in favor of the landlord for a longer period of time. So will the significant extent of the damage (apparently). On the other hand, the fact that the repair rendered the premises completely uninhabitable argues for a shorter time period. Starting late to address an urgent problem could be breach, although it doesn't sound like this has happened here if some action has been taken that would seem to be reasonable under the circumstances and the results have been inconclusive about what to do. Unnecessary foot dragging could also be a fact in reasonableness, because ultimately the duty is to get the job done. There may also be a parallel duty of the landlord to provide a habitable premises and to compensate you for time when this is not provided, in addition to the duty to repair within a reasonable time. Asking to be paid for alternative accommodations while diagnosis and repairs are underway would be a logical demand to make before suing for a fairly small dollar amount in an ongoing lease. You would probably focus on failure to repair in a reasonable time more if you seek to terminate the lease entirely and rent elsewhere instead in the face of repair delays, hoping to avoid the duty to pay rent for the remainder of the lease term due to the landlord's breach of the duty to repair under the lease.
united-kingdom Yes. The landmark case in the UK is Pepper (Inspector of Taxes) v Hart, where the House of Lords*: established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege *Strictly speaking, the Appellate Committee of the House of Lords, which functioned as the UK's highest court before the creation of the Supreme Court.
This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.
It is complicated to answer why a law is what it is. Judge Frank Esterbrook writes (in the forward to Reading Law by Scalia and Garner): Every legislator has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislature is a collective body that does not have a mind; it "intends" only that the text be adopted, and statutory texts usually are compromises that match no one's first preference. If some legislators say one thing and others something else, if some interest groups favor one outcome and others something different; how does the interpreter choose which path to follow? I will provide the historical background leading to the current fair use statute and case law, but take from it what you will as to why it is what it is. Fair use is a statutory defence provided by 17 USC 107. Its application is clearly demonstrated in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Fair use was an "exclusively judge-made doctrine until the passage of the 1976 Copyright Act". (Campbell) Courts had been finding exceptions for "fair abridgements" and other precursors to fair use as far back as under the Statute of Anne of 1710. (Campbell, citing William Patry's "The Fair Use Privilege in Copyright Law".) This doctrine worked its way into US case law in the nineteenth century. In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841)1, Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." (Campbell) Folsom states: There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work. This early incorporation of fair use focused on whether something new was being created, or whether the "chief value" of the original work was being taken. This primary focus on transformativeness has stuck with with fair use doctrine until today. Campbell said (internal citations removed): The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative". Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. Campbell also includes the following statement of rationale for why Congress included section 107: Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). There is no support for your separation of "parody, comment, and criticism " from "teaching, research, and news reporting", or that there are differing amounts of commercial use allowed for these types of work. The statute lists together "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as examples purposes. The statute requires that "whether such use is of a commercial nature or is for nonprofit educational purposes" be considered in all fair use cases. There is also very little if any First Amendment rationale expressed for the fair use doctrine. The intersection of the First Amendment and copyright law is more clearly found in the idea/expression dichotomy. 1. Folsom v. Marsh full opinion text
(I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.) Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will. So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law. Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9. There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963. (I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.)
The question somewhat misstates the concept of estoppel in a legal sense. Estoppel does not mean that one is prevented from changing one's opinion. Estoppel means that when one gives a third party cause to rely on one's position, by word or conduct, one cannot then adopt an altered position and use it to legally attack that third party. For example, if one has invited a person onto one's land, one cannot turn around and sue them for trespass. In the case in the question, the Board hired counsel to give them an opinion, which was given. Two years later, a contrary opinion was offered, along with a recommendation for action, which was not followed. No third party was induced to rely on either opinion to its detriment. No estoppel seems relevant. And by the way estoppel is an equitable defense that would be raised by the third party, not unlike the defense of "clean hands". If the board acted on the first advice to its detriment, and thinks that their counsel was negligent in not having gotten the advice correct the first time, they might possibly have a case for legal malpractice, but only if they can get experts (other lawyers) to say that their counsel was in fact negligent , and also prove that this did in fact harm them. If they didn't act on the advice, harms seems less likely, although the details would matter a lot.