DD: English Sources of Law

Sources of English law
1. Common law
2. Law merchant
3. Principle of equity
4. Statute law

Common law
- Name given to those principles of law evolved by judges in making decisions on cases that are brought before them.
- Built up over many years to form a complete statement of the law in particular areas.
- The body of legal rules, the primary sources of which were the general immemorial customs, judicial decisions and textbooks on jurisprudence.

Law Merchant
- Most important source of Mercantile law
- Those customs and usages binding on traders in their dealings with each other.
- Should be ancient, general and notorious and commands universal compliance.
- If not, has to be proved by the party claiming it.

Principle of Equity
- Body of rules, the primary source of which was neither custom nor written law, but the imperative dictates of conscience which has been set forth and developed in the Court of Chancery.
- Procedure of Common Law courts was technical and dilatory – action commenced by obtaining a writ or process – writs limited in number and action had to be brought within such. In some cases, no remedy or inadequate remedy at Common Law.
- When dissatisfied with the decision of the Common law court, could file a mercy petition with the King-in-Council – referred to Chancellor, who disposed of them according to his own dictates of common sense, natural justice and good conscience – this became known as equity, and such courts as equity courts.
- Maxims:
o He who seeks equity must do equity
o Who comes to equity must come with clean hands.
- Equity courts separate from common law courts until Judicature Act, 1873, when all HCs were empowered to grant either or both remedies (common law and equity) according to the circumstances of the case.
- Important principles and remedies developed by equity:
o Recognition of right of beneficiary of trust property
o Remedy of specific performance of contracts
o Equity of redemption in case of mortgages etc.

Statute Law
- Portion of law derived from the legislation or enactment of parliament or subordinate and delegated legislative bodies
- Important source of mercantile law
- Written/ statute law overrides unwritten law i.e. both common law and equity.
- Examples:
o English partnership act, 1890
o English sale of goods act, 1893
o Bankruptcy act, 1914
o Carriers act, 1830
o English companies act, 1948

Mercantile or Commercial Law
- Related to the commercial activities of the people of society
- Branch of law applicable to or concerned with trade and commerce in connection with various mercantile or business transactions
- All legal principles concerning business transactions
- Existence of a valid legal agreement express or implied between the parties concerned is the most important feature of a business transaction.

Sources
- Law merchant
- Statute law
- Common law
- Principles of equity

Mercantile law in India
- Prior to 1872, mercantile transactions were regulated by the law of the parties to the suit.
- In 1872, Indian Contract act enacted for codification. Since then, various other acts.

Sources of Mercantile law in India
- English mercantile law
- Acts enacted by Indian legislature
- Judicial decisions
- Customs and trade usages

English Mercantile law
- Indian mercantile law is Mainly an adaptation of English mercantile law
- Certain modifications wherever necessary to provide for customs and trade usages, and Indian conditions
- In the absence of provisions relating to any matter, recourse is had to English mercantile law

Acts enacted by Indian Legislature or Statute Law
- Indian Contract Act, 1872
- Sale of goods Act, 1930
- Indian partnership act, 1932
- Negotiable instruments act, 1881
- Arbitration and conciliation act, 1996
- Insurance act, 1938
- Carriers act, 1865
- The presidency towns insolvency act, 1909
- Provincial insolvency act, 1920

Judicial Decisions
- Wherever the law is silent on a point, case to be decided on the basis of justice, equity and good conscience.
- Cases identical in their facts should be identical in decisions.
- Ensures justice and certainty.

Customs and Trade Usages
- Most of Indian law has been codified
- But customs and usages haven’t been done away with.
- Many Indian statutes make specific provisions to the effect that the rules of law laid down in a particular act are subject to any special custom or usages of trade.[1]
- E.g.: Hundis, Kachhi and Pakki Adat Systems of Agency