Introduction
Business law is a general term used to refer to all laws applying to business entities (Munneke, 2004, 63). Business law as such can be set up by a government, the business management, or any other stakeholder in the business depending on the level of jurisdiction. The laws govern issues like contracts between business organizations among other business aspects. A persuasive precedent is a precedent that is established by a court but the precedent is not binding on another court (Putman, 2009, 183). Another court may use the precedent to influence its decision in a similar or almost similar situation but is not under any legal obligation to apply the precedence in its decision making.
A good illustration is the precedents established by a court relative to any court that is superior to it. It is normally established that decisions of lower courts are not binding to superior courts. Case laws on the other hand refer to the decisions made in courts by judges or in tribunals which are over time established as principles in the judiciary and are adopted and enacted in decision making in the judiciary (McCallum, Kunz and Schmedemann, 2003, 17). This paper seeks to discuss the concept of persuasive precedent and how it has been applied under case laws. The paper will look at applications of the persuasive precedent about case laws (James, 2009).
Persuasive Precedence: 1st Illustration
Persuasive precedent is a former ruling, by a judge, which is not binding but can be applied by another judge, at discretion, in the interpretation of a case of a similar circumstance or nature (Putman, 2009, 183). A persuasive precedent becomes applicable if it can be established that the two cases under consideration have a common legal basis for the determination. The precedents for consideration in a particular case could also have originated from resolutions from recognized law bodies (McCallum, Kunz and Schmedemann, 2003, 22).
An example of persuasive precedents is the general case of elder care where cases determined in Prince Edward’s island are accepted as persuasive precedents in Lawlandia province. It is important to note that the term precedent does not gain meaning when a decision is adopted by another court but when it is recognized that it can be adopted. The province of Lawlandia in 1999 resolved and modeled its laws to that of the island. This in essence enlisted the precedents of the island (McCallum, Kunz and Schmedemann, 2003, 58). Another example of persuasive precedence is illustrated under case law in the case of “Murphy v Brentwood district council” which was heard in the year 1990.
In this particular case, case laws were brought on board from several countries including “United States, New Zealand, Australia, and Canada” (Sharma, 2003, 1). In the circumstance, the House of Lords exercised its freedom not to be tied to a precedent but to adopt as it felt necessary. In their decision, the House of Lords chose to use case law from a court decision in Australia which was determined in the year 1985; the case of “Sutherland shire council v Heyman”, which was about the responsibility of authority over an injury to a member of the public in terms of nonfeasance and misfeasance, was applied (Stuhmcke, 29).
The option of the House of Lords to choose from the variety is just an illustration of the concept of the persuasive precedent that the presiding authority is under no legal obligation to apply any particular case law. The authority is however offered an opportunity to evaluate the most appropriate case law that would be suitable for the case at hand (Sharma, 2003. P. 170).
Persuasive Precedence: 2nd Illustration
The concept of persuasive precedence can be experienced across all levels of the superiority of courts (Mitchell, 2008, 89). A case law established by a court can be applied to determine another case in a more superior court. The point of illustration again is the freedom of the court applying the case law to determine its suitability. An example of such a case is the “central London property trust LTD v high trees house LTD” of 1947 (Sharma, 2003, p. 2).
In this example, the high court under justice Denning established case law, the doctrine of equity, that has since been used by more superior courts like the court of appeal. A particular court can as well choose to ignore a case law or precedence formerly set by itself. In the case of “Great Peace Shipping Ltd v Tsavliris salvage international Ltd” of 2003 (Mead and Sagar, 2006, p. 11) the court of appeal declined to apply a precedent that it had earlier set in the case of Solle v Butcher in the year 1950 on the basis that the Solle v Butcher case had been inconsistent with provisions of the house of Lords.
The court of appeal, therefore having legal ground had the option not to be bound by its former decision (Mead and Sagar, 2006). It is however important to note that while decisions by superior courts are binding to lower courts under stare decisis, the decisions by the lower courts have no binding on the superior courts. They can only be considered at discretion (Pataro et al., 2005, p. 33).
Recommendations
The concept of case laws should be promoted with judicial systems organizing forums and establishing enhancing resource centers to extensively enlighten judges on emerging case laws from various jurisdictions. The liberty of judges on the application of persuasive precedents should be limited to avoid the personal opinion and attitudes of the judges during the application of the precedents.
Conclusion
The concept of persuasive precedent gives a judicial authority the freedom to evaluate a case law and determine if its circumstances are the same as a case being determined. Given substantial similarities in the case law and the case is determined, the judicial authority presiding over the current case can decide whether or not to apply the nonbinding case law. Persuasive precedents can be derived from resolutions of recognized law organizations (bodies) or case laws of former judicial proceedings. The persuasive precedents are generally applicable to a more superior court over a case law formerly passed by a junior court while a junior court might only have the freedom to deviate from the case law of a superior court if the former judgment was grossly improper in legal terms.
References
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