Knowledge

Distinguishing

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290:
Development of the Law of Negligence in Australia, following Scottish specifically in the UK supreme court (House of Lords) which distinguished all cases on privity of contract, which apparently applied to most earlier observers before the new law in 1932 was fully
102:
or a case turns on too narrow a set of variations in facts ("turns on its own facts") compared to the routinely applicable precedent(s), such decisions are at high risk of being successfully overruled (by higher courts) on the bases respectively that:
82:) a case with similar facts, in which a decision can then be distinguished based upon this, or it may be cited with approval but found to be inapplicable on bases reconcilable with the earlier decision's reasoning. 245: 54:
different facts between the two cases. Two formal constraints constrain the later court: the expressed relevant factors (also known as considerations, tests, questions or determinants) in the
146:, deciding that the facts were materially different in that: (i) the husband and wife were separated and no longer "in amity"; and (ii) the agreement was made 138:
held the claim could not be sustained without evidence of intention to create legal regulations, so there was no legally binding contract. By contrast, in
169:(1868) because in the present case, even though the defendant factory kept "dangerous things on the land for a non-natural user", there was "no escape". 60:(legal reasoning) of the earlier case must be recited or their equivalent recited or the earlier case makes an exception for their application in the 159: 278: 183:(a non-binding statement based on hypothetical facts) is subsequent followed and adopted, then the later case is said to "approve" that 130:(1970) were cases involving the enforceability of maintenance agreements. In each case a wife sued her husband, alleging 64:, and the ruling in the later case must not expressly doubt (criticise) the result reached in the precedent case. 17: 257: 71:
covering the subject-matter and areas of law cited in or plainly relevant to the dispute (they must be
67:
The ruling made by the judge or panel of judges must be based on the evidence at hand and the standard
329: 308: 241: 163:(1947), (where a munitions worker was injured in a factory explosion), the court distinguished 211: 90:
Where a wide new class of distinguished cases is made, such as distinguishing all cases on
78:
This means that a precedent will be dealt to (in English and Scottish law known instead as
27:
Legal reasoning that a particular previous case does not set precedent for the current one
8: 312: 264: 165: 131: 216: 126: 120: 68: 51: 187:, and the earlier case may be marked "approved", "followed", or "obiter followed". 304: 56: 258:"Precedent and Analogy in Legal Reasoning: 2.1 Precedents as laying down rules: 323: 179: 91: 43: 99: 39: 206: 47: 196: 201: 61: 95: 31: 110:
The lower court has failed to follow a binding precedent
250: 85: 321: 279:"Example of the Development of Court Made Law" 260:2.1.2 The practice of distinguishing". 94:in the establishment of the court-made 14: 322: 262:Stanford Encyclopedia of Philosophy. 237:Malleson, Kate and Moules, Richard. 107:The lower court has invented the law 62:circumstances otherwise it envisages 24: 288:. University of Western Australia. 172: 25: 341: 50:case that will not apply due to 86:Wide and narrow distinguishment 294: 270: 231: 13: 1: 224: 7: 301:Read v J Lyons & Co Ltd 190: 114: 10: 346: 142:, the judge distinguished 42:means a court decides the 150:they had separated, and 46:or legal reasoning of a 311: (18 October 1946) 242:Oxford University Press 92:privity of contract law 309:[1947] AC 156 305:[1946] UKHL 2 212:Persuasive authority 265:Stanford University 69:binding authorities 166:Rylands v Fletcher 132:breach of contract 239:The Legal System. 217:Binding authority 144:Balfour v Balfour 140:Merritt v Merritt 127:Merritt v Merritt 121:Balfour v Balfour 16:(Redirected from 337: 314: 298: 292: 289: 283: 274: 268: 254: 248: 235: 134:. The judge in 21: 345: 344: 340: 339: 338: 336: 335: 334: 330:Legal reasoning 320: 319: 318: 317: 299: 295: 281: 277: 275: 271: 256:Lamond, Grant. 255: 251: 236: 232: 227: 193: 175: 173:Obiter followed 117: 88: 28: 23: 22: 15: 12: 11: 5: 343: 333: 332: 316: 315: 293: 269: 249: 229: 228: 226: 223: 222: 221: 220: 219: 214: 204: 199: 192: 189: 174: 171: 153: 149: 116: 113: 112: 111: 108: 87: 84: 26: 9: 6: 4: 3: 2: 342: 331: 328: 327: 325: 313: 310: 306: 302: 297: 287: 280: 273: 267:. 2006-06-20. 266: 263: 259: 253: 247: 243: 240: 234: 230: 218: 215: 213: 210: 209: 208: 205: 203: 200: 198: 195: 194: 188: 186: 182: 181: 180:obiter dictum 170: 168: 167: 162: 161: 155: 151: 147: 145: 141: 137: 133: 129: 128: 123: 122: 109: 106: 105: 104: 101: 97: 93: 83: 81: 76: 74: 70: 65: 63: 59: 58: 53: 49: 45: 41: 37: 33: 19: 18:Distinguished 300: 296: 285: 272: 261: 252: 238: 233: 184: 178: 176: 164: 160:Read v Lyons 158: 156: 143: 139: 135: 125: 119: 118: 89: 79: 77: 72: 66: 55: 35: 29: 291:formulated. 124:(1919) and 36:distinguish 286:Law School 225:References 152:in writing 100:negligence 80:applied to 52:materially 207:Precedent 177:Where an 48:precedent 324:Category 244:. 2010. 197:Case law 191:See also 115:Examples 73:followed 202:Opinion 136:Balfour 44:holding 185:obiter 303: 282:(PDF) 276:See: 148:after 57:ratio 34:, to 246:p.69 96:tort 75:). 40:case 157:In 98:of 32:law 30:In 326:: 307:, 284:. 154:. 38:a 20:)

Index

Distinguished
law
case
holding
precedent
materially
ratio
circumstances otherwise it envisages
binding authorities
privity of contract law
tort
negligence
Balfour v Balfour
Merritt v Merritt
breach of contract
Read v Lyons
Rylands v Fletcher
obiter dictum
Case law
Opinion
Precedent
Persuasive authority
Binding authority
Oxford University Press
p.69
"Precedent and Analogy in Legal Reasoning: 2.1 Precedents as laying down rules:
Stanford University
"Example of the Development of Court Made Law"
[1946] UKHL 2
[1947] AC 156

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