The Judicial Precedent Law: Cons and Pros

Business Law: Case Law

Case law relates to legislation grounded in judicial decisions instead of codes based on regulations, statutes, or constitutions. They encompass unique disputations solved by courts utilizing concrete facts of a legal proceeding (Bell, 2019). In this sense, case laws typically vary from one territory to another. Other aspects impacting a specific issue verdict in common law include the proximity to the facts and the decision’s age (Bell, 2018). This paper provides a comprehensive elucidation of the judicial precedent law and its cons and pros. It further presents an assessment of the difference between an invitation and an offer to treat, an explanation of the notion of intention to create legal relations, and an overview of the Duty of Care.

The Law of Judicial Precedent

The judicial precedent law relates to a court ruling regarded as authority or dispensation for deciding upcoming cases involving similar or identical facts or indistinguishable legal proceedings. According to Beschatnyi et al. (2019), precedent is typically integrated into the stare decisis doctrine and demands that courts apply the regulation in the same manner to issues with related facts. If a case’s issues vary from those contained in a previous legal suit, the past licit proceeding cannot be distinguished as a precedent. Furthermore, according to Clark (2016), precedents are often developed from the chain of decisions; in some instances, a single ruling can establish a precedent. One statutory interpretation by the state’s supreme court is typically considered an original section of the regulation.

There are various pros linked to the judicial precedent law. Firstly, according to Leszczyński (2019), judicial precedent provides legal dispensation access to predictability and consistency. The judicial precedent law ensures that people involved in similar cases are treated uniformly; rather than basing verdicts on the judge’s perspective. Secondly, it gives the judicial system a certain flexibility measure. This viewpoint is supported by Masood and Lineberger (2020), who argue that judicial precedent may establish a standard applicable to indistinguishable situations and cases. Still, it does not serve as a binding outcome. The highest courts typically commission the lower ones to follow regulations without deviation; however, they reserve the entitlement to alter court decisions whenever an appeal is filed or societal issues change.

Thirdly, common law has been linked with the potential for establishing new precedent. If a legal proceeding is being heard for the initial time, then its outcome may be used to set a judicial precedent for any upcoming issues with related facts. Fourthly, judicial precedent minimizes the probability of a successful appeal. When judges rule per the pre-existing judicial precedent, the process gives the case outcome a more substantial basis for prospective retrials. Lastly, judicial precedents help the court dispensation save time on coming judgments (Masood, Kassow, and Songer, 2017). Once the legal system provides an answer for an indistinguishable circumstance, these rulings become foundations for the current holding, deemed essential for case resolution.

There are various cons linked to judicial precedent law: it generates significant complexities in the legal system. According to Ng and Jacobson (2017), every ruling from state and federal courts establishes the possibility of creating a judicial precedent. Secondly, although judicial precedent provides some measure of consistency to some cases, it could be inadequate when judges’ opinions differ significantly (Bell, 2019). Thirdly, it creates rigidity in the judicial system, which in certain instances requires flexibility. Regulations generated from statutes or edicts established from judicial precedents can remain effective for a considerable time. In some circumstances, they may be applied to cases when they are outdated.

Fourthly, the process mentioned above can initiate unnecessary limitations in the law and create multiple applicable rulings for a specific case. According to Clark (2016), the total number of issues existing in the law may lead to the availability of multiple proceedings for consideration during the decision-making process. This could, in turn, trigger significant levels of confusion because attorneys on both sides may prospectively provide a precedent from a legal cause that justifies their position. Fifthly, other regulations can alter the applicability of the judicial precedent doctrine. For instance, according to Masood and Lineberger (2020), since the enactment of the Human Rights Act of 1998, the judicial precedent documentation’s usability has been weakened significantly due to the integration of the statute’s rules precepts into the decision-making procedure. Some judges may also provide reasons for deviating from the doctrine’s stipulations.

The Difference Between an Offer and an Invitation to Treat

An offer relates to a definite proposal or undertaking made by one individual to the other, indicating their readiness or inclination to enter into an agreement or contract. According to Eisenberg (2018), a proffer is typically initiated when one demonstrates the willingness to into a legitimately binding contract. Contrarily, an invitation to treat, commonly abbreviated as ITT, indicates that one is disposed to enter into negotiations; however, it does not prove their willingness to be bound by the contractual terms. An overture should not be enacted by an individual who is not fully prepared to undertake the legal consequences of its acceptance. Conversely, a response to an ITT cannot lead to a binding agreement.

Advertisements may amount to either an ITT or a proffer. If a commercial is an overture, then the person accepting the offer enters into a contract with the individual who made the advertisement. Furthermore, an agreement can be initiated when a proffer is made to the entire world and is undertaken by a person who executes or implements the offer’s stipulations. An overture capable of being translated into a contract by acceptance should consist of a concretely binding pledge, provided that the specified terms are fulfilled (Arvind, 2019). The offeror should also make a formal declaration of his preparedness to commit to accomplishing specific stipulations, leaving the offeree with two options: refusal or acceptance. Contrarily, an ITT indicates one’s inclination to enter into negotiations; however, it does not prove one’s willingness to be bound by the contractual terms.

In Carlill v Carbolic Smoke Ball Company (1893), the accused were the manufacturers of Carbolic smoke ball – a medication claimed to prevent influenza and other ailments. The litigants were proffered to pay €100 to any individual who utilized the drug, as per the outlined instructions, and caught the disorder (an offer). To demonstrate their commitment, the defendants stated that they had made a €1000 deposit with their bankers to compensate the offerees (a formal declaration) (McKendrick, 2020). The plaintiff, Mrs. Carlill, used the medicine according to the delineated instructions but caught the disease (acceptance of the offer). She later claimed the €100 payment; however, the organization declined to make the payment, positing that the commercial could not lead to a contract since it was impossible to agree with the entire world. Nonetheless, the court refuted the argument, holding that the advertisement constituted an overture to the world at large, which was, in turn, accepted by Mrs. Carlill (McKendrick, 2020). Therefore, the court ruled in favor of the accuser, positing that she was entitled to €100.

The Notion of Intention to Create Legal Relations

The intention to create legal relations is a contract law doctrine based on the rule that an accord is only enforceable if, among other things, there is premeditation that it should be lawfully binding. The court may use two distinct approaches to ascertain the existence of intent: the rebuttable presumption and the objective test (Merkin, Saintier, and Poole, 2019). Counterintuitively, the most appropriate procedure to establish whether the parties intended to agree is not interrogating them; this subjective evaluation would give the scoundrel an easy escape clause to elude liability. Instead, as in Carlill v Carbolic Smoke Ball Company, the court administers the “objective assessment” to determine whether the reasonable bystander, after considering all the case facts, perceives that the parties premediated to be bound by the accord (McKendrick, 2020). Because the advertisement affirmed that the organization had made a €1000 deposit in the Alliance Bank to show their commitment, the court ruled that any objective beholder who read the commercial would postulate an intention to contract (McKendrick, 2020). The rebuttable assumption substantiates a burden of proof, which may be refuted by attestation to the contrary.

The Difference between Social/Domestic Agreements and Business Agreements

The general rule applied to business agreements is that the intent to establish lawful relations is presumable; however, this can be refuted by words utilized in the accord. Commercial contracts are typically associated with a strong presumption of a binding agreement. According to Martin (2016), honor clauses included in gentlemen’s agreements may be identified as negating premeditation to establish licit relations as evidenced in Jones v Vernons Pools, whereby the proviso “this contact is enforceable in honor only” was utilized. Drafting a stipulation in an attempt to preclude the jurisdiction of the court should be avoided since the clause will be rendered void, as demonstrated in Baker v Jones (Taylor and Taylor, 2017). Stim (2016) further indicates that if an accord consists of a provision that tries to eliminate the court’s jurisdiction and an “honor proviso,” as exhibited in Rose & Frank v Crompton, the court may enforce the Blue Pencil Rule and consider the other contractual stipulations. Commercial agreements should, therefore, be clear regarding the consequence and nature of the stipulations.

On the contrary, there are no presumptions linked to social agreements. The case is typically ruled based solely on its facts or merits (Chen-Wishart, 2018). For instance, in Simpkins v Pays, an informal agreement between a lodger, granddaughter, and grandmother to share proceeds gained from the competition was enforceable (Bonell, 2018). Sellers J objectively ruled that the case’s facts demonstrated a “mutuality” among the involved parties. From this legal cause, it is evident that domestic agreements’ holdings are grounded on a case’s specific attributes.

The Notion of the Duty of Care Under the Law of Tort

The legal conception of the Duty of Care postulates that organizations and individuals have lawful onuses to act toward the public and others cautiously and prudently to avert the probability of reasonably potential injury or harm to others. This obligation applies to actions involving both omission and commission. Its stipulations may be enforced by common law or legislation (statute) (Tilley, 2017). Employers have a lawful and moral responsibility and accountability for their workers’ security, safety, and health. Infringing Duty of Care may result in actions affirming negligence and may lead to the employer’s criminal prosecution or damages. When a company deploys its workforce to work across borders, its Duty of Care encompasses risk management, which extends beyond the specific security, safety, and health requirements established by the employees’ home nation’s environments.

Legislation and courts can outstretch the Duty of Care to include the dependents accompanying a global assignee. In Markohaltz v. General Electric. Co. 193 N.E., 2d.636, the Appeals Court upheld the employee’s (Markohaltz) W.C. award since he was traveling home to continue with his contractual obligations (employment) (Stoyanova, 2019). As mentioned above, Markohaltz, a New York-based worker, was commissioned by his employer to attend a Paris, France conference. On his journey back, following a ten-day vacation after the meeting, his flight crashed, and he died. His heirs were granted the W.C.; however, his employer filed an appeal (Stoyanova, 2019). Common law concerning negligence demands that all organizations exercise reasonable care to mitigate or prevent the effect of foreseeable risks.


Common law relates to the assemblage of precedents and authority established by past judicial decisions on a specific issue. Judicial precedent refers to a court ruling regarded as authority or dispensation for deciding upcoming cases involving identical facts or indistinguishable legal proceedings. An offer is a definite proposal made by one individual to the other, indicating their readiness to agree. Contrarily, an ITT is an indication that one is disposed to enter into negotiations. The Duty of Care postulates that organizations and individuals have lawful onuses to act toward the public and others cautiously and prudently to avert the probability of reasonably potential injury or harm to others. The intention to create legal relations is grounded on the rule that an accord is only enforceable if, among other things, there is premeditation that it should be lawfully binding.


Arvind, T. T. (2019) Contract law. Oxford: Oxford University Press.

Bell, G. (2019) ‘The civil law, the common law, and the English language: challenges and opportunities in Asia’, Asian Journal of Comparative Law, 14(S1), pp. 29-49. Web.

Bell, J. (2018) ‘Sources of law’, The Cambridge Law Journal, 77(1), pp. 40-71. Web.

Beschastnyi, V., Fomenko, A., Obushenko., and Nalyvaiko, L. (2019) ‘Place of court precedent in the system of law of the European Union and in the System of Law of Ukraine’, Journal of Legal, Ethical and Regulatory Issues, 22(6), pp. 1-10. Web.

Bonell, M. J. (2018) ‘The law governing international commercial contracts and the actual role of the UNIDROIT principles’, Uniform Law Review, 23(1), pp. 15–41. Web.

Chen-Wishart, M. (2018) Contract law. 6th ed. Oxford: Oxford University Press.

Clark, T. S. (2016) ‘Scope and precedent: judicial rule-making under uncertainty’, Journal of Theoretical Politics, 28(3), pp. 353-384. Web.

Eisenberg, M. A. (2018) Foundational principles of contract law. New York: Oxford University Press.

Leszczyński, L. (2019) ‘Implementing prior judicial decisions as precedents: the context of application and justification’, International Journal for the Semiotics of Law, 33, pp. 231-244. Web.

Marson, J., and Ferris, K. (2020) Business law. 6th ed. Oxford: Oxford University Press

Martin, K. (2016) ‘Understanding privacy online: development of a social contract approach to privacy’, Journal of Business Ethics, 137, pp. 551-569. Web.

Masood, A. S. and Lineberger, M. E. (2020) ‘United Kingdom, united courts? hierarchical interactions and attention to precedent in the British judiciary’, Political Research Quarterly, 73(3), pp. 714-726. Web.

Masood, A. S., Kassow, B. J. and Songer, D. R. (2017) ‘Supreme court precedent in a judicial hierarchy’, American Politics Research, 45(3), pp. 403-434. Web.

McKendrick, E. (2020) Contract law. 9th ed. Oxford: Oxford University Press.

Merkin, R. M., Saintier, S., and Poole, J. (2019) Poole’s casebook on contract law. 14th ed. New York: Oxford University Press.

Ng, K. H., and Jacobson, B. (2017) ‘How global is the common law? a comparative study of Asian common law systems – Hong Kong, Malaysia, and Singapore’, Asian Journal of Comparative Law, 12(2), pp. 209-232. Web.

Stim, R. (2016) Contracts: the essential business desk reference. 2nd ed. Berkeley: Nolo

Stoyanova, V. (2019) ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, 24(5), 632-655. Web.

Taylor, R. D. and Taylor D. (2017) Contract law directions. 6th ed. Oxford: Oxford University Press.

Tilley, C. C. (2017) ‘Tort law inside out’, The Yale Law Journal, 126(5), pp. 1242-1599. Web.

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