Missed Tutorial
Type Tutorial
Materials
Reviewed
Week 4
Citation: Cohen v Sellar [1926] 1 KB 536
Court: High Court (King's Bench Division Of The English High Court)
Procedural History:
First Instance - County Court
Second Instance - High Court
Material Facts:
The presenting of the £30 ring from the defendant to the plaintiff, with the
assumption of it being a symbol of engagement.
the parties both claimed that the other called off the engangment and refused to
marry
calling off the engagement saved both parties from an unhappy married life
Issues:
Whether an engagement ring can be regarded as a pledge or deposit for the
fulfilment of a contract.
Who called off the marriage?
Reasoning:
The ring is regarded as a pledge or deposit.
in Jacobs v David it is implied that the ring shal be returned if the engagment is
broken off- although it can be infered in the jugment that if the plaintif had broken
it off himself then he could not get his ring back
Jacobs v Davis [1917] 2 KB 532
Mackay v Dick (1881) 6 App Cas 251 at 264
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Lockyer v Simpson it was further found that if the women refused to marry then
she shall return the gift
The jury found that the defendant (not the plaintiff) refused to carry out the
marriage.
Ratio:
If a marriage does not take place it is implied that the gift (the ring) shall be
returned (the plaintiff’s refusal)
Obiter: [13]
Gifts are absolute and free from condition
“The jury, after giving their verdict, expressed a view that the plaintIff, Miss
Cohen, should return the ring to the defendant. But the matter was not left to
them for decision and their view was only a suggestion”
If the Marriage actually takes place then the ring shall be the absolute property
of the recipient
Marriage is governed by similar pronciple of contract law
If a marriage does not take place it is implied that the gift (the ring) shall not be
returned (the defendents refusal)
If a marriage does not take place it is implied that the gift (the ring) shall be
returned (mutually)
Decision:
The Plaintiff was awarded the ring, with compensation
Order
The defendant paid the costs and countercosts of the case to the plaintiff
Key takeaways from readings
a previous case that is being used in the present case to guide the courts
advantaged
legal development
not arbitary
fairness
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flexibility
certainty
efficiency
disadvantages
injustice
manipulation
uncertainty
multiple judgments
ratio- reason for the decision
obiter dicta- judgment comments in passing
usually precedent is used in courts but can be used in tribunals
Judges must decide which facts presented are important and then which party
has stated the relevent law correctly. This follows a set of terminology
applied or folllowed
distinguished
overruled
considered
cited
an original decision can be either upheld or reversed
the degree to which they have regard to past decisions may vary
civil law systems are more likley to look to a norm or principles for a solution
common law precedent is governed by the principle of stare decisis ‘stand on
what has beeen decided”
may be binding or persuasive
courts must follow a binding precedent (likley would be overturned in appeal
court)
may choose to follow persuasive precendent precedent depending on its
relevance
an appel court will be able to overturn a decision of a single judge
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a single judge can not overturn the decsion of an appeal court
a single judge will be able to overtun the decision of another single judge
supreme courts will often be influential on other state supreme courts
Rules of precedent
1. bound by decisions higher in the same hierarchy
2. not bound by decisions of lower court in the same hierarchy
3. not bound by decisions of different hierarchy regardless of its seniority
4. state court not bound by federal courts visa versa
5. all courts are bound by high court decisions
6. court is not bound by its own past decision but will depart from them with
reluctance
7. binding precedent will not lose its force with time
8. the ratio of a case is binding, obiter is persuasive only
How are precedents used
refer the court to the reasonign in past cases that most assist their arguments
decide on several differrent outcomes in relation to the pas cases that have been
raised
binding precedent will be followed or applied
the precedent may be distinguished from the case if it is materially different
higher court may overrule if they believe it was decided badly
the principle of res judicata applies to the previous decision, which ‘has been
decided and closed’ - cant be undone
nay simply take a previous decsion into account without following it or
distinguishing it
tthe previouse cas may simply be cited as for a principle or proposition without
considering ti
Precedent in appeal courts
may appeal based on questions of law
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may agreee with the original decsion or may disagree in which case the appeal
is allowed and the original decison is reversed
typically made up of 3-5 judges
in important high court cases there can be a maximum number of seven judges
thecourt may choose to issue a single judgement known as a unanimous and
joint judgement
2 judges may issue majority judgment. the 3rd may issue a seperate concurring
judgment (minority or dissenting judgement)
Missed Tutorial 5
