Legal Definitions - contra jus commune

The Latin term contra jus commune refers to something that goes against common right or law, or is contrary to the established rules and principles of common law.

Common law is a body of legal principles developed over centuries by judges through their decisions in individual cases, rather than through statutes passed by a legislature. It forms the foundation of legal systems in many countries, including the United States and the United Kingdom. When something is described as contra jus commune, it means it deviates from or contradicts these long-standing, judge-made legal traditions and precedents.

Here are some examples illustrating this concept:

• Legislative Action: Historically, common law maintained the principle of "sovereign immunity," which meant that a citizen could not sue the government without its consent. If a state legislature passes a new statute that explicitly allows citizens to sue the state government for damages caused by negligence in specific circumstances, this statute would be considered contra jus commune. It directly contradicts and modifies a deeply entrenched common law principle by creating an exception where none previously existed.

• Judicial Decision: Under traditional common law, the doctrine of "privity of contract" generally held that only parties directly involved in a contract could sue or be sued under that contract. Imagine a court ruling in a specific case that a manufacturer can be held liable for a defective product directly to the end-user, even though the end-user purchased the product from a retailer and had no direct contractual relationship with the manufacturer. This ruling would be contra jus commune because it expands liability beyond the strict confines of privity, departing from a long-standing common law limitation on who can sue for breach of contract.

• Private Agreement: Common law generally imposes a duty on landlords to maintain rental properties in a habitable condition. If a lease agreement includes a clause stating that the tenant waives all rights to a habitable dwelling and agrees not to sue the landlord for any issues related to the property's condition, even if the landlord is negligent, such a clause could be deemed contra jus commune. This is because it attempts to nullify a fundamental common law duty owed by landlords, and courts might find it unenforceable as being against public policy and established legal rights.