Legal Definitions - unenacted law

Unenacted law refers to legal principles and rules that derive their authority not from formal legislative acts (like statutes passed by a parliament or congress) but from other sources. These sources primarily include judicial decisions (often referred to as common law), long-standing customs, or fundamental principles of justice and fairness. Courts recognize and apply these principles even though they have not been formally "enacted" into written law by a legislative body.

Here are some examples illustrating unenacted law:

• The "Duty of Care" in Negligence: Imagine a situation where a construction company leaves a deep, unmarked trench on a public sidewalk, and a pedestrian falls in and is injured. The pedestrian sues the company for negligence.

  This scenario relies on the legal concept of a "duty of care." Courts have long held that individuals and entities owe a duty to act reasonably to avoid causing harm to others. This fundamental principle, which forms the basis for negligence lawsuits, was not created by a specific statute passed by a legislature. Instead, it evolved over centuries through countless judicial decisions, where judges applied and refined the concept in various cases. It is a prime example of unenacted law, as its authority comes from judicial precedent rather than legislative enactment.

• Recognition of Trade Customs: Consider two businesses that have a long-standing relationship for buying and selling specialized components. Over many years, they have developed a customary practice of accepting delivery within a certain window and making payment within 30 days, even if their brief purchase orders don't explicitly detail these terms every time.

  If a dispute arises, a court might consider and uphold these established customs or practices within their particular industry or between these specific parties, even if these practices are not codified in a specific statute. If these customs are widely accepted, reasonable, and consistently followed, they can influence a court's decision, acting as a form of unenacted law that guides commercial interactions and fills gaps in formal agreements.

• The Principle of Unjust Enrichment: Suppose a bank mistakenly deposits a significant sum of money into the wrong customer's account. The customer, realizing the error, refuses to return the money, claiming it's now theirs.

  In such a case, courts often apply the principle of "unjust enrichment," which dictates that a person should not be allowed to unfairly benefit at another's expense. This principle is not typically found in a single, comprehensive statute but rather stems from the broader equitable powers of the court to ensure fairness and prevent exploitation. It's a foundational concept in many legal systems, applied by judges based on general principles of justice rather than specific legislative enactment, making it a clear instance of unenacted law.