Legal Definitions - utitur jure communi

Utitur jure communi is a Latin phrase that translates to "he relies on the common law." It describes a situation where a legal argument, claim, or decision is based on established legal principles derived from judicial precedents and long-standing custom, rather than on specific written statutes passed by a legislature. Essentially, it means drawing upon the foundational, judge-made law that has evolved over time through court decisions.

• Example 1: Property Rights Dispute

  Imagine a dispute in the 18th century over a landowner's right to prevent a neighbor from diverting a natural stream that had historically flowed through both properties. If there was no specific parliamentary statute governing water rights in such a situation, a court would likely refer to established common law principles regarding riparian rights (the rights of landowners whose land abuts a natural watercourse). The landowner asserting their claim based on these long-held, judge-made rules about property and water usage would be said to utitur jure communi.

  Explanation: This illustrates the term because the landowner's argument is rooted in legal principles developed through centuries of court decisions and custom, not a specific written law created by a legislative body.

• Example 2: Modern Negligence Claim

  Consider a contemporary personal injury case where a person slips and falls on a wet floor in a grocery store that had no warning signs. While many aspects of personal injury law are now codified in statutes, the fundamental concept of a "duty of care" owed by one person to another to prevent foreseeable harm is a cornerstone of common law negligence. If the injured person sues, their claim that the store owed them a duty of care and breached it, leading to their injury, is an example of utitur jure communi because they are relying on these deeply ingrained, judge-created principles of tort law.

  Explanation: Here, the plaintiff is relying on the common law principle of negligence and the duty of care, which are judge-made doctrines that have evolved through court decisions, even if specific procedural rules might be statutory.

• Example 3: Unwritten Contract Enforcement

  Suppose two individuals enter into a simple verbal agreement to exchange services, and one party fails to uphold their end of the bargain. If there's no specific written contract and no statute directly addresses the precise terms of their informal agreement, the aggrieved party might still seek recourse based on common law principles of contract formation, offer, acceptance, and breach. By arguing that a valid contract existed and was breached according to these established judicial doctrines, they would be utitur jure communi.

  Explanation: This demonstrates reliance on common law because the validity and enforceability of the verbal agreement are determined by long-standing judicial precedents regarding contract elements, not by a specific statute for that exact type of informal exchange.