The Law of Sales

Authors

John Barker Waite, University of Michigan Law SchoolFollow

Files

Description

I conceive law to be the aggregation of rules which courts of justice feel themselves more or less obligated to follow in deciding controversies. To some extent these rules are formulated and declared by legislative authority. Most of them, however, have been evolved by judges themselves. These latter rules are not always easy to formulate; if they were, there would be no need for real text-books. Even the precise utterances of various judges can not always be accepted as rules. I believe that no judge has power, either practically or theoretically, to bind other judges by any declaration of rule or command, but that the only obligation felt by courts is the obligation to conform to prior judicial action. It is therefore prior judicial conduct under given circumstances which determines the action of later judges, rather than prior declarations as to what such conduct ought to be. In the great majority of cases, actual decision does accord with the mere verbal declarations of what ought to be done. But not infrequently a judge in deciding the case before him will state what he would have done had the facts been otherwise. He states what he believes to be a rule, without being called to act upon it. In many other cases judges have· rendered decisions that actually conform to prior related decisions, but have given as reason for the decision some assumed rule which is really inconsistent with the earlier ones. These dicta, therefore, can not blindly be accepted as rules of law. Rules of law, like the laws of any other science, must be deduced from a critical analysis and study of legal phenomena. And these phenomena, to my mind, are the decisions actually rendered by courts of justice. I do not mean that the comments and stated reasons of the judges may be disregarded. On the contrary, they are an intrinsic part of the phenomena of decision. They must be considered and given the fullest effect of guidance. But if one admits that, while judges may act on each case as it comes before them, they may not command other judges how to act, one must of necessity deduce the rule of action primarily from the acts themselves. Hence I have sought always for some judicial custom of decision, as indicating the rule of law more truly than does judicial speech alone.

Publication Date

1921

Publisher

Callaghan & Company

City

Chicago

Keywords

Law, Sales, Damages, Creditors, Money

Disciplines

Commercial Law | Judges | Law

Recommended Citation

Waite, John Barker. The Law of Sales. Chicago: Callaghan & Co., 1921