PRECEDENT

precedent (pr<<schwa>>-seed-<<schwa>>nt alsopres-<<schwa>>-d<<schwa>>nt), adj. Preceding in time or order <condition precedent>.

precedent (pres-<<schwa>>-d<<schwa>>nt), n.1. The making of law by a court in recognizing and applying new rules while administering justice. [Cases: Courts 87. C.J.S. Courts §§ 135–136.] 2. A decided case that furnishes a basis for determining later cases involving similar facts or issues. See STARE DECISIS. [Cases: Courts 89. C.J.S. Courts §§ 139–140, 144–146, 161–164, 166–167.] — precedential,adj.

“In law a precedent is an adjudged case or decision of a court of justice, considered as furnishing a rule or authority for the determination of an identical or similar case afterwards arising, or of a similar question of law. The only theory on which it is possible for one decision to be an authority for another is that the facts are alike, or, if the facts are different, that the principle which governed the first case is applicable to the variant facts.” William M. Lile et al., Brief Making and the Use of Law Books 288 (3d ed. 1914).

“A precedent … is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.” John Salmond, Jurisprudence 191 (Glanville L. Williams ed., 10th ed. 1947).

“One may say, roughly, that a case becomes a precedent only for such a general rule as is necessary to the actual decision reached, when shorn of unessential circumstances.” 1 James Parker Hall, Introduction, American Law and Procedure xlviii (1952).

“One may often accord respect to a precedent not by embracing it with a frozen logic but by drawing from its thought the elements of a new pattern of decision.” Lon L. Fuller, Anatomy of the Law 151 (1968).

binding precedent.A precedent that a court must follow. • For example, a lower court is bound by an applicable holding of a higher court in the same jurisdiction. — Also termed authoritative precedent; binding authority. Cf. imperative authority under AUTHORITY(4). [Cases: Courts 88, 107. C.J.S. Courts §§ 139, 165, 175; Criminal Law § 1665; Trade-Marks,

Trade-Names, and Unfair Competition § 187.] declaratory precedent.A precedent that is merely the application of an already existing legal original precedent. A precedent that creates and applies a new legal rule.

persuasive precedent.A precedent that is not binding on a court, but that is entitled to respect and careful consideration. • For example, if the case was decided in a neighboring jurisdiction, the court might evaluate the earlier court’s reasoning without being bound to decide the same way. [Cases: Courts 89, 96(5), 97(1, 5). C.J.S. Courts §§ 139–140, 144–146, 152–153, 158–159, 161–164, 166–167.]

precedent sub silentio (s<<schwa>>b s<<schwa>>-len-shee-oh). A legal question that was neither argued nor explicitly discussed in a judicial decision but that seems to have been silently ruled on and might therefore be treated as a precedent.

3.DOCTRINE OF PRECEDENT. 4. A form of pleading or property-conveyancing instrument. • Precedents are often compiled in book form and used by lawyers as guides for preparing similar documents.“Collections of Precedents have existed from very early times. In this connection precedents must not be confused with judicial precedents or case law. We refer here simply to common-form instruments compiled for use in practice, whereby the lawyer can be more or less certain that he is using the correct phraseology for the particular case before him. They were used both in conveyancing and litigation…. It is interesting to note that these precedents were apparently among the first legal works to be published after printing was introduced. Collections of conveyancing precedents continued to be brought up to date or new volumes issued ….” A.K.R.

Kiralfy, Potter’s Outlines of English Legal History 42–43 (5th ed. 1958).

[Blacks Law 8th]