Definition of Common Law?
Common law refers to judge-made law that evolves through common use and practice, as opposed to statute or regulation. It is based on precedents, or rulings made in prior lawsuits, which guide how future case law is created. For example, in criminal law, statutes prescribe and detail the elements for crimes and the punishments for those crimes. Because the statutory law lists all the required elements, the court is not necessarily required to consult the prior practice of the courts in that area of law or similar laws.
Additionally, while statutes can be subject to certain exemptions which allow the executive branch to waive or modify their application, common law is not. For this reason, most violations of the law are grounded in statute. However, there are areas of the law, such as torts, where there are no statutes to consult, and so the common law prevails. As a further example, while no statute lists the elements of a battery, the common law does.
The term common law actually originated in England during the Middle Ages, when commoners and those of the same social class as the king (those living in close proximity to London) lived under the same prevalent customs. This meant that the king’s laws became the customary way of conducting business. In contrast, areas of the country that had been less influenced by the king’s laws continued with their more localized customs. This consisted of customary laws derived from the pre-Indo-European, Celtic and Roman invasions of Britain.
The result was a body of law based on tradition that existed independently of statutory law, which corresponded to local customs. The settlers of Carolina, coming from many areas with strong British traditions, adopted this body of law as the foundation of North Carolina law. As North Carolina became more populated with settlers from diverse areas and the state began to be governed more by statute, the common law was adopted as the source of the law where there was no statutory direction.
The difference between statutory law and common law can also be seen in the way they are modified. From time to time, statutes, such as the one containing the Rules of Civil Procedure, are updated to account for changing times. For example , some rules are revised to reflect advances in technology. In contrast, rules derived from common law may be modified at the discretion of the courts. In fact, while the statute of limitations set by statute for civil matters is three years (G.S. 1-52), for a breach of a contract the common law statute of limitations is six years. The court case Campbell v. Nall, 270 N.C. 1, 154 S.E.2d 510 (1967), modified the common law rule in this area.
On the other hand, in some areas of law, such as social security disability, the nature of the claim (i.e. the severity of the symptoms experienced by the claimant) is evaluated using the medical opinions of the doctors as well as reports from family and friends. The medical and lay testimony together may be evaluated under the common law rule for credibility. In this area of the law, the statute does not dictate the criteria for evaluating the witnesses’ credibility.
As noted previously, a tort is a wrong committed against another. The law derives the majority of its rules governing torts from common law, which developed from earlier decisions made in the trial courts of both England and this country. The majority of tort rules in North Carolina, such as wrongful death, trespass, business torts and intentional infliction of emotional distress, exist only under the common law rules which evolved from enforceable customs.
In contrast, while auto accident claims use the elements of battery and negligence borrowed from the common law, the law pertaining to insurance is made by statute. The statute, for instance, defines negligence, who can be charged with it, and what damages are recoverable. Common law rules in this area will not alter the requirements of the statute.
There are numerous examples throughout North Carolina law of the differences between common law and statutory law. For example, the law regarding encroachment onto the property of another is governed by the common law, while the law governing fences is based on statute. The rule for how long non-possessory interests in real property are enforceable is made by statute. In contrast, the statute of limitations for forming a written contract is six years (G.S. 1-47(2)) while the statute of limitations for verbal contracts derives its duration from the common law.
Common Law Marriage in North Carolina
Common law marriage has a storied history in North Carolina and its effect is still felt today. Common law marriage is generally considered as a practice where two people agree they are married or have a common understanding that they are married, and they then live as such without obtaining a marriage license or having formal ceremonial marriage. The Court in In re Boggs held that "an agreement to marry in the future may be inferred from the behavior of the parties." 86 N.C. 265, 271, 43 S.E. 594, 597 (1903). At the latest, the People’s Convention of 1868 modified the Boggs definition to exclude "a meritorious consideration or contract," essentially excluding any contractual agreement. See also Davis v. Belcher, 172 N.C. 533, 90 S.E. 870, 871 (1916); Land v. Land, 9 N.Cl. 251, 254, 82 S.E. 40, 41 (1914); Matter of Heaton, 172 N.C. 17, 18, 88 S.E. 618 (1915).
Common law marriages were permissible in North Carolina until 1 October 2014 when the General Assembly passed Senate Bill 518. The bill banned the formation of new common law marriages, but allowed existing common law marriages to remain valid. The marriage had to exist prior to 1 October 2014, otherwise it is declared void and a person will lose inheritance, insurance, and pension benefits that would have been received if the marriage was validly formed.
For all intents and purposes, the prohibition against new common law marriages has abrogated the doctrine in North Carolina. The ability to form a marriage through conduct and behavior rather than through strict legal formalities treats the interaction between people with dignity. It is also easier for a relationship to develop and grow before the status of marriage is conferred, rather than after its conferment. The prohibition of new common law marriages may decrease the dignity once afforded to couples engaging in a common law marriage. Now, however, it is difficult to tell what is a simple cohabitating relationship and what is a common law marriage. Future litigation may arise to address these issues.
Common Law Regarding Property and Inheritance
The general law of property and inheritance that existed prior to the development of statutes in North Carolina is known as the "common law." The common law survives for inherited property and for property acquired before the enactment of North Carolina’s equitable distribution laws.
As a general rule, property inherited by one spouse during the marriage is considered "separate property" and, therefore, not divisible. "Separate Property" is that property owned by a spouse separately and independently from his or her spouse. N.C. Gen. Stat. § 50-20(b)(2)(c). Gifts and inheritances of property received by one spouse during the marriage are also typically considered "separate property." Williams v. Williams, 356 N.C. 634, 637, 573 S.E.2d 650, 652 (2002). The only exception to this general rule is if the property is "marital property" because it is commingled with marital property so as to become difficult or impossible to separate out. Id. Once the property is commingled with marital property, it is then subject to division through equitable distribution and the commingled portion becomes marital property.
For example, inheritance of property by one spouse during the marriage can become marital property if the inheriting spouse places the property in joint accounts or fails to treat it separately from marital property. Williams, 356 N.C. at 639, 573 S.E.2d at 652. However, if the inheriting spouse places the inherited property in an account titled solely to him or her, the inherited property will likely remain separate property. Id. at 638, 573 S.E.2d at 651.
If one spouse (the testator or the grantor) dies, property received by the other spouse may still be subject to claims of elective share or family allowance. The elective share is a right guaranteed by the North Carolina Constitution, N.C. Const. Art. I, § 36(a)(1), and affords the surviving spouse the right to receive a portion of the other spouse’s estate, regardless of any will provisions to the contrary. The elective share is an amount that equals one-third of the net estate if the decedent was not survived by children, grandchildren, brothers or sisters. N.C. Gen. Stat. § 30-3.1(a)(1). The elective share is calculated as one-third of the sum of all of the following: Unlike the elective share, the surviving spouse’s right to a family allowance does not arise from the Constitution or through the operation of the estate statutes. The purpose of the family allowance is to provide additional support to the surviving spouse and minor children, separate and apart from property distributed through the decedent’s will or the intestacy statutes. Leatherman v. Leatherman, 127 N.C. 98, 99, 37 S.E. 846, 846 (1901). Family allowances generally include an allowance during the year after the decedent’s death, an allowance in lieu of a homestead allowance, an allowance for a reasonable funeral expense and an allowance to a surviving spouse for the transportation of the body of the decedent. N.C. Gen. Stat. § 30-15(a). The family allowance is determined by the clerk of court and is subject to appeal. N.C. Gen. Stat. § 30-15(b), (c).
Separate and distinct from the elective share and likely not shareable with third persons are any contract rights that a spouse may have as a result of a decedent’s death, such as the right to a pension benefit, the right to receive any amounts due under a will or a trust, or an insurance policy naming the surviving spouse as beneficiary. N.C. Gen. Stat. § 30-3.1(a)(1).
Common Law in Civil Matters
Common law is important in civil cases in North Carolina as a means by which to borrow legal principles from other jurisdictions and use them in similar action in this state. States are free to adopt, in whole or in part, the rule of law or rules of procedure from other jurisdictions under Warren v. City of Charlotte. Res judicata is a good example. Its relationship to common law is that it existed in England as a matter of common law prior to the American Revolution. Before it existed as a statute in North Carolina, the doctrine was applied within the state as a matter of common law, based on English common law. The same is true of numerous other doctrines which have come to be accepted as the law of the land in North Carolina on a wide scale: interpleader, unfair and deceptive trade practices, contributory negligence, strict liability, intentional infliction of emotional distress, and defamation, to name a few. There is much case law in North Carolina in which the Court reflects on the fact that a particular rule is being adopted from another jurisdiction where it first originated, or where it was most recently codified.
The best example of case law controlling the laws in North Carolina as a matter of common law is Chi. Mill. Co. v. Black. In that case , the brother of the decedent, who had first inheritance rights as an intestate heir, waived his right to an inheritance when he was unwilling to accept a greater portion of the estate than a co-heir. In Chi. Mill. Co. v. Black, the court held that even without a contemporaneous writing, the brother’s actions constituted a valid waiver of his right of inheritance: Black’s unconditional and absolute waiver of his right to inherit waived [it] both at that time as well as all future times unless some authoritative text or law changed the governing law." If there was a change in the law, it was in the form of a "judicial decision which changed the existing common law." (citing State ex rel. McMurray v. Mull, 194 N.C. 280, 137 S.E. 2d 497 (1927)). This case led to what has now become a codification of the inheritance rights of heirs in N.C.G.S A. §28A-1-1(a), which is the law in place for inheritance rights in North Carolina today. Thus, it can be seen that the North Carolina courts, in conjunction with the General Assembly, have taken common law from another state jurisdiction, and used it, modified it slightly to suit the needs and policy interests of North Carolina, and adopted it here officially in our General Statutes.
Role of Common Law in Criminal Matters
As North Carolina has largely adopted common law principles into statutory law, the influence of common law on the criminal justice system is significant. While North Carolina has a codified statutory law system that stipulates all criminal offenses, basic common law principles are still a fundamental part of the state’s criminal laws.
The concept of common law in criminal justice states that an offender may not be punished for an offense unless there is a statute on the books that defines the specific crime and prescribes a punishment. A classic example is the crime of conspiracy. In many states, the crime of conspiracy is a crime of statutory creation – missing from the common law vocabulary, but defined and prohibited by a statute. North Carolina, however, has a defined legislative prohibition against conspiracy that incorporates common law principles, meaning that conspirators may be charged with a criminal violation even if the underlying substantive criminal conduct that was subject to the conspiracy exception does not exist as an offense.
In addition to conspiracy, North Carolina follows a general common law rule prohibiting homicide, arson, robbery and burglary that preceded statutory prohibitions on those offenses. When state statutes against those offenses came into existence, they were found to simply incorporate common law elements into the statutory definitions rather than reinvent the wheel. If a violation of a provision in that statutory plan also violated a common law rule, that baseless offense is also a crime under and subject to the statutory scheme.
Although North Carolina courts have redefined certain common law offenses, such as involuntary manslaughter, the heavy influence of common law on the statutory law of North Carolina remains strong.
Evolution and Current Tides of Common Law
Until 2012, a party could request the reinstatement of the common law remedy of mandamus by specifically invoking it as such, regardless of whether the remedy was still recognized by North Carolina law or had in fact been replaced by an existing statute providing the same relief. In 2012, however, the General Assembly amending the statutes on the procedure for extraordinary writs eliminated all direct references to the common law remedy called mandamus in a court decision. The 2012 amendment removed all references to "mandamus" from the statute providing a procedure to seek a writ of mandamus and replaced it with the phrase "statutory writ." The General Assembly also repealed a statute that described the common law remedy of injunction and merged it into the new statute on a procedure for obtaining what is now referred to as a "statutory injunction . " Repeal of the old statute removed any terminological distinction that in past had made it clear that the new injunction statutes did not replace the common law remedy of injunction.
North Carolina recognizes that statutes can and do replace common law remedies. When it does so, the statute applies as the exclusive remedy for the situation addressed by the statute. If there is no statute that applies to a situation, the common law remedy is applied and a court will provide a remedy that is consistent with a prior holding by a court or courts of the State. North Carolina courts have recognized that common law rules and doctrines may change or be replaced by statutes and a court may depart from the old rules and doctrines if a statute addresses the issue effectively in a way that reflects the policy choices made by the Legislature. In essence, a court will determine if the common law remedy conflicts with a statutory scheme that governs the issue at hand.