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Volume XI: Torts | Chapter 13 (1972): Procedural Questions Completed in December 1969 J. A. Jolowicz A. General Principle 106. No legal system can allow the parties to dispose by way of a compromise agreement of every kind of legal dispute which may arise between them. Public policy demands, for example, that disputes affecting a person’s marital status shall be excluded from the possibility of an agreed settlement except, of course, one which leaves the legal relationship of the parties as it was before the dispute arose.1 Speaking generally, however, considerations of public po…

Volume XI: Torts | Chapter 13 (1972): Procedural Questions Completed in December 1969 J. A. Jolowicz A. Introductory 82. This is not the place for a full account of the various methods used by the different legal systems for the presentation of evidence to the court, and all that can be attempted here is brief discussion of two particular matters of special interest to the law of tort. Nevertheless, there is one general and important distinction of method which must be borne in mind throughout this part of the chapter. In some legal systems, notably but not exclusively those of the common law co…

Volume XI: Torts | Chapter 13 (1972): Procedural Questions Completed in December 1969 J. A. Jolowicz A. Introductory i. Nature of the Question 5. Despite the early identification in most legal systems of crime and tort, the distinction between them is today almost universally recognised (see supra ch. 1 and 8). The question whether a person should be subjected to the sanctions of the penal law on account of certain acts or omissions on his part is seen as being distinct from the question whether he should be compelled by the law to make red…

Volume XI: Torts | Chapter 13 (1972): Procedural Questions Completed in December 1969 J. A. Jolowicz A. Introductory i. Nature of the Question 41. In most if not all countries with developed legal systems the past has seen a period in which the state was immune from legal proceedings brought against it by citizens to whom its activities had caused some damage. england, for example, has for centuries recognised the rule that “the Crown can do no wrong” and in strict legal theory it may be said that she still recognises it today. Until the Revolution france too knew the principle that “ le Roi ne p…

Volume XI: Torts | Chapter 13 (1972): Procedural Questions Completed in December 1969 J. A. Jolowicz A. Introductory 149. General conditions and ways of thought on legal matters in the People’s Republic of china are in so many respects so different from those prevalent in the other countries whose legal systems have been considered in this chapter that the position in that country could not be taken into account in the preceding discussion. A brief explanation of the contemporary chinese approach to some of the questions considered – so far as this is possible within the l…

Volume XI: Torts | Chapter 13 (1972): Procedural Questions 1. In the preparation of this chapter the author has received information, in the form of answers to questionnaires, from the persons mentioned below.1 He has also received information on the law of roumania, in the form of addenda to a draft of the chapter, from Prof. Dr. T. Ionasco. He wishes here to acknowledge most gratefully the assistance which he has received. 2. No method of classification of the subject matter of the law contains the division “Procedure in cases of tort”, and Procedure itself is the…

Volume XI: Torts | Chapter 13 (1972): Procedural Questions Completed in December 1969 J. A. Jolowicz A. Subject Matter of Subchapter 59. In all the legal systems studied there are rules which recognise the necessity to prevent the presentation of stale claims before the courts and so provide for the limitation or prescription of actions after the expiry of a certain period of time, (see, however, infra s. 155). If an injured person does not begin his action within the period prescribed by the law, he at least runs the serious risk that his action will be dismissed as out of time (see infra s. 79–…

Volume XI: Torts | Chapter 13 (1972): Procedural Questions Completed in December 1969 J. A. Jolowicz A. Introductory 130. The institution of the jury as the classical common law mode of trial is, more than any other single factor, responsible for the distinctive rules of procedure and of the law of evidence found today in the countries of the common law. In practice a jury can be called together only on a single occasion and so all the evidence and argument must be presented, orally so far as possible, at one and the same time; the purpose of many of the…