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Re: [tips_and_tricks] Re: Common Law

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  • Jake
    Been REAL busy, but going thru unread e-mail, I wanted to comment on a couple responses to my posting of N.C. Gen. Stat. Chap. 4, entitled Common Law , which
    Message 1 of 5 , Jul 4, 2011
      Been REAL busy, but going thru unread e-mail, I wanted to comment on a couple responses to my posting of N.C. Gen. Stat. Chap. 4, entitled "Common Law", which states that,

      "All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State."

      My point being that a careful reading reveals the common law ONLY applies in NC if there is no statute (state or federal) which already covers the given situation - that the common law has been "legislated out of existence."

      Michael responded: "Seems like the statute is saying that those parts of the common law which are not destructive of or repugnant to the established form of government, and its statutes and rules are in force, as opposed to the other way around."

      But you have to remember that the common law existed in NC (all 13 original States) BEFORE statutes were written by the legislature & 200+ years of statutes have virtually REPLACED the common law in NC (most everywhere else in the US too).

      Bear responded in his post "N. Carolina Common Law same as Colorado's" with 3 court decisions, including Biddix v. Henredon Furniture Industries, 76 N.C.App. 30, 331 S.E.2d 717 (1985), ". . . if our state legislature has expressed its intent to supplant the common law with exclusive statutory remedies, then common law actions, such as wrongful discharge, will be precluded."

      The NC court of appeals chose the word "supplant" (the common law) while I chose "replaced" but the end result is the same & since I've lived in NC for 20 years I can say that "replaced" is correct, except in circumstances where there is no statute (state or federal) which covers the given situation.  Then & only then do the courts go back to the common law - which was in force when NC was still a British Colony.

      ~ ~ ~
    • Michael
      Monday Independence Day 2011 All one can do is read thier own state rules and plan accordingly. Illinois: 5 ILCS Act 50 Common Law Act 50/1 - The common
      Message 2 of 5 , Jul 4, 2011
        Monday Independence Day 2011

        All one can do is read thier own state rules
        and plan accordingly.

        Illinois:

        5 ILCS Act 50 Common Law Act

        50/1 - The common law of England...shall be
        the rule of decision, and shall be considered
        as of full force until repealed by legislative
        authority.
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