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The Persuasive Power of Precedent in Business Law

1. Introduction

The term ‘precedent’ is derived from the Latin word ‘praecedens’, meaning ‘going before’. In business law, a precedent is a previous decision of a court that is binding on a lower court in the same jurisdiction. Precedent is an important tool of statutory interpretation as it assists courts to determine the intent of the legislature. Persuasive precedent is a decision of a court which is not binding but may be persuasive to another court considering a similar case. This type of precedent may be followed if the court is persuaded by the reasoning in the previous decision. The doctrine of stare decisis is based on the principle that once a court has decided a question of law, it should follow its own decision in subsequent cases with similar facts. The doctrine provides stability and predictability in the law, as well as consistency in the decisions of different courts.

2. What is persuasive precedent?

Persuasive precedent is a decision of a court which is not binding but may be persuasive to another court considering a similar case. This type of precedent may be followed if the court is persuaded by the reasoning in the previous decision. The doctrine of stare decisis is based on the principle that once a court has decided a question of law, it should follow its own decision in subsequent cases with similar facts. The doctrine provides stability and predictability in the law, as well as consistency in the decisions of different courts.

3. How persuasive precedent is applied in case law

The persuasive effect of a precedent depends on its similarity to the present case. If the facts are identical, then the precedent will be binding. If the facts are different, then the precedent will only be persuasive. Courts will also consider whether the precedent is from a higher court in the hierarchy of courts. A decision of the Supreme Court will be more persuasive than a decision of the Court of Appeal, and a decision of the Court of Appeal will be more persuasive than a decision of the High Court. In addition, courts will also take into account whether the precedent has been followed by other courts. A decision that has been followed by many other courts is more likely to be persuasive than one that has been followed by only a few courts.

4. judicial authority and resource center

The persuasive effect of a precedent depends on its similarity to the present case. If the facts are identical, then the precedent will be binding. If the facts are different, then the precedent will only be persuasive. Courts will also consider whether the precedent is from a higher court in the hierarchy of courts. A decision of the Supreme Court will be more persuasive than a decision of the Court of Appeal, and a decision of the Court of Appeal will be more persuasive than a decision of the High Court. In addition, courts will also take into account whether the precedent has been followed by other courts. A decision that has been followed by many other courts is more likely to be persuasive than one that has been followed by only a few courts.

5. Conclusion

In conclusion, persuasive precedent is a decision of a court which is not binding but may be persuasive to another court considering a similar case. The doctrine of stare decisis is based on the principle that once a court has decided a question of law, it should follow its own decision in subsequent cases with similar facts. The doctrine provides stability and predictability in the law, as well as consistency in the decisions of different courts.

FAQ

Persuasive precedent is a type of precedent that is not binding but may be persuasive in subsequent cases.

Persuasive precedent differs from binding precedent in that it is not mandatory, but may be given deference by a court.

Persuasive precedent is important in business law because it can provide guidance to courts when interpreting statutes and regulations.

Some examples of persuasive precedents in business law include judicial opinions, scholarly articles, and treatises.

Understanding persuasive precedent can help businesses avoid legal problems by providing insight into how courts may interpret the law.

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