(For a extra detailed dialogue, see MacCormick 1987, 170ff.) To take an example, the court docket could also be faced with a case during which the trustee of property held on behalf of the plaintiff has wrongfully transferred that property to the defendant. The plaintiff sues the defendant to recover the property which was transferred in breach of trust. The plaintiff argues that since (i) the defendant has received belief property (ii) in breach of trust and (iii) has not paid for the property, she should restore the property to the belief. The defendant argues, however, that since (iv) the trustee had a good title to the property, (v) the facility to switch it and (vi) the defendant acted in good faith, unaware of the breach of belief, she is entitled to retain it.
It must be famous, nonetheless, that such a rationale does not necessarily help as sturdy a doctrine of precedent as that discovered in lots of Common Law jurisdictions. The concern for predictability must be weighed towards the ethical desirability of the legislation in question. The previous arguments for precedent presuppose that decision-makers can correctly ascertain the deserves of the circumstances before them, but regulation after all operates beneath non-best conditions where choice-makers make mistakes and disagree among themselves concerning the deserves of circumstances. In apply, the end result of a case could also be uncertain not simply because the right result’s rationally indeterminate, however because the decision-makers are fallible. Given this, a follow of precedent in …
