What is Common Law?
Common law refers to the body of unwritten laws that have been established through widespread and continuous legal custom and judicial opinion. This historical precedent for law is used as part of the body of law in which a case is found. Under common law, the weight of the authority of past rulings on a particular subject can be as high as statutory law, depending on the relationship between the past rulings and the current case. Judicial findings on issues of fact are not thought to create precedent under common law, as these rulings are specific to the particular case at hand and are not generalized or broadly applicable . Conversely, judicial opinions on issues of law form a body of common law that is generally accepted unless argued against in positive law. Positive law refers to statutes created by legislatures. In most modern legal systems, statutes and common law supplement each other and are used together to adjudicate disputes. The differences between the two chiefly relates to their derivation. A statute is expressly written law that lists the elements of a law. Common law is an unwritten body of law derived from customs and general principles. Common law precedents are used to fill in the gaps of statutory law and guide the court in making the proper decision.
Common Law Marriage in Nevada
In turning to Nevada’s approach to common law marriage, it is important to note that Nevada prepared a law banning common law marriages in 1869. Nevada began recognizing a common law type marriage via the doctrine of putative spouse. Putative spouse or putative marriage doctrine effectively protects an individual who entered into a marriage, who in good faith and without knowledge that the marriage was void, began cohabitating with the putative spouse. If the putative spouse meets these requirements, the putative spouse may be entitled to some benefits such as use of the other spouses health insurance benefits and tax benefits in the event the marriage would have been valid if the law were not followed.
Although Nevada does not recognize a common law marriage, Nevada courts have allowed actions seeking damages when one party fraudulently induces the other party to enter into a cohabitation relationship. The plaintiff must show that they had a valid claim for relief under contact law. However, this type of action would not qualify as a divorce proceeding and the parties will not be dividing any community property.
Nevada’s Distinctive Situational Law
Nevada is distinct from many states in that its common law has evolved separately. When Nevada became a state in 1864, the Nevada Constitution adopted the common law of the United States – which included the common law of England – as of the date of statehood. This meant that any English common law rule that was already in place and relevant would continue to be applicable in Nevada. The Nevada Constitution states, "The common law of England and the statute laws of the Territory of Nevada as they existed on January 1st, 1865, and the laws of the United States which are in force in this State shall be the rule of decision in all the courts of this State, in all cases where they apply; so long as they do not conflict with the Constitution of the United States and of the State of Nevada."
As part of this framework, the United States Constitution and the Nevada Constitution are the "settled rules for resolving controversies" in Nevada. Unlike some states, "Nevada does not have a written code, and it is not mandatory for Nevada courts to follow the common law, but the common law is persuasive authority," according to the Nevada Supreme Court case Dasovic v. State.
As discussed in a previous blog post, there are some cases where Nevada’s common law diverges from California/Common law precedent. For example, Nevada does not allow collateral source payments to be deducted from compensatory damages, which deviates from the rule in California and other states. See Cassity v. Zilog, Inc., 26 P.3d 396, 397 (Nev. 2001) (a case regarding an industrial worker injured by a malfunctioning machine).
The History of Common Law in Nevada
Historically, common law in Nevada has been of constitutional magnitude, dating back to when Nevada’s first constitution was adopted in 1864. Article 4, Section 2 of the constitution provided that the "common law of England, and all the acts of the legislature in force in [the States] at the time of the adoption of [the constitution] . . . shall be the law of this State until they shall be repealed by the legislature or amended". Article 4, Section 35 also provided: "[t]he common law of England, and all laws in aid thereof, in force on the 1st day of July 1861, and all laws and usages in force at the time of the adoption of this Constitution, not repugnant to it, shall remain in force until they shall expire by their own limitation, or by legislative action of his State" (emphasis added). In 1970, a section of Article 4, Section 2 was adopted in its current form in Article 1, Section 11 to read: "the common law of England, so far as it is applicable, and of the territory of Nevada as of the 1st day of July 1861, and all laws and usages not in conflict with this Constitution" survived as the common law of Nevada. The Nevada Legislature repealed Article 4, Section 2 in 1975, abandoning the choice of law language in favor of a declaration that the common law of England, and the common law of the territory of Nevada as of July 1, 1861 is the law of Nevada.
While the Nevada Supreme Court has described Article 1, Section 11 as a ‘frozen state of the law’ from July 1, 1861, the Court has recognized that when the question before it implicates social policies far removed from the time of statehood, deviation from English common law is permissible. For example, in Elko Elec. Depot, Inc. v. 8th Judicial Dist. Court, the court acknowledged that "Nevada courts are supposed to rely on the interpretations afforded English decisions by the December [1887] date if ‘the question before us was to be decided upon the same principle as the law was settled in the English Courts ; and that nothing should be considered as law in Nevada that is not law in England as of Dec. 15, 1887.’" Therein, the Court highlighted that "the time when Nevada became a State : 1864-that is the date beyond which we must look for changes and amendments in English law. Conditions in Nevada have changed since 1864. Much of the English law is now inapplicable to modern society. Only those decisions, principles and usages of the common law and statutes in aid thereof are relevant that were in existence or in force as of the time of Nevada’s statehood." In Elko, the court noted that the Nevada courts were "not bound to follow the [18]87 rules in every instance without examining the social conditions which existed in Nevada at the time of its statehood or subsequently, so as to purposefully distinguish the Nevada common law from English common law when it produces an absurd result and would impair the moral sense of the people."
A similar question was presented in Lattin v. Layton. In Lattin, the court reaffirmed the Elko standard and emphasized that "it is a court’s role to conform the law to the times" and held that "when the facts of a case fall sufficiently outside the scope of what the Framers of the Nevada Constitution could have anticipated, courts will interpret the common law accordingly." In Lattin, the court modified the longstanding common law rule that a defendant’s death abated any cause of action immediately preceding the defendant’s death including any related punitive damages, where the court found that the common law rule did not apply to bar the recovery of punitive damages where a drunk driver collides into another car causing injury or death to the other driver and a second car collides into the first car killing the victim of the second collision whose estate sues the first driver.
Just because the common law of the territory of Nevada as of July 1, 1861 is in force does not mean that common law changes do not occur. Over time, as recognized in Elko and Lattin the Nevada Supreme Court has interpreted Nevada’s common law, leaving its future to be determined by the Nevada Supreme Court.
Common and Civil Law in Nevada
The State of Nevada operates under a mix of common law and statutory law, like many other U.S. states. Common law in Nevada stems from English common law, which was carried over to the colonies prior to the revolution. Although most of the original civil codes from the 1800s have been abolished or amended, much of the legislation in present law is heavily rooted in English common law.
Civil law, which is based on a detailed and comprehensive set of statutes and regulations as the primary source of law, has been adopted by legislatures in many states. No state in the U.S. operates solely under civil law aside from Louisiana, which uses a unique blend of civil and common law due to its French heritage.
Although there are many statutes in Nevada that resolve issues beyond what the common law may require, there is still a need for the preservation of common law in the state . Common law is necessary for the purpose of meeting shortcomings in the statute law that may not cover some issues. For example, if an issue is not defined or described in the law, judges who have experienced this may ask lawyers for the parties involved to help them establish a standard for what the law should be in such situations.
Judicial decisions that are made on such issues will have considerable import under the doctrine of precedent. The doctrine of precedent provides that in cases that involve similar issues, the rulings by deciding judges should be taken into account when creating standards to deal with specific issues. Since many of the rights people have in the United States are derived from common law, common law remains as important as ever.
Implications for Residents of the State
For residents, the nuances of common law can significantly impact various legal scenarios. In contract formation, the common law requirement of a "meeting of the minds" can mean the difference between enforceability and unenforceability. In tort claims, common law principles govern the liability of property owners to invitees or licensees. Even in family law, common law principles affect how courts determine child custody and division of assets. In the realm of defamation, the dichotomy between written and spoken words (libel and slander) is rooted in long-standing common law principles that underlie Nevada statutory law. Defamation lawsuits may hinge on whether a party has engaged in "slander per se," which occurs when someone makes an accusation of a serious crime, a loathsome disease, or acts that affect a person’s profession, trade, or business. The practical implications are clear; those accused of such defamations may find it easier to prove damages, as actual harm can be presumed at common law. Another interesting area affected by common law is landlord-tenant relations. In Nevada, landlords have a common law duty to provide safe, secure premises, and tenants have the right to dwell in quiet enjoyment. A breach of these duties can lead to an implied warranty of habitability claim. Understanding these principles can be crucial for both parties in managing their obligations and leveraging their rights. As the Nevada legal landscape evolves, it remains essential for residents to understand common law’s historical context to frame modern disputes accurately.
Advice and Resources for the Legal Community
As with any substantive area of law, it is important to obtain good legal advice regarding common law issues. Given the scope of the concept, it is likely that common law aspects of cases will arise at some point during litigation. Fortunately, there are a variety of ways to obtain reliable advice and representation.
In some situations, it might be particularly important to obtain representation from attorneys experienced in common law. In areas such as medical malpractice, where there has been a rapid increase in litigation, there are a limited number of experienced attorneys capable of both conducting the underlying investigation required for a case and arguing such a case in Court. Whether representation of this type is ultimately used or not , it is still wise to consult with someone familiar with the relevant underlying facts, and who can point you in the direction of the most credible legal advice. Legal resources, as well as a filter for obtaining representation should consultation prove necessary, are available locally. In-house counsel might also prove to be an excellent resource in connection with a case.
For further research regarding common law in Nevada, an excellent legal research platform often used by lawyers is available free of charge online. To access Nevada-specific law, please visit the website below:
Wills, trusts and estates (TNE V. N. Rev. Stat. sec. 153.001)
