Common law

Key Takeaways

• Common law is judge-made law: rules that emerge from written court decisions and are applied to later cases with similar facts.
• Precedent is the mechanism. A court decides a dispute, publishes its reasoning, and other courts in that jurisdiction follow it until a higher court or the legislature changes the rule.
• Statutes outrank common law. Where a legislature has written on a subject, the statute controls and common law governs only what the statute left alone.
• Washington is a common law state by statute: RCW 4.04.010 makes the common law the rule of decision in all Washington courts unless it conflicts with the constitution or with state or federal law.

What It Means

Common law is the body of legal rules built by courts rather than by legislatures. A judge decides a real dispute, writes down the reasoning, and that written opinion becomes precedent, the Case Law other courts in the same jurisdiction apply when the next case looks like it. Stacked up over centuries, those decisions form a working body of law on subjects no legislature ever addressed. A great deal of what real estate practice runs on started this way: how a contract is formed, what duties one landowner owes a neighbor, when an item becomes a fixture, what an agent owes a principal.

Two features matter to a licensee. First, common law changes from the bottom up, one case at a time, so it tends to follow what courts consider fair rather than what anyone planned in advance. Second, it yields to written law. A statute or an administrative rule covering the same subject displaces the common law rule to the extent the two conflict, and everything the legislature leaves untouched stays governed by precedent. Knowing which body of law is speaking tells you where the answer lives.

How It Works in Washington

Washington is a common law state, and it says so by statute. RCW 4.04.010 provides that "the common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state." Precedent is the default in Washington courts, and it stays the default until the legislature writes over it. That is the relationship between common law and Statutory Law in this state.

Real estate agency is the clearest place the legislature wrote over it. RCW 18.86.110 states that "the duties under this chapter are statutory duties and not fiduciary duties," that "this chapter supersedes the fiduciary duties of an agent to a principal under the common law," and that "the common law continues to apply to the parties in all other respects." A Washington broker's obligations to a client therefore come from the Statutory Duties set out in chapter 18.86 RCW, not from the common law of Agency that a national textbook describes. That is the pattern worth memorizing: statute displaces precedent inside the area it covers, and precedent keeps running everywhere else.

Example

Nadia lists her Olympia condo with broker Sam at $389,000 and it sells for $375,000. Afterward Nadia sues Sam, claiming he breached a fiduciary duty of loyalty by not pushing the buyer harder, and her complaint leans on common law agency cases from other states.

Her lawyer has to rebuild the claim. RCW 18.86.110 says chapter 18.86 RCW supersedes the fiduciary duties of an agent to a principal under the common law, so the question is not what a common law fiduciary would have owed Nadia. It is which of the statutory duties in chapter 18.86 RCW Sam breached, if any. The $14,000 gap between list price and sale price is not by itself a breach of anything. Meanwhile Nadia's second claim, that Sam gouged a wall installing a lockbox, is untouched by the statute, because RCW 18.86.110 says the common law continues to apply to the parties in all other respects. One dispute, two bodies of law, sorted by whether the legislature had written on the subject.

Common Mistakes and Exam Traps

• Common law and case law name the same source of authority. The contrasting category is statutory law, meaning rules enacted by a legislature.
• Common law is not unwritten law. The decisions are written down and published; what makes them common law is that judges produced them rather than a legislature.
• In Washington the common law of agency does not supply a broker's duties to a client. Chapter 18.86 RCW replaced those fiduciary duties with statutory duties.
• A common law rule does not vanish nationwide when one state legislates. It is displaced only in that jurisdiction, and only on the subject the statute covers.