Micky Smart Short Note Center
Civil Procedure Short Note Part I
Page | 1
, Chapter One
Introduction to Civil Procedure: Conceptual and Historical Background
Substantive Vs Procedural Laws: Significance
What are the major classification of laws?
A broad distinction of law are substantive and adjective legal rules.
Adjective rules are, in turn, subdivided into procedural and evidence laws with the former
constituting the major portion of it. The law of evidence, which governs the method of proof
of allegations or assertions of parties to a case.
What are substantive laws?
Laws that define rights, duties, privileges and liabilities of persons and set out regulatory
norms for their mutual relations in their ordinary course of life.
Seek to avoid disputes between and among individuals and groups in a society. They intend
to achieve this by;
a) carefully delimiting their respective legal spheres;
b) by, primarily, predefining their rights and the corresponding duties
What are procedural laws?
Procedural laws are, comparatively speaking, means to the end contemplated by substantive
laws.
Thus, prescription without application is nothing but pretence. This means that the rights
and duties envisaged by the laws would mean nothing unless they are fully enforced.
In a nutshell, one may comfortably conclude that procedural rules, in essence, give effect
(“life”) to the ends sought to be achieved by substantive laws.
What issues are regulated by procedural laws?
The function of procedural rules, to which civil procedure belongs are;
to govern as to how claims of persons are prepared;
where and when presented; and,
How determined and finally enforced by a court of law.
Is there a clear demarcation between substantive and procedural laws?
As a matter of fact, it is not, more often than one would expect that easy to readily put,
with definitive precision, a particular legal rule to either of the categories.
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,For instance in Ethiopian case;
a) Art 1856(2) of the Civil Code prescribes that a court dealing with a given case shall not
have regard to period of limitations unless it is pleaded by the parties;
it is substantive because found in Ethiopian civil code ( a substantive law of Ethiopia)
and
At the same time it is procedural law. Since the rule is actually setting forth a guideline
for the court as to how it should go about dealing with issues of period of limitation in
relation to judicial proceedings
b) Art 1845 of the same Code provides the right to institute any legal action for the
performance; on the non-performance or for the sake of invalidation of the contract, shall
be barred, as a rule, unless brought within 10 (ten) years from the time the period started.
It is substantive because, is embodied in the Civil Code, the major constituent body of
substantive rules. Besides, it is prescribing a condition in relation to the contractual right
of a party, the exercise of which is made to depend.
At the same time it is procedural. Since the rule, unarguably, demarcates the time limit
within and before which a contract related action should or could be lodged in a court of
law. In so doing it, in essence, determines the time as to when one would not be able to
make use of his right
If so, what are the essential methods of identifying procedural law from substantive law?
There are three techniques to this effect;
a. Look at the material source; i.e., the constituent document of the rule under consideration.
This means, rules of civil procedure, for instance, are primarily and substantially embodied
in the Civil Procedure Code and, Whereas rules of substantive laws are predominantly
incorporated in such substantive codes as the ‘Civil’ and ‘Commercial’ they are
secondarily, found in some other laws relating to civil matters.
b. Look the contents (purposes) and the functional correlations between them: it is;
The rules of substantive laws contents is granting the rights and duties of individuals
and groups; and, by regulating their interactions at various levels of relations. But,
procedural laws are fundamentally meant to deal with the manners of framing law
suits; determining their place of institutions; and, governing the way they are to be
considered and finally enforced by the courts of law.
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, Their functional relation is one is the means to an end.
c. Look the actual functions of the two classes of laws vis- a-vis their respective spheres
of applications; procedural laws (law in action or motion) governs the relation between
legal actors and parties to the case inside the court, where as substantive laws (law of the
rest) is applicable even outside the court.
Civil Vs Criminal Procedures: Scope of Application
What are the grounds to classify laws in to criminal and civil law?
Laws may also be classified into ‘civil’ and ‘criminal’ based on the following grouns;
a. the purposes and the ultimate objectives underlying their very establishment
b. the types of relationships they chiefly govern;
c. the nature of the legal interests that would be affected at their violations and, hence, the
parties who would have sufficient stake therein so as to invoke a justiciable controversy,
civil (private) wrong
against private interest; less injuries to the public; end
up by award of damages or dismissal of the case;
initated by the victim himself; the purpose is
legal wrong enfrorcing the right of the victim;
wrongs
criminal wrong
moral wrong against public interest; grave injuries to the public; end up by
acquital or conviction (imprisoment or fine); initated by the
state; and the purpuse is maintainig peace and order
not punishable
by law
What are the jurisprudential grounds of establishing civil and criminal liabilities?
a. Civil liability or remedial liability: is found in the legal maxim “ubi jus ibi remedium”,
which means, where there is a right, there must be a remedy –taking into
consideration the bare act irrespective of the intention of the wrongdoer.
b. Criminal or penal liability: the fundamental rule underlying penal liability is contained
in the jural dictum “actus non facit reum, nisimens sirea”; which means that a mere act
does not amount to crime unless it is accompanied by guilty mind. Thus, criminal
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Civil Procedure Short Note Part I
Page | 1
, Chapter One
Introduction to Civil Procedure: Conceptual and Historical Background
Substantive Vs Procedural Laws: Significance
What are the major classification of laws?
A broad distinction of law are substantive and adjective legal rules.
Adjective rules are, in turn, subdivided into procedural and evidence laws with the former
constituting the major portion of it. The law of evidence, which governs the method of proof
of allegations or assertions of parties to a case.
What are substantive laws?
Laws that define rights, duties, privileges and liabilities of persons and set out regulatory
norms for their mutual relations in their ordinary course of life.
Seek to avoid disputes between and among individuals and groups in a society. They intend
to achieve this by;
a) carefully delimiting their respective legal spheres;
b) by, primarily, predefining their rights and the corresponding duties
What are procedural laws?
Procedural laws are, comparatively speaking, means to the end contemplated by substantive
laws.
Thus, prescription without application is nothing but pretence. This means that the rights
and duties envisaged by the laws would mean nothing unless they are fully enforced.
In a nutshell, one may comfortably conclude that procedural rules, in essence, give effect
(“life”) to the ends sought to be achieved by substantive laws.
What issues are regulated by procedural laws?
The function of procedural rules, to which civil procedure belongs are;
to govern as to how claims of persons are prepared;
where and when presented; and,
How determined and finally enforced by a court of law.
Is there a clear demarcation between substantive and procedural laws?
As a matter of fact, it is not, more often than one would expect that easy to readily put,
with definitive precision, a particular legal rule to either of the categories.
Page | 2
,For instance in Ethiopian case;
a) Art 1856(2) of the Civil Code prescribes that a court dealing with a given case shall not
have regard to period of limitations unless it is pleaded by the parties;
it is substantive because found in Ethiopian civil code ( a substantive law of Ethiopia)
and
At the same time it is procedural law. Since the rule is actually setting forth a guideline
for the court as to how it should go about dealing with issues of period of limitation in
relation to judicial proceedings
b) Art 1845 of the same Code provides the right to institute any legal action for the
performance; on the non-performance or for the sake of invalidation of the contract, shall
be barred, as a rule, unless brought within 10 (ten) years from the time the period started.
It is substantive because, is embodied in the Civil Code, the major constituent body of
substantive rules. Besides, it is prescribing a condition in relation to the contractual right
of a party, the exercise of which is made to depend.
At the same time it is procedural. Since the rule, unarguably, demarcates the time limit
within and before which a contract related action should or could be lodged in a court of
law. In so doing it, in essence, determines the time as to when one would not be able to
make use of his right
If so, what are the essential methods of identifying procedural law from substantive law?
There are three techniques to this effect;
a. Look at the material source; i.e., the constituent document of the rule under consideration.
This means, rules of civil procedure, for instance, are primarily and substantially embodied
in the Civil Procedure Code and, Whereas rules of substantive laws are predominantly
incorporated in such substantive codes as the ‘Civil’ and ‘Commercial’ they are
secondarily, found in some other laws relating to civil matters.
b. Look the contents (purposes) and the functional correlations between them: it is;
The rules of substantive laws contents is granting the rights and duties of individuals
and groups; and, by regulating their interactions at various levels of relations. But,
procedural laws are fundamentally meant to deal with the manners of framing law
suits; determining their place of institutions; and, governing the way they are to be
considered and finally enforced by the courts of law.
Page | 3
, Their functional relation is one is the means to an end.
c. Look the actual functions of the two classes of laws vis- a-vis their respective spheres
of applications; procedural laws (law in action or motion) governs the relation between
legal actors and parties to the case inside the court, where as substantive laws (law of the
rest) is applicable even outside the court.
Civil Vs Criminal Procedures: Scope of Application
What are the grounds to classify laws in to criminal and civil law?
Laws may also be classified into ‘civil’ and ‘criminal’ based on the following grouns;
a. the purposes and the ultimate objectives underlying their very establishment
b. the types of relationships they chiefly govern;
c. the nature of the legal interests that would be affected at their violations and, hence, the
parties who would have sufficient stake therein so as to invoke a justiciable controversy,
civil (private) wrong
against private interest; less injuries to the public; end
up by award of damages or dismissal of the case;
initated by the victim himself; the purpose is
legal wrong enfrorcing the right of the victim;
wrongs
criminal wrong
moral wrong against public interest; grave injuries to the public; end up by
acquital or conviction (imprisoment or fine); initated by the
state; and the purpuse is maintainig peace and order
not punishable
by law
What are the jurisprudential grounds of establishing civil and criminal liabilities?
a. Civil liability or remedial liability: is found in the legal maxim “ubi jus ibi remedium”,
which means, where there is a right, there must be a remedy –taking into
consideration the bare act irrespective of the intention of the wrongdoer.
b. Criminal or penal liability: the fundamental rule underlying penal liability is contained
in the jural dictum “actus non facit reum, nisimens sirea”; which means that a mere act
does not amount to crime unless it is accompanied by guilty mind. Thus, criminal
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