Answering legal questions – common sense and getting back to basics

When I was 18, I decided for some strange reason (!) that I wanted to study Law with French at University. I applied to Oxford, Birmingham, Nottingham, Leeds and Manchester, in that order. As part of the process, and actually knowing nothing about law, other than that my brother was already studying Law with French at Birmingham and my Dad was/is a lawyer, I decided some pre-reading would likely be a good idea.

My Dad came home one day and had bought me a book called “Learning the Law” by Glanville Williams – at least on the name, it seemed like a good place to start. It was published in 1945 and is described as key reading for all prospective law students looking into a career in law. You might think it’s most likely very dry, but actually the main thing I remember from it (full disclosure – it’s still on a shelf in my room back home in Manchester and hasn’t been touched in years) is that legal principles and the law are more often than not, based on principles of acting in good faith and common sense. And it was that combination of common sense and good faith that seemed to always crop up in law school when hearing about legal cases and their outcomes.

Except where there was overarching policy issues (i.e. a judgment might be fair in one case but it would set an unwelcome or dangerous precedent in others), the result almost always seemed to be based on what seemed equitable in the circumstances based on common sense and the good faith of the parties involved. This principle of ‘equity’ is a key underpinning one in English law.


So what is the practical impact of this for businesses today?

Well I often get asked questions phrased as “are we allowed to do that?” and “what if we wanted to do X, Y and Z?”, “what are the rules there?”. In most cases, especially for startup businesses, my first port of call in answering isn’t to hit the statute book or rack my notes for an old case containing the answer, but it is to ask, “why wouldn’t you be able to do that?” or “what are your motivations behind doing it and what are you concerned about?”.

Of course, this works on a case-by-case basis, and if you are concerned then it is worth checking, but the general rule is that if you’re acting in good faith and common sense tells you what you’re doing is fine, then it most probably is.

This article was written by Simon Davies, founder of Accelerate Law. Accelerate Law is a consultancy business providing in-house legal support to startups.

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