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Sunday, June 6, 2010

Presumption against Implicit Change of Law

sumption Against Implicit Changes in the Law 
There is also a presumption, which derives from the era when the primacy of the common law was only marginally impinged upon by  statute  law, that a provision which is ambiguous as to whether or not it effects a change in the law shall be regarded as not effecting any such change. In Minister for Industry and Commerce v Hales, Henchy J endorsed this presumption, citing Maxwell. 
Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)

The US Court of Appeals –First circuit while analyzing the provisions of UFTA stated the principles that are in line with the presumption that statute law should not be resumed to alter the long established common law. It observed at paragraphs 13 as follows:

“The UFTA, by its own terms, is consistent with this background. The Act states that "[u]nless displaced by the provisions of this chapter, the principles of law and equity, including ... the law relating to ... fraud ... or other validating or invalidating cause, supplement[s] this chapter's provisions." R.I. Gen. Laws. § 6-16-10.

At the very least, this clause demonstrates a desire by the drafters to preserve the common law as a supplement to the UFTA unless precluded by the terms of the Act. Moreover, to find broad preemption in the UFTA, in the absence of language of preemption, would be at odds with the presumption that statutes should not be construed to alter common law principles absent an explicit statement of legislative intent to do so. See, e.g., Shaw v. R.R. Co., [1879] USSC 156; 101 U.S. 557, 565[1879] USSC 156; , 25 L.Ed. 892 (1879) ("No statute is to be construed as altering the common law, farther than its words import."); Knowles v. Ponton, 96 R.I. 156,190 A.2d 4, 6 (1963)

("It is a well settled rule in the construction of statutes that legislative enactments will be construed to alter the common law only to the extent that the legislature has made that purpose clear."); 3 Norman J. Singer, Sutherland Statutory Construction § 61:1 (2001 Revision) ("Where there is any doubt about [statutes'] meaning or intent they are given the effect which makes the least rather than the most change in the common law."). Note: 
Uniform Fraudulent Transfer Act (UFTA)” 

" [The General Assembly] is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law."
 Isbel v. Commercial Invetsments Associates, Inc., 273 Va. 605, 644 S.E.2d 72 (2007).
 See Also:
 Esteban v. Commonwealth, 266 Va. 605, 587 S.E.2d 523 (2003). 

One may also like to see for the presumption against the changes in common law...

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