I recently came across a legal term commonly used in Construction Law “Written Law & Unwritten Law”. This terminology is so confusing asI was told the terms and conditions in a Contract is considered Unwritten Law. How can that be when it is in writing and signed. ? Confusing right ?

The terms “Written Law” and “Unwritten Law” can indeed be somewhat confusing, as they refer not to whether a law is physically written down or not, BUT to the ways in which laws are created and implemented.

Written laws typically refer to Statutes (Also known as Acts), which are laws that have been formally written down and passed by a legislative body, such as a parliament, congress, or other law-making institution. These laws are explicit, formally documented, and can be referred to directly. Constitutions, legislative acts, regulations, and municipality bylaws & codes are all examples of written law.

Unwritten law, on the other hand, refers to legal principles that are recognized and enforced by courts but are not enacted by a legislative body. These are :

1. The Terms and Conditions of Contract :

This is where the concept of a contract being considered as part of unwritten law comes in. When you sign a contract, you’re agreeing to a set of terms and conditions. These terms and conditions become legally binding, but they are not laws that were formally written and passed by a legislative body. Instead, they are agreements that are enforced by courts, much like how courts enforce common law and customary law. Thus, even though a contract is physically written and signed, it’s considered a part of unwritten law in the sense that it wasn’t enacted by a legislative body.

2. Common Laws :

Also known as case law or precedent, these are laws that are based on decisions made by judges in previous cases. While these decisions are written in legal opinions, they are not laws that were formally enacted by a legislative body.

3. Customary Laws :

This consists of long-standing customs or practices that have the force of law. These customs may never have been formally written down or passed by a legislative body, but are recognized as legally binding because they have been consistently and widely observed.

To summarize, the terms “written law” and “unwritten law” do not refer to whether a law is physically written down, but rather to whether it was formally enacted by a legislative body. In this context, a contract is considered “unwritten law” because, while its terms and conditions are indeed written and signed, they were not passed by a legislative body.

There you have it. Sometimes legal jargon cannot be literally interpretated by it’s name as it actually mean something else. Other such frequently used legal term that have such characteristics I can think off hand are “Natural Justice” and “Common Law”. I have curated a post on these two terms and they can be read at the following links :

1. What is really “Natural Justice” ? It is not what the majority thinks it is. | by Steven Chin ( The Contract Claims Sifu ). | Medium
2. “What is Common Law ? ”. Background | by Steven Chin ( The Contract Claims Sifu ). | Medium
3. “What is Common Law ? “ — Part 2 of 2 | by Steven Chin ( The Contract Claims Sifu ). | Medium

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