Judicial precedent 13Obiter dictaare not binding on judges, no matter what court they were made in. However,
if the judges in the Supreme Court all express the same obiter, then a lower court judge
would almost certainly follow the obiter in the absence of a precedent which he or she was
compelled to follow.
Courts which hear appeals (appellate courts) usually have more than one judge sitting.
Fortunately, it is an odd number of judges rather than an even number. A majority of judges
will therefore decide for one of the parties or for the other. If the decision is unanimous, for
instance the Court of Appeal decides 3:0 for the defendant, then the ratio of the case can be
found in the judgments of any of the three judges. If the court decides for the defendant 2:1,
then the ratio must be found in the decisions of the two judges in the majority. The decision
of the judge in the minority may be persuasive as obiter, but it cannot form a ratio which will
bind future courts.
Overruling and reversing
A higher-ranking court can overrulea ratio created by a lower-ranking court. The Supreme
Court, for example, could overrule Partridgev Crittendenand hold that magazine adver-
tisements stating the price at which goods will be sold are always offers. (This is most
unlikely, it is merely an example.) If the Supreme Court were to overrule the decision then
the ratio of Partridgev Crittendenwould be deemed to have been wrongly decided, and so
it could no longer be a binding precedent. When overruling a case, the superior court
Figure 1.1Which courts bind which other courts? An overview