Equity & Common Law Flashcards
What is common law?
A system of law based on the rule of precedence and custom instead of statutes
Explain the doctrine of precedence
- a judge must follow the decisions of the courts above them if the facts of the case are the same.
- if the precedence was set in the same or a lower court, then the previous ruling should be considered but does not have to be followed.
list the courts of NZ in order of the hierarchy from highest to lowest
- supreme court
- court of appeal
- high court
- District courts
Explain the key ideas of the hierarchy of courts
- cases are heard in the appropriate court based on their complexity and significance
- Lower courts are bound to follow higher courts
- higher courts have the power to overturn/modify lower courts’ decisions
History of the common law
- originally county courts applied local custom but were inconsistent between areas.
- feudal courts replaced this but still applied local custom
- gradually king’s court developed, with a unified system of law
explain the origins of equity
- common law = ancient customary law of England
- it was often perceived as too harsh and/or unfair
- people would appeal to the king with their issues until the lord chancellor was appointed as a legal specialist.
- Slowly, a principled basis for dealing with complaints was developed which came to be known as equity law.
What are the two jurisdictions of equity law?
Exclusive jurisdiction and Auxillary jurisdiction
Briefly explain exclusive jurisdiction
Deals with concepts and roles that are unfamiliar to common law.
it is developed by the courts of equity.
e.g. trusts - where property is owned at law by party A forteh benefit of party B. This concept is completely unknown to the common law, it is solely an invention of equity
Briefly explain Auxillary jurisdiction
supplements teh common law. Occurs when equity acts to supplement an existing common law right.
What are the maxims of equity?
- equity will not suffer a wrong without a remedy
- he/she who seeks equity must do equity
- he/she who comes to equity must come with clean hands
- equity favors the diligent i.e. if you want equity to intervene you must act promptly
- Equity acts in persona i.e. an equitable order is made against a person wether that is a human, company, or a trust.
what is a remedy under the common law?
An award of damages known as a monetary sum ($$$).
Note: the specific amount of money can be hard to determine.
How long do you have to sue for remedy under the common (monetary sum) ?
6 years
What are the two possible remedies under equity?
- mandatory injunction - court orders you to return what you gained (e.g. give back the neighbors’ chicken)
- prohibitory injunction
court orders the party in the wrong to stop doing whatever is harming the other party (e.g. stop selling the off-brand laptops)
what are the two purposes of both common and equity law?
- to enforce the rights of the party that have been wronged
- alleviating the conscience of the wring doing party