Fusion

Question 1

Worthington wants categorisation
Worthington and Peter birks arguments for fusion

Answer 1

2 bodies of law not coherent with birks saying equity poses danger to rationality of law with its exaggerated historical mission to justice as if equity has some special license to ignore requirements to legal certainty

Worthington says equity now delivering remedies in predictable way — equity has become as rigid and as technical as common law which they were supposed to moderate —- contradicts rule of law argument tho

Both scholars argue that equity not only one that is flexible - common law flexible in determining extent of responsibility ie sentencing in criminal law

Nothing distinct about equity

Question 2

Arguments against fusion

Answer 2

Spry - equitable remedies are ethical quality with great width and elasticity

Aristotle - equities role to correct omission of legislature … protects law from opportunists

Mathew Harding - equity consistent with modal concept of rule of law … ie not because of what it does but because of how it does it… encouraging citizens to engage with moral deliberation good and compatible

Austin and klimchuk book - preventing someone from exploiting generality of legal rule upholds rule of law
Example of promissory estoppel preventing people from taking advantage of general rule that contract requires consideration

Equity discretionary as remedies not available as of right so can choose remedy
Also injunctions - judictaure act says injunctions can be granted whenever court deem just or convenient
Fourie v le roux- freezing order can be granted if court wants even if no cause of action

Flexibility seen in guest v guest - allowing defendant to choose
Judged refuse to have equity flexibility limited - gillet v holt

Conscience - David’s heyton good person theory - specific performance - make d act as good person should … contrast to damages

Different value systems ie fiduciary obligations v tort/ contract