History, Merger, and Equity Today

Question 1

What does “ubi jus ibi remedium” mean?

Answer 1

where there is a right there is a remedy.

Question 2

What is the goal of a remedy?

Answer 2

To place a party who has been wronged in the position that she would have been if no wrong had occurred.

Question 3

What are the 2 main types of Remedies and how do they differ?

Answer 3

1) Legal Damages: is the traditional legal remedy; is monetary relief designed to compensate a π for the harm caused by a Δ;

(a) Compensatory Relief: is legal relief; money to compensate you for your pain;
(b) Expectation Damages: a breach of K legal remedy; desiged to put the π in the position that they would have been had the Δ performed the K;
(b) Restitution: is meant to restore to you that which you’ve lost; it may be legal or equitable; and

2) Specific Relief: or Substitutional Relief; this is equitable and desiged to do justice;

(a) Injunctive: is when the court orders the Δ to do something or to refrain from doing something; this is an equitable remedy;
(b) Specific Performance: is an equitable K remedy that requires the breaching party to perform the K; and
(c) Restitution: is meant to restore to you that which you’ve lost; it may be legal or equitable.

Question 4

Legal and Equitable Remedies are meant to resolve ________ claims, such as _________, _________, and ____________.

Answer 4

Civil Claims

Torts, Contracts, and Transactions the result in unjust enrichment.

Question 5

What is “Equity”?

Answer 5

The exercise of a wise and just discretion in granting or withholding relief; the discretion of the court; prudence and correctness of judgment that is just and fair under all of the circumstances. Equity ≠ Fairness; the stanard of review upon appeal of equitable cases is Abuse of Discretion.

Question 6

What are 15 Maxims of Equity?

Answer 6

1) One who seeks equity must do equity;
2) One who comes into equity must come with clean hands;
3) Equty aids the vigilant, not thouse who slumber on their rights (laches);
4) Equity acts in personam (not in rem);
5) Equity follows the law;
6) Equity delights to do justice and not by halves;
7) Equity will not suffer a wrong to be without a remedy;
8) Equity regards as done that which ought to be done;
9) Equity regards substance rather than form;
10) Equity imputes an intent to fulfull an obligation;
11) Equality is equity;
12) Between equal equities the law will prevail;
13) Between equal equities the first in order of time shall prevail;
14) Equity abhors a forfeiture; and
15) Equity will not aid a volunteer.

Question 7

In South Carolina, equity has been merged into and is now considered a division of the Circuit Court. How many other states have merged, and of those states that have not merged, how do they handle equitable claims?

Answer 7

Timeline for Merger in the USA:

• 1789: The Judiciary Act of 1789 conferred jurisdiction upon the federal courts to preside over “all suits…in equity.”
• 1848: NY Commissioners on Practice and Pleading proposed abolishing the distinction between law and equity.
• 1875: England makes effective a completely unified procedure.
• 1915: US Congress permitted equitable defenses in actions at law in the federal courts, and allowed the transfer of causes from law to equity or from equity to law; the states followed suit.
• Today, Equity may be administered in the same court and by the same procedure as law in 45 states (SC included) + the District of Columbia.

Timeline for Merger in South Carolina:

• 1973: the legislature ratified a revised Article V of the SC Constitution which mandated that “judicail power shall be vested in a unified judicial system consisting of the Supreme Court, the circuit court, and other such courts of uniform jurisdiction as may be provided by general law.”
• 1988: the legislature enacted a law affirming that the “equity court is considered a division of the circuit court.”

States that have not merged:

1. Iowa
2. New Jersey
3. Delaware
4. Mississippi
5. Tennessee

In Iowa and NJ, equity may be administered in the same court as law, but on a different side of the court.

In Delaware (Court of Chancery), Mississippi, and Tennessee, equity may be administered in a separate court from law and by a different procedure.