Introduction Flashcards
Moore v Street (2018)
Supreme Court of Canada
The husband of a married couple took out a life insurance policy in his name
H told the wife that if she paid the annual premiums, he would put her down as the beneficiary
Wife agreed + started the payments
In the divorce proceedings there was no mention of the life insurance policy, but the wife still continued to make the payments
Husband moves on + starts a new relationship
The husband tells his g/friend that he is going to make her the beneficiary, which he formally does
Husband eventually dies
Statutes governing the insurance industry states that the insurance company can only give the pay out the the nominated beneficiary
The law says that the £ goes to the g/friend
Wife argues that the £ is her’s, she relied on her ex-husband’s promise for 20+ years
Ct: the law cannot be changed, legally the £ belong to the g/friend
BUT equity will impose a constructive trust by the g/friend, for the wife
What held in the case of Moore v Sweet (2018)?
The Cts said that the £ legally belonged to the g/friend - the insurance statute cannot be changed
BUT equity will impose a constructive trust
The g/friend held the £ on a CT, in favour of the wife
As the adult beneficiary, the wife can then compel the g/friend to enforce the trust + transfer the £
Otherwise, the g/friend could be held for contempt in court
What jurisdiction does Moore v Sweet come from?
Canadian Supreme Court
What does the case of Moore v Sweet (2018) tell us about equity?
Case shows us that the law will always have an answer
BUT it might not always be the correct answer (in terms of morality/ ethics)
This is where equity comes in by providing, in the right circumstances, an alternative outcome to what the law provides
What did Aristotle say about the universality of law and equity?
‘all law is universal, but about some things, it is not possible to make a universal statement which shall be correct
Equity is a correction of law where it is defective owing to its universality’
What did Lord Ellesmere LC say in the Earl’s of Oxford Case (1615) about general laws?
‘mens actions are so diverse + infinite, that it is impossible to make any general law which may aptly meet with every particular Act, and not fail in some circumstances’
Equity is to ‘… soften and mollify the extremity of the law’
Where was Equity originally developed in the UK?
Who was it developed by?
By the Lord Chancellor in the Court of Chancery
What did Brietel CJ state in Simonds v Simonds (1978) about Equity?
‘Since adherence to principles of ‘law’ does not invariably produce justice, equity is necessary’
Who was Brietel CJ?
Charles D Breitel
Chief Justice of the New York Court of Appeals
What test was used to determine whether an alternative judgement should be issued?
Test of unconscionability
Reference to conscience/ morality
What is unconscionability refer to?
Reference to conscience/ morality
What happens where a D has acted unconscionably?
An equitable judgement can be made and an equitable remedy can be imposed
Explain the concept of unconscionability in Moore v Sweet
It would be unconscionable for the g/friend to keep the insurance £ (even though the law gives it to her) on the basis that the wife had acted to her detriment relying on the promise of the husband
Is conscience clearly defined?
No
It is a moral-legal construct embodying fairness, equality and stopping exploitation
Who were most of the medieval Lord Chancellors?
Senior clerics in the church
What is a great deal of Equity based on?
Medieval church law, which in turn was based on Roman law
Whist English equity is secular, the notion of conscience relates back to a theological/ethico-moral idea of justice, fairness, equality, proportionality, social justice, and preventing the exploitation of vulnerable parties
When did the old CL and the Chancery Courts merge?
1875
What remains of equity?
We no longer speak of legal/ equitable procedural rules or rules of evidence - they are the same
what remains is substantive equity (e.g. trust law, other property rights)
AND
Remedial equity (to correct the ‘harshness’ of the CL)
(just rules and remedies)
How many ‘official’ equitable maxims are there?
12
What are the 12 equitable maxims?
- Equity will not suffer a wrong to be without a remedy
- Equity follows the law
- Where there is equal equity, the law shall prevail
- Where the equities are equal, the first in time shall prevail
- Delay defeats equities
- He who seeks equity must do equity
- He who comes to equity must come with clean hands
- Equality is equity
- Equity looks to the intent rather than the form
- Equity looks on as done that which ought to be done
- Equity imputes an intention to fulfil an obligation
- Equity acts in personam
Describe the maxim ‘Equity is discretionary’
Doctrinal Equity is not fixed in stone
Judges have discretion
The principles are typically founded on what the judge considers to be fair + just
MUST NOT be forgotten that discretion doesn’t mean arbitrary choice
The exercise of judicial discretion must constantly be grounded with reference to principle
This is then consistent with the rule of law
Describe the maxim ‘Equity is triggered by unconscionability’
….
Describe the maxim ‘Those who seek equity must do equity’
When granting an equitable remedy, the judge should ensure that the claimant is willing to act fairly towards the D in the future
As seen in Chappell v Times Newspaper Ltd (1975) - an injunction was denied to the employees who wished to restrain their employers from dismissing them, because the employees has refused to undertake that they would not strike in future
What was held in Chappell v Times Newspaper Ltd (1975)
An injunction was denied to the employees who wished to restrain their employers from dismissing them, because the employees has refused to undertake that they would not strike in future
What can judge’s attach to the granting of an equitable remedy?
To ensure that the claimant does indeed ‘do’ equity, the judge can attach conditions to the grant of an equitable remedy
Describe the maxim ‘Those who come to equity must come with clean hands’
Relates to the claimant’s past conduct
Equitable relief will be denied to a claimant whose conduct can be considered to be improper in some way
Judged objectively
What rule was rejected in the case of Patel v Mirza (2016) in relation to the maxim ‘Those who come to equity must come with clean hands’?
It was once recognised that it is possible to obtain an equitable remedy despite the claimant having unclean hands if it is not necessary for the claimant to rely on the improper conduct to obtain the remedy
This was rejected by the Set in Patel v Mirza
Today, whether participation in a transition tainted by illegality should bar an equitable claim will depend on the exercise of judicial discretion, guided by reference to a variety of recognised factors such as whether it would be a proportional to deny relief
Describe the maxim ‘Equity treats as done that which ought to be done’
The idea of a specifically enforceable obligation
In particular, one which will be treated by a Ct as giving rise to a position where the parties are treated as already being in a position that would allow/ cause performance of that obligation
Describe the maxim ‘Equity protects the weak and vulnerable’
Equity intervenes to protect the weak + vulnerable, who are in a position in which thy might easily be exploited or there is an inequality of bargaining power between the parties
Illustrated by the undue influence doctrine (a construct of equity)
Describe the maxim ‘Equity is cynical’
NOT FORMALLY RECOGNISED BY THE CTS
Equity appears to be cynical about human nature/ behaviour
e.g Equity will presume that the donor didn’t intent to make a gift, so that the recipient will hold the ‘gift’ on trust for the claimant
Equity also presumes that certain relationships are unequal and that one party can hold under influence over the other
e.g. parent over child (minor), doctor over patient, solicitor over client
‘Equity is imaginative’ maxim…
NOT EXPLICITLY RECOGNISED BY THE CTS
CL has a tendency to be rigid and unimaginable in its operation
Equity is much more imaginative in its application and development
Describe the maxim ‘Equity follows the law’
This maxim has long been recognised, BUT its interpretation + application aren’t straightforward
More accurate statement = ‘Equity recognises the CL’
Cardozo J (American judge) - ‘Equity follows the law, but not slavishly nor always’
Describe the maxim ‘Equity looks at substance rather than form’
Equity looks to the intent rather than the form
e.g. Equity will ID a trust, even though the settlor has not explicitly stated that they intend to create one, where it is possible to ID an obligation that the recipient of property holds that property for somebody else
‘Equity will not assist a volunteer’ maxim…
Volunteer: Somebody who has not provided consideration for a particular transaction
e.g. the donee of a gift
Describe the maxim ‘Delay defeats Equity’
Even if the claim is not time-barred under statute, the claimant may be prevented from obtaining an equitable remedy if there has been delay in seeking the remedy
Equity assists the diligent
Describe the maxim ‘Equity is equality’
An equal division is the starting point where 2+ people have an interest in property
‘Equity acts in personam’ maxim…
Often mentioned in cases BUT its significance remains a matter of controversy + confusion
……
What did American Judge Cardozo J say in relation to the maxim ‘equity follows the law’?
‘Equity follows the law, but not slavishly nor always’
What does Lord Romilly MR state in Parkin v Thorold (1852) about the maxim ‘equity looks at substance rather than form’?
‘Cts of Equity make a distinction in all cases between that which is matter of substance and that which is matter of form; and, if they do find that by insisting on the form, the substance will be defeated, they hold it to be inequitable to allow a person to insist such form, and thereby defeat the substance’
What principles does CL operate on?
What principles does Equity operate on?
CL operates on the principle of reasonableness
Equity operates on the principle of unconscionability
Unlike CL, what is Equity more focused on?
Equity is more focused on judicial discretion and fact-based justice
CL remains focused on certainty and predictability