Lecture 2 - Statute and Equity

Question 1

Statute

Answer 1

Formal expression of the will of the people

Question 2

Basis for high authority of the statute

Answer 2

Separation of powers- There is no Constitution but effective separation of powers.
• legislature enacts laws
• executive carries them out
• judiciary interprets and applies

Question 3

Common law statute vs Civil law code

Answer 3

Common law statute
• statutes rarely purport to be exhaustive treatment of area of law. Common law a complete code and Statute a patch.
• interpretation of statute limits derogation from case law
• statutes often unsystematic, because they resolve a determinate problem but don’t cover an area.
• objective interpretation – They can’t be applied beyond the wording of the Statute. The intention of the Parliament is in the wording..
• Common law is not derogated by statute.

Civil law codes
• purports to be exhaustive treatment of subject area
• expands norms by use of analogy and by discerning principles which may be extended and applied in other contexts
• general section precedes rules of more specific and limited application
• subjective interpretation

Question 4

Method of statutory interpretation

Answer 4

• Literal rule
• Golden rule
• Mischief rule
• Use of Hansard

Question 5

Literal rule

Answer 5

• “natural and ordinary meaning” of words
• Even if the result is absurd
• R v. City of London Court Judge (1892), per Lord Esher: “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question of whether the legislature has committed an absurdity.”

Question 6

Golden rule

Answer 6

is that the Court must reach a conclusion that avoids absurdities.
• Where literal rule yields an absurdity judge may substitute a reasonable meaning in light of the statute read as a whole

Question 7

Mischief rule

Answer 7

Requires the court to see what evil or deficiency the statute sought to set right, and to interpret it accordingly. The meaning of the statute is broader than civil law and the evidence is limited (you don’t look into the “travoux preparatoire”, It’s not intentional interpretation).
• judge interprets statute consistently with view of what mischief Parliament intended to address

Question 8

Heydon’s Case

Answer 8

Lord Coke described the process through which the court must interpret legislation.

• What the law was before the statute was passed
• What problem, or ‘mischief’ the statute was trying to remedy
• What remedy Parliament was trying to provide

Question 9

Use of Hansard (official reports)

Answer 9

General rule is that Hansard should not be referred. However they were used in Pepper v. Hart .

Question 10

Pepper v Hart

Answer 10

Was related to a tax act. The house of lords held that the use of Hansard should be allowed when:

• legislation is ambiguous and literal interpretation would lead to an absurd.
• Hansard are necessaries to understand the purpose of the act ( the mischief aimed at or the legislative intention)
• Materials are clear

Question 11

Equity

Answer 11

• Based on conscience
• Rules more flexible. Rules are maxims.
• Clean hand doctrine. Someone couldn’t invoke to equity with wrongdoing.
• Time limitation. In common law there is no time limitation, however in equity litigant should act quickly

Question 12

Equity remedies

Answer 12

• Correct and supplement remedies at common law
• Always maintained original character of discretion
• Remedies in personam
• Directions to the trustee
• Injunctions
• Specific performance

Question 13

Keech v. Sandford (leading case of equity)

Answer 13

The lessor refused to renew the lease to the cestui. The question of the Court. It’s lawful for the trustee to take the lease? Lord chancellor said that the whole world can take the lease but the trustee. Reason : because the trustee could change the circumstances to make the lessor don’t want to renew the lease.