Paragraph 1 Flashcards
Why was equity originally created?
When equity originally created to stop the harshness of common law it was innovative; it developed new remedies and recognised new rights where the common law failed to act.
Why was equity effective?
The effectiveness of equity was largely due to its ability to adapt and innovate, yet inevitably, this development itself became regulated in a similar way to the development of the common law.
Why are equitable maxims important?
There are maxims of equity which may determine the outcome of disputes. Although the judge has a discretion in the granting of an equitable remedy, that discretion is exercised according to settled principles. Thus, it might be said that equity can develop no further; the rules of precedent predetermine the outcome.
How are the equitable maxims developing equity no further contradicted?
Yet, this is contradicted by a number of new developments in equity, for example, the recognition of restrictive covenants, the expansion of remedies, the development of doc- trines such as proprietary estoppel, the enhanced status of contractual licences and, as referred to in the quotation from the judgment of Lord Denning, the new model constructive trust, are all illustrations of developments in equity.
Is there an attempt to justify the new developments?
There is an attempt, however, to justify these new developments, which are all examples of judicial creativity, by precedent.
What did Bagnall J say in Cowcher v Cowcher (1972)?
As Bagnall J said in Cowcher v Cowcher [1972]: ‘This does not mean that equity is past childbearing; simply that its progeny must be legitimate—by precedent out of principle. It is well that this should be so; otherwise no lawyer could safely advise on his client’s title and every quarrel would lead to a law-suit’.
