PUBLIC LAW L4 - Sources of Law - EQUITY Flashcards
What was the formation of Equity due to? (1)
It developed from the medieval period as a response to the strict procedural rules applying under the common law.
What can Equity be defined as? (1)
The body of principles and rules administered by the Court of Chancery before the Judicature Acts 1873-5.
What is the main difference between Equity and the Common Law?(1)
Equitable remedies are discretionary.
What does the discretionary nature of equity mean? (1)
It means that the Lord Chancellor was able to act outside of the strict rules of procedure/common law and decide cases guided by his own sense of fairness.
What do so-called maxims of equity govern? (1)
Whether the Court will apply equitable principles and remedies in a given case.
What happens if there is a conflict between Common Law and Equity and who decided this and in which Act? (3)
Equity prevails, decided by James I in 1615, in section 49(1) of the Senior Courts Acts 1981.
What did the Judicature Acts do? (3)
They administered Common Law and Equity separately under the Acts. They abolished the old division between 3 Common Law Courts and created a single High Court, which could apply the rules and remedies of both the Common Law and Equity.
What is important to remember even though the Common Law and Equity both fall under the jurisdiction of the High Court? (1)
The original conceptual differences still remain.
When are equitable remedies awarded? (1)
If damages would not be an adequate remedy.
What are the equitable remedies? (5)
Specific performance, injunction, declaration, rescission and rectification.
What is specific performance? (1)
An order to compel a party to perform something they have promised to do under a contractual agreement.
What is an injunction? (2)
An order that requires a party to legal proceedings either to do something (mandatory) or to refrain from doing something (prohibitory), can be awarded unconditionally or subject to t&cs.
What is a declaration? (1)
A legally binding statement by court about the legal rights of the parties, the existence of facts or a principle of law.
What is rescission? (3)
The setting aside of a contract, may be available when a contract has been concluded as a result of misrepresentation, mistake, duress or undue influence. It is only available where the parties can be put back to their pre-contractual position.
What is rectification? (2)
It corrects a document to reflect the parties’ contractual intention, not available if errors in written contract are too fundamental or extensive.
