wk 1 Flashcards
Define Equity
Separate body of law developed in the court of chancery which supplements corrects and controls the rules of common law
What is the fundamental principle according to which equity acts
A party having a legal right shall not be permitted to exercise it in such a way that amounts to unconscionable conduct
6 characteristics of equity
Strong moral dimension Very fertile Case-driven Relies on judicial discretion Strict Largely about relationships of trust and confidence
Define equitable maxim
A summary statement of a broad them that underlies equitable concepts and principes
Discuss the scope of equitable maxims
Scope is very ill-defined and uncertain, they can overlap, be in conflict or sit uneasily together
4 things we get from equity
Protective doctrines
Useful remedies
Important concepts in property law
Procedual things
2 important concepts in prop law that come from equity
Trusts
equitable leases
5 useful remedies
Declaration Specific performance Injunction delivery up account of profits
When are equitable rems not available
When the common law has an adequate remedy
2 interesting things about equities approach to remedies
Provides different solutions (beyond damages)
Court has a lot of discretion
4 things toDiscuss the ‘courts discretion’ when deciding equitable remedies
- Accounts for a number of different factors
- Looks at what the plaintiffs did as well
- Non-punative
- Focus is on a proportionate response
What is Minimum equity
The court will give the minimum equity necessary to relieve the conscience of the party against whom the relief is sort
3 key points on equity
- Looks beyond the black letter of the law
- Equity is looking for a victim
- Equity is a concept of conscience
5 equitable maxims
- A person who seeks equity must do equity
- Equity will not assist a voluunteer
- Equity is equality
- Equity assists the diligent and not the tardy
- Equity assists those that come with clean hands
3 principles on which equity is based on
fairness
justice
good conscience
What does it mean by ‘restraint’
There are some situations where you might have to exericse your conscious and not strike a really hard bargain
When might you need to exercise restraint
When someone relies on you
Equities idea of conscience and restraint
Equity restrains peiople that are trying to act in an unconsciable way
Conscience varies with the length of a judges foot
Conscience is different in different peoples eyes
Equity will not assist a volunteer
Equity does not regard a voluntary promise as binding on the conscience of the promisor
Equity assists the dilligent and not the tardy
You need to bring the action within a certain amount of time
Equity will assist those who come with clean hands
equity will look at a plaintiffs past conduct to see if they deserve relief
Equity is equality eg
If you created a trust with 5 beneficiaries but didnt indicate what share of the trust property each was to get, equity will presume equal distribution
What was the court of chancery addressed as
court of consciene
role of the office of the court of chancery
Office is ti correct mens consciences for frauds, breaches of trusts and oppressions and to soften the extremity of the law
Where did equity develop
in the court of chancery
Why did equity need to supplement common law in early days
It was very rigid and technical, if a person wanted relief they had to fit their case within a limited number of writs
Discuss the process of the chancellor coming into his own
- Petitioners start going straight to the chancellor in 1340s
- Court of chancery becomes a distinct and permanent court with its own procedure and jurisdiction in the late 1300s
What was an early critisism of the court of chancery
Did not bind themselves strictly to precedent and the rules and principles they apply are not neatly disclosed
Consceince as established precident
Consceince became a term of art in which equity became an established body of jurisprudence
How were common law and equity fused
thriught judicatue acts of 1873-75
Jud acts
Common law courts and chancery merged into a supreme court with different divisions
