Through the fusion of equity to common law we can see that equity has this aspect of flexibility which it offers to common law. This idea of flexibility is beneficial because common law is based on a rigid system where the actions are monitored by a system of rules and judgements, equity goes on to offer an aspect of flexibility to this rigid system of common law. Through the evolvement of equity, we see that people gain equitable interest as well as legal interest, especially with regards to property and trusts. Legal interest are the rights we have from common law whereas equitable rights are not specific rules of law, they are dependent on a set of discretionary rules which are termed as maxims. This amalgamation of equity and common law lets us; the common man have various ways of getting remedies. Through the fusion of equity and Common Law the various number/types of remedies have increased as well as the scope for the common man to get remedies has been augmented on. Through the fusion of common law and equity we can see that the remedial and procedural aspect of it has been affected in relation to various aspects of law. This idea can best seen through the use of an example and in this example we will use mortgages, through this example we will see the different procedural and remedial aspect of the marriage of equity and common law.
If we see, common law treats mortgages likes contracts; here any failure to pay off the mortgage by the stipulated date would result in the mortgaged property being forfeited to the lender. This can be done by the common law doctrine of forfeiture. Through the eyes of equity, if we look at the idea equity of redemption we can see that it reduces the harshness of the law by restraining th...
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...s also given to us the idea of trusts, arguably one of its greatest contributions through which we can further develop new ways to meet new circumstances in the legal world. Through this critical essay we have also taken a look at the view of a prominent scholar who supports the view of the integration of common law and equity. This critical essay have also compared and contrasted cases which have aided my idea of the developing of new corrective measures for the future. As it is a critical essay we have also looked at the negative views of the integration's effect on the idea of developing measures to combat new circumstances, one of its major points amongst many others are that when equity and common law have been merged it brings in an aspect of inconsistency which hampers the ability of judges to develop new correctives and devices to meet new circumstances.
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
The rise of the unprecedented ageing of the population in Australia has provoked a significant amount of interest being paid with regards to the difficulties facing elderly people who have become subject to various forms of abuse, including financial abuse. Subsequently, situations have arisen whereby an improper acquisition of the elder’s assets by their children or other relatives appointed to protect their interests has led to an increase in equitable doctrines being pleaded to set aside these transactions . Therefore, the purpose of this essay is to critically examine the ways in which the operation of the equitable doctrines of undue influence inter vivos and unconscionable dealings for the elderly claimant has been applied in the
What are the necessary requirements of the doctrine of proprietary estoppel and discuss whether the notion of unconscionability alone lead to a successful remedy. Furthermore, examine how constructive trusts and proprietary estoppel allow the courts to stray from relevant statutory provisions and empowers judiciary to have more discretion where equitable remedies are queried.
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
The doctrine of unconscionable bargains can be regarded as difficult to define but various cases have succeeded in refining the doctrine to a simple understanding. In Evans v Llewllin, unconscionable bargains is a well established jurisdiction in equity to relief against transaction regarded as considerably disadvantageous to the complainant, who is in a special position of weakness compared to the defendant and where transaction was procured by the defendant in a morally culpable manner. The power to provide equitable relief from unconscionable bargains stems from the Court of Chancery’s power to set aside agreements with expectant heirs that had been pressured into entering contracts as a result of their ignorance and poverty, this was evident in Earl of Aylesford v Morris. Fry v Lane established this principle of law, with Kay J stating that ‘where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice, a Court of Equity will set aside the transaction’. It is not enough for the terms of an agreement to be unconscionable or unfair, making it more favorable to the defendant than the complainant; it must show defendant’s conduct is unconscionable. Capper noted, the doctrine struggled in adapting to the declining need of expectant heirs in the early twentieth century and was abandoned until its reappearance in Cresswell v Potter where the elements of the doctrine where not just incorporated to suggest a party ‘’of a lower income group and less highly educated’’ but the concept in regards to expectant heirs was disregarded. Over the years it had become significantly popular in cases where one party had been mistreated due t...
Milgate, Dally, Webster, Cornu, Kelly. 2010 Cambridge Legal Studies: Preliminary (Second Edition). Sydney. Cambridge University Press pp 311 - 314
The American Association of University Women (AAUW) has long fought to end wage discrimination. Despite the Equal Pay Act and many improvements in women’s economic status over the past 40 years, wage discrimination still persists. AAUW continues to believe that pay equity—economic equity—is a simple matter of justice and strongly supports initiatives that seek to close the persistent and sizable wage gaps between men and women. The effects of pay inequity reach far. According to a 1999 study by the Institute for Women’s Policy Research and the AFL-CIO, based on U.S. Census Bureau and Bureau of Labor statistics, women who work full time earn just 74 cents for every dollar men earn. That equals $148 less each week, or $7,696 a year. Women of color who work full time are paid even less, only 64 cents for every dollar men earn—$210 less per week and $11,440 less per year.
If the reciprocity of rights and duties means that the content of the law can be got at just as easily from either and of a legal relationship, it is the Dutch jurist Grotius in the 17th Century who suggests that we should make a habit to start with rights. In his work, it has been said, the law of nature becomes ‘respect one another’s rights’. Then his contemporary Hobbes pushes the idea of right beyond legal restraint by calling it a liberty to do or to forbear-contrasted with law, ‘which bindeth to one of them’ and allowing, in the form of a right of nature anything which is necessary to an individual’s self preservation.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
Common law is “judge made-law” and “includes law by judges when they interpret law (lecture notes, 11/16)”. Common law authors trusted that “natural law was too abstract and theoretical for their pragmatic, concretely focused minds…simply out of touch with concrete human affairs (Coleman 593)”. Therefore, common law was developed.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
In his treaty On Law, Thomas Aquinas defends the position that “the law is always something directed to the common good”. Laws are thus directed toward a comm...
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
This essay will examine the doctrine of Judicial precedent that helps form the English Legal System. It will illustrate various views that have been raised by Judges and relating cases to the use of ‘Stare decisis’ when creating precedents. In addition it will discuss how the developments in the powers of the courts now also allow them to depart from these precedents to an extent.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...