MLL406 Lecture Notes - Lecture 1: Concurrent Jurisdiction, William Deane, Roscoe Pound
1 Jul 2018
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Origin and Nature of Equity and its Relationship with the Common Law
NATURE OF EQUITY:
•The defects that arise in and may be caused by the system of justice itself cannot be
cured by the application of universal principles.
•A generalized principal is not going to be fail for everybody
•Equity is superior to the universal form of justice because it can cater for the
individual
•Equity is not better than absolute justice but better than the error that arises from the
‘absoluteness of that statement’.
•‘equity is a species of justice which is superior to legal justice because of its function
as a ‘rectification’ of the law.’
‒Standards of conduct rather than rules: Good faith; Unconscionability; Due care;
Honesty; Fair dealing / fairness; Generosity; Reasonableness; Unjust enrichment.
WHAT IS EQUITY
•(1) The introduction of the common law theory of binding precedents and resulting
case-law equity;
•(2) as a legitimate consequence, the crystallization of equity culminating under Lord
Eldon;
•(3) the adoption of equitable actions and equitable defenses in the common law;
•(4) the conjunction of legal and equitable jurisdiction in the same courts, so general in
America; and
•(5) the abolition of the distinction between law and equity in procedure and the
resulting power of courts to administer both or either in the same action
•UNCONSCIONABILITY AS A STANDARD
•not simple unfairness but that in the circumstances it would be unconscionable for the
court to withhold relief.
•ACCC v CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491.
‒Abusing a position or relationship of trust and confidence
‒Exploiting a recognised vulnerability or weakness
‒Unfair insistence on strict legal rights in circumstances where this would be harsh or
oppressive
‒Unfair refusal to perform legal obligations.
•EQUITY COMMON LAW
•Discretionary - orderly
•Retrospective - consistent
•Relative - predictable
•Surprising results - general
•Arbitrary / ad hoc
•DISCRETIONARY NATURE OF EQUITABLE RELIEF
•Discretion operates at 2 levels:
–Consider whether the particular circumstances warrant any equitable relief at all
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•Is common law relief adequate?
•Would it refute conscience to deny equitable relief?
–IF ‘YES’
–Assess the type or measure of relief to be granted in the circumstances
•Considering circumstantial factors: eg hardship, laches, delay, conduct of
parties, adequacy of common law relief, adequacy of relief being sought,
consequences of relief on both parties.
“The liberty of considering all cases in an equitable light must not be indulged too far, lest
thereby we destroy all law, and leave the decision of every question entirely in the breast of
the judge.”
1. In personam
•Attached to the person; focus on conscience
2. Discretionary
•Required to establish unconscionable behaviour
•Conflict between courts of equity and common law courts
•Common law courts challenged Courts of Equity.
•1873 Judicature Act
•High Court of Judicature
–Queen’s (King’s) Bench
–Chancery
•Categories of Unconscionable Conduct
–The exploitation of vulnerability or weakness: unconscionable dealing, undue
influence
–The abuse of positions of trust and confidence: law of trusts, fiduciary obligations
–The insistence upon rights in circumstances which make such insistence harsh or
oppressive: relief from penalties and forfeiture, equitable set off, specific
performance, on the discretionary ground of hardship
–The inequitable denial of obligations, doctrine of part performance, principle of
equitable estoppel
–The unjust retention of property, constructive trusts, principles of subrogation.
Maxims of Equity:
•Equity follows the law: supplements does not overrule;
•Equity is equality: equity tries to balance out transactions in the form of relief
granted;
•Equity assists only those with clean hands - must be ‘equitable’ to seek equity;
•Equity deems that to be done which ought to be done;
•Relief in equity is: discretionary, personal and damages must be inadequate.
Riggs v. Palmer 115 N. Y. 506, 22 N. E. 188 (1889):
•A grandson, knowing that he was a beneficiary under his grandfather's will, murdered
him. The statutes regulating the making, proof and effect of wills, and the devolution of
property under them, made no exception in the case of a beneficiary who killed the
testator to gain the bequest.
•Law was clear and unambiguous in entitling benefit
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•To avoid incongruous results the courts said that statutory interpretation should “best
answer the intention which the makers had in view, for qui hoeret in litera, hoeret in
cortice.”
•Lit: He who adheres to the letter adheres to the bark
•If you stick to the literal meaning of the law you will not be able to reach the substance
•The court applied an equitable construction of statute: Aequitas est correctio legis
generaliter lato qua parti deficit
•Lit: Equity is the correction of the law, when too general, in the part in which it is
defective.
MAXIMS:
•The reason ceasing, the law itself ceases.
•No one can take advantage of his own wrong. No one should suffer by the act of
another.
•An injury cannot be done to a willing person.
•The law compels no one to do anything which is useless or impossible.
•The law does not recognize trifles.
•A thing similar is not exactly the same.
•That is certain which can be made certain.
•Equity delights to do justice and not by halves.
•Between rights otherwise equal, the earliest is preferred.
•Equity aids the vigilant, not those who slumber on their rights.
•Equity abhors a forfeiture.
•Equity does not suffer a wrong without a remedy / Where there is a right there is a
remedy - Ubi jus, ibi remedium
•Equity regards substance rather than form
•Equity regards as done that which ought to be done
•Equality is equity. - Equity delights in equality
•Where the equities are equal, the first in time will prevail
•Where the equities are equal, the law will prevail
•Equity follows the law
•One who comes into equity must come with clean hands
•One who seeks equity must do equity
•Equity aids the vigilant not those who sleep on their rights - Vigilantibus et non
dormientibus aequitas subvenit
•Delay defeats equity
•Equitable remedies are given as a matter of grace or discretion, not right
•Equity acts in personam, not in rem
•Equity imputes an intention to fulfil an obligation
•Equity acts specifically
•Equity does not stoop to pick up pins
•Equity will not decree a vain thing
•Equity will not be ousted because law courts have adopted an equitable remedy.
Equity does not suffer a wrong without a remedy:
•Where there is a civil, legal right there is a legal remedy
•Equity follows the law: aequitas sequitur legem
•Equity fills gaps in law
•But, it does not apply:
–to crime – although it may to part crime eg. criminal nuisance
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Origin and nature of equity and its relationship with the common law. Equity is a species of justice which is superior to legal justice because of its function as a rectification" of the law. ". Standards of conduct rather than rules: good faith; unconscionability; due care; Honesty; fair dealing / fairness; generosity; reasonableness; unjust enrichment. What is equity (1) the introduction of the common law theory of binding precedents and resulting case-law equity; (2) as a legitimate consequence, the crystallization of equity culminating under lord. Eldon; (3) the adoption of equitable actions and equitable defenses in the common law; (4) the conjunction of legal and equitable jurisdiction in the same courts, so general in. Abusing a position or relationship of trust and confidence. Unfair insistence on strict legal rights in circumstances where this would be harsh or oppressive. General: discretionary nature of equitable relief, discretion operates at 2 levels: Consider whether the particular circumstances warrant any equitable relief at all.
