Equity Is Not a Single Thing

2020 ◽  
pp. 144-167
Author(s):  
Lionel Smith
Keyword(s):  
Common Law ◽  
The Body ◽  
Three Dimensions ◽  
Narrow Sense ◽  
Philosophical Foundations ◽  
Rules And Principles ◽  
Unique Manner ◽  
The Common ◽  
Court Of Chancery

In this chapter, I ask whether it is possible to identify the philosophical foundations of Equity as it was defined by Frederic Maitland: the body of rules and principles that were developed over the centuries by the Court of Chancery. My answer is that there is no single purpose, approach, philosophy, or norm that characterizes Equity so defined. What is characteristic about Equity is a unique manner comprehending the juridical nature of some obligations, which grew out of Equity’s regulation of uses and trusts. This approach reveals three dimensions. First, Equity requires that one who owes such an obligation perform it, if necessary by substitution; there is no option of breaching and paying compensation for loss caused. Secondly, these obligations are understood by Equity in a manner that has the effect of depersonalizing the burden of these obligations. In the civil law tradition and in the common law (in the narrow sense that excludes Equity), an obligation is a bilateral relationship. Equity’s unique philosophy in relation to some obligations turned them into something like property rights and created the office of trusteeship. Finally, Equity understood some obligations not as freestanding particles but as elements of a particular kind of relationship, and this relationship is capable of itself generating new primary obligations. All these elements taken together facilitated the creation of an enduring conceptual toolkit for the juridical apprehension of relationships in which one person acts for and on behalf of another.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Remedies for equitable wrongs

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Breach Of Contract ◽  
Turn On ◽  
The Supreme Court ◽  
The Common ◽  
Law Courts ◽  
Substantive Law ◽  
Court Of Chancery

Torts and breach of contract are termed common law wrongs because they were historically developed in the common law courts. Equitable wrongs are civil wrongs that historically were developed in the Court of Chancery. Despite the fusion of the common law courts and the Court of Chancery by the Supreme Court of Judicature Acts 1873–1875, much of the substantive law has not been fused. One example is the continued distinction between common law and equitable wrongs. In a rational fused system, nothing should turn on whether a civil wrong is common law or equitable. But that is not the present law.

1. Foundations

2020 ◽  
pp. 3-32
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Legal Rights ◽  
History Of ◽  
The Common ◽  
Special Concern ◽  
Trust Property ◽  
Court Of Chancery ◽  
Conceptual Foundations ◽  
The Relationship ◽  
Historical Origins

This chapter focuses on the historical and conceptual foundations of trusts and equity, first examining the history of the relationship between law and equity, including the historical origins of the trust. It then explains the idea of equity and how it is intertwined with the common law, and compares the trust with concepts such as gifts and contracts. The chapter shows that the trust arose in response to equity’s special concern to ensure that legal rights are not used in bad conscience, but later developed into a sophisticated institution governed by established rules. It looks at the reform of the Court of Chancery and considers trust property, equitable rights under a trust, separation of legal and equitable title, and the paradox of property and obligation.

scholarly journals RELIGIOSITY IN CRIMINAL LAW: ISLAMIC PERSPECTIVE

2019 ◽  
Vol 4 (1) ◽  
pp. 1
Author(s):  
Abdurrahman Raden Aji Haqqi
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Common Law ◽  
The Body ◽  
Religious Ritual ◽  
Belief Statement ◽  
The Family ◽  
The Holy Quran ◽  
The Common ◽  
Human Kind

The fundamental premises of Islamic law are that Allah has revealed His will for human-kind in the Holy Quran and the inspired example of the Prophet Muhammad (Peace be Upon Him), and that society's law must conform to Allah's revealed will. The scope of Islamic law is broader than the common law or civil law. In addition to core legal doctrines covering the family, wrongs, procedure, and commercial transactions, Islamic law also includes detailed rules regulating religious ritual and social etiquette. In Islam, religiosity is not asceticism in monasteries nor is it chattering from the pulpits. Instead, it is behaving in a manner that is requested from the Creator under all circumstances, places and times, in belief, statement and actions. Historically, law and religion have never been completely separated. They have never been so independent as to achieve complete autonomy from each other. Religion has essentially been embodied in legal systems, even in those that have aspired to privatize religion. Based on this fact, this paper discusses such fact i.e religiosity on specific theme of Islamic law that is criminal law which means the body of law dealing with wrongs that are punishable in Islamic law with the object of deterrence.

16. Equitable maxims, doctrines, and remedies

2020 ◽  
pp. 563-606
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Special Function ◽  
Common Law ◽  
Legal Rights ◽  
Court Cases ◽  
Very Old ◽  
The Common ◽  
Court Of Chancery ◽  
Over Time ◽  
The Way

In general, the leading court cases on equitable doctrines and remedies are very old. The fact that they still have the power to determine modern cases proves that equity is inherently adaptable. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied (since the Judicature Acts 1873–1875) by the unified Supreme Court of England and Wales. In addition, equity, as a dimension of law, has retained its special function of restraining or restricting the exercise of legal rights and powers in certain cases. This chapter considers particular principles (including maxims), doctrines (including conversion, satisfaction, performance, and election), and remedies that have been developed over time to help predict the way in which equity will operate in various types of cases.

20. Equity: doctrines and remedies

2019 ◽  
pp. 477-506
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Knowledge ◽  
Very Old ◽  
England And Wales ◽  
Key Points ◽  
The Common ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Way

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.

scholarly journals Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution

2021 ◽  
Vol 24 ◽  
pp. 1-32
Author(s):  
Tina Kotzé ◽  
Zsa-Zsa Boggenpoel
Keyword(s):  
Common Law ◽  
Constitutional Rights ◽  
Narrow Sense ◽  
Underlying Principle ◽  
Living Together ◽  
The Common ◽  
Nuisance Law ◽  
The Republic ◽  
The Relationship

The Covid-19 pandemic, with its concomitant "stay at home" catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the Covid-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of "reasonableness" in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties. Whether the nuisance is objectively reasonable or goes beyond that which can be reasonably tolerable under the circumstances requires weighing up various factors dependant on the prevailing circumstances, rights, interests, values and obligations of the neighbours and the community. In the constitutional dispensation, based on the values of human dignity, equality, and freedom, this may inadvertently require courts to balance out and reconcile often opposing constitutional rights. To this end the underlying principle of nuisance law encapsulated in the phrases "give and take" and "live and let live" arguably already encapsulates the notion of balancing respective rights (constitutional or otherwise) and interests given the context of each case. However, courts do not always correctly apply the reasonableness test in a principled and coherent fashion, as illustrated in Ellaurie v Madrasah Taleemuddeen Islamic Institute 2021 2 SA 163 (KZD). This may lead to the conclusion that constitutional rights are ignored when the reasonableness test for nuisance law is applied. It is necessary to reconceptualise the reasonableness test in order to ensure that the common law is infused with constitutional values. There are numerous ways in which the ideals and values of the Constitution of the Republic of South Africa, 1996 (and even specific constitutional rights other than property rights) could be advanced if courts were more willing (not being held back by conservatism) and able (equipped with the necessary vocabulary) to apply the common law in line with the Constitution. It is pivotal that courts apply the reasonableness test correctly, considering all the relevant circumstances of the case, including the broader constitutional values and ideals such as ubuntu. It is arguable that if this were done, nuisance law would have a greater potential to incorporate a wider range of rights, interests and values so that the outcomes would be fairer and more equitable, which is, after all, the goal of the reasonableness standard in neighbour law.

scholarly journals Marital Power Finally Obliterated: The History of the Abolition of the Marital Power in Civil Marriages in Eswatini

2020 ◽  
Vol 23 ◽  
pp. 1-19
Author(s):  
Simangele D Mavundla ◽  
Ann Strode ◽  
Dumsani Christopher Dlamini
Keyword(s):  
Common Law ◽  
Research Work ◽  
Legal Framework ◽  
Married Women ◽  
The Body ◽  
Advocacy Groups ◽  
Marital Power ◽  
Body Of Knowledge ◽  
History Of ◽  
The Common

Women's subordination is not new in the world. As society became human rights conscious, many countries started abrogating or scrapping discriminatory laws and attitudes towards women, in particular married women. However, it has taken Eswatini more than 100 years to deal with the fact that the common law principle of marital power discriminates against women. This paper traces the reception of marital power into the legal framework of Eswatini and how advocacy groups on women's rights and freedoms have opposed women's subordination, fortified by research. This paper presents a desktop review of selected literature and case laws touching on women's emancipation in Eswatini. This research work is significant in that it adds to the body of knowledge by recording the origins of women's subjection to marital power and their eventual emancipation in the landmark case of Sacolo v Sacolo (1403/2016) [2019] SZHC 166 (30 August 2019).

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