The Fusion Of Law And Equity

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. In this volume leading scholars assess the significance of the fusion of law and equity from comparative, doctrinal, historical and theoretical perspectives.

This book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, namely, appeal to conscience, flexibility, retroactivity and the use of morally-freighted jargon, are essential for the implementation of a legal ideal that has been neglected by the Common Law: 'Accountability Correspondence'. According to this fundamental legal ideal, liability imposed by legal rules should correspond to the pattern of moral duty in the circumstances to which the rules apply. Equity promotes this ideal in the fields of property and obligations by disallowing parties to exploit the rule-like nature of Common Law norms in a way that breaches their moral duty to the other party. By reference to various equitable doctrines, it is argued that the faults identified by critics of Equity, especially from the perspective of the Rule of Law, are highly exaggerated, and that the criticism often reflects a political belief in the supremacy of individualism and free market over empathy and social justice. The theoretical part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands. For each doctrine, it is shown how their equitable characteristics are indispensable for achieving their social, ethical and economic purpose.

This book explores the 'clean hands' doctrine, a safety valve in the legal system designed to correct injustice.

This second edition of Sarah Worthington's Equity maintains the clear ambitions of the first. It sets out the basic principles of equity, and illustrates them by reference to commercial and domestic examples of their operation. The book comprehensively and succinctly describes the role of equity in creating and developing rights and obligations, remedies and procedures that differ in important ways from those provided by the common law itself. Worthington delivers a complete reworking of the material traditionally described as equity. In doing this, she provides a thorough examination of the fundamental principles underpinning equity's most significant incursions into the modern law of property, contract, tort, and unjust enrichment. In addition, she exposes the possibilities, and the need, for coherent substantive integration of common law and equity. Such integration she perceives as crucial to the continuing success of the modern common law legal system. This book provides an accessible and elementary exploration of equity's place in our modern legal system, whilst also tackling the most taxing and controversial questions which our dual system of law and equity raises.

The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline.

What is equity? This book explores modern equity's nature, especially its facilitative character and its role in common law systems.