880734
Descrição
Mapa Mental por ladyamaya86, atualizado more than 1 year ago
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Criado por ladyamaya86
mais de 10 anos atrás
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History and Nature of Equity I
- relates to fairness and justice - but has a
more precise meaning in legal system
- evolved through
the Court of
Chancery and
Lord Chancellor's
jurisdiction
- Petitions were made to the
King on the basis of justice
(King's conscience) -
later through Lord
Chancellor
- James I established
equity's supremacy over
common law
- If there is
conflict - equity
prevails
- If there is
conflict - equity
prevails
- Petitions were made to the
King on the basis of justice
(King's conscience) -
later through Lord
Chancellor
- until 19th Century - two
parallel jurisdictions -
common law and equity
- common law
created by King's
Court
- Equity offered a
flexible alternative
- Provision of Oxford
1258 limited creation
of new writs
(common law)
- common law
created by King's
Court
- Criticism
- Equity's role varies
with the 'length of the
Chancellor's foot'
(Selden)
Anotações:
- http://www.bartleby.com/100/155.html (Quote One)
- Tension between
'caprice' of equity
jurisdiction and set
rules of common law
- Idea of inherent
flexibility and
discretionary
nature of equity
- Equity's role varies
with the 'length of the
Chancellor's foot'
(Selden)
- Legal definition - 'a body of law which consists of
rights and remedies which evolved through the
Court of Chancery
- evolved through
the Court of
Chancery and
Lord Chancellor's
jurisdiction
- 19th Century - Supreme Court of
Judicature Acts (1873-5) fused common
law and equity
- debate over whether this was substantive or administrative
- did the Act allow courts to
apply both types of law?
(administrative fusion)
- Or did it fuse the jurisdictions so
there is no difference between
common law and equity?
- Ashburner - "two streams of jurisdiction,
though they run in the same channel...do
not mingle their waters" (Principles of Equity)
- Compare - United Scientific Holdings
Ltd v Burnley Borough Council (1977)
and MCC Proceeds Inc v Lehman
Brothers Int'l (1998)
- Ashburner - "two streams of jurisdiction,
though they run in the same channel...do
not mingle their waters" (Principles of Equity)
- did the Act allow courts to
apply both types of law?
(administrative fusion)
- debate over whether this was substantive or administrative
- 20th Century developed e.g. Lord
Denning's new model constructive trust
- The Mareva Injunction (Freezing Order)
- The Anton Pillar Order (Search Order)
- demonstrates the creativity of equity
- The Mareva Injunction (Freezing Order)
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