Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
33 Cards in this Set
- Front
- Back
|
MAITLAND AND HISTORY OF EQUITY
|
- Equity a body of law consisting or rights and remedies
- two parallel systems of law - history and development of equity - maxims of equity applies a new conscience to find remedies - equity ensures flexibility and fairness in unconscionable transactions - O'Brian - Maitland suggest fusion of equity and common law - the Judicature Acts encouragement development - Meatloaf bresaola beef ribs ribeye t-bone sausage pork chop pork chuck kevin meatball pig chicken. Shoulder shank sausage turkey, sirloin pork chop corned beef flank drumstick rump. Leberkas shoulder pork chop porchetta rump kevin turducken ribeye short loin filet mignon ground round prosciutto. T-bone sirloin salami andouille pig short ribs. Filet mignon meatloaf hamburger, pork chop flank chuck beef ribs capicola beef salami tongue jerky pancetta. T-bone bresaola tongue, ham hock tri-tip venison pastrami jerky boudin. - Rump chuck turkey, prosciutto meatball beef turducken pancetta swine strip steak pastrami hambur |
|
|
MAITLAND AND HISTORY OF EQUITY
History - Common law |
- common law emerged along with injustice and unfairness
- inadequacy of common law - litigants unhappy about the number of limitations - complex and expensive - writs, technical mistakes, later no new writs introduced, became rigid and inflexible - failure of common law to recognize rights - Provision of Oxford 1258 and Statute of Westminster made limitation of writs and allowed for no remedies - Pig tenderloin tail pork loin. Ham shank chicken pancetta, jerky tongue pork capicola kevin pig short ribs swine landjaeger prosciutto. Ribeye t-bone pastrami kielbasa salami rump bresaola ham short loin frankfurter. Meatball capicola ground round corned beef, kielbasa short ribs fatback beef ribs doner andouille turducken cow kevin flank. Frankfurter leberkas brisket filet mignon, t-bone capicola ham hock andouille. Venison landjaeger flank pastrami tail pork belly short ribs capicola t-bone boudin. -Shankle chuck meatloaf, short ribs rump t-bone leberkas filet mignon meatball bacon |
|
|
MAITLAND AND HISTORY OF EQUITY
History - Equity |
- equity began with claimant's last resort to petition the King for a remedy
- King exercised discretion based on individual facts - King's conscience provided justice - Later role given to Lord Chancellor, high ranking religious officials - justice and morality rooted in it - appeals grew equity's Court of Equity shaped - end of 16th century - Chancellors and lawyers - Shankle chuck meatloaf, short ribs rump t-bone leberkas filet mignon meatball bacon porchetta cow short loin. Swine andouille boudin meatloaf tri-tip brisket. Bresaola chicken fatback prosciutto biltong, boudin strip steak venison shankle. Beef ribs biltong kevin sausage salami turducken cow meatloaf. |
|
|
MAITLAND AND HISTORY OF EQUITY
History - Judicature Acts 1873 -75 |
- Conflicts between common law and equity
- common law and applying rules - Court of Chancery checks and balances - Common law not always applying rules with Equity - reform of administration, Judicature Acts 1873-1875 - fuses jurisdictions, judges can use common law and equitable conscience rules in one court - Lord Diplock, United Scientific Holdings, "long since mingled" |
|
|
MAITLAND AND HISTORY OF EQUITY
Maxims of Equity |
- maxims of equity allows common law judges to apply a new conscience
- broad principles help guide the court to exercise equitable discretion 1. maxims concerning the nature of equity and its jurisdictions - Equity will suffer not suffer a wrong without a remedy i.e. Trust and beneficiaries search orders, interim injunctions - equity follows the law i.e. relationship ensures fairness, does not replace |
|
|
MAITLAND AND HISTORY OF EQUITY
Maxims of Equity (cont) |
2. Maxim concerning the conduct of claimants
- he who comes in equity must come with clean hands i.e. discretionary, considers past conduct if it will intervene or not - he who seeks equity must do equity i.e. looks at past and future behaviour, Chappell v Times Newspaper [1975] - dealy defeats equity i.e. claimant duly delays 3. maxims concerning circumstances it will operate - equity looks at intent not form i.e. substance of agreement - equity will not permit a statute to be used as an instrument of fraud i.e. guardian, Wills Act 1837 - vaility of secret trusts - equity is equality |
|
|
MAITLAND AND HISTORY OF EQUITY
Unconscionable transactions |
- rule of equity is fused to ensure flexibility and fairness
- Maitland states "equity is essentially supplementary jurisdication, and appedix or gloss on the common law" - relationship of two jurisdictions - O'Brian [1993] undue influence, duress exploitation of the weak - contractual agreements entered under pressure, equity will set it aside - Bank had constructive notice and put on inquiry and failed to take reasonable steps - Conclusion, equity and common law is cooperative and accessible, and allows for coherency in law. - special development that responds to peoples needs - a hermeneutic approach used to interpret law - not blindfolded in the discourse of equity - Maitland "speak more on modern relations between equity and law, and the prevalence which is assured to equity by the Judicature Act 1873. |
|
|
MAITLAND AND HISTORY OF EQUITY
Unconscionable transactions (cont) |
- Conclusion, equity and common law is cooperative and accessible, and allows for coherency in law.
- special development that responds to peoples needs - a hermeneutic approach used to interpret law - not blindfolded in the discourse of equity - Maitland "speak more on modern relations between equity and law, and the prevalence which is assured to equity by the Judicature Act 1873. |
|
|
TRUSTEES - RULES AND OBLIGATION
|
- Nature of trust - settlor, trustee and beneficiary
- Beneficiaries have an equitable interest - Quistclose (1970) - trustees have a moralistic understanding of the trust - obligations of the trust are adequate - duties to invest to general income - maintenance and advancement of assets Obligation - appointment and removal re Lord and Fullerton's Contract [1965] Section 19 TOLATA 1996 - states beneficiaries can appoint trustees of their choosing. - a beneficiary may direct a trustee in writing to retire - payment of trustees not allowed, prevents financial motives, renumeration clause is used |
|
|
TRUSTEES - RULES AND OBLIGATION
(cont) |
- s.31 Trustee Act 2000 trustees may recover expenses
- not allowed to hold property only on exception cases , Holder v Holder [1968] - duty to invest and generate income for life tenant - Trustee Investment Act 1961, overly protective approach to investing, not for complex modern transactions- Trustee Act 2000, widens investment powers, clarifies duties and obligations, protects beneficiaries |
|
|
TRUSTEES - RULES AND OBLIGATION
duties cont. |
- has a duty to act evenhandedly, Nestle v National Westminster Bank [1993]
- manage risks in investment - discretion but must be reasonable, controls - consider income and preserve capital - balancing risky investments with returns - s 11 and 15 gives functions of trustee's delegation, duty to take care of selecting agents, Fry v Tapson (1885) - employ to carryout task - s 22 and 23 must review agents and liable for faults if fail in duty of care |
|
|
TRUSTEES - RULES AND OBLIGATION
Maintenance and advancements |
- asked to assist beneficiaries financially before their interest is redeemable
- done by discretion - to prevent abuse s. 53 Trustee Act 1925 and s.31 Trustee Act 1925 - can apply part or all of the income for maintenance of education, benefit a minor - in good faith, Bryant v Hickely (1894) - money not paid automatically, Wilson v Turner (1883) - s.31(3) limitations on power of maintenance - large discretion, Pilkington [1964] and s.32 TA 1925 |
|
|
TRUSTEES - RULES AND OBLIGATION
Maintenance and advancements (cont) |
- beneficiaries can vary terms, Saunders [1841]
can collectively end trust or change terms, but beneficiaries cannot use threat to end trust to force investment, Stephenson Inspector [1975] Conclusion, responsibility of trustees are huge and argued that weight far exceeds their expectations, and thus weight provides extremely limited opportunity for abuse |
|
|
CONSCIENCE AND UNDUE INFLUENCE
|
- an equitable interpretation of the law to prevent unconscionable acts
- hermeneutic approach in equity - equitable relief against unconscionable bargains - matters of undue influence in England and Australia |
|
|
CONSCIENCE AND UNDUE INFLUENCE
Hermeneutic approach |
- hermeneutic techniques in equity interpret cases different than common law
- special jurisdiction that is defined by the law of conscience - law of equality and fairness allows flexibility and interferes to create fair results - developed in the Courts of Chancery - early common law systems, problems of Provision of Oxford 1258 and Statute of Westminster - hermeneutic interpretation requires human understanding, good manner of life and neighbour - apply a new conscience rather than common law precedents - developed the maxims of equity, decisions to follow principles |
|
|
CONSCIENCE AND UNDUE INFLUENCE
Unconscionable bargains |
- equitable relief against unconscionable bargains
- interpret law for those acting in situations of fraud, undue influence, inequality of bargaining powers and transactions and conduct, Royal Brunei [1995] - interprets the law in estoppel, things in confidence - breach of confidence, fiduciary obligations and abuse of trusts, Target Holdings (1995) - undue influence may exist where a contract entered as a result of pressure, O'Brian (1993) |
|
|
CONSCIENCE AND UNDUE INFLUENCE
Undue influence in England |
- equitable relief
- Morgan (1985) undue influence is defined. Lord Scarman recognized the existence of an equitable jurisdiction to grant relief against unconscionable or unfair bargain. - Lyonnis (1997) argued as an undue influence case, but indicated by Millet that would be better seen as an unconscionable bargain. - However, there are severe limitations as in Pigott (1993) - these limitations: it is not sufficient that a bargain be hard unreasonable or foolish it must be reprehensible, as in Marden |
|
|
CONSCIENCE AND UNDUE INFLUENCE
Undue influence in England (cont) |
- Unconscionable must also relate to the behaviour of a stronger party, in Alec Lobb
- another limitation is equitable intervention is used only when it is unconscientious, Hart - also it must be unconscionable conduct, Amadia(Aus) - |
|
|
CONSCIENCE AND UNDUE INFLUENCE
Undue influence in Australia |
- undue influence part of Australia courts
- umbrella doctrine, fuses doctrine of undue influence with that of unconscionable conduct, Amadio (1983) - relieving unconscionable dealings extends to circumstances |
|
|
CONSCIENCE AND UNDUE INFLUENCE
Undue influence in Australia (cont) |
- one party has a disability, not reasonable equality
- doctrine of equality, developed in Bundy (1975), Lord Denning states, English law gives relief to one who enters in a contract without independent advice, and it is grossly inadequate in bargaining power - However, Lord Scarman in Morgan disapproves Lord Denning's principle as Parliament has already restricted 'freedom of contract' where necessary. |
|
|
THIRD PARTIES
|
- fiduciary relationship is where something or person is in a position having a duty of loyalty to some person or body
- Law Commission, relationship as one who undertakes to act on behalf of for the benefit of another - Bristol and West Building Society[1996], defines fiduciary - liability of third party establishing trustee-beneficiary or fiduciary principle relationship - tracing and its process in common law and equitable claims - four categories of third party liability - equity's darling innocent volunteer, knowing recipient and dishonest assistance |
|
|
THIRD PARTIES
Trustee beneficiary or fiduciary relationships |
- duties and obligations
- fiduciary owes duty to be loyal - must act in good faith, not create conflict, not make a profit, not act without consent of principle - Who is a fiduciary, two tests: 1. Undertaking test, developed in Australia, usedin English jurisdiction and operates well in commercial contexts, White v Jones [1995] 2. Power and discrection test, developed in Canada, contexts of personal relationships of vulnerability - the fiduciary liability is strict, Boardman v Phipps [1965] - can be a personal remedy to account for profit |
|
|
THIRD PARTIES
Proprietary remedies - resulting and constructing trusts |
- remedy can also be a proprietary remedy, must be a property in question between claimants
- Westduetch [1996], presumed that intention to reflect what is conscionable underlies all resulting and consructive trusts - Lord Wilkenson, recognized a remedial constructive trusts a a better remedy when operating to the prejudice of third parties being with the discretion of the court - remedial constructive trusts are used in Canada to prevent unjust enrichment - once identity of property in a trustee or third is established, tracing is used in proprietary claims to return it |
|
|
THIRD PARTIES AND TRACING
Tracing |
- courts must identify the property
- beneficiary will take priority over creditors, and so property in the hands of a third party will help determine if that is a proprietary or personal claim - tracing aims to find who has possession of the property |
|
|
THIRD PARTIES AND TRACING
Tracing (cont) |
- can be common law or equitable claim
- common law claim requires equitable title, so trustee can use this remedey but beneficiary cannot, and property cannot be mixed, Lipkin [1991] - equitable claims allow for funds to be mixed, more flexible than common law tracing - must have a fiduciary relationship, Westdeutche [1996] - has to have an equitable interest, Foskett [2011] |
|
|
THIRD PARTIES
Four categories subject to liability |
4 categories: equity's darling; innocent volunteer; knowing recipient; and dishonest assistants
- actions may be brought against those who are not trustees (strangers in the trust) - action may be personal or proprietary in law or equity - common law claims are strict - after breach it is unjust to retain the benefit - Lipkin [1991], Playboy Club and recipient of money, the defence can be equity's darling - absolute defense that recipient obtained property as a bona fide purchaser - equity claims, courts treat intermeddler, recipient or assistant as if they were trustees |
|
|
THIRD PARTIES
Four categories subject to liability (cont) |
- intermeddler deliberately interferes, Mara v Browne [1885]
- recipient liability, person having actual knowledge, eyes closed, BCII v Akindele [2000] - dishonest assistant, difficult to define,Twinsectra [2001] Conclusion, apply equity or common law you get different interpretations, Foskett. judges argue that you should have one tracing rule that operates on equitable principles. |
|
|
INJUNCTIONS - EQUITABLE FAIRNESS
|
- common law offers remedies for wrongs
- maxim: equity will not suffer a wrong without a remedy' - injunctions offers fairness - limitations of common law remedies - suitability of injunctions - various types of injunctions available - why and when granting of interluctory injunctions should be made for equitable fairness |
|
|
INJUNCTIONS - EQUITABLE FAIRNESS
Limitations of common law remedies |
- courts have developed a number of remedies to address common law's limitations
- injunction usually granted at the end of a trial - s.37 Senior Court Act 1981, gives the courts power to grant an injunction, just and reasonal - powerful weapon, - Chief Constable of Kent, Lord Denning asserts a claimant must still establish some legal right before he can claim an injunction - various hermeneutic techniques used in judgement - when establishing an injunction a judge determines if it should be perpetual (final) or interluctory (interim) |
|
|
INJUNCTIONS - EQUITABLE FAIRNESS
Various types of injunctions |
- prohibitory injunctions, prevents an activity to occur
- mandatory injunctions, makes a defendant to do something - quia timet injunctions, made to prevent some harm in the futher - ex parte basis, one party presents and in secret - injunctions are flexible, promotes a fairer result than specific performance |
|
|
INJUNCTIONS - EQUITABLE FAIRNESS
Why and When grant interluctory injunctions |
- why, is due to the time lag between the issuing proceedings, and the judgement can be lengthy
- necessary to avoid procedural imbalance in favour of defendant, Zuckerman - balancing risk of harm and lawful rights noted - when, should be granted on the claimant's chances of success, Fellows (1976), must have a prima facie case - however, in American Cynamid (1975), Lord Diplock set out when it should be granted: claimant's success more that 50% by court's discretion: no prima face rule; claim not frivolous or vextious; consider balance of convenience. |
|
|
INJUNCTIONS - EQUITABLE FAIRNESS
Special Injunctions |
- Search orders or (Anton Pillar Orders) re Anton (1976)
- Freezing orders or (Mareva injunctions) re Mareva (1975) - search orders developed to allow claimants to enter the defendant's premises and search and remove relevant property before the defendant destroys it. There must be clear evidence, serious and real possibility of destruction to search - serious abuses of civil liberties if trespass is infringed such as humiliation |
|
|
INJUNCTIONS - EQUITABLE FAIRNESS
Special Injunctions (cont) |
- reasons for freezing orders a re to prevent removing of assets from the jurisdiction of assets. Must be a good case and real risk of assets being removed. Important to prevent injustice and if often implemented by policy reasons - economic, security
- this burden has been criticized as this is a major abuse of injustice - however, protection of security, public interest, equitable fairness is available through injunctions |
