Sources of law (Equity) Individual Assignment

Module 1 Unit 1

By Dajanae Dawkins (all rights reserved)

1. How did Equity come about?

The manner in which common law operates can be often viewed as strict or too rigid at times. In some cases, the law is so inflexible it causes justice not to prevail, albeit not on purpose. In the beginning it was meant to be flexible, providing solutions for all, but as time progressed it did not continue to do so. The concept of binding precedents introduced the rigidity to common law.

Oftentimes litigants would be left without receiving justice in trials due to the lack of conscience the law is said to possess. It is for these reasons equity was created parallel to the law (it is not considered any form of common law, rather a separate entity). It is said it provided the conscience where the law had none, meting out justice for those the law have ‘failed’. Under common law the only remedy was damages, thus if common law couldn’t promote fairness to the victims, they turned to equity which provided a more satisfactory solution as receiving an item or being returned an item rather than given money, as to some litigants, money wasn’t favourable/wanted .

2. Briefly explain/define Equity?

Equity is in essence fairness, it acts as the conscience towards the litigant when the law fails to do so. It is termed as ‘justice’ in the moral sense, rather than the legal one.

For example; If A tells B he will sell him a 2014 model, knowing that it is a 2009 model and that B was heavily relying on his word for a 2014 model. Under the guise that the 2009 model was sold to B, under law B will only be compensated through the money he paid for the car in terms of suffering fraudulent misrepresentation by A. Under equity, if it is that B truly desired the car, he would be compensated with the 2014 model, as to avoid the injustice of not having a vehicle to move around.

3. What are the Maxims of Equity? Support *at least 4 Maxims  with cases*.

The maxims of equity are as follows:

1.He who comes to equity must come with clean hands

-any litigant seeking equity from the court must be honourable/upright and not be doing something wrong as well/hiding anything

Case:Overton v Banister; A beneficiary failed against a trustee to pay her back the trust assets which she already got back due to misrepresenting her age

2.Equity is equality

-equity puts everyone on an equal footing regardless of background, wealth, race, etc

3.He who seeks equity must do equity

-if you seek equity you must be a good/fair person

-seeking justice? must be just as well

Case: Cheese v Thomas

4.Equity looks on that as done which ought to be done

-if you misrepresent something on purpose, leaving the other party in shambles, the party gets what was promised because it is unjust to lie about it, convincing her she’ll get it, when you know she won’t

-eg: a contract done orally but one party says it wasn’t written thus tries to cheat the other party

5.Equity will not assist a volunteer

-the litigant who is seeking relief cannot be accidentally part of the proceedings (must be deliberate, must have an interest in the matter/be involved somehow)

-if the issue happened with you, your friend can’t seek equity on your behalf

6.Equity acts in personam and not in rem

-equity acts in relation to a person and not a thing

-eg: gives an injunction against a person and not a car/dog

Case: Penn v Lord Baltimore; The court ordered specific performance on land in the US (which is not in personam, thus not equitable)

7.Equity follows the law

-equity prevails if there is a clash between a legal and equity principle in the court

8.Equity will not suffer a wrong without a remedy

-once you prove that there is an injustice, equity will give you a remedy

Case:Patterson v Murphy; an injunction was given as a result of the unfairness in the ruling of the case

9.Equity looks at the intent and not the form

-equity is concerned with what was intended rather than how that intention was expressed

Case: Parkin v Thorold; This case established the fact that even though terms of a contract may not be properly recorded, judges are allowed to interpret the intentions of the parties

10.Where the equities are equal the earlier equity in time prevails

4. What are the Equitable Reliefs? Support *at least 3 Equitable Reliefs with cases*

These are what litigants may seek as a remedy for the injustice/unfairness doled by the law due to its strictness. The court issues the following equitable reliefs:

1.Recession of contract

This occurs when the courts order the ending of the contract in place, here, both parties are returned to the state they were before the contract began.

Failed Case: Vigers v Pike; lease of a mine which had been entered into as a result of a misrepresentation could not be rescinded as there had been considerable extraction of minerals since the date of the contract.

Failed Case: Car & Universal Finance v Caldwell

2.Specific performance of contract

This is when the courts order a party to perform a particular task that monetary compensation cannot make up for. It is usually the case where said party promised to do the task but failed to/misrepresented himself as going to do the task.

Case: Beswick v Beswick; the defendant was ordered to give the plaintiff more of his uncle’s wealth as it would have been unjust for him to retain the entire benefit, while the wife (plaintiff) was left with none.

Case:Wolverhampton Corp v Emmons

3.Proprietary estoppel

This is specific to real property law as it deals with properties whereby the party is stopped from carrying or not carrying out a task as it relates to land.

Case: Guest v Guest; a pledge made by a father to his son, assuring him of a sufficient share in the family farm for establishing a viable business. Subsequently, a rift between them led to the exclusion of the son, Andrew, from the father's will. It was held that the promise should be enforced and he was stopped from excluding his son

5. Distinguish between *binding precedent and persuasive precedent*?

Both binding and persuasive precedents are highly important in any case, yet there lies a distinct difference between the two as it relates to the power in court, they both hold. Firstly, binding precedent occurs whereby the lower courts must follow the ratio decidendi and legal principles of a higher court whom it has a case in common with. The only exception to this, is where the higher court overturns their own ruling on the case. On the other hand, persuasive precedents are not binding but have fairly sound arguments; thus lower courts don’t have to follow the ruling of a higher court in a previous case in common. Therefore, while binding precedents are a must to follow, persuasive ones are not.

Thus, binding precedents undoubtedly have more power in court than persuasive. If only binding precedents are used, a case can be won and a verdict established, yet if only persuasive ones are used, the court cannot arrive at a decision unless it is used in tandem with a binding precedent.

6. Explain the principles *stare decisis*, *obiter dicta* and *ratio decedendi*

Stare decisis better known as binding precedent occurs whereby the lower courts must follow the ratio decidendi and legal principles of a higher court whom it has a case in common with. For example, the Parish council when dealing with a case involving cocaine theft, must follow the similar case of the Supreme Court in terms of decision and legal justifications.

Obiter dicta is simply the court's personal commentary on a case. It is not to be taken in any legal sense, as the ratio decidendi is the legal outcome of the case the judges rule. The obiter dicta is simply the way of the judges commenting on the matter, giving their personal viewpoints/advice.

Ratio decidendi is merely the legal outcome of the case. It is what the court arrives at after taking into account all the laws, rules and facts of a given case. This is where the judgement of the convict is said, whereby he is found guilty or not guilty.