Download PDF by Jamie Glister, Pauline Ridge: Fault Lines in Equity

Rules Procedures

By Jamie Glister, Pauline Ridge

ISBN-10: 1849462194

ISBN-13: 9781849462198

Fairness - the physique of legislation built within the English court docket of Chancery - has a protracted and special background. within the twenty first century, it is still a tremendous regulator of either advertisement and private dealings, in addition to informing statutory legislation. even supposing a lot equitable doctrine is settled, there stay a few intractable difficulties that bedevil legal professionals throughout jurisdictions. The essays during this assortment hire new historic, comparative, and theoretical views to forged mild on those fault traces in equitable doctrine and technique. top students and practitioners from England, Australia, and New Zealand learn such contentious themes as: own and proprietary legal responsibility for breaches of equitable tasks (including fiduciary tasks) * the production of non-express trusts * equitable rights in insolvency * the fiduciary 'self dealing' rule * clogs at the fairness of redemption * the distribution of resources on kin breakdown * the suitability of unjust enrichment research. The e-book addresses particular doctrinal questions, in addition to the 'meta' problems with association and technique, and the findings could be of worth to teachers and practitioners alike. (Series: Hart reports in deepest legislation - Vol. 1)

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9 More recently, in Lumbers v W Cook Builders Pty Ltd (In Liq),10 four members of the High Court stated that unjust 3 See, eg the criticisms by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89 of the New South Wales Court of Appeal decision overturned in that appeal. 4 See Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68, (2001) 208 CLR 516 [73]: ‘Top-down reasoning’ is reasoning ‘by which a theory about an area of law is invented or adopted and then applied to existing decisions to make them conform to the theory and to dictate the outcome in new cases’.

36]. 77 Friend (n 11). 78 Tanwar (n 67). 83 I propose to consider one example of the more restrictive approach of the English courts in detail: the law of estoppel. 85 In that case, the House of Lords rejected liability on the basis of an estoppel, holding that an oral guarantee was unenforceable for lack of writing (as required by Statute of Frauds successor legislation). The creditor argued that it had detrimentally relied on the oral promise of guarantee. The House of Lords rejected this argument: the oral promise of itself could not found an estoppel.

From some reading of House of Lords’ decisions, one gets a sense that unjust enrichment has the status of the recently-arrived, but more trustworthy, Dr Jekyll, whereas that long-term resident, equity, has some undesirable Mr Hyde-like qualities, for example, legal uncertainty generated by concepts such as unconscionability and remedial discretion. Unjust enrichment, and specifically, the three-stage steps of analysis advocated by theorists, is now regularly used by the English courts at all levels, and has been endorsed by the House of Lords.

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Fault Lines in Equity by Jamie Glister, Pauline Ridge

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