Fusion or no fusion of equity and the common law at a substantive level
Fusion or no fusion of equity and the common law at a substantive level
Since the administrative fusion of the Common Law and Equity Courts after the 1873 and 1875 Acts, there has been a lot of controversy over whether to fuse both equity and common law. There are valid arguments both for and against fusion.
Those arguing for the fusion of Equity and Common Law at a substantive level often comment on the inconsistency created by equity’s intervention in law. ‘There would sometimes be arbitrary gaps in the common law, that is situations where the common law refused a claim despite allowing claims in other situations which were materially similar.’1 With both Common Law and Equity offering different solutions to the same legal issues, it is argued that for justice there must be consistency with judicial rulings. 2 The current system means that in certain cases the right to an equitable remedy is more valuable.
An example of inconsistencies between case verdicts due to Equity and Common Law having different principles is that of having legal and equitable title to property. If a person has the legal beneficial title to a house and the deeds are stolen and sold to a third party they can only claim the value of the house back. Whilst with equitable title the person could use Equity to get the house back. Examples like this reinforce the argument for fusion because everybody would get the same remedies.
Some might also argue that rather than the facts of the cases being used to determine the outcome of a case, with Equity the fact that different people made the decisions at different times had an influence on the rulings. Using Equity to bypass the Common Law rather than amending the Common Law.
Another reason for fusion is that Equity allows judges to depart from common law and statutes in order to create new law. With Parliament being sovereign the idea of unelected judges creating law is undemocratic. Without the power to use Equity to depart from Common Law
Since the administrative fusion of the Common Law and Equity Courts after the 1873 and 1875 Acts, there has been a lot of controversy over whether to fuse both equity and common law. There are valid arguments both for and against fusion.
Those arguing for the fusion of Equity and Common Law at a substantive level often comment on the inconsistency created by equity’s intervention in law. ‘There would sometimes be arbitrary gaps in the common law, that is situations where the common law refused a claim despite allowing claims in other situations which were materially similar.’1 With both Common Law and Equity offering different solutions to the same legal issues, it is argued that for justice there must be consistency with judicial rulings. 2 The current system means that in certain cases the right to an equitable remedy is more valuable.
An example of inconsistencies between case verdicts due to Equity and Common Law having different principles is that of having legal and equitable title to property. If a person has the legal beneficial title to a house and the deeds are stolen and sold to a third party they can only claim the value of the house back. Whilst with equitable title the person could use Equity to get the house back. Examples like this reinforce the argument for fusion because everybody would get the same remedies.
Some might also argue that rather than the facts of the cases being used to determine the outcome of a case, with Equity the fact that different people made the decisions at different times had an influence on the rulings. Using Equity to bypass the Common Law rather than amending the Common Law.
Another reason for fusion is that Equity allows judges to depart from common law and statutes in order to create new law. With Parliament being sovereign the idea of unelected judges creating law is undemocratic. Without the power to use Equity to depart from Common Law