Equity and common law - Free Essay Example

Sample details Pages: 10 Words: 2926 Downloads: 2 Date added: 2017/06/26 Category Law Essay Type Narrative essay Did you like this example? Equity evolved to cover the cracks within the common law. Over the years it has evolved a separate but parallel set of legal rules which complement the common law. The case of Dudley v Dudley illustrates this by announcing that ‘Equity†¦does not destroy the law, nor create it, but assist it’[1]. Don’t waste time! Our writers will create an original "Equity and common law" essay for you Create order The common law was prone to reaching an unjust outcome, due to the rigid constraints. This was combated by the introduction of equity. During the reign of King James I, the public would petition the King appealing as it were to his conscience. The King dealt with these matters in conjunction with the Chancellor. This then led to the creation of the court of Chancery in the fourteenth century to administer the new set of complimentary rules. This led to confusion over which set of rules took precedent over the other. This was defined in The Earl of Oxfords Case (1615)[2] in which King James I stated that ‘if there is a conflict between common law and equity, then equity should prevail’. Lord Ellesmore LC went on to clarify the position of equity by stating ‘The office of the chancellor is to correct mans conscience’s for fraud, breach of trusts, wrongs and oppressions of whatever nature and to soften and mollify the extremity of the law†¦when judgemen t is obtained by hard conscience.’[3] The equitable maxims also known, as rules of conscience are different than their Common Law counterparts, this is evident within the way in which evidence and facts are treated. The common law judges are limited to providing only one remedy, that of damages. Equity in contrast has a range of remedies available, allowing the judge to consider the individual circumstances on a case by case basis. The remedies available in equitable judgements are specific performance[4], rescission[5], rectification and injunctions[6]. So what are the equitable principles under discussion? This paper will now consider them in turn. The first considered is equity follows the law. Beever explains that ‘equity fills the gap between legal justice and absolute justice’[7] he went on to explain further by stating that ‘the content of equity consists of those judgements required to reconcile the former with the latter.’[8] They furt her back this explanation by the following words from Aristotle. ‘[W]hen the law states a general rule, and a case arises under this that is exceptional, then it is right, where the legislator owing o the generality of his language has erred in not covering that case, to correct the omission by a ruling such as the legislator himself would have been there, and as he would have enacted if he had had been aware of the circumstances’[9] This highlights equity’s position within the law. It points out that when there is a dispute between the common law and equitable principles; the common law will prevail. When considering this one must also take into account the maxim that Equity acts in personam. This is especially so when remedies are being considered. This is due to the fact that equity unlike the common law acts in the interests of the parties involved. It is important to note that equity does not change any common law ruling. It simply puts them aside for the sake of justice and fairness at a micro not macro level. Equity will not enforce an unconscionable contract. Where equities are equal the law prevails. In this one must look to see if common law solution is equal to that of the equitable one then the common law will take priority. The solution at common law if considered to be an inadequate remedy, then equitable solutions will be considered. Equity looks to substance rather than form shows that the equitable solutions are available even though they may not be protected by the common law. The court will look to what the parties before them intended. It does not require, unlike the common law specific formalities to have occurred before the law will be able to aid the claimant. This is discussed in the case Parkin v Tharold in which it stated that if formalities are required by statute, then equity could not override it. This is a direct link to the maxim that equity follows the law, providing yet more evidence that the maxims must be considered as a whole within each individual case. The following maxim, Equity regards as done that which ought to have been done relates to the equitable remedies available. Examples of this can be seen in Howe v Lord Dartmouth[10] and AG for Hong Kong v Reid[11]. The following maxim is concerned with the character of the defendant; He who comes to court must come with clean hands. This is best explained by Woods J in the case of Cross v Cross[12] in which it states ‘†¦any conduct of the plaintiff which would make a grant of specific performance inequitable can prove a bar.’ In other words, past behaviour will be taken into account. However, this is limited to behaviour that is directly related to the case in hand, see Dering v Earl of Winchester[13]. Statutory instruments generally proved guidance upon the maxim that Delay defeats equity. However, where the Limitation Act 1980 is silent on the issue at hand then it will be governed by the equitabl e doctrine of ‘laches’. A delayed response can prove to be a bar to equitable remedies as it can indicate that there has been acceptance of the new status quo. The application of justice and fairness is the cornerstone of equity. It will come as no surprise that the maxim equity is equality provides equal division of assets, unless this would prove to be unconscionable. The maxim equity will not aid a volunteer insists that consideration must have taken place for an agreement to have taken place. Equity will only be available to those party to the agreement.[14] This is by no means an exhaustive list of the equitable maxims available, it does, however cover the main establish uncontended maxims. This paper will concentrate on the following two maxims. Equity Imputes an intention to fulfil an obligation and Equity will not suffer a wrong to be without a remedy. These have been chosen due to their intertwined and substantial impact. The Former helped to build an entire ly new area of law; the trust. This has proved very important in all areas of the legal system. This evolved from the antiquated concept of the ‘use’; the abuse of this concept became ever more apparent during the Crusades. The legal title was all that mattered to the courts. This led to grave injustices as the common law refused to recognise anything but the holder of the legal title. The only remedy afforded to it by the common law was that of damages due to a breach of confidence. This did not aggrieve the true owner of the property, as they would still have lost the proprietary interest. The chancellor of the time developed a system that invented the concept of duality of land ownership. This did not interfere with the common law interest it merely complimented them, minimising the risk of injustices occurring. The method adopted was to ensure that honesty and modesty prevailed over unconscionable conduct. Equity Imputes an intention to fulfil an obligation br idged the gap that had been left by inflexible remedies at common law; that of damages. This needed to be addressed by the law as it was creating many instances of unjust verdicts. Equity brought with it a whole new set of remedies. Equity acts very differently than the common law. Equity acts in personam unlike the common law, which acts in rem. Equity will not suffer a wrong to be without a remedy indicates that equity will not allow technicalities to act as a bar to justice. It has evolved to strengthen the defects in the common law system. There are many examples that could be put forward to bolster this papers claims that this is one of the most influential equitable maxims. However, this paper will concentrate on the introduction of equitable remedies. The common law could only recognised the holder of the legal title and not the person for whose benefit he agreed to hold the property. Equity considers the interests of and rights of the beneficial owner. Such remedies ar e numerous, however it is specific performance and injunctions that are the most common and discussed within this paper. This maxim also covers equitable doctrines and how they can help in ensuring justice is done. In this area the two maxims under discussion can be seen to overlap. This makes it very difficult to assess their individual impact upon the law, with regards to this matter. Many of the cases that show this maxim in action are property law cases. This does not mean this maxims influence is limited to this area of law. It is extremely far reaching, encompassing contract and commercial laws. As discussed above the creation of the trust has allowed unconscionable conduct to come under the long arm of the law and prevent wrongs from being committed with the blessing of the legal system. A trust can either be created orally or in writing. There only needs to be (like in contract law) an intention to create. In equity the intention to create a trust in all that is needed . This is discussed in the case Paul v Constance [1977][15] and elaborated upon more recently in the case of Rowe v Prance [1999][16]. The trust developed over the years to have its own set of established rules and precedent. The common law aspects of each case were never in question. Equity is concerned with ensuring that the trustee uses the property for the benefits of beneficiary. In doing this equity imposed upon the trustee a multitude of fiduciary obligations. We can see this in action in the case of Boardman v Phillips[17] in which an extremely strict application of this was applied. This equitable remedy is mostly prevalent within Property and Contract Law. Specific performance is best described as when the court orders a person to perform a specific action. This will only be if the remedies available at Common Law are considered to be of an inadequate nature. For instance, this is illustrated best when a written contract for the sale of land has taken place. If left to the Common Law, one would merely receive damages. It is considered in this instance by the courts that a piece of land is considered to be unique and damages would not compensate the potential purchaser. Failure to comply with an order for specific performance will render the defendant in contempt of court and thus be likely to face criminal proceedings. When applying equitable remedies such as specific performance one must take into account the following; would damages be a suitable remedy, the requirement of mutuality, the exercise of discretion and whether or not the claimant is a volunteer. This important as it prevents wrongs from going unpunished and allows the common law to be flexible without allowing the floodgates to open. The injunction is simply another way in which an action can be prevented or forced. The case of Shelfer v City of London Electric Lighting Co[18]. In this case Smith J sdescribed the principles in which would distinguish which remedy was appropriat e. â€Å"In my opinion, it may be stated as a good working rule that: (i) if the injury to the [claimants] legal rights is small; (ii) and is one which is capable of being estimated in money; (iii) and is one which can be adequately compensated by a small money payment; (iv) and the case is one which it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction may be given.†[19] Again it must be proved that Common Law remedies would be inadequate before applying for an injunction of any kind. Since the Chancery Amendment 1858[20] the court has been able to grant damages as an additional remedy if the case proves it fulfils the correct criteria. This is now governed by the Supreme Court Act 1981.[21] Equity Imputes an intention to fulfil an obligation and equity will not suffer a wrong to be without a remedy have established and developed many of the equitable remedies which have found their way slowly in to nearly all as pects of the law. It could be said that the Supreme Court of Judicature Acts 1875 caused this once the two systems of law were merge[22]. It has been argued that at this point the two systems were fused together. Meagher and Gummow describe this assumption as follows ‘Those who commit the fusion fallacy announce or assume the creation by the Judicature system of a new body of law containing elements of law and equity but in character quite different from its components. The fallacy is committed explicitly, covertly, and on occasion with apparent inadvertence. But the state of mind of the culprit cannot lessen the evil of the offence.’[23] The restatement in law in this form merely helped to clarify both sets of rules and how they work together in relation to each other. After all if equity follows the law it can not be considered as an entrench part of it. They go on to elaborate further on this later on in their article. The case concluded that ‘[The fusion fallacy] involves the conclusion that the new system was not devised to administer law and equity concurrently but to fuse them into a new body of principles comprising rules neither of law nor of equity but of some new jurisprudence conceived by accident, born by misadventure and nourished by sour but high-minded wetnurses.’[24] When compared the two systems show that they complement each other and together allow the law to provide a more fair and effective legal system. At common law judges have to take into consideration bureaucracy and this proves to be unforgiving and rigid. Unlike the common law equity is more flexible as it allows the judge to base his judgement on consciousness, fairness and moral substance[25]. The influence upon the common law by equity is a complex one. Donovon describes the relationship as ‘the desire of the most well-regarded equity judges has been [to keep] equitable doctrines flexible and responsive, without the oppressiveness of p rocedure and †¦ attempting to keep factual consideration within the realm of principle, equity doctrine has always been certainly more amorphous than that of law’[26]. The most positive outcome to emerge from the evolution of the equitable maxims is the addition of a flexible component in which judgements could be made. It allowed for the law to be flexible, minimising the risks of unconscionable acts receiving the backing of the law. The impacts of the remedies available if applied have no actual impact on the common law as such. They do have an impact upon the individual claimant. Birks describes the impact of the following equitable remedies as ‘weakly discretionary’[27]. Thus, the impact is dependent upon the exercise of discretion. Equity evolved naturally to ensure that justice is not a victim to common law and will continue to influence the law on a personal level without effecting the status quo for countless years to come. Bibliography Thom pson, MP. ‘Modern Land Law’. Oxford University Press. 2001 Edwards, R and Stockwell, N. ‘Trusts and Equity’. Longman University Press. Burn, EH. ‘Trusts and Trustees. Cases and Materials’. Butterworths Press. 5th Edition. Spry. ‘The Principle of Equitable Remedies, Injunctions, Specific Performnce and Equitable Remedies.’ Sweet and Maxwell. 3rd Edition 1984. Thomas, M. ‘Blackstones statutes on Property Law – 2006 – 2007’. Blackstones Press. 14th Edition. A Beever. ‘Aristotle on Equity, Law and Justice’ 10 Legal Theory 33 Waters, D. ‘The Future of the Trust From a Worldwide Perspective’. 11 ITCP 4(199). 2004 Birks, P ‘Rights, Wrongs and Remedies’. 2000 OJLS 20(1). Burrows, A. ‘We Do This at Common Law But That In Equity’ 2002 OJLS 22(1). Pawlowski, M. ‘Building in Breach of Covanent: Injunction or Damages?’ 154 NLJ 1896. 2004. 1 Footnotes [1] Dudley v Dudley (1705) Pr Ch 241 [2] Earl of Oxfords Case (1615) 1 Rep Ch 1. [3] Per Lord Ellsemore LC. Earl of Oxfords Case (1615) 1 Rep Ch 1 [4] This is when the court demands a specific act must take place. This will more often than not involve a previously agreed action. [5] The cancellation by the court of a contract with the intention of placing the parties involved into a position akin to that as if the contract had never existed. [6] A judicial order restraining an action from taking place, or to enforce action. [7] A Beever. ‘Aristotle on Equity, Law and Justice’ 10 Legal Theory 33 at 35. [8] ibid [9] Ibid [10] Howe v Lord Dartmouth cited in Edwards, R and Stockwell, N. ‘Trusts and Equity’. Longman University Press at 34. [11] AG for Hong Kong v Reid [1994] 1 All ER 1. [12] Cross v Cross (1983) 4 FLR 235. [13] Dering v Earl of Winchester (1787) 1 Cox 318. [14] Edwards, R and Stockwell, N. ‘Trusts an d Equity’. Longman University Press. [15] Paul v Constance [1977] 1 WRL 527 [16] Section 53 (1)(b) of the Law of Property Act 1925. [17] Boardman v Phillips 1967] 2 AC 46 [18] Shelfer v City of London Electric Lighting Co. [1895] 1 Ch D 287 [19] Pawlowski, M. ‘Building in Breach of Covanent: Injunction or Damages?’ 154 NLJ 1896. 2004. [20] Thomas, M. ‘Blackstones statutes on Property Law – 2006 – 2007’. Blackstones Press. 14th Edition. [21] The Law Of Property Act 1925. Section 50. [22] Thomas, M. ‘Blackstones statutes on Property Law – 2006 – 2007’. Blackstones Press. 14th Edition. [23] R. P. Meagher, W. M. C. Gummow and J. R. F. Lehane, Equity, Doctrines and Remedies (3rd edn, 1992) at para 221 in Burrows, A. ‘We Do This at Common Law But That In Equity’ 2002 OJLS 22(1). [24] Ibid. [25] Ibid. [26] Waters, D. ‘The Future of the Trust From a Worldwide Pers pective’. 11 ITCP 4(199). 2004. [27] Birks, P ‘Rights, Wrongs and Remedies’. 2000 OJLS 20(1).

Jack s Survival Strategies And Patterns Of Adaptation Essay

Jack’s Survival Strategies and Patterns of Adaptation As a child, Jack’s life was extremely structured and contained. Ma was Jack’s source for everything, including his survival. When Ma took a â€Å"gone day,† Jack coped with her lack of response by withdrawing into his own world, reading, drawing, watching TV, and sleeping. As Jack grew, his inner resources of creativity and imagination increased and helped him to cope with his isolation and anxiety. When Jack finally experienced the vast world of people and spaces, Ma remained his only real interpersonal connection. When Ma attempted suicide and left Jack alone for an extended period, he once again retreated to his inner world, playing in a closet. In his adolescence, Jack did well academically, but his social anxiety and substance abuse became more pervasive, and as he grew to adulthood, he expressed a preoccupied attachment style in his relationships, repeating his childhood ambivalence toward Ma. 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Going the Distance free essay sample

Thecountdown had begun and there were just a few minutes left until showtime. Iperformed some last-minute stretches before stepping up to the faded chalk linein anticipation. I lifted my head and glared down the first straight-away. Bang! A cloud of smoke coughed from the gun and I soared from thestarting line. This was the moment when my exhausting training would pay off. Iwas finally competing in a cross-country meet. During cross country, Ilearned that dedication is one of the most important skills possible. During theseason, our team had weekly races averaging three miles. Each day my team trainedto increase our speed, strength and endurance. All the runners had to beextremely dedicated. I had to wake up at five in the morning for practice whilethe moon was still overhead. I never missed a practice where we would all pushourselves to our limits. As a team, we ran six days a week, the most allowed byour school. We will write a custom essay sample on Going the Distance or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page A runner couldnt survive the harshness of the training withoutcomplete dedication. This sport forced me to balance my schedule, too. Toperform to the best of my ability, I had to sleep and eat right. This meant nosoda for six months, no candy or other sweets. I found myself going to bedearlier than normal to ensure proper rest. I had to restrain myself fromparticipating in strenuous activity before each race. I also didnt play othersports to decrease the risk of injury, which was difficult since I have a passionfor so many sports. Dedication is a life skill I will incorporate in myactivities for the rest of my life. I have also learned perseveranceand unity, which are both crucial in the future. To improve, I had to run fasterand harder each workout, which left me sucking in as much air as possible by theend of the workout. During those times when my muscles pleaded for mercy and Iwas about to fall into the deadly trap of walking, I would push myself even more.Once I started, I knew I had to give 110 percent and endure to theend. Running six days a week in the unbearable 100-degree Arizona heattakes endurance, and to build that I had to keep running. The sweat would slideoff my face and I would get to the point where I felt like I was on top of theworld. Unity also became a valuable factor in my life and cross country.For each race, the finishing positions of a teams top five runners are addedtogether and the one with the fewest points wins. As a team, we had to supportone another to perform and place well. One person doesnt win a race, the teamdoes. We would pump each other up before each race. The cheers and yells of ourwild crowd made the opposing teams look on in horror at the stampede of Mustangsfrom Phoenix. All the skills acquired through sports have intertwinedwith my daily life. When I have responsibilities from parents, church leaders orothers, I know I have to carry them out. If I commit to a weekend job, dedicationand perseverance are key. As a team, unity is required for great achievements;family unity is needed for common goals and beliefs that will benefit the family.I can apply these to relationships, education and my future.

Tesco Customer Service Essay Example For Students

Tesco Customer Service Essay Tesco Customer Service Essay Customer service is the most important aspect of any business. Without an adequate relationship with its consumer base, a company is at an enormous disadvantage. Todays world competition is very strong in every kind of businesses. Every organisations must provide high quality products or services in order to survive, however their competitors also providing the same or comparable products or services. An important way to an organisation to get an edge over its competitors is to provide extra service to satisfy and delight their customers, which can retain them and also gain new customers. We will write a custom essay on Tesco Customer Service specifically for you for only $16.38 $13.9/page Order now Therefore the achievement of customer satisfaction must be a major objective in all organisations. To achieve customer satisfaction, an organisation has to provide high quality products and also provide a excellent customer service. When the service and product that the company provided is good, they can obtain customer loyalty. The customers will go again and again and would probably tell their friends. In return, the company can gain lot of customers. Moreover, by this mouth promotion, the reputation of the organisation can be enhanced. And this organisation will soon achieve an increase in market share and profit. Aims of investigation Tesco is aim to provide the best possible value for their customers money. And they state that they are determined to offer quality products, good services, attractive stores and low prices to their customers. The investigation is to find out are they meeting these aims and how they meet these aims. Through the investigation I will compare their cost with other supermarket, their store environment, their staffs skill, services and their products quality. This can help me to find out are they meeting their aims and what they are doing badly. I also will search for the background of Tesco and found out all the useful information for this assignment. The investigation can help me provide evidence, true information and do the assignment easier. Structure Part one of my assignment is the research of the customer service practices in tesco. I will talk about the customer types, the customers needs, the organisations aims and policy and my conclusion. In this part, I will put some of the information in table and bullet point. Therefore the points are more clearly. The second part of this assignment is about the way of improvement to customer service. In this part, I will write in assay. The main customer in Tesco Tesco is a well-know international supermarket, and it sells a variety and huge range of products. Therefore, many different types of customer will visit Tesco. General public is the main group of customer of Tesco. General public mean anyone who might need the products or service. Everyone must need to visit the supermarket to buy some necessary products (e.g. food and milk). And many restaurants and take away shops will also buy their material in supermarket. Therefore, everyone also can be the customer of Tesco. We can always see male, female, families, and mothers with kids, single, disables, and students shop in a supermarket. Each of them have different needs and expectations, so Tesco have to provide a lot of facilities and a good customer service plan to meet all of their needs. The common needs and expectation of external customers: Information :The external customers of Tesco always expect the goods to be of high quality. They want to obtain the information on goods to know that it is of a high quality and they have to clarify and query detail. Honest dealing: The customers may need to ask for a refund if they are dissatisfied with the goods and make sure they can make a complaint. .ucf54957b88458475b10ac6ed2b6157de , .ucf54957b88458475b10ac6ed2b6157de .postImageUrl , .ucf54957b88458475b10ac6ed2b6157de .centered-text-area { min-height: 80px; position: relative; } .ucf54957b88458475b10ac6ed2b6157de , .ucf54957b88458475b10ac6ed2b6157de:hover , .ucf54957b88458475b10ac6ed2b6157de:visited , .ucf54957b88458475b10ac6ed2b6157de:active { border:0!important; } .ucf54957b88458475b10ac6ed2b6157de .clearfix:after { content: ""; display: table; clear: both; } .ucf54957b88458475b10ac6ed2b6157de { display: block; transition: background-color 250ms; webkit-transition: background-color 250ms; width: 100%; opacity: 1; transition: opacity 250ms; webkit-transition: opacity 250ms; background-color: #95A5A6; } .ucf54957b88458475b10ac6ed2b6157de:active , .ucf54957b88458475b10ac6ed2b6157de:hover { opacity: 1; transition: opacity 250ms; webkit-transition: opacity 250ms; background-color: #2C3E50; } .ucf54957b88458475b10ac6ed2b6157de .centered-text-area { width: 100%; position: relative ; } .ucf54957b88458475b10ac6ed2b6157de .ctaText { border-bottom: 0 solid #fff; color: #2980B9; font-size: 16px; font-weight: bold; margin: 0; padding: 0; text-decoration: underline; } .ucf54957b88458475b10ac6ed2b6157de .postTitle { color: #FFFFFF; font-size: 16px; font-weight: 600; margin: 0; padding: 0; width: 100%; } .ucf54957b88458475b10ac6ed2b6157de .ctaButton { background-color: #7F8C8D!important; color: #2980B9; border: none; border-radius: 3px; box-shadow: none; font-size: 14px; font-weight: bold; line-height: 26px; moz-border-radius: 3px; text-align: center; text-decoration: none; text-shadow: none; width: 80px; min-height: 80px; background: url(https://artscolumbia.org/wp-content/plugins/intelly-related-posts/assets/images/simple-arrow.png)no-repeat; position: absolute; right: 0; top: 0; } .ucf54957b88458475b10ac6ed2b6157de:hover .ctaButton { background-color: #34495E!important; } .ucf54957b88458475b10ac6ed2b6157de .centered-text { display: table; height: 80px; padding-left : 18px; top: 0; } .ucf54957b88458475b10ac6ed2b6157de .ucf54957b88458475b10ac6ed2b6157de-content { display: table-cell; margin: 0; padding: 0; padding-right: 108px; position: relative; vertical-align: middle; width: 100%; } .ucf54957b88458475b10ac6ed2b6157de:after { content: ""; display: block; clear: both; } READ: Mersault-Sisyphus EssayServices :Customers want to have a polite and good customer service provided for them. Some elderly and disable people may need the delivery service. Environment:Customers like to shop in a safe and comfortable environment and they want to have a shop forecourt where they can load goods in a safe area with no heavy traffic. Well-packaged products:Customers like to buy the products which are well- packaged and with no damage on it. Payment facilities:Customers want the company to provide a variety of payment facilities. (E.g. credit card, cash) so they can pay for the goods easier. Facilities:Customer may need a rest place and toilet when .