Chap 1 Flashcards
(17 cards)
What is the definition of equity in terms of substance and nature?
Equity is synonymous with justice and fairness, defined as the principle of moral rightness and conformity to moral rightness in action or attitude.
How is equity defined with reference to its source?
Equity is that branch of the English legal system that evolved in the court of Chancery to address the inadequacies, hardship, and injustice of the common law.
What are the two senses of equity?
- Equity of the general juristic sense
- Equity of the technical sense
What does equity of the general juristic sense mean?
It means fairness and conscionable conduct in the adjudication of disputes by courts of law.
What is the significance of equity of the general juristic sense in the evolution of law?
It is the moving spirit behind the evolution of law, influencing the creation of laws against homicide and theft.
How does equity of the general juristic sense relate to common law?
It is the soul that sustains and perpetuates the life of any law, and its progressive decay can be seen in the common law distancing from it.
What is the relationship between equity of the general juristic sense and the ocean of law?
Equity of the general juristic sense is the mightiest river feeding the ocean of law.
What is equity of the technical sense?
It consists of technical rules and principles of equity that evolved from the application of equity of the general juristic sense.
Give an example of a principle of equity of the technical sense.
The maxim ‘Equity will not suffer a wrong to be without a remedy’ is a principle of equity of the technical sense.
What does a legal right or legal interest refer to in the first sense?
It is a right or interest recognized by the common law that satisfies the requirements of form under the common law.
What are the requirements for a legal right to be created under common law?
- Must be in writing
- Must be under seal
What is the second sense of a legal right or legal interest?
It refers to an interest over the title in property, derived from statute or common law.
What are the three senses of an equitable right or equitable interest?
- Recognized by equity, not common law
- Concerns pecuniary value of property
- Procedural rights in equity
How does equity prioritize intention over form?
Equity places more premium on the intention of the parties than the form they had reduced or expressed such intention.
What does the maxim ‘Animus hominis est’ signify in equity?
It signifies that the intention of the parties is ranked higher than the legal form.
What is meant by the equity in a property?
It refers to the pecuniary value of a property, distinct from the title or the empty shell of the property.
What are some examples of procedural rights in equity?
- Right to redeem a mortgage after the redemption date
- Right to rectification
- Right to rescission
- Right to appointment of a receiver
