class 1: common law + equity

common law

body of law created through decisions of courts - based on precedent

equity: ensures that _______ is done

justice

equity: stops the law being dominated by _______, __________ and legalistic subtleties which can happen under common law 

loopholes

evasion

equity: follows p________

precedent 

precedent

principle that judges are bound by previous decisions of higher courts

equity allows for d________ —> judges are able to develop new principles as long as they’re consistent with existing precedent

discretion

when does equity operate?

whenever required do justice ie. whenever common law would lead to an unjust result

what is a maxim of equity

core principles and guidance for judges as when to exercise their equitable jurisdiction

example of maxims of equity 

. equity follows the law

. equity looks at substance not form

. he who comes to equity must do so with clean hands 

equity looks at substance not at form

real intention rather than the way it is expressed

he who comes to equity must do so with clean hands

have a history of conscionable behaviour

equitable remedies are d________ and are intended to a_________ i_________

discretionary

alleviate injustice 

5 major types of equitable remedies

specific performance

injunctions

rectification

rescission

subrogation

specific performance

• court directs the defendant to carry out their side of the contract in whole

  • used when damages are inadequate / the good is rare

injunction

court directs someone to do something (mandatory injunction) or refrain from doing something (prohibitory) 

rectification

• court orders the re-writing of a document to accurately reflect the true intentions of the party

  • usually awarded in lieu of damages

rescission 

• court cancels out a contract, returning parties to their pre-contractual positions 

  • must have been a misrepresentation (induced to enter on false terms) by one of the parties, mistake as to face of law, undue influence (pressure) or bread of fiduciary duty 

subrogation

allows one person to step into the legal position of another to prevent unjust enrichment / recover money

trusts

legal arrangement created by equity placing an obligation on a trustee who holes legal title to a property to act of the benefit of another

trust: legal ownership

the trustee

trust: beneficial owner

person who has the right to benefit from the property

equity imposes an obligation on the trustee to:

. act loyally

. use the property for the beneficiaries benefit

. not misuse of take the property for themselves