Equity question (1 Viewer)

[Owyn]

I was going threw some past papers and i found a question that asks, in the event of there being applicable common laws, and equity laws, which would be used. The choices where
a) common
b) equity
c) both
d) new precident

I dont really understand this equity thing, so any help would be really appreciated

 

[Meldrum]

That is a bad question because even the most recent of jurisprudence philosophers can't agree which is which.

Generally common law, but on appeal equity is considered.

 

[Owyn]

yeh i agree, its a terrible question, but it was part of a multiple choice, which ive learned you cant argue with, you just gotta figure out what they want *sigh* I remember in SDD we had a multi choice question for a past hsc question, and both sides could have written entire page essays justifing there side, yet they only have one acceptable answer. Like, they try and make multiple choice harder, because its seen as too easy, but they go about it by asking question with 2 correct answers, which does make it harder, but stupid, because all there doing is ..... okies, im over this rant

 

[melsc]

I'd say common law too...in my understand equity isn't used as commonly unless someone appeals

 

[Ziff]

I'd say common law too...in my understand equity isn't used as commonly unless someone appeals

It would be equity. Equity was created to augment the "rigid" common law system. Since 1977 (In NSW, in other jurisdictions it was much earlier), judges have the ability to contemplate both equity and common law in their decisions. They would probably lean towards the more equitable solution rather than something in the common law that might cause injustice. Though, these days, equity is mostly to do with trusts etc etc.

 

[Jonathan A]

I agree with Ziff.

Equity was established to deal with the harsh realities of the legal system. It pretty much assists where common law is unfair, but will only assist if the common law has left a situation unconsiconable. Common law usually orders compensation, whereas Equity will grant practical orders such as specific performance or an injunction.

The two are seperate arms of law, both operating with precedent, however Equity is discretionary and based on Canon Law (old Roman Catholic Principles). There are 12 Maxims to fulfill to be entitled to equity, they include things like "He who seeks equity, must do equity" - it means you must be deserving of equity, otherwise equity has not jurisdiction. Equity plays an important role in contracts and property law where trusts are concerned.

A conflict did arise between Equity and Common Law, and it was held in the Earl of Oxfords Case, that where Common Law and Equity conflict, Equity shall prevail.