...Compare and contrast common law and equity. The distinction between common law and equity is better understood when the history of the two are examined. Common Law is the law of the land created by the judiciary. “According to Blackstone, the common law is that “ancient collection of unwritten maxims and customs which have ‘subsisted immemorially in this kingdom.” These principles are revealed by the courts of law “through experience in the rendering of judicial decisions.” Common law is therefore, the overall accumulation of judicial decisions known as case law.” (Emerson 2009, 7). The common law has been described as the law of the common people of England. It emerged as the product of a particular struggle for political power (Business Law, Kelly, Hayward, Hammer & Hendy pg. 5). It can also be viewed as laws developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statues adopted through the legislative process or regulations issued by the executive branch. Within common law judges decisions are binding, just as other laws does, to ensure consistent treatment. In cases where parties disagree common law courts look to past precedential decisions of relevant courts. However if courts find that the case before hand is fundamentally different from previous cases, the judge have the authority and duty by law to set a precedent, which will become binding in future courts. Common law can be traced back to rules...
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...Equity has brought benefits to many litigants who would otherwise have been severely disadvantaged by the common law. Discuss, with reference to decided cases. William the Conqueror found England with no single system of law common to the whole country. The law was mainly sets of customary rules which differed from area to area. For example, in one area you could get away with stealing, in another it would be seen as crime. There was no such thing as ‘ The English Legal System” until William’s invasion in 1066. William developed the legal system and introduced many rules. William preserved some of the old customary laws and used them as a basis for common laws. He introduced the feudal system and King’s justice, these were made to help those who supported him. Williams used subtle tactics to gain control of the country. He introduced Curia Regis, who enforced a system of rules which applied to the whole country and became known as common law. Although common law was seen for the better, it came with few problems. One of the problems was the rigidity of the writ system. In common law, if someone wants their case to be heard in court, they have to fit their complaints into the existing writs. If the writs are not similar to the existing ones, the cases will not be heard in court. The system was formal and rigid, bound by 'no writ, no remedy'. So if there was no writ to deal with the plaintiff's claim then there was no remedy. In addition to that, the common law uses damages...
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...CAMBRIDGE INTERNATIONAL EXAMINATIONS GCE Advanced Level MARK SCHEME for the May/June 2014 series 9699 SOCIOLOGY 9699/33 Paper 3 (Social Inequality and Opportunity), maximum raw mark 75 This mark scheme is published as an aid to teachers and candidates, to indicate the requirements of the examination. It shows the basis on which Examiners were instructed to award marks. It does not indicate the details of the discussions that took place at an Examiners’ meeting before marking began, which would have considered the acceptability of alternative answers. Mark schemes should be read in conjunction with the question paper and the Principal Examiner Report for Teachers. Cambridge will not enter into discussions about these mark schemes. Cambridge is publishing the mark schemes for the May/June 2014 series for most IGCSE, GCE Advanced Level and Advanced Subsidiary Level components and some Ordinary Level components. Page 2 1 Mark Scheme GCE A LEVEL – May/June 2014 Syllabus 9699 Paper 33 (a) Explain how the achievement of pupils may be influenced by pupil sub-cultures. [9] 0–4 A few general observations about pupils’ educational achievement, with no direct links to the question, would be worth 1 or 2 marks. A basic account of what is meant by pupil sub-culture, with no further development in relation to the question, would be placed in the higher part of the band. 5–9 Lower in the band, answers are likely to provide a basic...
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...Introduction According to Macmillan online Dictionary Equity is a legal system for obtaining a fair result when existing laws do nor provide a solution.(*1).”What is equity and why does the English legal system recognize a body of rules known as equity and maxims of Equity are the major topics I am dealing with in this project. The word ‘equity’ is susceptible to a number of different meanings. In one sense the word means what is ‘fair and just’ and is, therefore, undistinguishable from the general concern of any system of laws, which is that all laws should be fair and just. However, another somewhat narrower sense of the word is that equity is that specific body of law which supplements the common law and is invoked in circumstances where the conduct of a defendant is deemed unconscionable. Where such unconscionable conduct has arisen, the role of equity is to temper the rigor of the common law by the award of an appropriate equitable remedy. This project examines what is Equity how it came into exist, its relationship with the common law and examines some of the important maxims of equity. Acknowledgement I would like to express my special thanks of gratitude to my teacher Anil R. Nair as well as our Vice Chairman Prof. (Dr) N.Balu who gave me the golden opportunity to do this wonderful project on the topic Equity, which also helped me in doing a lot of research and I came to know about so many new things I am really thankful to them. Secondly I would also like to...
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...1.2.1 Common law The term common law gives rise to diffi culty as it has several meanings, so any meaning depends upon the context in which the term is used: Common law may mean the law created by the common law courts in contrast to the law created by the Court of Chancery, which was called equity. Common law may m • ean all the law created by the courts, including the law of equity, as opposed to the law created by Parliament, that is legislation. In this sense, common law may be also termed ‘judge- made’ law. • Common law may refer to a legal tradition which defi nes the English legal system and other derivative legal systems as opposed to the civilian legal tradition exemplifi ed by the systems of mainland Europe. Apart from England and Wales other examples of a common law tradition are to be found in the legal systems of the states of the United States (with the exception of Louisiana), Canada, and Australia. Common law in this sense refers to forms of law- making, particularly judge- made law, which is governed by the doctrine of judicial precedent. The characteristic feature of the civilian systems is that law is to be found in codes made by the legislature. The civilian tradition is seen in the legal systems of France and Germany. While the French law of contract is codifi ed and to be found in legislative form, the English law of contract is to be found mainly in the decisions of judges as reported in 7 Common law and equity the law reports. As will...
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...Equity follows the law. Discuss Equity has no clash with law neither it overrides the provisions of law. Nor it is the enemy of law. It adopts and follows the basic rules of law. It is said that equity is not a body of jurisprudence acting against the law but rather a supplement to law. it is a well-known rules that equity follows the analogies of law The equity came not to destroy the law but to fulfil it , to supplement it , to define it .Equity respects every word of law. Equity is intended to supplement the law and not to supersede it. Maxims of equity are principles developed by the English Court of Chancery and other courts who have administered equity jurisdiction, including the law of trusts. They were expressed in Latin but are translated into English. The role of the maxims is simple , they are general principles which can be deviated from specific cases. “He who comes into equity must come with clean hands.” This is one of the many maxims of equity. This maxim “bars relief”* that anyone guilty of improper conduct in the matter at hand .It operates to prevent any affirmative recovery* for the person with “dirty hands” no matter how unfairly the person’s adversary has treated him or her . The maxim’s purpose is to protect the integrity of the court. This rule is not meant to punish carelessness or a mistake .Another notable maxim is “Equity looks on that as done which ought to be done” , this maxim means that when individuals are required , by their agreements or...
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...Classification of Law 1. Civil law and Criminal law……………………………………………………….. 2 2. Sources of Law ……………………………………………………………… 3-8 I. Common Law ……………………………………………………… 3-5 II. Common Law and Equity ……………………………………………… 5-7 III. Statute Law ……………………………………………………………… 7-8 Conclusion ……………………………………………………………………………… 8-9 Bibliography …………………………………………………………………………….... 10 Introduction According to the statement on p.25 in Antoine’s book, Commonwealth Caribbean Law and Legal Systems, there is no general agreement as to how legal systems should be classified. Some writers emphasize a socialist legal tradition; others are concerned with technical differences while some also place more importance on the sources or origins of the law and its structure and methods. Source The socialist legal tradition has its historical origin in the Bolshevist Revolution of 1917 initiating the international and economic order known as Socialism or communism. The main legal distinguishing feature between socialist tradition and the common law or Romano- Germanic tradition is ideology. The socialist argue that law cannot be isolated from the social political and economic order within which it operates, making these elements fundamentally important in determining the type of legal system in existence. The Socialist legal tradition therefore embodies its original meaning aimed at achieving a communist state Rose-Marie Belle Antoine Commonwealth Caribbean Law and legal system...
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...SOURCES OF LAW OBJECTIVE To provide the candidate with a broad understanding of the Sources of Laws of Kenya: • The Constitution • Legislation • Delegated Legislation. • Statutes of General Application in force in England on 12th August 1897. • Substance of Common Law and doctrines of equity. • African Customary Law. • Islamic Law. • Hindu Law. • Judicial Precedent (Case Law). INTRODUCTION The term sources of law literally means where rues of law are found. This chapter describes the origins of the rules and principles which constitute the law applicable in a country at a given time. In other words the materials from which rules of law are developed. KEY DEFINITIONS Bill: - a draft law or legislation Delegated legislation: - law made by parliament indirectly Ultra vires: - Latin term which means “beyond the powers” Common law: - a branch of the law of England which was developed from customs, usages and practices of the English people Stare decisis; - Latin term which means “the decision stands” Precedent: - An earlier decision of a court This chapter has shown its importance in the industry first by way of hierarchy of laws. It is this particular hierarchy that is used when there is a conflict of laws in courts. Cases like the S.M Otieno case can hold proof to this. The law making process described is also the same procedure used...
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...Question 1: Explain the maxim “Equity follows the law”. Meaning Equity: An English law that was developed hundreds or years ago, this law was created as people would complain to the king that the common law was harsh and prevented justice from prevailing. Equity is constructed on a judicial estimate of fairness as opposed to the inflexible and harsh rules of the common law. When finding a solution to an issue or problem in equity, the court of equity will first always seek the legal position, and then take their lead from the common law. The maxim ‘Equity follows law” supports the fact that a court of equity has no intent to override the common law., but simply works as a supplement to the common law, the maxim clearly states that equity will not allow a remedy that conflicts with law. Cases The following case is an excellent example on how equity follows the law. Graf v. Hope Building Corporation Mr. Graf was given a mortgage on the Hope Corporation’s property. Hope was required to pay quarterly payments of interest to Mr. Graf. The bookkeeper for Hope discovered that she accidently sent a check for a particular quarterly interest payment that was $400 short. Mr. Graf was then immediately notified of the mistake and was told by the bookkeeper that the issue will be resolved as soon as the president of Hope returns from holiday, as he is the only individual authorized to sign checks for Hope Corporation. When the president of Hope Corporation returned...
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...to start by defining equity according to the Webster’s Dictionary as ‘a body of legal doctrines and rules developed to enlarge, supplement, or override a narrow rigid system of law’ (Marriam-Webster.com). Also maxims is defined also by Webster’s Dictionary as ‘a general truth, fundamental principle, or rule of conduct’ (Marriam-Webster.com). Therefore the maxims of equity may fairly be described as a set of general principles which are said to govern the way in which equity operates. They tend to illustrate the qualities of equity, in contrast to the common law, as more flexible, responsive to the needs of the individual and more inclined to take account of the parties’ conduct and worthiness. In conducting this research, it cannot be said that there is a definitive list of the maxims: different sources give different examples and some works prefer to avoid the term altogether in favour of a broader discussion of the character of equity. Above all, the maxims are applied only when the court feels it appropriate: none of the maxims is in the nature of a binding rule and for each maxim it is possible to find as many instances of its not having been applied as instances where it has been. I will give such instance, such as the role of the maxims was discussed in the case of Tinsley v Milligan [1993] 3 All ER 65, (which I will not go in detail). In the Court of Appeal a flexible approach was taken to the application of the maxim, ‘he who comes to equity must come with clean...
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...The laws of Malaysia can be classified into two types of laws, which are written law and unwritten law. Written laws are the Malaysia’s most important source of law. These written laws are made up of Federal Constitution, Acts of Parliament and Enactments, and subsidiary/delegated legislation. Unwritten laws are laws which are not enacted by the legislature (Parliament and State Assemblies) and not found in the constitution, both federal and state. This is known as the English common law and the rules of equity. In case, if there is no law governing a particular circumstance, Malaysian case law may apply. If there is no Malaysian case law, English case law can be applied in accordance with the Civil Law Act 1956 (Revised 1972) only in the absence of local statues on the particular subject matter. It is mean that the common law and the rules of equity can be modified and should not follow the same law as administered in England. Common law and the rules of equity can be developed and amended according to the local needs. S3(1) of the Civil Law Act 1956 statutorily provides that only the part of the English Law that is suited to the local circumstances are to be applied : I. West Malaysia - the English common law and the rules of equity and statues of general application in England as 1 December 1951. II. Sabah – the English common law and the rules of equity and statues of general application in England as at 1 December 1951. III. Sarawak – the English common law and...
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...practice, and restricted by law now. c) Situations when available: i) Available in debtor-creditor situations where debts are voluntarily paid when they are due (most pay when get into financial position to pay) ii) When possession of goods bailed are returned to the Owner when the period of the bailment ends. iii) When debtor intentionally refuses to pay or neglects to pay creditor may resort to self-help to get paid. 1) May be independent or in conjunction with litigation. d) Usually attempt to get debtor to pay voluntarily before seeking assistance of the court. e) Repossession i) Allowed at common law where it can be accomplished without breach of peace. ii) Person disseised and dispossessed of land an reenter w/o a court order unless would involve breach of peace iii) Repossession of chattels is allowed where they have been: 1) Loaned, hired, bailed, lost and found, or stolen and wrongfully detained from the O provided it is done w/o ab reach of the peace. 2) Person may recover own chattels from land of the wrongdoer, but to do so from the land of a 3P would be trespass 3) Hunters may retrieve dogs from posted property. 4) UCC Article 9- a secured party has the right to proceed to self help repossession default without regard to common law ownership. 5) Right of repossession of chattels may be exercised w/o recourse to courts, provided done peacefully. iv) Most common use is the seller’s peaceful...
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...VENABLE LLP Special Litigation Counsel to the Debtors and Debtors in Possession 1800 Mercantile Bank & Trust Building Two Hopkins Plaza Baltimore, Maryland 21201 (410) 244-7400 Richard L. Wasserman (RLW -8696) Michael Schatzow (pro hac vice) Michael B. MacWilliams (pro hac vice pending) TOGUT, SEGAL & SEGAL LLP Bankruptcy Co-Counsel for the Debtors and Debtors in Possession One Penn Plaza, Suite 3335 New York, New York 10119 (212) 594-5000 Albert Togut (AT-9759) Frank A. Oswald (FAO-1223) Scott E. Ratner (SER-0015) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------In re ENRON CORP., et al., Debtors. -------------------------------------------------------ENRON CORP., Plaintiff, v. CREDIT SUISSE FIRST BOSTON INTERNATIONAL and CREDIT SUISSE FIRST BOSTON LLC , f/k/a CREDIT SUISSE FIRST BOSTON CORPORATION, Defendants. --------------------------------------------------------x : : : : : : : x : : : : : : : : : : : : : : : : : x Chapter 11 Case No. 01-16034 (AJG) Jointly Administered Adversary Proceeding No. 03 - ____________ (AJG) COMPLAINT FOR THE AVOIDANCE AND RECOVERY OF PREFERENTIAL AND FRAUDULENT TRANSFERS, RECOVERY OF ILLEGAL PAYMENTS TO A SHAREHOLDER WHILE THE DEBTOR WAS INSOLVENT, AND FOR OTHER RELIEF Plaintiff Enron Corp. (“Enron”), as a debtor and debtor in possession, by its special litigation counsel, Venable LLP, and its bankruptcy co-counsel, Togut Segal & Segal LLP, for its complaint against...
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...Introduction to Commercial Law “The law isn’t perfect but it certainly beats whatever is in second place.” ~ Kojak 1974 The common law system is based on the English model which has been inherited by various countries whose development has been influenced by British colonialism, in particular Commonwealth countries. Given that the law reflects the general character of the society in which it exists, it is not surprising that over a period of 200 years there is a lack of complete uniformity between the laws of those countries influenced by British settlement. Nevertheless, the British common law / equity systems have more in common than they have elements of difference, with models sharing common values, institutions and principles. There are, of course, other types of legal systems throughout the world, such as those who have adopted the civil law system, which has its heritage in Roman law, or those based in religion (syariah law) or politics (such as socialist law). However, this essay will focus on the British common law / equity system which have been adopted by various Commonwealth countries throughout the world, including Singapore. The expression ‘common law’ is used to describe a legal system based on the English model. This expression is also used to describe case law – the law developed by the courts as distinct from the law enacted by parliament. The common law in this sense owes its existence to the creations of generations of judges...
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...Assignment 1 Business Law Oct 28th 2014 Common law is defined as “law developed by judges who issued their opinions when deciding a case.” (Cheeseman, 2013). The principles in these early cases have taken precedent for later judges that are deciding similar cases. English common law is divided into cases which are decided by three different courts. These courts are: law courts, equity courts, and merchant courts. Law courts deal with matters of the law, such as administering it and upholding it. Equity courts deal with issues arising from decisions made by the judges in law courts. The equity court was run by the Lord Chancellor; this court enabled people to seek relief from decisions made in law courts they felt were unfair. Merchant courts were established to handle commercial disputes. English common law is the primary source of American law. Law, equity and merchant courts have all been merged in the United States so that most courts permit seeking any kind of remedy. Of all the states in the United States, Louisiana is the only state which doesn’t base its legal system on English common law. Louisiana law is based from French law and the Napoleonic Code. This type of law takes a civilian approach. “Civilian law is based on scholarly research and the drafting of legal code which is passed into law by the legislative branch. It is then the judge's job to interpret that intent more than to follow judicial precedent.” (La-Legal, 2014). The Constitution of the United...
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