By Sarah Worthington
The second one variation of Sarah Worthington's fairness units out the fundamental rules of fairness, illustrated by way of either ancient and modern examples in their operation. The e-book describes equity's function in growing varied rights and tasks, treatments, and strategies from these supplied by means of the typical legislation itself.
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Additional resources for Equity (Clarendon Law Series)
Example text
The statutory six-year limitation period pays no regard to the factors accommodated by the Equitable rule. Claimants seeking profits disgorgement will be treated differently depending upon whether their claims arise at Common Law or in Equity. This type of disjunction is not based on any rational concern, and only serves to bring the law into disrepute. Footnotes: 29 28 See Chapter 7, 192-197. See Chapter 5, 142-143. Page 35 WAIVER (OR RELEASE) The second important Equitable defence is waiver or release.
The defence only becomes crucial if one of the parties is insolvent. Suppose C is insolvent and her creditors will only be paid 50 pence in the pound. If set-off is allowed, then the claims will be netted: C will not be required to pay anything, and D will have to pay C £100, as before. But if set-off is not allowed, then each claim must be treated independently. This means that D must pay C £1,000, and must pay the full amount because he is solvent. C, on the other hand, is liable to pay D £900, but she will in fact only pay £450 because of her insolvency.
It follows that legal rights can be restructured, judicially, simply by according different degrees of protection to different rights. This chapter surveys the techniques introduced by Equity to vary remedies, defences, and procedural practices so as to deliver a more attuned hierarchy of legal rights and, as a result, a more sophisticated legal system. This evolving discrimination is Equity's most pervasive, and least well acknowledged, contribution to the modern common law landscape. Orthodox descriptions of Equity usually focus on its individual context-specific interventions.