Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter presents an argument for the integration of Common Law and Equity jurisdictions by focusing on two objectives. The first is to show that the practical task of integration is unlikely to be as difficult as is often supposed. The second objective is more demanding. Whatever the practical and intellectual advantages of integration, there remains a persistent and powerful perception that integration is now impossible. The arguments invariably focus on allegations of profound and unbridgeable philosophical and jurisprudential divides between the two jurisdictions. The core concerns are that Equity is a uniquely conscience-based and discretionary regime whereas the Common Law is a rules- and rights-based regime. The chapter seeks to challenge that view.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter focuses on different aspects of the bizarre common law dualist legal system, with its separate bodies of Common Law and Equitable rules. It describes the origins of common law dualism and then discusses the early distinguishing characteristics of Common Law and Equity. It then sets out the two main objectives of the text. The first is to expose Equity's impact on the modern legal landscape. The second objective is to expose the possibilities for coherent substantive integration of Common Law and Equity.
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This chapter first explains the meaning of law. It then discusses the historical development and characteristics of English law, and the different types of law (public law, private law, criminal law, and civil law). Laws are rules and regulations which govern the activities of persons within a country. In England and Wales, laws are composed of three main elements: legislation which is created through Parliament; common law; and, until the UK leaves the EU, directly enforceable EU law. This chapter also considers the terminology used for criminal prosecutions and civil actions, and outlines the legal profession in England and Wales.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. For many, Equity's greatest contribution to the law has been its manipulation of traditionally accepted concepts of property. This chapter deals with two strategies that Equity adapted to achieve its radical ends. Equity's first strategy is straightforward. Equity would sometimes regard certain assets as property even when the Common Law did not. This meant that these assets could be traded; they became usable wealth, at least in Equity's eyes. Equity's second strategy for manipulating concepts of property is more complicated. Equity will sometimes say that A ‘owns’ a car (or a company share, or an insurance pay-out) even though the Common Law says that B does. The chapter considers what it means when Equity says that A ‘owns’ property, and why the assertion is so ingenious.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter illustrates escalating concerns about the risk of unacceptable disjunctions between Equity and the Common Law. The first section considers the relatively simple matter of Equity supplementing existing Common Law remedies. The next sections consider the more controversial question of Equity and the Common Law embarking on separate paths to deal with the same underlying wrong of negligence. The final sections deal with the intractable problem of how Equity protects Equitable property from abuse by the trustee and interference by other third parties. Each section explores the differences between the Equitable rules and their Common Law counterparts. It is crucial that these differences be soundly justified if they are to remain part of the common law.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the strategies Equity has developed to ensure the return of property that has fallen into the wrong hands. It focuses on the law of unjust enrichment, the third branch of the law of obligations that provides remedies whenever defendants receive some benefit, or enrichment, at the claimant's expense in circumstances that make it unjust for them to keep it. Equity's role in the law of unjust enrichment is highly controversial, and has been the subject of some profound and difficult modern revisions. To understand these debates it is first necessary to understand when and why any unjust enrichment remedies are warranted. How this model is structured determines, in large measure, how easily Common Law and Equitable learning on this issue can be integrated.
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This book offers a major new means of conceptualizing law and legal relations across the world. National laws are placed in the broader context of major legal traditions, those of chthonic (or indigenous) law, talmudic law, civil law, Islamic law, common law, Hindu law, and Confucian law. Each tradition is examined in terms of its institutions and substantive law, its founding concepts and methods, its attitude towards the concept of change, and its teaching on relations with other traditions and peoples. Legal traditions are explained in terms of multivalent and non-conflictual forms of logic and thought.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary and other features. Traditionally the doctrine of privity of contract regards contract as based upon agreement and consequently only the parties to that agreement can enforce it. This chapter discusses common law limitations to the doctrine of privity; common law attempts to evade privity; and statutory developments.
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This chapter focuses on the meaning of ‘employment’ — what is required in law for a worker to be considered an employee and what types of worker are not. It begins by examining the tests that have been developed at common law in order to determine this and the extent to which they are, and should be, driven by policy considerations. It then turns to other categories of work relationships to determine whether they are mutually exclusive with employment or whether they overlap. It also considers particular types of employees and explains their legal employment status. The chapter ends by addressing the question of whether the courts consider employment status to be a question of law or one of fact.
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In this chapter, there is a recognition that the intervention of equity in the family home represents a pragmatic response to a real problem, but it is not a perfect solution. It considers some of a number of grounds of critique of the current approach, including attempts at legislative reform to provide a solution. It can be criticized on a number of grounds, quite apart from the issue as to whether it constitutes a usurpation of a legislative function. There is also a consideration of whether the approach we have now has moved away from traditional assertion of property principles to a sense of redistributive justice more familiar to family lawyers.
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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines a range of Equity's incursions into the Common Law of contract. Because of these interventions, the landscape of contract law is broader and more varied than it might otherwise have been. The chapter discusses five different Equitable strategies that give the flavour of Equity's various forms of interference. These are overriding the need to comply with formalities; avoiding privity requirements; re-examining consideration; implying terms; and Equity's ability to anticipate or secure the Common Law outcome.
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Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter first discusses the fundamental distinctions between common law and civil law. It then examines the operation of the doctrine of precedent, and considers the arguments for and against the roles of judges and legislators in making law.
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This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.
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This chapter considers two principal questions: firstly, may a person who is not a party to a contract acquire rights under it? Secondly, can a contract impose duties on a person who is not a party to it? With some exceptions, the common law answered ‘No’ to both. A contract between A and B cannot be enforced by a third party, C, even if the contract is for the benefit of C. Nor can a contract between A and B impose burdens on C. Following the Contracts (Rights of Third Parties) Act 1999 there is now a statutory exception to the principle that C acquires no rights under a contract between A and B. Under this Act, a third party might be able to enforce a term of the contract if the contract expressly provides that they may, or if the relevant term purports to confer a benefit on them.
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This chapter considers the following categories of hearsay: statements in public documents, works of reference, evidence of age, evidence of reputation, statements forming part of the res gestae and statements which are admissions made by an agent of a defendant. All of these categories were established at common law as exceptions to the rule against hearsay, and all of them have been preserved by statute. The categories relating to age and res gestae have been preserved in criminal but not civil proceedings. All of the other categories have been preserved in both criminal and civil proceedings.
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This chapter first examines the common law rules regulating the variation of the terms of the contract of employment. It focuses on the situation where the employer seeks to unilaterally modify the terms of the employment contract, for instance in light of modern pressures on management to demand greater labour flexibility in order to adapt to changing market conditions. The chapter then moves on to address the ability of the employer to suspend the contract of employment, for instance where the employer suffers a downturn in demand for its products or services, or where an employee may be subject to disciplinary proceedings. Finally, it considers the future trajectory of the common law content of the personal contract of employment.
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13. The rule against hearsay IV
The accused’s denials and silence
The rules applicable to confessions are not necessarily applicable to all statements made by a suspect when confronted with his suspected involvement in an offence, because not all such statements are even partly inculpatory. Two situations are of particular importance: those in which the accused denies the allegations put to him, and those in which he remains silent in the face of the allegations. This chapter discusses the following: the accused’s denials; the accused’s silence at common law; the accused’s failure to mention facts when questioned or charged; the accused’s failure to account for objects, substances, or marks; and the accused’s failure to account for their presence at the scene of the offence.
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This chapter considers the following categories of hearsay: statements in public documents, works of reference, evidence of birth, age, and death, evidence of reputation, statements forming part of the res gestae, and statements which are admissions made by an agent of a defendant. All of these categories were established at common law as exceptions to the rule against hearsay, and all of them have been preserved by statute. The categories relating to age and res gestae have been preserved in criminal but not civil proceedings. All of the other categories have been preserved in both criminal and civil proceedings.
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This chapter considers two principal questions: firstly, may a person who is not a party to a contract acquire rights under it? Secondly, can a contract impose duties on a person who is not a party to it? With some exceptions, the common law answered ‘No’ to both. A contract between A and B cannot be enforced by a third party, C, even if the contract is for the benefit of C. Nor can a contract between A and B impose burdens on C. Following the Contracts (Rights of Third Parties) Act 1999 there is now a statutory exception to the principle that C acquires no rights under a contract between A and B. Under this Act, a third party might be able to enforce a term of the contract if the contract expressly provides that he may, or if the relevant term purports to confer a benefit on him.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary, and other features. This chapter explores the privity of contract. Traditionally the doctrine of privity of contract regards contract as based upon agreement and consequently only the parties to that agreement can enforce it. This chapter discusses common law limitations to the doctrine of privity; common law attempts to evade privity; and statutory developments. It covers the Contracts (Rights of Third Parties) Act 1999, including the freedom given to the contracting parties to exclude the provisions of the Act, or to set out procedures for post-contractual variation of arrangements that avoid the need to obtain the third party’s consent.
