New equitable developments
Equity of Redemption
Equity of redemption
Involved in mortgages (interest in property-land, loan of money-terminated when load is repaid by specified date.
Common Law- strict e.g. if loan not repaid in time then land and proportion of money would be lost.
Equity of Redemption- gives right to person to repay even after date expiration with formalities i.e. payment of interest.
Wills- 'Upon my death my house is to be given to my wife and then to my children'.
Common Law- gift is absolute, no such thing as a conditional gift.
The Trust- arrangement by which one person holds property on behalf of another i.e. if he/she comes of age. Wife would be trustee and children would be beneficiaries.
What’s constructive trust?
An equitable remedy resembling a trust (implied trust) imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding legal right to property which they should not possess due to unjust enrichment or interference.
Maybe implied in absence of declaration of trust e.g. Gissing v Gissing 1971.
It helped women, if husband's under the house and the wife made a contribution then it's their house.
Person in dominant position has influence that prevents someone exercising an independent judgment. I.e. if partner A is more dominant than partner B and A uses dominance to secure gift then B can claim under Undue Influence.
O’Sullivan v Management Agencies Ltd 1984
A younger singer (Gilbert O’Sullivan) entered into a contract to further his songwriting career. He later applied for the contract to be set aside as it has been obtained through undue influence. Management Agencies had unfairly used their influence over the young singer and therefore the contract was set aside.
Court order or restraining the performance of some act. I.e. breach of contract.
Super injunction- press are prevented from knowing the existence and details of the injunctions and prevented from publishing any facts or allegations surrounding case. AMM v HXW 2010 case.
- Can be mandatory, prohibitory or interlocutory.
- However, injunctions will only be awarded if damaged are inadequate as a remedy.
- Kennaway v Thompson 1980
Owners of lakeside homes were granted an injunction against a power-boat club, limiting power/boats and number of days which racing was to be allowed. Club’s willingness to pay damages (said the Court) did not give them a licence to continue the nuisance.
Warner Brothers v Nelson 1937Film actress Bette Davis agreed to make a film for another company even though she was still under contract to Warner Brothers. Court granted injunction that prevented her breaching original contract.
Order that forces party to perform their part of contract. I.e. when contracts have been exchanged for the sale of a house, court may order reluctant seller to complete sale.
Common law wasn’t dealing with society's problems.
- SP will not be awarded where damages are an adequate remedy, very rare only rewarded when subject matter of contract unique.
AG v Wright 1987W was a retired MI5 officer living in Australia, he wrote his memoirs revealing his work as a spy. Government succeeded in obtaining an order of SP ordering W to maintain his duty of confidentiality towards the Crown. However, W did manage to get his memoirs published in the USA and books could be obtained from abroad.
- Sky Petroleum v VIP Petroleum (1974) where petrol was deemed to be unique item because short supply at time.
- Wolverhampton Corporation v Emmons (1902) where builder made to comply his contract to build houses on demolition site.
Order which tries to place the parties in their pre contractual position by returning goods or money to their original owners rather than simply awarding damages. A court order which orders parties to be restored to their pre-contractual position as if contract hasn't happened. It's available for contracts where a vitiating factor like misrepresentation/duress has made contract voidable.
Ingram v Little 1961
Three sisters sold their car to a crook who gave a false name and paid a dud cheque; the crook then sold the car to a third party. When cheque was dishonoured the sisters were able to recover car.
Grist v Bailey (1967) where contract set aside because parties made mistake that property for sale was covered by Rents Acts.
This is when the parties make an agreement or a contract that is defective. The court may rectify the agreement to make it express the true intention of the parties. Remedy where a written contract is rectified because mistake made and erms not what parties wanted/intended.
Craddock Brothers v hunt 1923
A orally agree to sell his house to B. but the sale was not to include the adjoining yard. Later the conveyancing contract mistakenly included the yard in the sale. The court was able to rectify the contract to accord with the intention of the parties.
1) Common law: Proceedings in Latin
Equity (new procedures): Court of Chancery coducted proceedings in English.
2) Common law: Inflexible writ system.
Equity (new procedures): Discretion of Chancellor- case law system (beginning of 19th century, equity was nearly riding as common law).
3) Common law: No witnesses/cross examination.
Equity: Order a witness in court on particular day- Subpoena.
Why was it complicated having two systems?
1) Inevitable prediction- people picking which cour but equity prevailed.
2) Constitution being tweaked- not written down, chaotic.
Judicature Act (1873-75) provided they both operate in same courts and no longer have different procedures for equesting remedies from equity and common law.