Modern equity sample answer


B) Discuss the Characteristics of Equity Today

Equity developed due to the problems that emerged with the use of common law. It has been described as ‘the gloss on common law’ and ‘common law’s safety valve’. This is because the system is seen as more just and fair. Equity has four main remedies: injunction, specific performance, rectification and rescission. Equitable maxims must also be satisfied for a rule or remedy to be applied, in order to keep the system fair.

An injunction is either an order to do something (mandatory injunction) or an order to not do something (prohibitory injunction). An injunction can be awarded at the conclusion of a case if damages are inadequate as a remedy e.g. to prevent a continuing nuisance. For example, in Warner Bros v Nelson (1937), Warner Bros sought an injunction to stop Nelson (Betty Davis) from working in any other films that aren’t made by Warner Bros for the duration of her contract.

Specific performance means that a party has to fulfil a previous agreement. It is only awarded in exceptional circumstances where damages would not compensate and it is never awarded in relation to personal services e.g. singing at a concert. It has also been granted when a contract for a unique item has been made, as in Sky v VIP Petroleum (1974), where petrol was deemed a unique item because it was in short supply at that time.

Rectification can alter the words of a document to reflect the true intentions of the parties to it. The court will only make an order if it is satisfied that a mistake was made in drawing up the document. For example, in Jocelyne v Nissen (1970) a father and daughter agreed that the daughter would buy the father’s business and would pay all the expenses of her father’s house in return, however there was no mention of this in the contract, but evidence to show a clear intention by the parties. Therefore the courts were satisfied that rectification was an appropriate remedy.

Rescission restores parties to the positions that they were in before the contact was signed. The main grounds are misrepresentation which introduced one party to enter the contract or a mistake that has a fundamental effect…


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