A Remedial Jurisdiction

• What is the central guiding concept of equity?

  Conscience
• How does equity navigate the relationship between certainty and flexibility?

  By seeking to achieve individualized justice through its discretion
• What are the contrasting views of judges Denning and Megaw regarding equity?

  • Denning: Judges can create new rights in equity as demanded by justice.
  • Megaw: Creation of new rights and remedies is a matter for Parliament, not judges.
• What is the standard common law remedy for breaches of contract or tort?

  Damages
• What does equity allow in terms of altering someone's conduct?

  It can compel someone to do something or stop doing something
• What is the jurisdiction of equity described as?

  Acts in persona
• How does equity rank rights according to Sarah Worthington?

  It privileges property rights over others
• In what scenario is specific performance more likely to be granted according to equity?

  If the item is a rare or unique asset, like antique vases
• What triggers equity to intervene?

  Hardship
• How does equity view the sale of land compared to other contracts?

  It is more fiercely protected
• What is the relationship between specific performance and market efficiency?

  Specific performance compels contractual engagement, aligning with market efficiency
• What are the implications of judges compelling individuals to alter their conduct?

  It may interfere with individual autonomy
• What are the features and characteristics of equitable remedies?

  • Protect both legal and equitable rights
  • Discretionary in nature
  • Operate in personam
  • Have great width and flexibility
  • Subject to defences (delay, clean hands, hardship)
• What is the significance of conscience in equitable relief?

  It interrogates the conscience of the parties involved
• What is the principle behind "He who seeks equity must do equity"?

  It prevents undue hardship to the defendant
• What does "clean hands" refer to in equity?

  Claimant must not have behaved unreasonably or immorally
• What happens if a defendant fails to adhere to an equitable remedy?

  They may be held in contempt of court
• What are key examples of equitable remedies?

  • Recission
  • Rectification
  • Specific performance
  • Injunctions
• What is the purpose of recission in equity?

  To render a contract unenforceable and return parties to pre-contractual positions
• What does "restitutio in integrum" mean in contract law?

  Restoration to original condition
• How does equity differ from strict contract law in terms of rescission?

  Equity is more flexible and considers public policy reasons
• Under what condition can a transaction be rescinded due to a fundamental mistake?

  When there is a mistake about the facts or legal consequences
• How does equity approach voluntary transactions differently than legal rules?

  It focuses on whether it would be unconscionable to leave the disposition uncorrected
• What is the significance of misrepresentations in contract law?

  They do not necessarily render the contract void but allow for rescission or affirmation
• How does equity view fraud in relation to contracts?

  It is sensitive to exploitation and protects vulnerable parties
• What is the broader implication of equity's flexibility in protecting vulnerable parties?

  It allows for greater vigilance against exploitation
• What are the types of equitable relief that may be denied?

  • He who seeks equity must do equity
  • He who comes to equity must come with clean hands
• What is the role of judges in the context of equitable relief?

  • Judges must balance competing interests
  • They should consider the wider implications of awarding remedies
• How does equity distinguish between voluntary and involuntary transactions?

  It takes a more generous approach to involuntary transactions
• Why is the term "unconscionable" considered subjective in equity?


  It depends on the precise circumstances of each case
• Why are contextual distinctions important in equitable cases?

  They ensure that justice is tailored to the specific circumstances
• What historical perspective did Lord Hardwicke provide on fraud in equity?

  Fraud is infinite and cannot be strictly defined
• What is the importance of balancing competing interests in equitable remedies?

  It helps to achieve fair outcomes in complex situations
• What can both contracts and voluntary dispositions be rescinded for?

  Undue influence
• Who stated that "Fraud (in equity) is infinite"?

  Lord Hardwicke LC
• What does equity do in scenarios with a stronger and a weaker party?

  It exercises greater vigilance to protect the more vulnerable party
• What is meant by "moral fraud" in the context of equity?

  It refers to a breach of obligation enforced by a court of conscience
• What is the jurisdiction of a court regarding fraud according to Earl of Chesterfield v Janssen?

  The court has jurisdiction to relieve against every species of fraud
• Why is justification needed when setting contracts aside due to undue influence?

  Because it is a powerful intervention
• How can undue influence be viewed in relation to consent?

  As a means to purify consent rather than being overly paternalistic