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Substantive Fusion in English Law Essay Example

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Substantive Fusion in English Law

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Substantive Fusion in English Law. Sometimes, the lender would again make a claim without cancelling the debt. As the written document alone was the acceptable evidence, the debtor could not prove repayment by any other means and be faced with the order of the common law court for repayment to the lender again. In such cases, the Chancellor would be approached by the debtor by filing other forms of evidence on repayment based on which the Chancellor would call the lender and inquire with him by series of questions which if the lender did not answer to the satisfaction of the Chancellor, the Chancellor would pass an order restraining the lender from enforcing the order of the common law court. This was known as “common injunction”.

In the above, the manner in which the Chancellor passed the order without ignoring the common law rule of “irrefutable evidence “ shows that “equity follows the law” since the Chancellor would have passed the order in favour of the lender had he found the evidence in his favour. Secondly, the equity acts in person in that the Chancellor did not create any legal or property right. The Chancellors originally had been bishops, archbishops and cardinals and hence, origins of a law of trusts are attributed to Roman and Canon laws.
There are already legal and equitable trusts in trusts law. The tracing of property in equity is possible only if there is a fiduciary relationship. In property law, the equitable doctrine of part performance could be enforced only by an equitable remedy. The legal and equitable interests are always distinguishable unless there is an intervention by a statue. The distinction is demonstrated by the position that the legal interest is rights in rem i.e against the whole world whereas the equitable rights cannot be enforced against the bona fide purchaser of a legal estate for value without notice. Contrary to Pollock’s view, the dichotomy between equity and law has only grown-up ever since. Lord Nicholls has observed in A-G v Blake that the distinction has arisen as “an accident of history”. In general law other than trusts, legal and equitable rights are also distinct. . Substantive Fusion in English Law.

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Bibliography

Books

Ashburner Walter, 2009, Principles of Equity, Books LLC, p 18

Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974), 61.

J.J.Powell, (1790) Essay Upon the Law of Contracts and Agreements, 2 vols London for J.Johnson and T Whieldon

R.P. Meagher, J.D. Heydon And M.J. Leeming, Meagher, Gummow And Lehane, 2002,

Equity: Doctrines And Remedies, 4th Edn, Butterworths: Australia

Wilkie Margaret, Malcolm Rosalind, Luxton Peter, 2008, Q & A: Equity and Trusts2008 and 2009, ed 6, Oxford University Press, US.

Journals

Babafemi F.O.B., (1971) Tracing Assets: A Case for the Fusion of Common Law and Equity in English Law, The Modern Law Review, Vol. 34, No. 1 (Jan., 1971), pp. 12-28

Edinburgh Review 14 (1875): 179, 180, as quoted in A. S. Manchester, A Modern Legal

History of England and Wales, 1750-1950 (London: Butterworths, 1980), 149.

Oldhams James, [2004), A Profusion of a Chancery Reform, Law and history Review, 22 (3) p 609-614

Cases

A-G v Blake [2000] 3 WLR 625, p 634

Ind, Coope and co v Emmerson [1887] 12 App. Cas. 300 at 308

Napier and Ettrick (Lord) v Hunter [1993] AC 713

Salt v Cooper, [1880] 16 ChD 544

Seager v Copydex Ltd [1967] 1 CLR 923, CA

Spycatcher case A-G v Guardian Newspapers Ltd (No 2), [1990] 1 AC 109 (p 286) per lord Goff

Tinsley v Milligan [1994] 1 AC 340

Tribe v Tribe [1996] Ch107

Taylor v Plumer (1815) 3 M & S. 562

United Scientific Holdings Ltd v Burnley Borough Council (1978) AC 904

Walsh v Lonsdale [1882] 21 ChD 9

Others

History and development of equity, available at <http://www.law.uvic.ca/mgillen/319/documents/HistoryOHfall06_000.doc> viewed on 9 December 2009

Law of Property Act 1925 (c20), available at < http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1925/cukpga_19250020_en_1 > viewed on 9 December 2009

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preview essay on Substantive Fusion in English Law
  • Pages: 10 (2500 words)
  • Document Type: Essay
  • Subject: Law
  • Level: Undergraduate
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