Equity's Concern For Fairness Can Often Invert It Into Its Opposite. Courts Of Equity Equity Of Redemption. English Law

2187 words - 9 pages

Equity's Concern for Fairness Can all Too Often Invert It Into Its Opposite.Equity by definition embodies a notion of 'fairness.' The Law of Equity, whose origins lie in the court of the Chancery, was conceived as a 'corrective system of justice, designed to supplement the common law by responding more flexibly and sensitively to the need for fair dealing and just outcomes '. The courts of Equity were able to remedy the sometimes 'dogmatic' approach of the common law and to ensure that in an effort to maintain certainty the law was not neglecting its true function i.e. ensuring justice.Far from operating separately to the common law , equity exists as a 'patchwork' over it or, as Maitland puts it, a 'gloss, ' offering a wider range of suitable remedies and recognising rights that, under the common law, would go unrecognised. Historically, its lack of formality and preoccupation with 'fairness' on an ad-hoc basis evoked much criticism. John Selden once remarked of equity 'Tis all one as if they should make the standard (of equity's conscience) for the measure of the Chancellor's foot .' However, equity has now derived an identifiable structure and a system of rules (a fact that has itself led to criticism ) which enables us to examine it with some degree of certainty.Recently Lord Browne-Wilkinson re-established traditional notions of equity saying that it 'operates on the conscience a view supported by many who contend that the overriding aim of Equity is to prevent unconscionable behaviour . This essay will seek to answer whether this conscience based approach ensures that equity is at all times 'fair' or whether, in a quest for fairness, unfairness sometimes results.Historically, the equity of redemption, that being a mortgagor's equitable right to reclaim 'his' property and redeem his mortgage long after a specified (legal) due date, free from 'clogs or fetters ,' has certainly exhibited manifest 'unfairness.' Whether this could be said to have been the result of a legitimate 'concern for fairness' though is somewhat more than doubtful. More likely it was due to attempts to maintain the status quo and the traditional notions of Britishness. For example, the equity of redemption has always been at odds to protect the equitable rights of the mortgagor over the mortgagee and to ensure that a mortgage should not become a crude mechanism of property transfer . However, the question that needs to be asked is why should it not have been? ? especially when parties (of equal bargaining power) who were engaged in a bargain decided it to be so. To argue that those who sought a mortgage were needy or 'more open to [unfair/unscrupulous] impositions ,' is itself somewhat crude and why should the sanctity of contract have been compromised simply to prevent the erosion of the landed's dynasties ? Why could new dynasties not be created by fair exchange? The answers to these questions lie in the very socio-political and legal foundations of the law of equity...

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