Further information on equity Burrows- (Academic) described 3 categories of legal issues:
What is equity? 1. Where common law and equity co-exist – but are kept
separate
St German (Academic)- Focus on equity as a device of In this category the distinction is necessary because the
legal interpretation which softens the letter of the law to trust instrument contains the split of the legal title as
perfect its just intention also known as natural law well as the inclusion of equity’s darling
Hobbes (Academic)- The focus is on the discretionary 2. Where common law and equity co-exist separately – but
powers exercised by an absolute sovereign their separation is no longer helpful or even needed
(monarch/parliament) Law on undue influence
Substantive fusion: three views: Common law- contract is voidable whilst equity relief
can be found
Professor Ashburner (Academic) – (Not merged) The Law of mistakes in contact
two streams of the jurisdiction though they run in the Under common law, a serious mistake can lead a
same channel, run side by side and do not mingle waters contract to be void whilst under equity it is voidable
USH v Burnley- (merged) The waters of the confluent Where the common law and equity do not exist
streams of law and equity have surely mingled by now coherently
Elders Pastoral v Bank of New Zealand- (Hybrid Change in the law is required- e.g. Tracing
argument)- there has been a harmonious development
of the two areas William Blackstone’s (Academic)
Meagher- Academic- Fusion Fallacy: Law and equity differ only “in the forms and mode of
their proceedings”
The judicature acts fused law and equity to develop a They both follow “the spirit of the rule” rather than “the
new body of principles which is neither common law or strictness of the letter”.
equitable but a new legal theory Represents that there might be a need to move away
Crabb v Arun DC- Both Law and Equity seek the same from the concept of having two different areas of law
result but are different
What is equity? 1. Where common law and equity co-exist – but are kept
separate
St German (Academic)- Focus on equity as a device of In this category the distinction is necessary because the
legal interpretation which softens the letter of the law to trust instrument contains the split of the legal title as
perfect its just intention also known as natural law well as the inclusion of equity’s darling
Hobbes (Academic)- The focus is on the discretionary 2. Where common law and equity co-exist separately – but
powers exercised by an absolute sovereign their separation is no longer helpful or even needed
(monarch/parliament) Law on undue influence
Substantive fusion: three views: Common law- contract is voidable whilst equity relief
can be found
Professor Ashburner (Academic) – (Not merged) The Law of mistakes in contact
two streams of the jurisdiction though they run in the Under common law, a serious mistake can lead a
same channel, run side by side and do not mingle waters contract to be void whilst under equity it is voidable
USH v Burnley- (merged) The waters of the confluent Where the common law and equity do not exist
streams of law and equity have surely mingled by now coherently
Elders Pastoral v Bank of New Zealand- (Hybrid Change in the law is required- e.g. Tracing
argument)- there has been a harmonious development
of the two areas William Blackstone’s (Academic)
Meagher- Academic- Fusion Fallacy: Law and equity differ only “in the forms and mode of
their proceedings”
The judicature acts fused law and equity to develop a They both follow “the spirit of the rule” rather than “the
new body of principles which is neither common law or strictness of the letter”.
equitable but a new legal theory Represents that there might be a need to move away
Crabb v Arun DC- Both Law and Equity seek the same from the concept of having two different areas of law
result but are different
