The document is a law student's assignment that critically examines the fusion debate between equity and common law in England. It discusses how the Judicature Acts of 1873 and 1875 merged the courts of equity and common law, though some argue this was only administratively and the two systems remain distinct. The assignment also explores the historical development of equity, key cases that established its relationship to common law, and maxims of equity like "equity follows the law." It concludes there is still debate around the appropriate relationship between equity and common law going forward.
Class lecture from the course Principles of Equity, Trust and Roman Law conducted for first year students at Jahangirnagar University
Learning Outcome: Students will understand how the separate court systems of common law and equity were conflicting with each other and how Judicature Act was enacted to avert the difficulties
Constructive trusts arise by operation of law rather than by the intention of the parties. They are used in circumstances where it would be unfair for someone to benefit from property that rightfully belongs to another.
The document outlines several traditional and modern circumstances that give rise to constructive trusts, including: when someone obtains unauthorized profits from a trust; uses a statute to commit fraud; enters into a mutual will agreement; or acquires property through unlawful conduct like murder. Constructive trusts can also be imposed on strangers who infringe on or assist with breaching a trust.
Modern categories where constructive trusts are imposed include family arrangements involving common intentions around property, as well as license agreements where someone is occupying land without a proprietary interest.
This document discusses several maxims of equity, which are broad statements that set out principles upon which equity operates. It provides explanations of 8 maxims:
1) Equity acts in personam - Equity relates to a person rather than their property and can make orders affecting property outside its jurisdiction by ordering the defendant.
2) Equity follows the law (but not slavishly) - Equity provides remedies where the law is inadequate but does not destroy the law.
3) Equality is equity - Equity tries to grant relief proportionately based on claims and liabilities.
4) He who seeks equity must come with clean hands - An applicant who acted unjustly will not receive equitable relief.
Class lecture from the course Principles of Equity, Trust and Roman Law conducted for first year students at Jahangirnagar University
Learning Outcome: Students will understand how the separate court systems of common law and equity were conflicting with each other and how Judicature Act was enacted to avert the difficulties
Constructive trusts arise by operation of law rather than by the intention of the parties. They are used in circumstances where it would be unfair for someone to benefit from property that rightfully belongs to another.
The document outlines several traditional and modern circumstances that give rise to constructive trusts, including: when someone obtains unauthorized profits from a trust; uses a statute to commit fraud; enters into a mutual will agreement; or acquires property through unlawful conduct like murder. Constructive trusts can also be imposed on strangers who infringe on or assist with breaching a trust.
Modern categories where constructive trusts are imposed include family arrangements involving common intentions around property, as well as license agreements where someone is occupying land without a proprietary interest.
This document discusses several maxims of equity, which are broad statements that set out principles upon which equity operates. It provides explanations of 8 maxims:
1) Equity acts in personam - Equity relates to a person rather than their property and can make orders affecting property outside its jurisdiction by ordering the defendant.
2) Equity follows the law (but not slavishly) - Equity provides remedies where the law is inadequate but does not destroy the law.
3) Equality is equity - Equity tries to grant relief proportionately based on claims and liabilities.
4) He who seeks equity must come with clean hands - An applicant who acted unjustly will not receive equitable relief.
This document summarizes the law on charitable trusts in the UK. It discusses the four principal categories of charitable purposes as defined by Lord MacNaughten: 1) relief of poverty, 2) advancement of education, 3) advancement of religion, and 4) other purposes beneficial to the community. It provides detailed explanations and case examples for each category. For relief of poverty, it discusses what constitutes poverty, public benefit requirements, and cases related to aged, impotent, poor persons. For advancement of education, it examines what activities fall under education like research, art, extracurricular activities, and public benefit. For advancement of religion, it analyzes definitions of religion, requirements for public benefit, and cases related to various religions
The document discusses several maxims of equity, which are general principles that govern how equity operates and illustrate its qualities of being more flexible than common law and taking into account parties' conduct. The maxims establish that equity can intervene with common law if justice requires, acts on parties' consciences to treat obligations as done, and makes orders directly against individuals. Equity aims to provide remedies for wrongs and ensure fairness between parties.
The document traces the origins and evolution of equity jurisdiction in England from individuals petitioning the King for relief, to the rise of the Court of Chancery under
This document discusses the fusion of equity and common law in England following the Judicature Acts. It provides examples of how:
1) Early cases disagreed on whether the Acts fused equity and common law or just consolidated their administration. Over time there was some comingling and co-mingling of the two.
2) Equitable principles and remedies began to be applied in cases that would have previously been matters of common law alone, through doctrines like analogy.
3) Equity generally prevailed over the common law in cases of conflict between them, though procedures remained separate. Over the long run this led to a replacement of many common law rules with equitable rules.
Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)surrenderyourthrone
This document summarizes an article that discusses how equitable approaches to certain aspects of contract law, such as unfairness, mistake, and privity, were marginalized after the Judicature Acts of 1873–1875 unified the courts of law and equity in England. The article argues that while the Acts stated that equity should prevail over common law in cases of conflict, in practice common law judges who lacked experience in equity began to dominate the new unified court system. As a result, equitable concepts in contract law came to be viewed through a "common law mind-set" and were often relegated to a secondary status in contract law treatises written after 1875.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
This document discusses the legal definition of land and the law of fixtures in Malaysia. It begins by defining land under the National Land Code to include things attached to or permanently fastened to the earth. It then examines the English common law test for determining whether an item is a fixture or chattel based on the degree and purpose of annexation, as established in Holland v. Hodgson. This test was applied in Malaysia through the case of Goh Chong Hin v. Consolidated Malay Rubber. The document also discusses exceptions to the law of fixtures such as tenants' fixtures and the effect of retention of title clauses.
Aqulian action in roman dutch law of delict a general discussionMangala Wijesinghe
The document discusses the Aquilian Action in Roman Dutch Law of Delict. It provides a general remedy for wrongs that cause harm to a person's interests, allowing them to claim compensation for financial losses. There are three elements for liability under the Aquilian Action: a wrongful act by the defendant, financial loss to the plaintiff, and fault by the defendant. Fault can be willful injury or negligence. Negligence, or failing to meet the standard of care that a reasonable person would have in the same circumstances, is a basis for liability. To succeed in a delictual action, the plaintiff must prove the defendant owed a duty of care, was negligent, and their conduct caused the harm.
The document discusses the equitable doctrine of promissory estoppel. It provides that equity will not favor a party who makes a promise to relieve another of their legal obligation but then tries to go back on that promise. The doctrine requires that the promise be clear and unequivocal, that there was a pre-existing legal relationship between the parties, and that the promisee relied on the promise. It also establishes that mere silence or encouragement can give rise to a promise under promissory estoppel. The doctrine is an equitable remedy that can be used as a shield to prevent injustice but not as an independent cause of action.
This document discusses Jual Janji transactions, which are a type of security transaction commonly practiced in the Malay Muslim community. It involves a borrower transferring land to a lender in exchange for a loan, with the promise that the land will be retransferred upon repayment of the loan. The document outlines the origins, characteristics, modus operandi, registration process, and judicial views on Jual Janji transactions. It examines different court opinions that have treated Jual Janji as either a contract, equitable mortgage, or customary transaction. The overall document provides an introduction and analysis of Jual Janji transactions under Malaysian law.
Equity follows the rules of law and does not contradict it. Equity respects every word of law and aims to fulfill and explain it, not destroy it. This principle is based on the Latin maxim "equitas sequitur legem", meaning equity follows the law. A key 1734 case established that a court's discretion in equity must be governed by legal rules and cannot take actions against the law. Equity deals with issues of equality and maintains fairness between parties in a way that helps resolve legal issues, always following the analogies and rules of law.
1. Jual janji is a traditional Malay practice where land is transferred to a lender as security for a loan, with the understanding that it will be returned to the borrower upon repayment.
2. Malaysian courts initially treated jual janji strictly as a sale, ignoring evidence it was intended as security. However, exceptions developed where time was not of the essence or the lender evaded repayment.
3. Recent cases and the National Land Code have recognized jual janji can operate as an equitable security transaction, balancing title rights with contractual obligations.
The document provides an introduction to contract law, covering key topics such as the purpose of contracts, elements of a valid contract, types of contracts, and remedies available even when no contract exists. It defines a contract as a promise that is legally enforceable, and discusses how contract law has developed over time, becoming less dependent on written forms and considering fairness. The types of contracts covered are bilateral vs unilateral, express vs implied, executory vs executed, and valid vs unenforceable/voidable/void agreements. Promissory estoppel and quasi-contract are also introduced as remedies when no contract exists. Sources of contract law discussed include common law, the Uniform Commercial Code, and the Restatement.
The document discusses the three certainties required to create a valid private express trust: (1) intention, (2) subject matter, and (3) object. It provides details on each certainty, including examples from case law. For certainty of intention, the words used must show the settlor's clear intention to create a trust. For certainty of subject matter, the trust property must be clearly defined or ascertainable. For certainty of object, the beneficiaries must be human and ascertainable as individuals or as members of a defined class.
The cy-près doctrine allows charitable trusts whose purposes have become impossible or impractical to fulfill their original goals to have their funds reapplied to similar charitable purposes. In Malaysia, courts refer to case law when addressing cy-près issues due to a lack of statutory provisions. For cy-près to apply, the settlor's intention must have been for general charity rather than a specific purpose. Initial failures occur before a gift takes effect if the intended charity no longer exists, while subsequent failures happen after a gift has already vested in a charity that then ceases to exist.
Pengantar Hukum Internasional - North Sea Continental Shelf CaseMariske Myeke Tampi
The North Sea Continental Shelf case involved a dispute between Germany, Denmark, and the Netherlands over the delimitation of their continental shelf boundaries in the North Sea. The key issues were whether the equidistance principle in Article 6 of the 1958 Continental Shelf Convention should be applied to determine the boundaries, and whether the International Court of Justice had jurisdiction based on the consent of the states involved. The Court ultimately applied the equidistance principle and asserted its jurisdiction based on the consent of Germany, Denmark, and the Netherlands.
Legitimacy, Legitimation and Adoption under Private International Lawcarolineelias239
For matters concerning children, and their succeeding rights over parental property is being questioned on the basis of legitimacy or illegitimacy. Legitimation is allowed to convert the status of illegitimacy ti legitimate. Adoption also assures the welfare of the children.
The document provides historical context on the development of common law and equity in England. It explains that different legal systems existed in different areas before the Norman Conquest, and William the Conqueror began standardizing English law. By the 13th century, a common law had developed across the country. Dissatisfied with rigid common law, petitioners took cases to the Chancellor, establishing the Court of Chancery and principles of equity. Over time, equity developed its own precedents and maxims until the Judicature Acts merged the administration of common law and equity in the late 19th century.
The document provides historical context on the development of common law and equity in England. It explains that different legal systems existed in different areas before the Norman Conquest in 1066. William the Conqueror established a centralized government and began standardizing laws. By 1250, a common law had been produced to rule the entire country. Dissatisfied with rigid common law, petitioners took cases to the King's Chancellor, establishing the Court of Chancery and principles of equity. Over time, equity developed its own precedents and maxims until the Judicature Acts of 1873-75 merged the administration of common law and equity in the court system.
This document summarizes the law on charitable trusts in the UK. It discusses the four principal categories of charitable purposes as defined by Lord MacNaughten: 1) relief of poverty, 2) advancement of education, 3) advancement of religion, and 4) other purposes beneficial to the community. It provides detailed explanations and case examples for each category. For relief of poverty, it discusses what constitutes poverty, public benefit requirements, and cases related to aged, impotent, poor persons. For advancement of education, it examines what activities fall under education like research, art, extracurricular activities, and public benefit. For advancement of religion, it analyzes definitions of religion, requirements for public benefit, and cases related to various religions
The document discusses several maxims of equity, which are general principles that govern how equity operates and illustrate its qualities of being more flexible than common law and taking into account parties' conduct. The maxims establish that equity can intervene with common law if justice requires, acts on parties' consciences to treat obligations as done, and makes orders directly against individuals. Equity aims to provide remedies for wrongs and ensure fairness between parties.
The document traces the origins and evolution of equity jurisdiction in England from individuals petitioning the King for relief, to the rise of the Court of Chancery under
This document discusses the fusion of equity and common law in England following the Judicature Acts. It provides examples of how:
1) Early cases disagreed on whether the Acts fused equity and common law or just consolidated their administration. Over time there was some comingling and co-mingling of the two.
2) Equitable principles and remedies began to be applied in cases that would have previously been matters of common law alone, through doctrines like analogy.
3) Equity generally prevailed over the common law in cases of conflict between them, though procedures remained separate. Over the long run this led to a replacement of many common law rules with equitable rules.
Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)surrenderyourthrone
This document summarizes an article that discusses how equitable approaches to certain aspects of contract law, such as unfairness, mistake, and privity, were marginalized after the Judicature Acts of 1873–1875 unified the courts of law and equity in England. The article argues that while the Acts stated that equity should prevail over common law in cases of conflict, in practice common law judges who lacked experience in equity began to dominate the new unified court system. As a result, equitable concepts in contract law came to be viewed through a "common law mind-set" and were often relegated to a secondary status in contract law treatises written after 1875.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
This document discusses the legal definition of land and the law of fixtures in Malaysia. It begins by defining land under the National Land Code to include things attached to or permanently fastened to the earth. It then examines the English common law test for determining whether an item is a fixture or chattel based on the degree and purpose of annexation, as established in Holland v. Hodgson. This test was applied in Malaysia through the case of Goh Chong Hin v. Consolidated Malay Rubber. The document also discusses exceptions to the law of fixtures such as tenants' fixtures and the effect of retention of title clauses.
Aqulian action in roman dutch law of delict a general discussionMangala Wijesinghe
The document discusses the Aquilian Action in Roman Dutch Law of Delict. It provides a general remedy for wrongs that cause harm to a person's interests, allowing them to claim compensation for financial losses. There are three elements for liability under the Aquilian Action: a wrongful act by the defendant, financial loss to the plaintiff, and fault by the defendant. Fault can be willful injury or negligence. Negligence, or failing to meet the standard of care that a reasonable person would have in the same circumstances, is a basis for liability. To succeed in a delictual action, the plaintiff must prove the defendant owed a duty of care, was negligent, and their conduct caused the harm.
The document discusses the equitable doctrine of promissory estoppel. It provides that equity will not favor a party who makes a promise to relieve another of their legal obligation but then tries to go back on that promise. The doctrine requires that the promise be clear and unequivocal, that there was a pre-existing legal relationship between the parties, and that the promisee relied on the promise. It also establishes that mere silence or encouragement can give rise to a promise under promissory estoppel. The doctrine is an equitable remedy that can be used as a shield to prevent injustice but not as an independent cause of action.
This document discusses Jual Janji transactions, which are a type of security transaction commonly practiced in the Malay Muslim community. It involves a borrower transferring land to a lender in exchange for a loan, with the promise that the land will be retransferred upon repayment of the loan. The document outlines the origins, characteristics, modus operandi, registration process, and judicial views on Jual Janji transactions. It examines different court opinions that have treated Jual Janji as either a contract, equitable mortgage, or customary transaction. The overall document provides an introduction and analysis of Jual Janji transactions under Malaysian law.
Equity follows the rules of law and does not contradict it. Equity respects every word of law and aims to fulfill and explain it, not destroy it. This principle is based on the Latin maxim "equitas sequitur legem", meaning equity follows the law. A key 1734 case established that a court's discretion in equity must be governed by legal rules and cannot take actions against the law. Equity deals with issues of equality and maintains fairness between parties in a way that helps resolve legal issues, always following the analogies and rules of law.
1. Jual janji is a traditional Malay practice where land is transferred to a lender as security for a loan, with the understanding that it will be returned to the borrower upon repayment.
2. Malaysian courts initially treated jual janji strictly as a sale, ignoring evidence it was intended as security. However, exceptions developed where time was not of the essence or the lender evaded repayment.
3. Recent cases and the National Land Code have recognized jual janji can operate as an equitable security transaction, balancing title rights with contractual obligations.
The document provides an introduction to contract law, covering key topics such as the purpose of contracts, elements of a valid contract, types of contracts, and remedies available even when no contract exists. It defines a contract as a promise that is legally enforceable, and discusses how contract law has developed over time, becoming less dependent on written forms and considering fairness. The types of contracts covered are bilateral vs unilateral, express vs implied, executory vs executed, and valid vs unenforceable/voidable/void agreements. Promissory estoppel and quasi-contract are also introduced as remedies when no contract exists. Sources of contract law discussed include common law, the Uniform Commercial Code, and the Restatement.
The document discusses the three certainties required to create a valid private express trust: (1) intention, (2) subject matter, and (3) object. It provides details on each certainty, including examples from case law. For certainty of intention, the words used must show the settlor's clear intention to create a trust. For certainty of subject matter, the trust property must be clearly defined or ascertainable. For certainty of object, the beneficiaries must be human and ascertainable as individuals or as members of a defined class.
The cy-près doctrine allows charitable trusts whose purposes have become impossible or impractical to fulfill their original goals to have their funds reapplied to similar charitable purposes. In Malaysia, courts refer to case law when addressing cy-près issues due to a lack of statutory provisions. For cy-près to apply, the settlor's intention must have been for general charity rather than a specific purpose. Initial failures occur before a gift takes effect if the intended charity no longer exists, while subsequent failures happen after a gift has already vested in a charity that then ceases to exist.
Pengantar Hukum Internasional - North Sea Continental Shelf CaseMariske Myeke Tampi
The North Sea Continental Shelf case involved a dispute between Germany, Denmark, and the Netherlands over the delimitation of their continental shelf boundaries in the North Sea. The key issues were whether the equidistance principle in Article 6 of the 1958 Continental Shelf Convention should be applied to determine the boundaries, and whether the International Court of Justice had jurisdiction based on the consent of the states involved. The Court ultimately applied the equidistance principle and asserted its jurisdiction based on the consent of Germany, Denmark, and the Netherlands.
Legitimacy, Legitimation and Adoption under Private International Lawcarolineelias239
For matters concerning children, and their succeeding rights over parental property is being questioned on the basis of legitimacy or illegitimacy. Legitimation is allowed to convert the status of illegitimacy ti legitimate. Adoption also assures the welfare of the children.
The document provides historical context on the development of common law and equity in England. It explains that different legal systems existed in different areas before the Norman Conquest, and William the Conqueror began standardizing English law. By the 13th century, a common law had developed across the country. Dissatisfied with rigid common law, petitioners took cases to the Chancellor, establishing the Court of Chancery and principles of equity. Over time, equity developed its own precedents and maxims until the Judicature Acts merged the administration of common law and equity in the late 19th century.
The document provides historical context on the development of common law and equity in England. It explains that different legal systems existed in different areas before the Norman Conquest in 1066. William the Conqueror established a centralized government and began standardizing laws. By 1250, a common law had been produced to rule the entire country. Dissatisfied with rigid common law, petitioners took cases to the King's Chancellor, establishing the Court of Chancery and principles of equity. Over time, equity developed its own precedents and maxims until the Judicature Acts of 1873-75 merged the administration of common law and equity in the court system.
Common law and equity developed in parallel legal systems in England. Common law originated from customs and judicial precedents, but problems arose from its rigid writ system. In response, equity developed through the Lord Chancellor to provide flexible remedies. Over time, equity grew into its own court and complemented the common law by protecting rights and interests where common law fell short. This led to the fusion of law and equity in England's legal system.
The historical development of equity began in England with petitioners seeking relief from the King when the rigid common law system failed to provide justice. The King delegated these petitions to the Lord Chancellor, who had broad discretion to provide equitable remedies based on fairness. Over time, the Court of Chancery developed as a separate court administering these equitable principles. While equity and common law conflicted at times, the Judicature Acts of 1873-1875 unified the courts and required equitable principles to prevail where conflicts arose between equity and common law.
The document traces the origins and evolution of equity jurisdiction in England from individuals petitioning the King for relief, to the rise of the Court of Ch
Equity originated in England as a body of law separate from common law that was designed to supplement, aid, or override common law to protect rights and enforce duties. Common law was rigid and lacked certain remedies or provided inadequate remedies. In the 13th century, people began petitioning the King for relief, leading to the establishment of the Court of Chancery overseen by the Lord Chancellor. The Chancellor administered justice according to natural law principles of fairness. Over time, the principles and rules developed in Chancery became known as equity. By the late 19th century, common law courts and chancery were merged into a unified court system through the Judicature Acts.
The document provides an overview of equity and common law in England. It discusses:
- What equity means in a legal context, how it developed as a separate system from common law to mitigate rigidity and achieve fairness.
- The origins and development of common law from Norman invasion and creation of King's Bench courts.
- How the Court of Chancery was created to hear petitions for extraordinary justice from the Lord Chancellor, developing equity jurisdiction.
- The Judicature Acts of 1873-1875 which amalgamated common law and equity courts into a single Supreme Court, debated whether this fused the rules or just administration.
- Scholarly perspectives on whether the rules of equity and common law remain distinct or were fully
Presentation on historical background of equity by waqas balouchWaqas A.K Balouch
This document provides a historical overview of the development of equity from its origins in Islamic law and early English common law. It discusses how equity emerged to supplement the common law system, beginning in the Court of Chancery. Key figures like Henry II, Lord Nottingham, Lord Hardwicke, and Lord Eldon helped systematize equity into an established body of law. The Judicature Acts of 1873 and 1875 merged the separate courts of law and equity into a single Supreme Court with unified jurisdiction over both legal and equitable claims.
This document discusses the debate around whether judges make law or merely declare existing law. [1] It outlines the traditional declaratory theory view that judges only discover and apply the law. [2] However, modern views recognize that judges necessarily make new law in cases where no rules exist or when interpreting statutes. [3] Judges exercise creativity through distinguishing precedents, setting original precedents, and interpreting statutes purposively rather than literally.
First Published: (2007) 13 LGLJ 66 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
Equity provides fair remedies when strict legal rules would result in an unfair outcome. It supplements but does not override common law. Equity developed in England when common law courts could not address all legal problems. A key figure was the Lord Chancellor who administered equity rulings. Major deficiencies of common law addressed by equity included incomplete remedies and procedures. Maxims of equity provide flexible principles rather than binding rules to guide equitable decisions. Key maxims include equity will provide a remedy when law cannot, equity follows law, and those seeking equity must do equity.
Common law originated in England and is now used in countries like Australia, Canada, New Zealand, and the United States. It is based on legal principles developed from past rulings by judges rather than laws made by parliament. Judges must follow statute laws but can interpret them and fill in gaps using common law principles. In Australia, common law developed further after British colonization, with judges traveling circuits to maintain consistent rulings. Equity later developed to remedy unfairness in common law and was administered by the Court of Chancery using moral principles. By the late 1800s, common law and equity were combined in the court system.
Similar to Critically Examine The Fusion Debate (14)
This document discusses burden and standard of proof in law of evidence. It defines burden of proof as the obligation to provide sufficient evidence to support one's case, and distinguishes between burden of establishing a case and evidential burden of introducing evidence. The standard of proof refers to the degree of probability required to discharge the burden. For criminal cases, the standard is proof beyond reasonable doubt, while for civil cases it is on a balance of probabilities. The more serious the allegation, the higher the standard of proof required.
1. A witness who is inconsistent in giving evidence, especially if the inconsistencies are material contradictions, cannot generally be regarded as a credible witness. However, not all inconsistencies necessarily undermine credibility.
2. For a witness to refresh their memory by referring to notes, certain conditions must be met under Section 159 of the Evidence Act. The writing must have been made by the witness at the time of the event or soon after.
3. Even if the conditions for refreshing memory are satisfied, the opposing party still has the right to inspect the document and cross-examine the witness on it. Referring to a document alone does not necessarily make the witness credible; it depends on whether the statutory safeguards are
The document discusses key concepts related to presumption and judicial notice in Malaysian law. It defines presumption as an inference drawn from known facts, and distinguishes between presumption of law and presumption of fact. It explains different types of presumptions under Malaysian law including those that the court "may presume", "shall presume", and those that constitute "conclusive proof". It also defines judicial notice as facts that a judge will notice without proof, and provides examples of facts that courts commonly take judicial notice of, such as identities of government leaders.
1. Samad Tuah bin Jebat was charged with stealing a motorbike under Section 379A of the Penal Code.
2. The prosecution argued for a heavier punishment to deter the increasing number of motorbike thefts in the area.
3. The defense pleaded for leniency as it was the accused's first offense, and he needed the motorbike due to desperation and intended to return it.
4. The magistrate found the accused guilty but discharged him with a bond for good behavior for 2 years, taking into account it was a first offense due to necessity, and that imprisonment may not be the solution.
This document provides the text of Malaysia's Child Act 2001, which consolidates and amends laws relating to the care, protection and rehabilitation of children. Some key points:
- It establishes the National Council for Children to oversee child welfare issues.
- It defines terms like "child", "Court for Children", and types of institutions like places of safety, refuge, detention, and approved schools.
- It covers issues like children in need of care/protection, criminal procedures for children, placing children in institutions, and the roles of protectors, probation officers, and other officials.
- It has transitional provisions to continue existing councils, rules, and childcare institutions established under previous laws.
This document provides an overview of the juvenile justice system in Malaysia. It discusses that 60% of Malaysia's population is under 30 years old, and that while perceptions are that juvenile crime is increasing, data is limited and inconsistent. For children accused of crimes, the Child Act of 2001 established specialized procedures and the Court for Children to handle their cases separately from adult procedures. The document outlines the key stages of handling a child in conflict with the law, from arrest to sentencing. It also discusses exceptions for serious crimes and status offenses. Overall, the document presents background on juvenile justice in Malaysia and the legal framework established in the Child Act.
PRINCIPLE OF PRIMA FACIE CASE AND MAXIMUM EVALUATION AT THE CLOSE OF PROSECUT...surrenderyourthrone
This document discusses the standard of proof required at the close of the prosecution's case in Malaysian criminal trials. It summarizes the key cases that addressed this issue, including Haw Tua Tau v Public Prosecutor, Khoo Hi Chiang v Public Prosecutor, and Public Prosecutor v Ong Cheng Heong. Public Prosecutor v Ong Cheng Heong established that only a prima facie case, not proof beyond reasonable doubt, is required at this stage. It clarified that a prima facie case means credible evidence for each essential element of the charge, subject to maximum evaluation but not equating to proof beyond reasonable doubt. This standard was affirmed in subsequent cases and resolved the long-
1) Several laws in Malaysia carry mandatory death penalties for offenses such as murder, drug trafficking, and treason. Between 1970-1996, 349 people were executed, mostly for drug offenses.
2) While the number of executions has decreased in recent years, official statistics show the death penalty has been ineffective in reducing drug addiction and the number of known addicts has risen.
3) Caning is a supplementary punishment to imprisonment for around 40 crimes including drug offenses, rape, and firearms offenses. However, caning violates international human rights standards against cruel or degrading treatment or punishment.
Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v Dae Hanguru Infra Sdn Bhd and ...surrenderyourthrone
The Court of Appeal was determining two appeals regarding a dispute over a construction agreement for the Kota Bharu-Kuala Krai Highway Project. The plaintiff had sued the defendants for breach of contract. The key issues were whether there was an enforceable contract and whether the plaintiff was entitled to compensation. The Court of Appeal allowed the first defendant's appeal and dismissed the plaintiff's appeal. It found that there was no valid contract between the parties due to a lack of consensus ad idem. While the plaintiff was later nominated as the contractor, this did not remedy the lack of consensus needed to form a valid contract. As the plaintiff did not prove a valid enforceable contract existed, it was not entitled to compensation for breach
The bankrupt appealed the dismissal of their application for discharge from bankruptcy. The creditor opposed the appeal, arguing that the Director General of Insolvency's (DGI) report was incomplete and unreliable. The court agreed that the DGI report failed to undertake a comprehensive investigation of the bankrupt's assets. As the DGI report is a main piece of evidence in bankruptcy cases, it should have been more detailed. The court dismissed the appeal, as it was not bound to accept an incomplete or unreliable report.
JUSTIFIKASI KEPERLUAN PENAHANAN REMAN MENURUT PERUNDANGAN ISLAM DAN SIVILsurrenderyourthrone
Dokumen tersebut membahasakan justifikasi keperluan penahanan reman menurut hukum Islam dan perundangan sivil. Penahanan reman dipraktikkan sejak zaman Nabi Muhammad sebagai salah satu prosedur penyiasatan untuk mencegah tertuduh melarikan diri dan menghancurkan bukti. Kebanyakan ulama Islam mengizinkan penahanan reman yang bersifat sementara untuk tujuan investigasi, bukan hukuman. Tempoh penahanan bervariasi menurut
The document is the Contracts Act 1950 of Malaysia. It contains 191 sections organized into 10 Parts that establish rules and principles related to contracts. Some key details include:
- The Act relates to contracts and was first enacted in 1950, with revisions in 1974 and 2006.
- Part I establishes preliminary definitions for terms used in the Act like proposal, acceptance, promisor, promisee, consideration, agreement, void, contract, and reciprocal promises.
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Critically Examine The Fusion Debate
1. Bangor University
School of Law
‘In 1873, the Judicature Act provided that the courts of common law and those of equity should
be merged so that any single court could rule on any question, no matter whether it related to
principles of equity or to rules of common law. However, the Act only removed the physical
distinction between the courts – the intellectual distinction remains even today.
Critically examine the fusion debate.’
Ryan Jarvis
500527245
1st
March 2019
Assignment submitted in partial fulfilment of the requirements for:
Bachelor of Laws with Honours (LLB)
2. Statement of Originality
Assignment submitted in partial fulfilment of the requirements for the award of Bachelor of Laws with
Honours (LLB).
Title: In 1873 the Judicature Act provided that the courts of common law and those of equity should
be merged so that any single court could rule on any question, no matter whether it related to
principles of equity or to rules of common law. However, the Act only removed the physical
distinction between the courts – the intellectual distinction remains even today. Critically
examine the fusion debate.
Submitted by: Ryan Jarvis
Declaration: I confirm that, except where indicated through the proper use of citations and references,
this is my own original work.
Signed: R Jarvis
Date: 1st
March 2019
Word Count: 2499
3. The nature and jurisdiction of Equity has aroused a controversy among academics, legal scholars,
Common Law and equity lawyers as far back as the fifteenth century. This assignment will critically
examine the fusion debate by making reference to the nature of equity, how equity has developed both
historically and in more recent decades, then going on to critically analyse the Judicature Acts of 18731
and 752
, how they have caused what is commonly referred to as the ‘fusion fallacy’ that being the fusion
of the Common Law and equity, albeit this is refuted by some hence the debate. In conclusion, the most
common maxims otherwise referred to as the characteristics or principles of equity will be considered as
discussed in Francis, R’s ‘Maxims of equity, collected from and proved by cases, out of the books of
the best authority in the High Court of Chancery’3
and briefly contrasting the available remedies to
the equity and Common Law courts. Throughout this assignment reference will be made to case law
where appropriate and relevant.
Equity, while commonly referred to and thought of as ‘fairness’ and/or ‘justice’ it does not mean ‘justice’
in the broader sense as we often interpret it in today’s literal meaning. Traditionally, equity as defined by
Evershed, L “restrains injustice by stopping the unconscionable conduct of a particular purpose”4
.
The terms ‘conscience’ and ‘unconscionability’ have a long-standing history in terms of equity in that the
Chancellor was deemed the keeper of the King’s conscience. As we can see in the recent case of
Pennington v Waine [2002]5
a case which considered what is needed to make a binding transfer on an
individual where another or corporate body needs to complete such a transfer where the term
‘unconscionability’ was used by Arden LJ in passing judgement whereby he stated “a gift can be
deemed to be complete if it would have been ‘unconscionable’ for the donor to change their mind
at that point”. However, Watt, G in his book Equity Stirring: The Story of Justice Beyond Law’6
discusses terms such as hope, something to aspire to and being something desirable but it many ways
expressing the point that Equity has many meanings in many different terms depending upon the context
it is being used. This would fit in well with the idea that members of the judiciary make judgments based
1
Judicature Act 1873
2
Judicature Act 1875
3
Richard Francis., Maxims of Equity, Collected from And Proved by Cases, Out of The Books of The Best Authority in The
High Court of Chancery: To Which Is Added, The Case of The Earl of Coventry, Concerning the Defective Execution of
Powers. (H Lintot 1739).
4
Lord Evershed, ‘Reflections on the fusion of Law and Equity after seventy-five years’ [1954] LQR 70, 326
5
Pennington v Waine [2002] EWCA Civ 227
6
Gary Watt, Equity Stirring: The Story of Justice Beyond Law (Hart Publishing 2009).
4. on each individual case and set of circumstances – that being no case is ever the same which could be seen
as a ‘fair’ and ‘just’ approach to ensuring equity. However, in conclusion, Watt concurs that
‘unconscionability’ could be seen as just a rationale behind equitable intervention.
The development of equity started to take place during the thirteenth century in response to the people’s
dissatisfaction of the Common Law courts in which they felt they were unable to obtain redress for their
grievances. It was often felt that the Common Law was ‘harsh’ or too ‘rigid’ in its approach to dealing
with sometimes very sensitive and complex matters. It would appear that as the law of equity developed,
a new-found Court of Chancery in Westminster was formed in which the Chancellor began to make
decisions on cases on his own authority on behalf of the King. Over the years, equity developed a good
amount of case law and was seen as a court which used remedies to prevent injustice. This is still very
much the case today for example where the courts use ‘freezing’ and ‘search’ orders.
During the early days of the Common Law development the King and his council would travel across the
island resolving disputes as they occurred. The Kings Chancellor (being a member of the clergy) as
examined earlier was deemed suited and fit for the role of the Kings ‘conscience’ and would often advise
the King and his council. In order to bring a claim at the Common Law level one would have needed a
writ which could be obtained by applying to the court. If one had no writ then you could not bring any
claim. If dissatisfied with the decision of a case one could petition to the King for their case to be heard in
the Royal Courts, then eventually in 1474 being the Court of Chancery. As the Court of Chancery
developed, the characteristics of equity started to form in that equitable remedies were seen as
discretionary and acting in personam7
. While it would appear that some members of the judiciary portray
that equity is simply just complete discretion on their part it is much more than that as shown in the case
of Tinsley v Milligan [1993]8
where the Court of Appeal and the House of Lords applied one of the
maxims differently, albeit still making reference to the fact they had considered the maxims of equity that
being a sort of ‘procedural rules’ of equity.
7
John Gray, Lawyers' Latin (2nd edn, Robert Hale 2006).
8
Tinsley v Milligan [1993] UKHL.
5. In the Earl of Oxford’s Case (1615)9
the King was referred the judgements of both courts in the same
case which were conflicting. This case finally brought the issue of incompatibility to rest whereby the
King’s decision defined the legal principle of ‘where there is a conflict between equity and the common
law, then equity shall prevail’ i.e. equity sits on top of the law. It’s important to note that if an
alternative decision had been made then equity would have ultimately become defunct and not have the
powers in which it needed to soften the blow of the common law. This case also further corroborated
that one of the underlying questions a judge must consider is one of ‘conscious’ in cases of equity.
In 1873 the Judicature Act10
was enacted which is a key piece of legislation amongst the legal community
in that it made the Common Law courts and Court of Chancery defunct by replacing them with a new
Supreme Court which consisted of the High Court and Court of Appeal. What’s more interesting, is that
S.25 (11) of the Act provided some certainty in that it clarified which court would prevail in situations of
incompatibility, again reaffirming the view of the King in 1615 that if the Common Law and equity
conflict then equity shall prevail.
By the enactment of the Judicature Acts 187311
and 187512
it created this question of fusion whereby many
academics, legal scholars and other interested parties disagreed on what is commonly referred to as the
‘fusion fallacy’. For example, in her book Equity (2006)13
Worthington, S argues that there should be
an end to the two different systems of Common Law and Equity whereas Browne, D in his book
Ashburner’s Principles of Equity (1933)14
as ‘comparing the law and equity to separate streams, while
acknowledging they run side by side “do not mingle their waters”. However, there is a clear difference in
opinion in that Diplock, L in the case of United Scientific Holdings v Burnley Borough Council
[1978]15
considered the law of equity and the common law as fused. Another conflicting but interesting
9
The Earl of Oxford's Case in Chancery 21 ER 485
10
Judicature Act 1873
11
Ibid (10)
12
Judicature Act 1875
13
Sarah Worthington, Equity (Oxford University Press 2006).
14
Denis Browne, Ashburner’s Principles of Equity (2nd edn, Butterworth and Co 1933).
15
United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904
6. view is that of Burrows, J in the journal article ‘We do this at the common law but that in equity’16
where he argues in favour of further fusion between the Common Law and equity where he feels that
minor changes could produce this combined concept.
While both the Common Law and equity have case law which sets precedents, equity has also developed
maxims which must be satisfied ultimately ensuring moral fairness. In the case of Boardman v Phillips
[1967]17
Upjohn, J recognised that ‘the rules of equity have to be applied to such a great diversity
of circumstances that they can be stated only in the most general terms and applied with
particular attention to the specific circumstances of each case’. It is respectfully suggested that this
further enhances the opinion of some academics that equity is flexible in its approach and can change with
the times, views, and values of those it seeks to serve. Walker, L in the recent case of Futter and
another, v HMRC; Pitt and another v HMRC [2013] 18
defined a maxim of equity as ‘not a specific
rule or principle of law. It is a summary statement of a broad theme which underlies equitable
concepts and principles’
The Maxim ‘Equity acts in personam’ is around this idea that in the formative years of Equity it was
intended to deal with the issues of personal interests rather than proprietary rights. Its intention is to
determine whether something done is ‘conscionable’ which is a clear difference in approach from that of
the Common Law. Each and every case is important in that it concerns the lives of often some of society’s
most vulnerable and complex.
As succinctly put in Gray, J’s book Lawyers’ Latin19
(Aequitas sequitur legem) “the Court of
Chancery never maintained a right to ignore the Common Law as administered in the Courts of
Common Pleas, Exchequer and King’s/Queen’s Bench” it is simply that the equitable courts are there
to ‘supplement the harshness’ of the Common Law this again reaffirms the maxim ‘equity follows the
law’.
16
Andrew Burrows, 'We Do This at Common Law but That in Equity' (2019) 22 O.J.L.S.
17
Boardman v Phillips [1967] 2 A.C. 46
18
Futter and another v HMRC; Pitt and another v HMRC [2013] UKSC 26
19
John Gray, Lawyers' Latin (2nd edn, Robert Hale 2006).
7. The case of Walsh v Lonsdale (1882)20
is a great example of how the maxim ‘Equity sees as done that
which ought to be done’ was applied where a landlord and tenant were in dispute over the rental
payment demanded. While it seemed, the parties had intended to form an agreement there was no valid
signed trust hence the tenant refusing to pay this demand for a year in advance of rental income which
was previously agreed to in that the Landlord could demand twelve months payment in advance at any
point. The tenant did however have a good history of maintaining his rental payments (approximately
seven years). The courts agreed that while there was no valid trust there was an equitable lease in that
while there had been a failure to comply with the formalities required, the landlord was entitled to
demand the rental payment as previously agreed that being the landlord had legal remedy of distress in
relation to the rent due.
If a claimant seeks recourse for the wrong committed by another but have committed a wrong themselves
in the cause of the issue at hand, then they will not be granted any equitable remedy. This was reference
in the case of D&C Builders Ltd v Rees [1966]21
whereby a relatively small building company completed
some work on a property in which the Rees owned. The builders company ended up in some form of
financial difficulty in which the Rees became aware. When the builders asked for the money for the work,
they completed they were told they could only have part of the payment and no more. Being in financial
difficulty the builders begrudgingly accepted this (being in a vulnerable situation and financial difficulty).
Upon consideration of the matter the builders decided to take the matter to court. The Rees attempted
to rely on the doctrine of equitable estoppel22
which failed whereby the infamous Denning, L was said
to have refused to apply such a doctrine as the Rees had clearly taken advantage in this case and therefore
did not come with clean hands. This further affirms the maxim ‘he who comes to equity must come with
clean hands.
It’s worthy to note that the equitable remedies available to the court are somewhat different to that of
the Common Law. In equity there are remedies such as rescission, injunction, specific performance
(enforcing someone to do something), rectification (document can be amended to reflect the true/real
20
Walsh v Lonsdale (1882) 21 Ch D 9
21
D&C Builders Ltd v Rees [1966] 2 Q.B. 617
22
'Estoppel'
<https://uk.practicallaw.thomsonreuters.com/Document/I47856AB1DDD611DFAE9091CBB51C1C78/View/FullText.ht
ml?originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29&comp=wluk> accessed
1 March 2019.
8. intentions of the parties) and are all available at the discretion of the court in addition to those available
at Common Law level. However, the court must consider the framework of principles referred to earlier
as the Maxims of Equity. These equitable remedies were designed due to the clear deficiencies in the
Common Law at the time which are often still relevant to this day.
Overall, it would appear there is a place for equity in the future in that it has been able to withstand and
adapt to differing and complex needs while still being able to uphold those traditional values of ensuring
fairness and that those passing judgement must therefore always be minded of their conscience. It can be
evidenced that the equity courts have been much influence in terms of law reforms, in more recent times
the notable Matrimonial Homes Act 196723
which entitled ghosted wives to be able to obtain equitable
interest within a property. The equity courts had already been conducting such decisions well before the
introduction of the Act which was seen as an ‘interim solution’ to a problematic area of law.
There is also the issue of the ‘fusion fallacy’ which has clearly not been agreed upon by many in the
academic and legal communities which requires clarification possibly in the form of a Law Commission
Report or Royal Commission which can reflect the views and knowledge of all interested parties in an
attempt to finally reach a conclusion as to the place of equity and it’s place for the future in our
everchanging and complex legal system. It is respectfully suggested that there was a possible missed
opportunity to address this issue when the Ministry of Justice announced and published their
consultation Fit for the Future: transforming the Court and Tribunal Estate24
which already
recognises the importance of change so the justice system can continue to lead and inspire the world. This
could have been a perfect format to consider whether the current arrangements for equity were deemed
satisfactory or whether their needs to be a possible structural change to avoid the confusion and debate
around whether we should generally concur that there are two streams of law working in coherence with
each other or whether it would be generally accepted that there are two distinctive areas of law in which
just the administration is fused or even that there is simply just one system and one set of courts that deals
with both equitable and Common law issues in their capacity to be able to be independent and judge both
intricacies and make an informed and moral judgement based simply on the facts of an individual case.
23
Matrimonial Homes Act 1967
24
Ministry of Justice, 'Fit for The Future: Transforming the Court and Tribunal Estate' (HM Stationary Office
2018).
9. In conclusion, this assignment has critically evaluated the ‘fusion debate’ also known as the ‘fusion fallacy’
by discussing the meaning of equity, contrasting its historical developments in terms of both equity and
the Common Law, then going on to briefly touch upon the enactment of the Judicature Acts and how this
caused the question of what we know as the question of fusion. The assignment then goes on to discuss
some of the commonly referred to maxims and finally discussing the available remedies to the courts. In
addendum this assignment provides possible food for thought in terms of reforms and the possible future
of equity where possible making reference to the ‘fusion debate’. Case law has been used throughout
where appropriate and relevant to enhance the points being made and to add ones interpretation of a
clearly complex area of law.
10. Bibliography
Primary Sources
Cases
Boardman v Phillips [1967] 2 AC 46
D&C Builders Ltd v Rees [1966] 2 QB 617
Earl of oxford's Case in Chancery 21 ER 485
Futter and another v HMRC; Pitt and another v HMRC [2013] UKSC 26
Pennington v Waine [2002] EWCA Civ 227
Tinsley v Milligan [1993] UKHL
United Scientific Holdings v Burnley Borough Council [1978] AC 904
Walsh v Lonsdale (1882) 21 Ch D 9
Statutes and Statutory Instruments
Judicature Act 1873
Judicature Act 1875
Matrimonial Homes Act 1967
Secondary Sources
Books
Ashburner WD Browne, Ashburner's Principles Of Equity (Legal Books 1983)
Browne D, Ashburner's Principles Of Equity (2nd edn, Butterworth and Co 1933)
Francis. R, Maxims Of Equity, Collected From And Proved By Cases, Out Of The Books Of The Best Authority In The
High Court Of Chancery: To Which Is Added, The Case Of The Earl Of Coventry, Concerning The Defective
Execution Of Powers. (H Lintot 1739)
Gray J, Lawyers' Latin (2nd edn, Robert Hale 2006)
Mak B, 'Forging The Future Of Fusion' (2016) 22 Trusts and Trustees
Watt G, Equity Stirring: The Story Of Justice Beyond Law (Hart Publishing 2009)
Worthington S, Equity (Oxford University Press 2006)
11. Journal Articles
Ames J, 'Law And Morals' (1908) 22 Harvard Law Review
Burrows A, 'We Do This At Common Law But That In Equity' (2019) 22 O.J.L.S
Evershed L, 'Reflections On The Fusion Of Law And Equity After Seventy-Five Years' (1954) 70 LQR
Command Papers, Law Commission Reports and Government Publications
Ministry of Justice, 'Fit For The Future: Transforming The Court And Tribunal Estate' (HM Stationary
Office 2018)
Dictionary Entries
'Conscience' <https://www.collinsdictionary.com/dictionary/english/conscience> accessed 27
February 2019
'Estoppel'
<https://uk.practicallaw.thomsonreuters.com/Document/I47856AB1DDD611DFAE9091CBB5
1C1C78/View/FullText.html?originationContext=document&transitionType=DocumentItem&c
ontextData=%28sc.Search%29&comp=wluk> accessed 1 March 2019
'Middle Temple' <https://www.collinsdictionary.com/dictionary/english/middle-temple> accessed
27 February 2019