What is the fusion fallacy in equity?
Fusion fallacies occur when damages under the common law are awarded for purely equitable wrongs. Alternatively, fusion fallacies arise when substantive principles from both the common law and equity are applied interchangeably.
Is the fusion of law and equity a fallacy in Australia?
It is called a ‘fallacy’ because many have said that it is wrong to conclude that the rules of common law and equity have been amalgamated, it is only their administration which has been unified.
What is the big difference between equity law and common law?
Common law typically refers to laws based on precedence and the rulings of judges who hear a case in a courtroom. Equity, on the other hand, refers to laws that are similarly established by court rulings but deal with judgment and justice through equitable decisions.
Is common law and equity fused?
However, equity and common law have not yet fused and this is clear when we observe the meaning given to fusion by Baker. So this article endorses the intermediate view and the ‘finale’ set by Hanbury and Martin that common law and equity are working more closely together, they are coming closer, but are not yet fused.
Is Walsh v Lonsdale fusion fallacy?
1 The fallacy alleged is that the Judicature Acts fused the substantive as opposed to the procedural rules of law and equity. Most common law jurisdictions are in agreement that the Judicature Acts fused procedure only. 2 To some, the judgment of Jessel M.R. in Walsh vLonsdale3 represents the epitome of fusion fallacy.
What is the relationship between equity and common law?
Equity is a separate system of law from the Common-Law. It has different rules, principles, and remedies. Thus, to understand the principles on which the Law of Equity is based, we must understand its origin and the reasons for its requirement despite the presence of a system of law, i.e. the Common Law.
Does equity have primacy over common law?
This means that a majority of modern day law courts apply the two set of rules in their proceedings. Whenever conflict still existed between the rules of the two systems, the rules of equity were to prevail in favor of those of common law.
What is substantive Fusion?
Substantive fusion. The idea that the judicature acts removed any substantive distinction between common law and. equitable claims, and abolished defences and remedies. (sometimes called the ‘fusion fallacy’ by its detractors)
What is an equitable lease?
An agreement for the grant of an interest in land on terms that correspond to a legal lease but do not comply with the necessary formal requirements of a legal lease.
When there are conflicts between the common law and equity law the rules of common law shall prevail?
The Attorney-General acting on the authority of James I, upheld the use of the common injunction issued by the Lord Chancellor and concluded that in the event of any conflict between the two jurisdictions of common law and equity, equity would prevail. Common law rules must lead to an unjust or unconscionable outcome.
What are the disadvantages of common law?
Another disadvantage of a common-law marriage is that only you and your partner will know what terms you have agreed upon. There is no binding contract in place for people in common-law marriages like there are for married people that states what their intentions are and what happens if things dissolve.
Why was the Judicature Act 1873 important?
The Judicature Acts 1873-75 rationalised the position. They created one system of courts by amalgamating the common law courts and the court of equity to form the Supreme Court of Judicature which would administer common law and equity.
What are the arguments for and against the fusion of equity?
There are valid arguments both for and against fusion. Those arguing for the fusion of Equity and Common Law at a substantive level often comment on the inconsistency created by equity’s intervention in law.
Should equity and common law be fused?
Those arguing for the fusion of Equity and Common Law at a substantive level often comment on the inconsistency created by equity’s intervention in law. ‘There would sometimes be arbitrary gaps in the common law that is situations where the common law refused a claim despite allowing claims in other situations which were materially similar.
What are the reasons for the fusion of the courts?
Another reason for fusion is that Equity allows judges to depart from common law and statutes in order to create new law. With Parliament being sovereign the idea of unelected judges creating law is undemocratic.
Was the purpose of the Judicature Acts only to fuse equity?
Many argue that the purpose of the Judicature Acts was only to fuse the administrative aspects of Equity and Common Law. Those who argue for a substantive merger are often accused of committing a ‘fusion fallacy’3. Equity has often supplemented Common Law where the interests of justice and of social and economic change arose.