How to Write a Conclusion for a Law Essay (Sample 1 Class Law Essay)

Here is a complete sample 1st class undergraduate law essay from an Oxbridge student. The legal essay gives you a practical example of a conclusion. You can use this essay to learn how to structure an undergraduate law essay as well as how to use citations and write a bibliography.

Commercial and industrial development, as Montesquieu saw in his day[1], make for certainty. No human being can contemplate how the social standard of justice will work on that judge’s mind.[2] Hence the development from Equity that permitted ‘considerable discretion’ to Chancellor[3], which varied ‘with the length of the Chancellor’s foot’[4], to John Scott, Earl of Eldon’s[5] equity, which was made up of doctrines ‘as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case.’[6] Roscoe Pound contends that the ‘days of living equity are passed’.[7] It is now important to consider the agencies by which the development and decadence of equity as a system have been brought about: the introduction of the common law theory of binding precedent and resulting case law equity as a ‘legitimate consequence, the crystallisation of equity culminating under Lord Eldon’.[8] This solidification of equity into precedent and rules contributed to the decay in the equitable process and perhaps the Judicature Acts did little more than complete a fusion in form which had already occurred in spirit. This essay will illustrate how Lord Eldon crystallised early equitable rights into precedent and rules by referring to the principles of relief from the end of the fifteenth century to the Chancellorship of Lord Eldon to aid mortgagors, lessees and obligors under penal bonds. This essay will then proceed by assessing the extent to which Lord Eldon’s formalistic approach survived in the twentieth century in delivering substantive and ‘individualised’ justice. Even though there was a greater demand for particularised justice, and even if Lord Eldon’s strict insistence on precedent was less favourable, this essay will show that idiosyncratic and haphazard decisions of unfettered discretion were not only undesired, but also dangerous. Lord Eldon’s contribution to equity thus survived to the extent that the current categories of equitable relief are premised on the notion of unconscionability. This essay will thus illustrate that under the principle of precedent lurks natural justice.  It will be shown that the increased need for flexibility in countering unconscionable decisions is met through the residual category of unconscionability or in other words, the expansion of precedent to meet the needs of current society where further categories can be added, deleted or expanded. The expansion of categories will be illustrated in the judgments of Lord Denning where a new type of informal trust was created through the constructive trust and contract law where estoppels were used interchangeably to achieve substantive justice.

The crystallisation of equity culminating under Lord Eldon produced ‘rigor aequitatis’[9]  whereby the rules of equity were as fixed as those of the common law. His most quoted judicial pronouncement derives from the case of Pritchard[10] where he states that the ‘doctrines of this Court ought to be as well settled and made as uniform almost as those of the common law.’[11]

Lord Eldon normally adheres to the general rule in preference to particularised justice. In the case of Cooth v. Jackson[12] Lord Eldon denies any relief that would come at ‘the expense of general rules, formed for the protection of the general justice due to suitors; even if it is a case of considerable hardship to [claimant]’.[13] In the case of Sitwell v. Bernard[14], Lord Eldon specifically advocates general rules over particularised justice as he explains that the court will do what ‘in general cases is convenient; though in particular cases both convenience and justice may be disappointed’.[15] Similarly, in Bromley v. Holland[16] Lord Eldon proposes that the decision cannot ‘be upon the honesty of the particular case’[17], but must be contingent upon whether the claimant ‘has that protection which the Law has said in every case such a person should have’.[18] Lord Eldon’s view towards the Court of Chancery and the judges was best summarised in Jackson v. Petrie[19] where he stipulated that he ‘cannot act otherwise than the rule and principle, practice and usage of the Court of Chancery authorise’.[20] In Morice v. Bishop of Durham[21] Lord Eldon is once again insistent on the notion of precedent as he says that ‘there is much less mischief in abiding by the rule, than in permitting myself to depart from it upon what are called special circumstances’.[22]

Lord Eldon has a tendency to insist upon the binding force of precedent, even where he disagrees with it. This adherence to precedent is evidenced on Moggridge v. Thackwell[23] where Lord Eldon reminds us that ‘the cases have gone a length, upon principles wise or otherwise is not for me to determine, which has formed a precedent that binds me in this Court’.[24] Similarly, in the Attorney-General v. Vigor[25] Lord Eldon felt bound by the precedent, more precisely the cases that surrounded the point and he was therefore unwilling to ‘incur the risk of shaking the authorities’.[26] Lord Eldon’s strict adherence to precedent can be further followed in Ex parte Whitbread[27] where he clearly disagrees with the doctrine but nevertheless he is bound by the ‘decisions that have taken place during the period of thirty years’.[28] He then goes on to search for an established rule in Ex parte Thistlewood[29] so as to not to ‘go upon any reasoning of [his] own’.[30] In Davis v. Duke of Marlborough[31], Lord Eldon leaves us with a sense of direction and advice in that ‘the duty of a Judge in equity to vary rules, or to say that rules are not to be considered as fully settled here as in a court of law’.[32]

This essay will now refer to the principles of relief developed by equity from the end of the fifteenth century to the Chancellorship of Lord Eldon to aid mortgagors, lessees and obligors under penal bonds. This example will helpfully illustrate the tension between the arbitrary ‘nature of ad hoc decision making and “arbitrary” adherence to precedent for precedent’s sake’.[33] It will also help to illustrate the idea that by the time of Lord Eldon ‘the system of our courts of equity is a laboured, connected system, governed by established rules, and bound down by precedent, from which the judges do not depart’.[34]

The reason for most petitions in the fifteenth century, according to Rossiter and Stone, was that obligors who paid the amount due under the bond but either failed to take a sealed acquittance or having got one, had then lost it. Another reason is that the written conditions were later varied by parol. The Chancellor sought to achieve justice by granting relief even where it would mean going against a legal rule. There were some cases where the Chancellor would even look behind the seal of an instrument to gauge the adequacy of consideration. The sixteenth century saw an expansion of the jurisdiction dealing with relief against penalties and forfeiture, namely in the areas of accident, mistake and hardship. For instance, if the obligor were late with payment through accident or if the greater part of the debt was paid before the due date, Chancellor granted relief against the enforcement of the penalty in the bond. Another case is where the obligor paid full amount due under the condition of defeasance the obligee’s servant in a scenario where such persons had no authority to receive. The Elizabethan Court of Chancery relieved obligors against the infliction of a penalty in a bond where obligors did could not pay on time due to external factors, such as plague or flood. This equitable doctrine to aid obligors from infliction of the  penalty in a penal bond was extended to penalties in other instruments. The true ground for equitable intervention in all cases was established by Lord Thurlow in Sloman v. Walter.[35] The eighteenth century marked an evolution of the equitable principle of relieving against penalties to include penalties in money and performance bonds, indentures and covenants in other instruments. So far this illustrates Equity as a form of natural justice, or a ‘determination of what is right and just between individuals’.[36] In Aristotelian sense equity was perceived as ‘a corrective to the general laws’[37] and was a form of justice that was ‘superior to and in tension with strict legal justice’.[38] This evolution was short-lived during the decline of Chancery under Lord Eldon and his successors.

Lord Eldon refused to further extend the penalty doctrine: he even disapproved the extension of the doctrine thus far. In Astely v. Weldon[39] Lord Eldon did not display any initiative in finding a principle that could be relied upon to draw the distinction between penalties and liquidated damages. Instead, the Court recognised to what the parties had said and gave effect to that intention. Lord Eldon did not consider the unconscionability in the fact that the sum reserved was excessive and enormous compared to the loss suffered.[40]  Sir George Jessel espoused the intention test in Wallis v. Smith[41]. Sir Jessel extolled the integrity of the intention test and preached the rectitude of freedom of contract. Rossiter and Stone suggest that what distinguishes these nineteenth century cases from preceding ones is ‘the barrenness in approach and the sterility of the rhetoric’[42]. This is true to an extent that equity had lost sight of the traditional ground of relief against penalties by granting the parties freedom to choose between penalty and assessed damages in accordance with their intention.

The principles referring to relief against forfeiture evolved to protect the lessee. Chancery granted a relief at the suit of a lessee against forfeiture of the lessee’s leasehold estate for failure to pay rent. The court thus viewed the lessor’s right of re-entry as a security for payment of rent and performance of other covenants by the lessee. The jurisdiction was not however confined to the grant of relief against forfeiture for breach of the covenant to pay rent[43].  This part of jurisdiction was given a statutory form in 1731.[44] As a result, this gave Lord Eldon an opportunity to express his judicial view that by passing over the question of relief against forfeiture for breach of non-rent covenants, the Parliament had assumed that Chancery had no such jurisdiction.[45] Lord Eldon’s narrow view prevailed. In 1881 Parliament intervened to give High Court of Justice the power to order relief against forfeiture upon breach of non-rent covenants.[46] By bearing a closer resemblance to common law, could equity thus maintain its ‘anti-legal’ status and operate ‘justice without law’[47] and still ensure ‘special ordinance’[48] in cases where it is impossible to lay down a law?

Pound answered in the negative and maintains that Lord Eldon contributed to the decline of the Court of Chancery. Pound characterises equity as a form of ‘justice without, or beyond law’.[49] It is thus a type of pure justice, a direct antithesis to the ruledness of positive law.[50] This can be best interpreted in the light of Aristotle’s argument that equity is ‘perfecting the justice of the positive law’.[51] So far, it can be observed that Lord Eldon displays loyalty to positive law, binding and invariable rules. Therefore, whenever he makes any allusion to justice, it is subordinate to positive law. The Court of Justice fell into decay at the end of the eighteenth century. Equity once applied by the Chancellor served the purpose of mitigating the rigors of common law and in developing its principles was then less concerned with the effect of the decision on the body of precedent with the mitigation of injustice in each individual case but a change towards a more rigid adherence to precedent became distinct during Lord Eldon’s Chancellorship. This resistance to change and a spirit of non-intervention owed to the influence of the free market philosophy of Doctor Adam Smith and the rise of formalism. The age of laissez faire and the unquestioned virtue of freedom of contract affected how equity was applied. The judges were becoming more conscious of the effect that their decisions may bear on the judicial precedent and affect future behaviour. There was thus consensus that a ‘decision was “good” if it generated an outcome that reflected the economic spirit of the time’.[52] Chancery abdicated its traditional role and its prime objective became to uphold the expressed intention of the parties. This rigid adherence to precedent and ‘resistance to any growth of even existing doctrine’ became a hallmark of Lord Eldon’s conservative nature and his successors did not display much enthusiasm to depart from his views.

It has even been argued that at the time of the passage of the Judicature Acts 1873-75, the common law and equity had been making increasingly ‘friendly overtures towards each other’.[53] Separate equity courts were given up given that equity had been transformed into a body of rigid doctrines which were applied as mechanically as the common law. Equity therefore became a sterile system and showed a progressive decadence in terms of providing individualised justice. According to Rossiter and Stone, many of equity’s ‘principles had become ossified during Lord Eldon’s hold on the great seal and fared no better at the hands of his successors’.[54] To quote Lord Esher, in the very act of becoming a system, ‘it becomes legalised, and in becoming merely a competing system of law insures its ultimate downfall.’[55] Equity had developed refinements and technical doctrines and was operating at some points as rigidly as the common law. This can be demonstrated by the English Judicial Trustee’s Act. The principles of equity as to liability of trustees had become so well settled and so rigid in their application that scope for discretion evaporated. As a result, unconscionable beneficiaries were able to use the principles of equity to work injustice until the legislature was compelled to intervene. Pound suggests that when a statute is necessary to make equity do equity and to prevent its doctrines from working wrong and oppression, ‘we may well speak of decadence in this connection’.[56] It is reasonable to maintain that the ‘friendly overtures’ reflected and ‘were a product of a decay in the equitable process. Perhaps the Judicature Acts did little more than complete a fusion in form which had already occurred in spirit’.[57] To a certain degree Pound’s view prevailed as greater demands for individualised justice were made in the twenty-first century, and cases were decided more on the basis of the norms of society as opposed to only strict precedent.

The formalistic approach developed by Lord Eldon has raised fears that individualised justice will not be satisfied through certainty and rigidity since justice requires a considerable degree of discretion. It is helpful to refer to the analysis of Professor Kamenka and Tay to illustrate equity’s movement from Gesellschaft (approach of Lord Eldon) to Gemeinschaft. Gesellschaft approach is ‘the precise definition of the rights and duties of the individual through a sharpening of the point at issue’.[58] This approach focuses on ‘formal procedure, impartiality, adjudicative justice, precise legal provisions and definitions and the rationality and predictability of legal administration’.[59] Whereas the Gemeinschaft approach is concerned with ‘expressing the will, the internalised norms and traditions of an organic community...justice is thus substantive directed to a particular case in a particular social context and not to the establishing of a general rule or precedent’.[60] During the time of Lord Eldon, the Court of Chancery permitted discretion to evaporate, but this time the attempted correction took the form of reverting to the method of the twelfth century.[61]There is an increase in cases in which courts resort to the idea of unconscionability as the basis for the decision as opposed to strict rules.  Today’s decisions can be viewed as the most recent text on a parchment on which several texts have been written. As each text has been replaced by a new text it is never erased so that the most recent has to be interpreted on the background of layers of old texts. In the words of Bertrand Russell, ‘ordinary language is shot through with the fading hues of past philosophic theories’.[62]

The activity of equity proved to be controversial. There are concerns that the innovations by equity should not be unprincipled, undisciplined or idiosyncratic. It is incorrect to describe common law as rigid and inflexible. This view should best be left in the past when the Court of Chancery flowered ‘to soften and mollify the extremity of the law’.[63] Often the reaction is to imprudent assertions as the claim of Lord Denning that constructive trusts could be imposed by law ‘whenever justice and good conscience require it’. [64] The restriction of remedy to individual judicial discretion inevitably raised the scene of a Chancellor’s foot and prompted responses like that of Deane J. In Muchinski v. Dodds[65] where he clearly emphasised the point that under the law of England ‘proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion’.[66] According to Watt, any judge who employs the language of unconscionability as a means of ditching property rules in favour of moral intuition ‘is abusing the name of conscience’.[67] It is therefore important to note that history shows that the name of conscience ‘is bloody with the lives it claimed. It comes in sheep’s clothing, but it has the bite of a wolf’.[68]

According to Sir Mason, if unconscionability is to be a ‘universal talisman’[69] it is important to ensure that it does not become ‘a medium for the indulgence of idiosyncratic notions of fairness and justice’.[70] If we cannot be confident that judicial and executive expressions of conscience will ascend to the angels we might ‘prefer a descent into precedent than a descent into despotism’.[71] According to Story’s Commentaries on Equity Jurisprudence, a system unbound by precedent would place all the rights and property of the community under the arbitrary will of the judge, acting ‘according to his own notions and conscience, but still acting with a despotic and sovereign authority’.[72] Professor Birks went so far as to compare judicial rule by conscience to the despotism of Nazis since conscience, undisciplined by the apparatus of reason, is an alias for the will of those in power. They ‘have only to believe what they are doing is right, and conscience will justify them’.[73] Kirkby P observes that conscience, ‘being so much a matter of personal opinion’, needs to be ‘tamed and classified according to established categories’.[74]

It is wise to therefore maintain that the current categories of equitable relief are constructed on the notion of unconscionability, whatever the name. The influence may be ‘undue’, the enrichment may be ‘unjust’, the circumstances may be of detriment in equitable estoppels. These categories thus help to accentuate that it would be unfair for the claimant to receive no relief. These classifications however do serve the purpose of labelling situations where experience informs us where the notion of unconscionability is likely to be found. Likewise, fiduciary relationships are classified according to where the reliance, confidence, inequality of bargaining power or some position of special expertise is present suggesting the risk of unconscionable behaviour. Equity has responded to this by developing a principle that fiduciary ‘may not use that position to gain a profit or advantage for himself, nor may he obtain a benefit by entering into a transaction in conflict with his fiduciary duty, without informed consent of the person to whom he owes the duty’.[75]

Ultimately unconscionability is a matter of opinion. It must however be shown that it is neither an opinion of one individual nor is it an objective opinion. Instead, it is an opinion formed by decisions in similar but not necessarily identical cases, by the community. This experience at the community level is embraced by the categories of equitable relief. Equity is not a mere stirring of the ‘nerve centres’.[76] Nor is it a body of fully fashioned principles discovered in a completed form. The rules of the courts of equity are not, like the rules of common law, supposed to have been established from time immemorial. They have been ‘established from time to time,- altered, improved, and refined from time to time’.[77] Equity is therefore a response to human needs and aspirations. Lord Eldon frequently espouses the view that ‘justice’ may be the major consideration in a court of equity. In Princess of Wales v. Earl of Liverpool[78] Lord Eldon proposes that ‘there is no general rule with respect to the practice of this court that will not yield to the demands of justice’ and there are occurrences when ‘the strict rule has been sacrificed to the justice of a particular case’.[79]But as the tradition develops and values gradually change further categories may be added, deleted or expanded. Such developing standards can be attributed to residual category of unconscionability; to which the court could refer when it has not authorities or categories to go by. Lord Eldon’s strict adherence to strict rules, principles and categories would have denied such relief. Yet, the courts are more flexible in expanding categories of unconscionability where none exist. Once again it is beneficial to refer to Sir Anthony Mason where he argues that there is difficulty (caused by the ‘universal talisman’ mentioned above) of articulating a reasonably precise and instructive principle from the general concept, with the ‘risk that in the early stages of elaboration, the principle lacks definition and sharpness of focus, leading to some degree of uncertainty’[80]. However, some acknowledge the trade-off between flexibility and rigidity. However what happens is just one stage in a ‘course of continuous cyclical development in the search for greater certainty...eventually the search yields a principle more fixed in its application until a time is reached when dissatisfactions with the inflexibility of the principle in its application to new situations results in its giving way to another re-working of doctrine’.[81]

This therefore means that in English law, where precedent is never outdated, it can remain operable for over hundred years.  Most cases will inevitably become ‘obsolete because society as a whole does not stand still’.[82] This thus links in with the idea of residual category of unconscionability where categories or principles can be added, deleted or introduced. To support the ever-changing nature of equity I would like to point out Watt’s ‘brief and less-than-empirical survey...[that indicates that] the current law of equity and trusts indicates that a mere one in twenty is a survivor from the pre-Judicature Acts regime’.[83] In the middle of the twentieth century Harman LJ said that ‘Equity is not past the age of child-bearing’ but Lord Denning regretfully states that ‘I do not think it has any child now living which is not at least 100 years old’.[84] Metaphor of equity’s childbearing reappeared almost a century after the Judicature Acts in Cowcher v Cowcher[85]where Bagnall J. indicated that equity should be regulated and flow from settled and certain principles and not be a source of unregulated ‘palm tree justice’ since human are fallible and not omniscient.[86] This does not mean that ‘equity is past childbearing; simply that its progeny must be legitimate- by precedent out of principle’.[87] A few year later in Eves v Eves[88], a case concerning an unmarried woman who lived with a man in his home and served the role of a housewife did not have any legal title to the house since she was under the age of twenty-one. Lord Denning emphasised the rigidity and also unfairness of common law by suggesting that ‘in strict law she has no claim on him whatever. She is not his wife. He is not bound to provide a roof over her head. He can turn her into the street.’[89] However, Denning realised the rigour of common law and held that ‘equity is not past the age of child bearing. One of her latest progeny is a constructive trust of a new model. Lord Diplock brought it into the world and we have nourished it.’[90] Denning was relying on a passage in Lord Diplock’s speech in Gissing v Gissing[91]and according to Watt, ‘Lord Diplock would not have foreseen the use to which it would be put’.[92] Lord Diplock had expressed the view that a constructive trust would arise ‘whenever the trustee has so conducted himself that it would be inequitable to deny the cestui que trust a beneficial interest in the land acquired’.[93] This was therefore ‘a prudent enough seed from which to cultivate a new type of informal trust’.[94] In another sense it is a residual category of unconscionability (discussed earlier) where principles and doctrines of equity can be expanded, added or removed. Lord Denning expanded the constructive trust to cope the need for individual justice and therefore equity preserved its function of providing individualised justice. It is thus misleading to say that ‘equity’s naked power of improvisation’ has long been ‘spent’.[95] Watt however rebuts this view in that the ‘equity’s naked improvisation is nowadays dressed up in the guise of principles and precedent...[the] natural justice still shows through’.[96]

To expand Watt’s idea that equity’s naked improvisation is dressed in the guise of principles, I propose that equitable classifications serve the purpose of labelling situations where experience informs us where the notion of unconscionability is likely to be found, it does not mean that equity does not achieve individual justice. This effectively removes the threat of ‘Chancellor’s foot’ adjudication and the potential uncertainty and even danger of ‘palm tree justice’. The notion of unconscionability and its application will now be discussed in the law of contract. Waltons Stores v. Maher[97] is another landmark case where the doctrine of privity came under attack. The court agreed that Maher believed there was an agreement and had a reasonable belief induced by Waltons, that a contract by a way of exchange had been concluded. Waltons were thus under a duty to inform the respondents that their assumption that contracts had been exchanged or that there was a binding contract was incorrect. Other members of the Court could not agree that Maher believed that the contracts had been exchanged. Maher assumed that the amendments were acceptable to Waltons and that the exchange of contracts was only a matter of formality which would occur in due course. Factually, common law estoppels by representation is not permissible in this case as the representation as to future conduct is insufficient. Instead, the equitable doctrine of promissory estoppels and the novelties involved in its application had to be considered. The application of a promissory estoppel in this case faced novelties, namely that promissory estoppel was traditionally a defensive equity and it had been restricted to the enforcement of promises to vary an existing contract and not to enforce promises made in the absence of contract. The implications of the latter course for the doctrine of consideration were profound and many authorities rejecting such a proposition were cited. The Court however referred to examples of proprietary estoppel from Crabb v. Arun District Council[98] as a progression from Ramsden v. Dyson[99] to the principle that equity will help a claimant who relied to their detriment on an assumption where the other party ‘played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it’.[100]  As a result estoppel by acquiescence must be regarded as facets of the same general principle since equity comes to help such a claimant on the ground that it would be ‘unconscionable conduct on the part of the other party to ignore the assumption’.[101]

In conclusion, rigid adherence to precedent and ‘resistance to any growth of even existing doctrine’ became a hallmark of Eldon’s conservative nature and his successors did not tend to differ. By making the principles of equity as rigid and settled as those of the common law, Lord Eldon contributed to the decline of the Court of Chancery in its traditional understanding as well as helped to fuse both common law and equity to a certain extent. Equity once applied by the Chancellor served the purpose of mitigating the rigors of common law through wide discretion and was thus not concerned with precedent. During the Chancellorship of Lord Eldon, equity became systematised and encapsulated in precedent. This was illustrated through the example of how the evolution and expansion of equitable principle of relieving against penalties in the fifteenth century was suddenly curtailed by the Chancellorship of Lord Eldon. The essay then moves to consider the development of equity in the twentieth century and the extent to which Lord Eldon’s systematisation and introduction of precedent into equity survived. The twentieth century saw a greater need for individualised justice as the idea of precedent became in certain respect rigid to tailor to individual circumstances. However, the essay attempts to show that individual justice must not specifically come from the reversion to the twelfth century notion of unregulated justice and wide discretion as it is both undesirable and even dangerous. Instead, the essay shows that principles and doctrines set in precedent are actually based on the notion of justice and unconscionability. Therefore the current categories of equity are expanded, deleted or added where justice so demands, which was successfully illustrated by the allusion to Denning where precedent was successfully expanded and the law of contract where promissory estoppel had undergone novelty based on past precedents. It is therefore correct to maintain that Lord Eldon’s notion of precedent in equity jurisdiction has survived but the increased desire for individual justice loosened the idea of precedent through the residual category of unconscionability and it is misleading to maintain that there has been a decadence of equity at least not in the sense of providing individual justice. Denning thus suggested that the judges should handle precedent in ‘a way fitted to the needs of the times in which we live’.[102] It is thus important to conclude with a suggestion from Watt that ‘we should not rule out equitable innovation unless...the law has at last reached a settled state of perfection...[and that this state] cannot be made an instrument of abuse’.[103] This is unlikely in the near future as according to Bacon, a rule is not law; it is a ‘magnetic needle’ which points to the ‘law’. This needle of the rule points to a magnetic pole of perfect law- natural law.

Bibliography

Statutes

43 Geo II, c.28.

Conveyancing Act, Section 14

Cases

Attorney-General v. Vigor (1803) 8 Ves. Jun. 255

AUstotel Pty Ltd v franklins Selfserve Pty Ltd (1989) 16 NSWLR

Bowen v. Whitmore (1693) 2 Freeman 193

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Davis v. Duke of Marlborough (1819) 2 Swans. 108

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Eves v Eves [1975] 1 WLR 1338.

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Gee v. Pritchard (1818) 2 Swanst. 402

Gissing v Gissing [1971] AC 886.

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A Denning, ‘The Need for a New Equity’ (1952) 5 Current Legal Problems

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L’Esprit des Lois, bk. 20, ch. 18.

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A Denning, The Family Story (Buterworths, London 1981)

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RP Meagher, WMC Gummow, and JRF Lehance, Equity, Doctrines and Remedies (2nd edn, Butterworths, Sydney 1984)

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[1] L’Esprit des Lois, bk. 20, ch. 18.

[2] Jabez Fox, ‘Law and Logic’, (1900) 14 Harv. L. Rev. 3942, 43

[3] J. H. Baker, An Introduction to English Legal History (4th ed. Butterworth, London 2002) 105-106.

[4] Richard Milward, Frederick Pollock (ed), Table Talk of John Selden, (Selden Society, London 1927) 43

[5] Hereafter Lord Eldon.

[6] Gee v. Pritchard (1818) 2 Swanst. 402.

[7] Roscoe Pound, ‘The Decadence of Equity’, (1905) 5 COLUM. L. REV. 25.

[8] Pound (n 7).

[9] R.E. Megarry and P.V. Baker, Snell’s Principles of Equity, (26th edn. Sweet & Maxwell, London 1966) 10.

[10] Prichard (n 6).

[11] Prichard (n 6) 674.

[12] (1800) 6 Ves 12

[13] Cooth (n 12) 925.

[14] (1801) 6 Ves. Jun. 520

[15] Sitwell (n 13) 1182.

[16] (1802) 7 Ves. Jun. 3

[17] Bromley (n 16) 8.

[18] Bromley (n 16) 8.

[19] (1804) 10 Ves. Jun. 164

[20] Jackson (n 19) 807.

[21] (1805) 11 Ves. Jun. 57

[22] Morice (n 21) 1009. For other examples, see Dashwood v. Lord Bulkeley (1804) 10 Ves. Jun. 230, 838 (‘I cannot reverse this decree without some principle, that will stand the test of general application ... though I seriously wish I could ...’).

[23] (1802) 7 Ves. Jun. 36

[24] Moggridge (n 23) 125.

[25] (1803) 8 Ves. Jun. 255

[26]Vigor (n 25) 367.

[27] (1812) 19 Ves. Jun. 209

[28]Whitbread (n 27) 496.

[29] (1812) 19 Ves. Jun. 236

[30]Thistlewood (n 29) 511.

[31] (1819) 2 Swans. 108

[32]Duke of Marlborough (n 31) 569.

[33] G Watt , Equity Stirring: The Story of Justice Beyond Law (Hart Publishing, Portland 2009) 77.

[34] H Maddock, A Treatise on the Principles and Practice of the High Court of Chancery in Two Volumes vol I (London 1814).

[35] 28 (1783) 1 Bro CC 418

[36] WILLIAM Q. DEFUNIAK, HANDBOOK OF MODERN EQUITY 1-2 (5th ed. Little Brown & Co, New York 1956).

[37] Baker (n 3).

[38] Martha C. Nussbaum, ‘Equity and Mercy’(1993) 22 PHIL. & PUB. AFF. 83, 96. 83-125.

[39] 2 B. & P.

[40] This view can be closely associated with modern American economic analysts who argue that judicial interference with agreed damages clauses leads to an economically inefficient result. See C.J. Goetz abd R.E. Scott, “Liquidated Damages, Penalties and the Just Compensation principle: Some Notes on an Enforcement Model and a Theory of Efficient breach” (1997) 77 Col L Rev 554.

[41] (1882) 21 ChD 243.

[42] Rossiter, C.J. & Stone, Margaret. ‘The Chancellor's New Shoe,’ (1988)11 Univ. New South Wales LJ 11.

[43] Bowen v. Whitmore (1693) 2 Freeman 193; 22 ER 1155; Webber v. Smith (1689) 2 Vern 102; 23 ER 676.

[44] 43 Geo II, c.28.

[45] Hill v. Barclay 16 Ves Jun 402

[46] Conveyancing Act, Section 14. Cf. Conveyancing Act 1919, (N.S.W.) Section 129.

[47] Pound (n 7) 24.

[48] W.D. Ross (ed), Aristotle: Nichomachean Ethics (Clarendon Press, Oxford 1908) 28-30.

[49] Pound (n 7) 24.

[50] See B.F. Brown, ‘Equity in the Law of the United States of America’, in Ralph A.

Newman (ed), Equity in the World’s Legal Systems: A Comparative Study (Etablissements Emile Bruylant, Brussels 1973) 205ff.

[51] Aristotle, M. Ostwald (trs), Nichomachean Ethics, (Bobbs-Merrill, Indianapolis 1962) 142.

[52] P.S. Atiyah, The Rise and Fall of Freedom of Contract (Claredon Press, Oxford 1979) 393.

[53] Raineri v. Miles [1981] AC 1050.

[54] Stone (n 44).

[55] Lord Esher’s expression “equity law” suggests the nature of the change. See A Century of Law Reform, p. 196.

[56] Pound (n 7).

[57]Pound (n 7).

[58] E. Kamenka and A. E-S Tay, ‘Beyond Bourgeois Individualism: the Contemporary Crisis in Law and Legal Ideology’ in E. Kamenka and R.S. Neale (eds) Feudalism Capitalism and Beyond (1975) 127, 135.

[59] Kamenka (n 58).

[60] Kamenka (n 58) 136.

[61] Holdsworth, ‘The Relation of Common Law Equity to the Equity Administered by the Chancellor’ (1916) 26 Yale L.J.1.

[62] B. Russell, Wisdom of the West (1959), 309

[63] Earl of Oxford's Case (1615) 1 Ch Rep 1, 7.

[64] Hussey v. Palmer [1972] 1 WLR 1286, 1290.

[65] (1985) 62 ALR 429

[66] Muchinski (n 65) 452 (Deane J).

[67] G.Watt, ‘Unconscionability in Property Law: A Fairy-tale Ending?’ in M. Dixon and G. Griffiths (eds),

Contemporary Perspectives on Property, Equity and Trusts Law (OUP, Oxford 2007)

[68] Watt (n 67).

[69] Sit Anthony Mason, ‘Themes and Prospects’ in P.D. Finn (ed) Essays in Equity, (Law Books Co., Sydney 1985), 244.

[70] Muchinski (n 65) 451.

[71] J Story, Commentsries on Equity Jurisprudence (W H Lyon, Jr, ed) (14th edn Boston: Little Brown & Co, 1918) Vol 1 S 19, at 21. Cited in Grupo Mexicano De Desarrollo, S A v Alliance Bond Fund, Inc, 527 US 308, 332-3 (1999).

[72] Story (n 71).

[73] P Birks, ‘Annual Miegunyah Lecture: Equity, Conscience, and Unjust Enrichment’ (1999) 23 Melb U L Rev 1.

[74] AUstotel Pty Ltd v franklins Selfserve Pty Ltd (1989) 16 NSWLR 582, 585.

[75] Hospital Products Ltd. V. United States Surgical Corporation [1984] 58 ALJR 587, 596 (Gibbs C.J.).

[76] Radin, ‘A Juster Justice, A More Lawful Law’, in Max Radin & A.M. Kidd (eds), Legal Essays in Tribute To Orrin Kip McMurray (1935).

[77] Jessel, M.R., in ‘Re Hallett’s Estate’ (1879) L.R. 13 Ch. D, 696, 710

[78] (1818) 1 Swans. 114

[79]Princess of Wales (n 78) 324.

[80] Mason (n 69).

[81] Mason (n 69), 244.

[82] Watt (n 33) 77.

[83] Watt (n 33) 77.

[84] A Denning, ‘The Need for a New Equity’ (1952) 5 Current Legal Problems 1, 2.

[85] [1972] 1 All ER 943, 948.

[86] See (n 76).

[87] Cowcher (n 85) 948.

[88] [1975] 1 WLR 1338.

[89] Eves (n 88) 1341.

[90] Eves (n 88) 1341.

[91] [1971] AC 886.

[92] Watt (n 33) 81.

[93] Gissing (n 91) 905.

[94] Watt (n 33) 82.

[95] RP Meagher, WMC Gummow, and JRF Lehance, Equity, Doctrines and Remedies (2nd edn, Butterworths, Sydney 1984) 68-69.

[96] Watt (n 33) 82.

[97] 105 [1988] 62 ALJR 110.

[98] [1976] Ch 179.

[99] (1866) LR 1 HL 129.

[100] Grundth v. Great Boulder Pty. Gold Mines Ltd. (1937) 59 CLR 641, 675.

[101] Waltons Stores (n 86).

[102] A. Denning, The Family Story (Buterworths, London 1981) 177.

[103] Watt (n 33) 82.