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Equity and Law: Fusion and Fission

Edited by: John C.P. Goldberg, Henry E. Smith, P.G. Turner

ISBN13: 9781108431750
Published: November 2021
Publisher: Cambridge University Press
Country of Publication: UK
Format: Paperback
Price: £22.99

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The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system.

The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition.

In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.

  • Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue
  • Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the US allowing readers to gain insights into their domestic legal systems by contrasting developments in others
  • Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity

Equity and Trusts
List of figures
List of tables
List of contributors
Table of cases
Table of legislation
List of abbreviations
1. Fusion and theories of equity in common law systems by P. G. Turner
Part I. Jurisdictions and Their Institutions:
2. Equity: notes on the American reception by Samuel L. Bray
3. The union of law and equity: the United States, 1800–1938 by Kellen Funk
4. What did the makers of the judicature acts understand by 'fusion'? by Michael Lobban
5. At the crossroads of fusion: British North America/Canada, 1750–2000 by Philip Girard
6. Fusion – fission – fusion: pre-judicature equity jurisdiction in New South Wales, 1824–1972 by Mark Leeming
7. Fusion without fission: equity and the judicature acts in colonial by Victoria James Mccomish
8. Are equity and law in Scotland fused, separate or intertwined? by Daniel J. Carr
Part II. Fusion and Fission in Doctrine and Practice:
9. Equity and the common counts: the development of the action for money had and received by Ben Kremer
10. Mistake and unfairness in contract law by Stephen Waddams
11. Lex Sequitur Equitatem: fusion and the penalty doctrine by P.G. Turner
12. Rediscovering the equitable origins of discovery: the 'blending' of law and equity prior to fusion by Patricia I. Mcmahon
Part III. Functional, Analytical and Theoretical Views:
13. Wrongful fusion: equity and tort by John C.P. Goldberg and Henry E. Smith
14. Avoiding anarchy? Common law vs. equity and Maitland vs. Hohfeld by Ben Mcfarlane
15. Equity and the modern mind by Emily Sherwin
16. An argument for limited fission by Matthew Harding
17. 'Single nature's double name': the unity of law and equity? by Dennis Klinck