Cont: Origin of Common Law
4. Rectification
Under this the court will order that, where a mistake has accidentally been made in a document so that it is not a true version of what the parties agreed, that document should altered to reflect the parties’ intention.
5. Quantum Meruit
Where there is a contract, instead of suing for damages, a plaintiff may claim for what he has done under contract. Whether there is a contract or not, it still works.
🔨Planche v Colburn
The defendants engaged the plaintiffs to write a treatise for a periodical publication. The plaintiff commenced the treatise but before he had completed it, the defendants
abandoned the periodical publication. It was held that the plaintiff might sue for compensation without tendering or delivering the treatise.
EQUITY TODAY
Equity can still create new concepts in the law, which happened on a number of occasions in the 20th century.
Freezing order
Lord Denning MR developed the freezing order (formerly known as a Mareva injunction) and the search order (formerly known as an Anton Piller Order).
The freezing order can be made where there is a risk that one party in a case will move all their assets out of the United Kingdom before the case against them is tried. The effect of the order is that third parties (such as banks) who have assets owned by the party in their control must freeze those assets so that they cannot be removed from the account.
The freezing order was first used in the case of Mareva Compania Naviera SA v International Bulk Carriers SA, in order to have assets available to pay any damages or costs that the court awards.
Search order
The search order allows the claimant to search the defendant’s premises and remove any documents or other material which could help the claimant to prove his case; first used in Anton Piller KG v Manufacturing Processes Ltd – entry, search and seizure order.
Mortgage
For example, A is facing financial difficulties. He transfers his property to B as security of payment. B will pay A money. A will then pay in instalments, the interest of the house. After 20 years, if A successfully paid all the interests, A will get the house back.
The concept of Equity of Redemption recognises the right of A to postpone payment for a set duration before officially giving up the right to redeem the property.
Trusts
Concept of Trust: For example, there is a father (testator/ settlor) who is going to die of a fatal illness soon. The father transfers his legal ownership of every property to the uncle (trustee). The uncle promises to return the ownership to his child once the time is right, as specified in a contract. The common law only recognises the legal title of the uncle. But the concept of Trust in Equity looks at the right of the child (beneficiary). So the child has an equitable title to claim his/her property when the terms of the contract have been fulfilled.
Page 5 of 5 🔗 Go-to Page 1
4. Rectification
Under this the court will order that, where a mistake has accidentally been made in a document so that it is not a true version of what the parties agreed, that document should altered to reflect the parties’ intention.
5. Quantum Meruit
Where there is a contract, instead of suing for damages, a plaintiff may claim for what he has done under contract. Whether there is a contract or not, it still works.
🔨Planche v Colburn
The defendants engaged the plaintiffs to write a treatise for a periodical publication. The plaintiff commenced the treatise but before he had completed it, the defendants
abandoned the periodical publication. It was held that the plaintiff might sue for compensation without tendering or delivering the treatise.
EQUITY TODAY
Equity can still create new concepts in the law, which happened on a number of occasions in the 20th century.
Freezing order
Lord Denning MR developed the freezing order (formerly known as a Mareva injunction) and the search order (formerly known as an Anton Piller Order).
The freezing order can be made where there is a risk that one party in a case will move all their assets out of the United Kingdom before the case against them is tried. The effect of the order is that third parties (such as banks) who have assets owned by the party in their control must freeze those assets so that they cannot be removed from the account.
The freezing order was first used in the case of Mareva Compania Naviera SA v International Bulk Carriers SA, in order to have assets available to pay any damages or costs that the court awards.
Search order
The search order allows the claimant to search the defendant’s premises and remove any documents or other material which could help the claimant to prove his case; first used in Anton Piller KG v Manufacturing Processes Ltd – entry, search and seizure order.
Mortgage
For example, A is facing financial difficulties. He transfers his property to B as security of payment. B will pay A money. A will then pay in instalments, the interest of the house. After 20 years, if A successfully paid all the interests, A will get the house back.
The concept of Equity of Redemption recognises the right of A to postpone payment for a set duration before officially giving up the right to redeem the property.
Trusts
Concept of Trust: For example, there is a father (testator/ settlor) who is going to die of a fatal illness soon. The father transfers his legal ownership of every property to the uncle (trustee). The uncle promises to return the ownership to his child once the time is right, as specified in a contract. The common law only recognises the legal title of the uncle. But the concept of Trust in Equity looks at the right of the child (beneficiary). So the child has an equitable title to claim his/her property when the terms of the contract have been fulfilled.
Page 5 of 5 🔗 Go-to Page 1