DOCSLIB.ORG

Mere Equities’

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Mere Equities’ WHAT IS A MERE EQUITY?: AN INVESTIGATION OF THE NATURE AND FUNCTION OF SO-CALLED ‘MERE EQUITIES’ Jack Wells PhD University of York Law January 2019 Abstract This thesis will examine the type of equitable claim known as a ‘mere equity’. The basic characteristics of a mere equity are well established. A mere equity is ‘proprietary’ in that it can be enforced against certain third parties and is capable of alienation in favour of certain third parties. Despite its proprietary flavour, however, a mere equity does not amount to an interest in any property to which it relates. The main consequence of this is that a mere equity is postponed to any interest, legal or equitable, subsequently purchased for value and without notice of the mere equity. While the core features of mere equities are settled, there is much confusion over the underlying legal nature and practical function of these claims. This confusion has produced the criticism that mere equities are an anomalous category, and brought into question whether mere equities should even exist as a juridical concept. This state of affairs is clearly unsatisfactory, especially given that mere equities are the admitted basis of a sizable body of equitable doctrines, including rescission, rectification and proprietary estoppel. This thesis aims to demystify mere equities. It will show that the existing scholarly literature has not adequately engaged with the concept of a mere equity. It will then look afresh at the primary legal materials in order to fill in the conceptual gaps. In short, the thesis will argue that a mere equity is an equitable right of action: a simple claim to pursue a particular equitable remedy against a particular defendant. A mere equity, therefore, is a right in personam—a claim binding on a small and definite class of people—albeit one which has been extended to third parties in accordance with equitable principles. The identification of these principles will be a major concern of the thesis. 2 List of Contents Abstract 2 List of Contents 3 Acknowledgments 8 Author’s Declaration 9 Chapter 1: Introduction 10 Part I: Introduction 10 Part II: The basic features of mere equities 10 1. Proprietary claims 10 2. The distinction between mere equities and equitable interests 12 i. Mere equities and the plea of purchase for value without notice 13 Part III: The rationale behind the thesis 17 Part IV: The questions to be answered 18 Part V: Overview of the thesis 20 Chapter 2: Literature Review and Methodology 25 Part I: Introduction 25 Part II: Literature review 25 1. What are the different claims which are, or might be, mere equities as distinguished from equitable interests? 26 2. What is the legal nature of the dividing line between mere equities and equitable interests? 31 3. What is the underlying doctrinal basis for the proprietary features of mere equities? 36 4. What function do mere equities perform (and how well do mere equities perform their identified function)? 39 3 5. Literature review: Conclusion 42 Part III: Methodology 42 Chapter 3: The Dividing Line between Mere Equities and Equitable Interests 45 Part I: Introduction 45 Part II: Reviewing the case law 45 1. Finding the relevant cases 46 2. The findings 51 i. Confirmed mere equities 51 ii. Contractual licences and deserted wives’ equities 55 iii. Outliers 55 iv. Equitable interests 57 v. The findings: Summary 59 Part III: The nature of the dividing line 60 1. More at the discretion of the court 60 2. Equitable rights of action 64 i. Addressing a potential objection 71 Part IV: Other mere equities? 72 Part V: Conclusion 74 Chapter 4: The Enforceability of Mere Equities against Third Parties: A Property-based Analysis 76 Part I: Introduction 76 Part II: Background 77 1. How the third party effects of mere equities are demonstrated in the cases 77 2. The point in issue 80 Part III: A property-based analysis 81 1. Reviewing the evidence for a property-based analysis 82 2. Voidable transfers 86 3. Equitable priorities 93 4 i. Objection 1: Latec Investments 95 Taylor J 97 Kitto J 102 ii. Objection 2: The principle in Rice v Rice 104 4. A property-based analysis: Summary 108 Part IV: The imperfect title analysis 109 Part V: Conclusion 114 Chapter 5: The Enforceability of Mere Equities against Third Parties: A Conscience-based Analysis 116 Part I: Introduction 116 Part II: The conscience-based principle 117 1. Outlining the conscience-based principle 117 2. Historical examples of the conscience-based principle 120 i. The use 120 ii. The restrictive freehold covenant 127 iii. The deserted wife’s equity 133 Part III: The conscience-based principle and mere equities 140 1. The effect of National Provincial Bank 141 2. The burden of proof re notice 143 3. A distinction without a difference? 147 i. The privity limitation 148 ii. The plea of purchase for value without notice 149 Part IV: Explanatory advantages of the conscience-based analysis 154 Part V: Conclusion 156 Chapter 6: The Assignability of Mere Equities to Third Parties 158 Part I: Introduction 158 Part II: The core principles 158 Part III: The difficult cases 165 Part IV: The cases were wrongly decided 170 Part V: Retrospective equitable title 171 5 1. Retrospective equitable title and its functions 171 2. When the retrospective equitable title arises 173 i. Comparison with rescission at common law 176 3. Application to the rule in Gresley, Dickinson and Melbourne 178 4. Advantages of this analysis and potential objections to it 179 i. Objection 1: Making an election to rescind 180 ii. Objection 2: A common law concept 186 iii. Prosser v Edmonds distinguished 189 Part VI: Genuine commercial interest 191 1. Where C would have taken in default of the voidable conveyance 194 Part VII: Conclusion 196 Chapter 7: The Function of Mere Equities 199 Part I: Introduction 199 Part II: The necessary factual ingredients of mere equities 200 1. Detrimental action and vitiated intention 200 i. Wrongdoing 203 ii. Unjust enrichment 204 iii. Summary 206 2. Detrimental action and vitiated intention not sufficient 206 3. The three defendant-related factors 208 4. The role of the defendant-related factors 214 5. Unconscionability: The third necessary element 219 Part III: The normative foundation of mere equities 220 Part IV: The function of mere equities 225 Part V: Conclusion 228 Chapter 8: Conclusion 231 Part I: Introduction 231 6 Part II: Summary of key arguments and findings 231 Part III: Implications 236 1. A category of unthinking reference 236 2. Enforcement against third parties 238 3. The evolution of mere equities into equitable interests 240 Appendices 245 Appendix A: Cases found by means of the methodology described in chapter three 245 Appendix B: Table of cases 248 Appendix C: Table of legislation 257 References 259 7 Acknowledgments I would like to thank my supervisor, Professor Richard Nolan, and the members of my Thesis Advisory Panel, Dr Emma Waring and Dr Sarah Wilson, for their comments on earlier drafts of this thesis. 8 Author’s Declaration I declare that this thesis is a presentation of original work and I am the sole author. This work has not previously been presented for an award at this, or any other, University. All sources are acknowledged as References. 9 Chapter 1 Introduction PART I: INTRODUCTION This thesis examines the class of equitable claims which are known as ‘mere equities’. The aim of the thesis is to investigate the legal nature and practical function of mere equities as these claims are understood and applied within the English legal system. Part two of this chapter will introduce the concept of a mere equity and highlight the basic features and consequences of this category of claim. Part three will explain the rationale for investigating mere equities. Part four will clarify the key questions which the thesis will answer and explain why these questions are important. Finally, part five will provide an overview of the subsequent chapters and their findings. PART II: THE BASIC FEATURES OF MERE EQUITIES Mere equities are equitable claims of a particular type. They are recognised in the English legal system and in certain other jurisdictions, notably Australia.1 From an examination of the cases, it appears that mere equities have two defining characteristics. First, they are what might be described as ‘proprietary’ claims. Second, despite their proprietary character, they do not amount to so called ‘equitable interests’ in property. Each of these features will now be outlined. 1. Proprietary claims It is necessary to be clear about our terminology. The terms ‘property’ and ‘proprietary’ are ‘notoriously ambiguous’:2 a claim can be described as ‘property’ or 1 See especially Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265. 2 RC Nolan, ‘Equitable Property’ (2006) 122 LQR 232, 233. 10 ‘proprietary’ for a number of different purposes depending on the context.3 Very often, however, these terms are used to describe a claim which is capable of enforcement against at least some third parties, and which may also be capable of alienation in favour of certain third parties.4 It is for these purposes that mere equities are referred to as ‘proprietary’ here. It is well established that mere equities possess the qualities of enforceability against, and alienability in favour of, third parties which justify the description of these claims as ‘proprietary’.5 On the one hand, it has been stated numerous times in the cases that, as a general principle, mere equities are capable of binding successors in title to any land or other property to which they relate.6 Furthermore, in relation to registered land, the enforceability of mere equities against third parties has been placed on a statutory footing.
Load more

Recommended publications
  • The Supreme Court and the New Equity
    Vanderbilt Law Review Volume 68 | Issue 4 Article 1 5-2015 The uprS eme Court and the New Equity Samuel L. Bray Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Samuel L. Bray, The uS preme Court and the New Equity, 68 Vanderbilt Law Review 997 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol68/iss4/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 68 MAY 2015 NUMBER 4 ARTICLES The Supreme Court and the New Equity Samuel L. Bray* The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprisinghas happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law-from commercial contracts and employee benefits to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has treated equitable remedies as having distinctive powers and limitations. This Article describes and begins to evaluate the Court's new equity cases.
    [Show full text]
  • The Restitution Revival and the Ghosts of Equity
    The Restitution Revival and the Ghosts of Equity Caprice L. Roberts∗ Abstract A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases for "suits at common law" satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but ∗ Professor of Law, West Virginia University College of Law; Visiting Professor of Law, The Catholic University of America Columbus School of Law. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Catholic University for supporting this research and to the following conferences for opportunities to present this work: the American Association of Law Schools, the Sixth Annual International Conference on Contracts at Stetson University College of Law, and the Restitution Rollout Symposium at Washington and Lee University School of Law.
    [Show full text]
  • Equity in the American Courts and in the World Court: Does the End Justify the Means?
    EQUITY IN THE AMERICAN COURTS AND IN THE WORLD COURT: DOES THE END JUSTIFY THE MEANS? I. INTRODUCTION Equity, as a legal concept, has enjoyed sustained acceptance by lawyers throughout history. It has been present in the law of ancient civilizations' and continues to exist in modem legal systems.2 But equity is no longer a concept confined exclusively to local or national adjudication. Today, equity shows itself to be a vital part of international law.' The International Court of Justice--"the most visible, and perhaps hegemonic, tribunal in the sphere of public international law" 4-has made a significant contribution to the delimitation,5 development of equity. Particularly in cases involving maritime 6 equity has frequently been applied by the Court to adjudicate disputes. Equity is prominent in national legal systems and has become increas- ingly important in international law. It is useful, perhaps essential, for the international lawyer to have a proper understanding of it. Yet the meaning of equity remains elusive. "A lawyer asked to define 'equity' will not have an easy time of it; the defimition of equity, let alone the term's application in the field of international law, is notoriously uncertain, though its use is rife."7 Through a comparative analysis, this note seeks to provide a more precise understanding of the legal concept of equity as it relates to two distinct systems oflaw: the American and the international. To compare the equity administered by the American courts with that administered by the World Court, this note 1. See sources cited infra notes 10, 22.
    [Show full text]
  • In the United States Bankruptcy Court for the Eastern District of Tennessee
    IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF TENNESSEE In re Case No. 98-33204 STEPHEN WELLS WACHTER Debtor ANN MOSTOLLER, TRUSTEE Plaintiff v. Adv. Proc. No. 04-3010 STEPHEN WELLS WACHTER, CHARLES M. KNOWLES, TRUSTEE, and LEILA RAMEY KNOWLES, TRUSTEE Defendants PUBLISHED: Mostoller v. Wachter (In re Wachter), 314 B.R. 365 (Bankr. E.D. Tenn. 2004) IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF TENNESSEE In re Case No. 98-33204 STEPHEN WELLS WACHTER Debtor ANN MOSTOLLER, TRUSTEE Plaintiff v. Adv. Proc. No. 04-3010 STEPHEN WELLS WACHTER, CHARLES M. KNOWLES, TRUSTEE, and LEILA RAMEY KNOWLES, TRUSTEE Defendants MEMORANDUM ON MOTIONS FOR SUMMARY JUDGMENT APPEARANCES: JENKINS & JENKINS ATTORNEYS, PLLC Edward J. Shultz, Esq. 800 South Gay Street Suite 2121 Knoxville, Tennessee 37929 Attorneys for Plaintiff EGERTON, McAFEE, ARMISTEAD & DAVIS, P.C. William W. Davis, Jr., Esq. Post Office Box 2047 Knoxville, Tennessee 37901 Attorneys for Defendants RICHARD STAIR, JR. UNITED STATES BANKRUPTCY JUDGE The Plaintiff, Ann Mostoller, Trustee, filed the Complaint initiating this adversary proceeding on January 22, 2004, seeking a determination that a distribution to be received by the Debtor pursuant to the terms of a spendthrift trust is property of his bankruptcy estate and, accordingly, subject to turnover to the Plaintiff. Presently before the court are the following, both filed on June 1, 2004: (1) the Plaintiff’s Motion for Summary Judgment; and (2) the Motion for Summary Judgment filed by the Defendants. Both Motions are supported by memoranda of law, as required by E.D. Tenn. LBR 7007-1.
    [Show full text]
  • SC11-2231 Initial Brief
    IN THE SUPREME COURT OF FLORIDA Case No. SC11-2231 Lower Tribunal Case Nos.: 1D10-2050, 2004-CA-2290, 2005-CA-2231, 2006-CA-2338, 2007-CA-2908, 2008-CA-3919 1108 ARIOLA, LLC., et al., Petitioners, v. CHRIS JONES, etc., et al., Respondents. PETITIONERS’ INITIAL BRIEF ON THE MERITS ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL OF FLORIDA DANNY L. KEPNER TALBOT D’ALEMBERTE Florida Bar No: 174278 Florida Bar No.: 0017529 SHELL, FLEMING, DAVIS & MENGE PATSY PALMER Post Office Box 1831 Florida Bar No.: 0041811 Pensacola, Florida 32591-1831 D’ALEMBERTE & PALMER, PLLC Telephone: (850) 434-2411 Post Office Box 10029 Facsimile: (850) 435-1074 Tallahassee, Florida 32302-2029 Email: [email protected] Telephone: (850) 325-6292 Email: [email protected] [email protected] Counsel for Petitioners TABLE OF CONTENTS TABLE OF CITATIONS .......................................................................................... iv-vii PRELIMINARY STATEMENT .............................................................................. 1 STATEMENT OF THE CASE AND OF THE FACTS ......................................... 1 SUMMARY OF ARGUMENT ................................................................................. 11 ARGUMENT .............................................................................................................. 13 I. PETITIONERS ARE NOT OWNERS OF THE LEASEHOLD IMPROVEMENTS .......................................................................................... 13 A. The Ordinary Leases Here
    [Show full text]
  • The Federal Equity Power
    Florida State University College of Law Scholarship Repository Scholarly Publications 1-2018 The Federal Equity Power Michael T. Morley Follow this and additional works at: https://ir.law.fsu.edu/articles Part of the Courts Commons, and the Jurisdiction Commons THE FEDERAL EQUITY POWER MICHAEL T. MORLEY INTRODUCTION ............................................................................................................................ 219 I. THE ORIGIN AND DEVELOPMENT OF EQUITY............................................................................. 224 II. AMERICAN EQUITY PRIOR TO ERIE .......................................................................................... 230 A. Equity Jurisdiction .............................................................................................................. 232 B. Equity Procedure ................................................................................................................ 236 C. Equitable Remedies............................................................................................................. 238 D. Equity and Substantive Rights ............................................................................................. 241 III. EQUITY IN THE POST-ERIE WORLD ......................................................................................... 244 A. Erie and General Law ......................................................................................................... 244 B. Guaranty Trust and Equity .................................................................................................
    [Show full text]
  • PROPRIETARY ESTOPPEL Recent Developments in England and Wales
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Apollo 110 Singapore Academy of Law Journal (2010) 22 SAcLJ PROPRIETARY ESTOPPEL Recent Developments in England and Wales This article analyses the contrasting reasoning and outcomes in two cases concerning proprietary estoppel that recently came before the highest court in England and Wales. It argues that a context-based dichotomy may emerge in the application of estoppel principles in order to reconcile the Law Lords’ opinions. The article highlights the difficulties in drawing distinctions between “domestic” and “commercial” cases. It then discusses general difficulties raised by the use of proprietary estoppel in the “domestic” context and specifically in connection with the enforcement of oral testamentary promises. With an eye to developments in the comparative law, the article concludes that a statutory scheme for the enforcement of such promises could remedy the difficulties outlined by removing many “domestic” cases from the realm of estoppel. ∗ Brian SLOAN BA (Cantab), LLM (Cantab); Bob Alexander College Lecturer in Law; Fellow of King’s College, University of Cambridge. I. Introduction 1 The very word “estoppel” is defensive. As such, proprietary estoppel was classically used to prevent landowners from unconscionably asserting their strict legal entitlement as against an improver of the land’s value.1 In the modern era, however, it has become a powerful “sword” for claimants who have detrimentally relied on representations given by property owners. The detrimental reliance, moreover, need not be in the form of improvements to the land. In Watts v Story, Slade LJ decided that it was not “possible, or even desirable, to attempt to define the nature and extent of the prejudice or ∗ The author is grateful to Prof Kevin Gray and Dr Jens M Scherpe for their comments on an earlier draft.
    [Show full text]
  • LIS > Legislative Draft > 12104240D
    VIRGINIA ACTS OF ASSEMBLY -- 2019 SESSION CHAPTER 712 An Act to amend and reenact §§ 54.1-2345 through 54.1-2354 of the Code of Virginia; to amend the Code of Virginia by adding in Title 1 a chapter numbered 6, containing sections numbered 1-600 through 1-610, by adding in Chapter 3 of Title 8.01 an article numbered 13.1, containing sections numbered 8.01-130.1 through 8.01-130.13, and an article numbered 15.1, containing sections numbered 8.01-178.1 through 8.01-178.4, by adding in Title 8.01 a chapter numbered 18.1, containing articles numbered 1 and 2, consisting of sections numbered 8.01-525.1 through 8.01-525.12, by adding in Title 32.1 a chapter numbered 20, containing sections numbered 32.1-373, 32.1-374, and 32.1-375, by adding in Title 36 a chapter numbered 12, containing sections numbered 36-171 through 36-175, by adding in Title 45.1 a chapter numbered 14.7:3, containing sections numbered 45.1-161.311:9, 45.1-161.311:10, and 45.1- 161.311:11, by adding a section numbered 54.1-2345.1, by adding in Chapter 23.3 of Title 54.1 an article numbered 2, containing sections numbered 54.1-2354.1 through 54.1-2354.5, by adding a title numbered 55.1, containing a subtitle numbered I, consisting of chapters numbered 1 through 5, containing sections numbered 55.1-100 through 55.1-506, a subtitle numbered II, consisting of chapters numbered 6 through 11, containing sections numbered 55.1-600 through 55.1-1101, a subtitle numbered III, consisting of chapters numbered 12 through 17, containing sections numbered 55.1-1200 through 55.1-1703,
    [Show full text]
  • Equity Investment Agreement
    Equity Investment Agreement THIS EQUITY INVESTMENT AGREEMENT (the "Agreement") is dated as of DATE (the "Effective Date") by and between ________________________________________________, a Delaware business corporation, having an address at _________________________________________________________________ ("Company") and Cornell University, a non-profit New York corporation, having an address at Day Hall, Ithaca NY, 14850 ("Cornell"). WHEREAS, Company is developing technologies that it represents are consistent with the educational, research and economic development objectives of Cornell; and WHEREAS, Company would benefit from a relationship with Cornell and its Kevin M. McGovern Family Center for Venture Development in the Life Sciences, (the "McGovern Center"), whereby the McGovern Center would provide Company with assistance in accessing elements of the McGovern Center's network of public and private commercialization resources (the "McGovern Center Network"); and WHEREAS, the McGovern Center is willing to provide such assistance, subject to the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties covenant and agree as follows: Article 1. Equity Partner Program 1.1 As a part of its equity partnership with Company, the McGovern Center agrees, from time to time upon the request of Company, to: (i) Provide Company with timely information that the McGovern Center reasonably believes to be of benefit to Company including information related to capital
    [Show full text]
  • The Doctrine of Equitable Conversion: I, Conversion by Contract
    DePaul Law Review Volume 12 Issue 1 Fall-Winter 1962 Article 2 The Doctrine of Equitable Conversion: I, Conversion by Contract Milton M. Hermann Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Milton M. Hermann, The Doctrine of Equitable Conversion: I, Conversion by Contract, 12 DePaul L. Rev. 1 (1962) Available at: https://via.library.depaul.edu/law-review/vol12/iss1/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. DE PAUL LAW REVIEW Volume XII AUTUMN-WINTER 1962 Number 1 THE DOCTRINE OF EQUITABLE CONVERSION: I, CONVERSION BY CONTRACT* MILTON M. HERMANN OF ALL the principles of equity, few have had consequences as far-reaching as the doctrine of equitable conversion. Too often this doctrine is thought of in a single context: The consequences, in equity, flowing from a contract for the sale of land, prior to the consummation of the sale by delivery of a deed. But the impact of this doctrine in other areas of our law-both on property and contract rights-has been enormous. Indeed, its role in the fields of Wills and Trusts-in determining the devolution of property to heirs at law, next of kin, devisees, legatees, and beneficiaries of trusts, both testamentary and inter vivos-sometimes overshadows its role in the area of contracts for the sale of land.
    [Show full text]
  • In Law Or in Equity?
    In law or in equity? By Eric Lindquist, Of Counsel to Fox Horan & Camerini LLP © Eric Lindquist 2020 St. Thomas More, English Chancellor 1529-1532 Lawyers and businesspersons around the world read contracts every day that provide for indemnity against, or the release of, claims “in law or in equity.” Based on my conversations with civil lawyers and with business executives in the US and abroad, it seems that many of them haven’t really thought about what “equity” means in this context. Here are the basics. Equity jurisdiction arose in England during the Middle Ages to balance the excessive rigidity of the common law courts by allowing a royal official, the Lord Chancellor, to decide disputes based on broad concepts of fairness and good conscience. The distinction between law and equity is important because: (a) equitable claims are decided by a judge, not by a jury, (b) claims in equity are subject to different defenses from legal claims (the defenses of “unclean hands,” “laches,” or “undue hardship,” e.g.), (c) equitable relief being viewed as an “extraordinary remedy,” the standards of pleading and proof are generally stricter than for legal claims, requiring greater specificity and clearer evidence, (d) courts can retain jurisdiction over equitable matters long after judgment is entered, allowing them to modify or dissolve injunctions, or to appoint receivers to manage property or special masters to monitor compliance, (e) equitable judgments are enforceable by sanctions for contempt of court, and (f) equitable judgments are discretionary and therefore especially difficult to overturn on appeal. Most claims arising “in equity” ask the court for an injunction, that is, an order that the respondent do something or refrain from doing something.
    [Show full text]
  • The Functions of Trust Law: a Comparative Legal and Economic Analysis, 73 N.Y.U
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1998 The uncF tions of Trust Law: A Comparative Legal and Economic Analysis Ugo Mattei UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Comparative and Foreign Law Commons, and the Estates and Trusts Commons Recommended Citation Ugo Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 N.Y.U. L. Rev. 434 (1998). Available at: http://repository.uchastings.edu/faculty_scholarship/529 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Mattei Ugo Author: Ugo Mattei Source: New York University Law Review Citation: 73 N.Y.U. L. Rev. 434 (1998). Title: The Functions of Trust Law: A Comparative Legal and Economic Analysis Originally published in NEW YORK UNIVERSITY LAW REVIEW. This article is reprinted with permission from NEW YORK UNIVERSITY LAW REVIEW and New York University School of Law. THE FUNCTIONS OF TRUST LAW: A COMPARATIVE LEGAL AND ECONOMIC ANALYSIS HENRY HANSMANN* UGO MATTEI** In this Article, ProfessorsHenry Hansmann and Ugo Mattei analyze the functions served by the law of trusts and ask, first, whether the basic tools of contract and agency law could fulfill the same functions and, second, whether trust law provides benefits that are not provided by the law of corporations.
    [Show full text]