Equity & Trusts Essay questionWatch
"Out of the principal interactions between commercial law and equity has been a desire on the part of commercial lawyers to keep equity out of commercial cases. The thinking is this: the law dealing with commercial contracts requires certainty so that commercial people can transact with confidence as to the legal treatment of their activities. Consequently, it is said, discretionary remedies and equitable doctrines are likely to disturb commercial certainties and therefore should be avoided. However, what this thinking fails to admit is the need for some ethical norms to govern commercial life in the same way that they govern non commercial life…
For commercial law to seek to avoid equity would be to allow commerce to escape the norms of the legal system which are nevertheless enforceable against all ordinary citizens. This would be a particularly pernicious development with would permit the already powerful corporate and commercial interests to set up their own legal system: in effect, it would be to produce one law for them and another law for the rest of us.”
Alastair Hudson, Equity & Trusts (7th Edition, Routledge-Cavendish, 2012) 1039, 1059
With reference to the above extract, critically evaluate the extent to which you consider that equity has been able to balance its aim for flexibility, fairness and justice with the desire for certainty, stability and consistency in the legal system.
Any help would be appreciated. Thanks!
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Struggling a bit here myself, wondering what is actually being asked of us, I just seem to be rambling!
Did you ever get any justification on the question being asked?
I don't even know where to begin!