Have Law and Equity Influenced Each Other - Free Essay Example

Sample details Pages: 10 Words: 3064 Downloads: 10 Date added: 2017/06/26 Category Law Essay Type Argumentative essay Level High school Did you like this example? 1 Table of Cases Bank of Boston Connecticut v European Grain and Shipping Ltd Central London Property Trust Ltd v High Trees House Ltd Cresswell v Potter (1978) 1 WLR 255 Cuckmere Brick Co Ltd v Mutual Finance Ltd Earl of Oxfordà ¢Ã¢â€š ¬Ã¢â€ž ¢s Case (1615) 1 Rep Ch 1 Napier and Ettrick (Lord) v Hunter Tinsley v Milligan United Scientific Holdings v Burnley Borough Council Walsh v Lonsdale Table of Statutes Bills Supreme Court Act 1981 Supreme Court of Judicature Act 1873 (36 37 Vict C. 66) Supreme Court of Judicature Act 1875 (38 39 Vict C. 77) à ¢Ã¢â€š ¬Ã‹Å"à ¢Ã¢â€š ¬Ã‹Å"Neither law nor equity is now stifled by its origin and the fact that both are administered by one Court has inevitably meant that each has borrowed from the other in furthering the harmonious development of the law as a wholeà ¢Ã¢â€š ¬Ã¢â€ž ¢Ãƒ ¢Ã¢â€š ¬Ã¢â€ž ¢[1] In Order to critically evaluate the accuracy of the above statement and to enable an analysis of the relative strengths of the à ¢Ã¢â€š ¬Ã‹Å"dualismà ¢Ã¢â€š ¬Ã¢â€ž ¢ and à ¢Ã¢â€š ¬Ã‹Å"fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢ debate, in order to form a cogent narrative it will be necessary to briefly explore both the definitions, history, distinctions and development of common law and equity. Don’t waste time! Our writers will create an original "Have Law and Equity Influenced Each Other?" essay for you Create order Firstly, whilst definitions of the à ¢Ã¢â€š ¬Ã‹Å"Common Lawà ¢Ã¢â€š ¬Ã¢â€ž ¢ system differ it can be defined as the à ¢Ã¢â€š ¬Ã‹Å"general lawà ¢Ã¢â€š ¬Ã¢â€ž ¢ which is common to the realm, and also the body of law which has evolved by judges from precedent.[2] Moreover the definition of Equity in common parlance translates to fairness/justice (aequitas equitas). Although according to S Worthington, à ¢Ã¢â€š ¬Ã‹Å"[à ¢Ã¢â€š ¬Ã‚ ¦] even the most experienced of lawyers finds it difficult to give a short, intelligible answer to the question à ¢Ã¢â€š ¬Ã‹Å"What is equity?à ¢Ã¢â€š ¬Ã¢â€ž ¢[3] However, an eloquent definition was stated in Cresswell v Potter[4] à ¢Ã¢â€š ¬Ã‹Å"The law which modifies the general common law rules where the general rules cause practical hardship in a particular case (restrains the unconscionable exercise of rights or powers at common law)à ¢Ã¢â€š ¬Ã¢â€ž ¢. Prior to the Norman Conquest in 1066 England had no functional common law which was consistent ly applied to the whole of the realm, there existed only cursory oral rules and customs which were wide-ranging between different provinces,[5] for example the à ¢Ã¢â€š ¬Ã‹Å"Jutes in the South having different laws to the Mercianà ¢Ã¢â€š ¬Ã¢â€ž ¢sà ¢Ã¢â€š ¬Ã¢â€ž ¢ along with informal gatherings and medieval Tests[6]. However, even post Norman Conquest the à ¢Ã¢â€š ¬Ã‹Å"Leges Henrici Primi (c.1118)à ¢Ã¢â€š ¬Ã¢â€ž ¢ documented fragmented legal codes and jurisdictions such as Mercian, Danelaw and Wessex law.[7] During the following three centuries post Norman Conquest (1066) the priority became the establishment of a strong à ¢Ã¢â€š ¬Ã‹Å"Common lawà ¢Ã¢â€š ¬Ã¢â€ž ¢ central to the realm mainly to safeguard à ¢Ã¢â€š ¬Ã‹Å"Royal revenuesà ¢Ã¢â€š ¬Ã¢â€ž ¢[8], which led to Royal envoys participating in local courts, such as the (the curia regis) by the thirteenth century the Common Law courts of Kingà ¢Ã¢â€š ¬Ã¢â€ž ¢s Bench, the Court of Exchequer and the Court of Common Pleas w ere established.[9] During the reign of Henry II who has been credited with principally generating the advancement of the common law[10] with the royal envoys à ¢Ã¢â€š ¬Ã‹Å"justiciae errantes (wandering justices)à ¢Ã¢â€š ¬Ã¢â€ž ¢[11]. However, the common law was not without faults as the writ system was technical, inflexible and compounded by the provisions of Oxford 1258 and the statute of Westminster led to injustices.[12] Nevertheless, by the Fourteenth Century those who felt aggrieved could appeal to the Kingà ¢Ã¢â€š ¬Ã¢â€ž ¢s conscience for a remedy, however the role was passed to the Lord Chancellor as à ¢Ã¢â€š ¬Ã‹Å"Keeper of the Kings conscienceà ¢Ã¢â€š ¬Ã¢â€ž ¢ due to the volume of appeals, with decisions based randomly on à ¢Ã¢â€š ¬Ã‹Å"conscienceà ¢Ã¢â€š ¬Ã¢â€ž ¢. This led to one of the historic criticisms of its application as arbitrary, as famously quoted by Jurist John Selden, à ¢Ã¢â€š ¬Ã‹Å"Equity varies with the length of the Chancellors footà ¢Ã¢â€š ¬Ã¢â€ž ¢[13]. Over the next few centuryà ¢Ã¢â€š ¬Ã¢â€ž ¢s growing friction between equity and the common law courts increased, as the à ¢Ã¢â€š ¬Ã‹Å"Court of Chancery acted as a check upon the common law ensuring that their application did not lead to a manifest injusticeà ¢Ã¢â€š ¬Ã¢â€ž ¢[14].This conflict dramatically reached its nexus in the Earl of Oxfords Case[15] with the dispute being settled in 1616 by James I with the Court of Chancery gaining supremacy. Lord Ellesmere Stated, menà ¢Ã¢â€š ¬Ã¢â€ž ¢s actions [à ¢Ã¢â€š ¬Ã‚ ¦] diverse and infinite that it is impossible to make any General law which will [à ¢Ã¢â€š ¬Ã‚ ¦] meet with every particular and not fail in some Circumstances. The office of the Chancellor is to correct menà ¢Ã¢â€š ¬Ã¢â€ž ¢s consciences for fraud, breaches of trust, wrongs and oppressions[à ¢Ã¢â€š ¬Ã‚ ¦] and to soften and mollify the extremity of the law.[16] This gave rise to the equitable maxim à ¢Ã¢â€š ¬Ã‹Å"that where the law and equ ity conflict, equity prevailsà ¢Ã¢â€š ¬Ã¢â€ž ¢[17] this principle was later given statutory authority under section 25[18] and re-enacted under section 49[19] after The three common law courts and the Court of Chancery were merged into a single Supreme Court, comprising of the High Court and the Court of Appeal. Under the Judicature Acts[20] allowing à ¢Ã¢â€š ¬Ã‹Å"The jurisdiction of judges in the new Supreme Court was fused, this reduced delays and expense of starting separate actions as now all judges were able to use the whole range of common law and equitable rulesà ¢Ã¢â€š ¬Ã¢â€ž ¢[21]. There remains a considerably contentious debate between legal scholars that has thundered on for well over one hundred and thirty years, as to whether the common law and equity are truly fused, either on a substantive or procedural level, those who believe in the dualist à ¢Ã¢â€š ¬Ã‹Å"fusion fallacyà ¢Ã¢â€š ¬Ã¢â€ž ¢ doctrine and even those who conclude whether they should be fused. P.V Baker[22] states à ¢Ã¢â€š ¬Ã‹Å"that fusion [à ¢Ã¢â€š ¬Ã‚ ¦] there is no distinction [à ¢Ã¢â€š ¬Ã‚ ¦] between legal rights, remedies and thus cannot be supportedà ¢Ã¢â€š ¬Ã¢â€ž ¢ this view is reinforced by J Martin[23] who states the à ¢Ã¢â€š ¬Ã‹Å"Supreme Court act clearly, envisaged both equity and common law would [à ¢Ã¢â€š ¬Ã‚ ¦] separate existenceà ¢Ã¢â€š ¬Ã¢â€ž ¢ and that Lord Brandon[24] stated that à ¢Ã¢â€š ¬Ã‹Å"important proceduresà ¢Ã¢â€š ¬Ã¢â€ž ¢ changed, although no third party rights were altered [à ¢Ã¢â€š ¬Ã‚ ¦] or were intended to be[25]. Although, controversially those who advocate à ¢Ã¢â€š ¬Ã‹Å"fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢ suggest it is the à ¢Ã¢â€š ¬Ã‹Å"awarding of legal remedies for a breach of an equitable rightà ¢Ã¢â€š ¬Ã¢â€ž ¢[26]. However, P. Mason in Harris v Digital Pulse[27] did in a dissenting opinion argue that it [à ¢Ã¢â€š ¬Ã‚ ¦] à ¢Ã¢â€š ¬Ã‹Å"exposes the error of restricting equityà ¢Ã¢â€š ¬Ã¢â€ž ¢s capacity to award compensation for infri ngement of a right recognised in the pre-Judicature Act eraà ¢Ã¢â€š ¬Ã¢â€ž ¢ citing Viscount Haldaneà ¢Ã¢â€š ¬Ã¢â€ž ¢s speech in Nocton v Lord Ashburton[28] Furthermore, Walter Ashburner argues[29] from a procedural dualist standpoint, that the judicature acts[30] only fused the administration of law by à ¢Ã¢â€š ¬Ã‹Å"unifying Common law and equity into one court systemà ¢Ã¢â€š ¬Ã¢â€ž ¢, it did not fuse the content of the two doctrines. The principles of equity and the principles of law remained separate: of jurisdiction, he likened both equity and the common law to that of two streams which run side by side [à ¢Ã¢â€š ¬Ã‚ ¦] however à ¢Ã¢â€š ¬Ã‹Å"never minglingà ¢Ã¢â€š ¬Ã¢â€ž ¢ their waters. Moreover, Lord Diplock who has long been hailed as à ¢Ã¢â€š ¬Ã‹Å"the most forceful exponent of fusion [à ¢Ã¢â€š ¬Ã‚ ¦]à ¢Ã¢â€š ¬Ã¢â€ž ¢[31] argues in obiter[32] the fusion of common law and equity is more substantive and has already occurred with the à ¢Ã¢â€š ¬Ã‹Å"streamsà ¢Ã¢â€š ¬ â„ ¢ of equity and the common law [à ¢Ã¢â€š ¬Ã‚ ¦] long since mingled togetherà ¢Ã¢â€š ¬Ã¢â€ž ¢. In addition Lord Diplock went so far as to state that Ashburnerà ¢Ã¢â€š ¬Ã¢â€ž ¢s metaphorical usage was both à ¢Ã¢â€š ¬Ã‹Å"mischievous and deceptiveà ¢Ã¢â€š ¬Ã¢â€ž ¢[33]. Nevertheless, Meagher, Heydon and Leeming[34] who are amongst the strongest supporters of dualism. Maintain that the decision in the United Scientific[35] as not only à ¢Ã¢â€š ¬Ã‹Å"the low water mark of modern English jurisprudenceà ¢Ã¢â€š ¬Ã¢â€ž ¢ and the conjecture that lord Diplock believing [à ¢Ã¢â€š ¬Ã‚ ¦] à ¢Ã¢â€š ¬Ã‹Å"the Statutes of Uses [à ¢Ã¢â€š ¬Ã‚ ¦] of Quia Emptores played no contemporary part in English property law.à ¢Ã¢â€š ¬Ã¢â€ž ¢[36] à ¢Ã¢â€š ¬Ã…“The fusion fallacy involves the administration of a remedy, for example common law damages for breach of fiduciary duty, not previously available at law or in equity, or in the modification of principles in one branch of the jurisdictio n by concepts that are imported from the other and thus are foreign, for example by holding that the existence of a duty in tort may be tested by asking whether the parties concerned are in fiduciary relationshipsà ¢Ã¢â€š ¬Ã‚ [37] However, there is seemingly an accord with Lord Diplock as Lord Denning M.R. who suggests a deeper fusion between equity and common law which would suggest that it has been fused for a considerable time. à ¢Ã¢â€š ¬Ã‹Å"When law and equity have been joined together for over seventy years, principles must be considered in the light of their combined effectà ¢Ã¢â€š ¬Ã¢â€ž ¢.[38] Furthermore, Peter Sparkes suggests, the à ¢Ã¢â€š ¬Ã‹Å"doctrine of Walsh v Lonsdaleà ¢Ã¢â€š ¬Ã¢â€ž ¢[39]. à ¢Ã¢â€š ¬Ã‹Å"that an agreement for a lease is as good as a leaseà ¢Ã¢â€š ¬Ã¢â€ž ¢. And cites Jessel MR, à ¢Ã¢â€š ¬Ã‹Å"equitable rule prevailing [à ¢Ã¢â€š ¬Ã‚ ¦] He appeared to espouse a true fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢[40]. And went on to argue that varying attempts to à ƒ ¢Ã¢â€š ¬Ã‹Å"distort the decision and the old procedureà ¢Ã¢â€š ¬Ã¢â€ž ¢ in order to à ¢Ã¢â€š ¬Ã‹Å"make it fità ¢Ã¢â€š ¬Ã¢â€ž ¢ with Ashburners procedural dualist standpoint, although in Sparkes opinion in reality it could à ¢Ã¢â€š ¬Ã‹Å"only be explained as an example of true fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢[41]. It would on the face of it seem anomalous that a unified court with jurisdiction over both common law and equity would strictly preserve an historical distinction between them[42] and that it would suggest it would inevitably result in fusion[43] The à ¢Ã¢â€š ¬Ã‹Å"fusion of law and equity is often categorised as if they were factà ¢Ã¢â€š ¬Ã¢â€ž ¢[44] albeit that the reforms brought about by the Judicature Acts have clearly fused their administration. However, no new grounds of à ¢Ã¢â€š ¬Ã‹Å"action, remedy or defence have been createdà ¢Ã¢â€š ¬Ã¢â€ž ¢[45] as the Judicature Act was intended to rid the law of unnecessary delay overlap and complication[46] Moreover, Andr ew Burrows argues for more à ¢Ã¢â€š ¬Ã‹Å"fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢ so We do this at common law and we do the same at equity[47] additionally taking account of Bakerà ¢Ã¢â€š ¬Ã¢â€ž ¢s definition of à ¢Ã¢â€š ¬Ã‹Å"fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢ à ¢Ã¢â€š ¬Ã‹Å"there is no distinction [à ¢Ã¢â€š ¬Ã‚ ¦] between legal rights, remedies [à ¢Ã¢â€š ¬Ã‚ ¦]à ¢Ã¢â€š ¬Ã¢â€ž ¢[48] this combined with David Hughes à ¢Ã¢â€š ¬Ã‹Å"arguments counter to the fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢ of common law and equity such as à ¢Ã¢â€š ¬Ã‹Å"Courts lacking the power to fuse common law and equityà ¢Ã¢â€š ¬Ã¢â€ž ¢, and asserting that this would be exercising a à ¢Ã¢â€š ¬Ã‹Å"radical law reform briefà ¢Ã¢â€š ¬Ã¢â€ž ¢.[49] Remain à ¢Ã¢â€š ¬Ã‹Å"compelling as [à ¢Ã¢â€š ¬Ã‚ ¦] still deny the availability of a common law remedy for an equitable wrongà ¢Ã¢â€š ¬Ã¢â€ž ¢.[50] Likewise, Jill Martin suggests, that the Courts of England and Wales have not followed other Commonwealth jurisdictions who appear to support and enc ourage the concept that the judicature Acts have in some way à ¢Ã¢â€š ¬Ã‹Å"fusedà ¢Ã¢â€š ¬Ã¢â€ž ¢ common law and equity substantively, such as is suggested in cases like United Scientific Holdings Ltd[51] and Cuckmere Brick Co Ltd[52] and have instead conversely reinforced the more orthodox view apparent from à ¢Ã¢â€š ¬Ã‹Å"mortgage casesà ¢Ã¢â€š ¬Ã¢â€ž ¢ and decisions of the à ¢Ã¢â€š ¬Ã‹Å"House of Lordsà ¢Ã¢â€š ¬Ã¢â€ž ¢ such as Napier v Hunter[53] and Tinsley v Milligan[54] which contain à ¢Ã¢â€š ¬Ã‹Å"meticulous analyses of the separate common law and equitable origins and principles in areas such as subrogation and illegalityà ¢Ã¢â€š ¬Ã¢â€ž ¢[55]. Consequently, in the context of the law in England and Wales and based on the in depth critical analysis of the à ¢Ã¢â€š ¬Ã‹Å"fusion v dualismà ¢Ã¢â€š ¬Ã¢â€ž ¢ debate the overall relative strength of the dualism argument is highly indicative that although there is administrative à ¢Ã¢â€š ¬Ã‹Å"fusionà ¢Ã¢â€š ¬Ã¢â€ž ¢, it is evident that common law and equity are still not à ¢Ã¢â€š ¬Ã‹Å"fusedà ¢Ã¢â€š ¬Ã¢â€ž ¢ in the substantive sense therefore, even with a high degree of harmonisation there has been no actual synthesis between the common law and equity post judicature Acts, and although the Courts can and do apply both rules to common law and equity as aptly illustrated by the maxim, à ¢Ã¢â€š ¬Ã‹Å"Equity follows the lawà ¢Ã¢â€š ¬Ã¢â€ž ¢ à ¢Ã¢â€š ¬Ã…“only in cases when there is an important context disregarded or if the common law is used in an unconscionable way that equity interferes.à ¢Ã¢â€š ¬Ã‚ [56]. Furthermore, as to the accuracy of the statement above[57] Gary Watt elucidates quite succinctly that à ¢Ã¢â€š ¬Ã‹Å"nowadays this summary finds overall approvalà ¢Ã¢â€š ¬Ã¢â€ž ¢[58] from most quarters due to harmonisation and evolution in both the common law and equity. Bibliography Books Alastair H and Hudson A,Equity and Trusts (Routledge Cavendish 2009) Arnold-Baker C,The Compan ion to British History, S.v. à ¢Ã¢â€š ¬Ã‹Å"English Lawà ¢Ã¢â€š ¬Ã¢â€ž ¢ (Loncross Denholm Press 2008) Ashburner W,Ashburnerà ¢Ã¢â€š ¬Ã¢â€ž ¢s Principles of Equity. (2nd edn, Butterworth 1933) Atkins S,Equity and Trusts (Routledge 2013) Baker P and Langan P,Snellà ¢Ã¢â€š ¬Ã¢â€ž ¢s Principles of Equity (29th edn, Sweet Maxwell 1990) Baker PV,Snellà ¢Ã¢â€š ¬Ã¢â€ž ¢s Equity (23rd edn, Sweet Maxwell , London 1990) Clement R and Abass A,Equity Trusts, Text, Cases and Materials (2nd edn, Oxford University Press 2011) Equity and Trusts Law Directions, Fourth Edition, Gary Watt, 2014 Oxford University Press Equity and Trusts, Scott Atkins, 2013, Routledge Heydon JD, Gummow WMC and Austin RP,Cases and Materials on Equity and Trusts (4th edn, Butterworths 1993) Hudson A,Equity and Trusts (Routledge Cavendish 2012) Kelly D and Slapper G,The English Legal System (11th edn, Routledge 2010) Maitland F,Selected Historical Essays of F W Maitland: Chosen and I ntroduced by H M Cam (1957) 134 Martin E and Law J,A Dictionary of Law (Oxford University Press, USA 2006) Martin J and Hanbury,Modern Equity (Sweet Maxwell 2009) McDonald I and Street A, Equity Trusts Concentrate: Law Revision and Study Guide (Oxford University Press 2014) McDonald I and Street A,Equity Trusts Concentrate: Law Revision and Study Guide (Oxford University Press, USA 2011) McGhee J,Snellà ¢Ã¢â€š ¬Ã¢â€ž ¢s Equity (Sweet Maxwell) Meagher R and Heydon J,Meagher, Gummow and Lehaneà ¢Ã¢â€š ¬Ã¢â€ž ¢s Equity, Doctrines, and Remedies (Butterworths LexisNexis 2002) Meagher R, Heydon JD and Leeming M,Meagher, Gummow and Lehaneà ¢Ã¢â€š ¬Ã¢â€ž ¢s Equity: Doctrines and Remedies (4th edn, 2002) 2-105 Plucknett TF,A Concise History Of The Common Law (Liberty Fund 1956) Simpson AWB,à ¢Ã¢â€š ¬Ã‹Å"the Survival of the Common Law System; Then and Nowà ¢Ã¢â€š ¬Ã¢â€ž ¢ (Sweet Maxwell 1974) Stenton LDM,English Justice Between the Norman Conquest and t he Great Charter, 1066-1215 (1st edn, Allen Unwin 1964) Thurston,A Practitionerà ¢Ã¢â€š ¬Ã¢â€ž ¢s Guide to Trusts (Bloomsbury Professional 2006) Todd and Wattà ¢Ã¢â€š ¬Ã¢â€ž ¢s Cases Materials on Equity and Trusts, 9thEdition, 2013, Oxford University Press, Gary Watt Toomer GJ,John Selden: A Life in Scholarship (Oxford, OUP 2009) Watt G, Equity and Trusts Law Directions (Oxford University Press) Watt G,Todd and Wattà ¢Ã¢â€š ¬Ã¢â€ž ¢s Cases and Materials on Equity and Trusts (Oxford University Press, USA 2007) Wilson S,Todd ; Wilsonà ¢Ã¢â€š ¬Ã¢â€ž ¢s Textbook on Trusts (Oxford University Press 2013) Worthington S,Equity (2nd edn, OUP 2003) Journal Articles Baker P., à ¢Ã¢â€š ¬Ã‹Å"Future of Equityà ¢Ã¢â€š ¬Ã¢â€ž ¢, (1977) 93 Law Quarterly Review 529 540 https://www.heinonline.org.ergo.glam.ac.uk/HOL/Index?index=journals/lqrcollection=journals accessed 12 November 2014 Burns F, à ¢Ã¢â€š ¬Ã‹Å"The Fusion Fallacy Revisitedà ¢Ã¢â€š ¬Ã¢â€ž ¢ (1993) 5 Bond Law Review Burrows A, à ¢Ã¢â€š ¬Ã‹Å"We Do This At Common Law But That In Equityà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2002) 22 Oxford Journal of Legal Studies Chesterman S, à ¢Ã¢â€š ¬Ã‹Å"Beyond Fusion Fallacy: The Transformation of Equity and Derridaà ¢Ã¢â€š ¬Ã¢â€ž ¢s à ¢Ã¢â€š ¬Ã…“The Force of Lawà ¢Ã¢â€š ¬Ã‚ Ãƒ ¢Ã¢â€š ¬Ã¢â€ž ¢ (1997) 24 JOURNAL OF LAW AND SOCIElY 350 Hughes DA, à ¢Ã¢â€š ¬Ã‹Å"A CLASSIFICATION OF FUSION AFTER HARRIS V DIGITAL PULSEà ¢Ã¢â€š ¬Ã¢â€ž ¢ 29(2) UNSW Law Journal 38 James E, à ¢Ã¢â€š ¬Ã‹Å"A à ¢Ã¢â€š ¬Ã…“Fusion Fallacyà ¢Ã¢â€š ¬Ã‚  Fallacy?à ¢Ã¢â€š ¬Ã¢â€ž ¢ (2003) 119 Law Quarterly Review 375-380 Jho R, à ¢Ã¢â€š ¬Ã‹Å"The à ¢Ã¢â€š ¬Ã…“Fusion Fallacyà ¢Ã¢â€š ¬Ã‚ between Equity and Common Law: A Criticle Analysisà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2014) 56 NSWLR https://racheljho.files.wordpress.com/2014/04/the-fusion-fallacy-between-equity-and-common-law.pdf Martin J, à ¢Ã¢â€š ¬Ã‹Å"Fusion, Fallacy and Confusion; a Comparative Studyà ¢Ã¢â€š ¬Ã¢â€ž ¢ [1994] Conveyancer and Property Lawyer Sparkes P, à ¢Ã¢â€š ¬Ã‹Å"WALSH V LONSDALE THE NON-FUSION FALLACYà ¢Ã¢â€š ¬Ã¢â€ž ¢ (1988) 8 Oxford Journal of Legal Studies Tilbury M, à ¢Ã¢â€š ¬Ã‹Å"Fallacy or FurphyÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒâ€šÃ‚ ¯: Fusion in a Judicature Worldà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2003) 26 (2) U.N.S.W. Law Journal 357 Websites à ¢Ã¢â€š ¬Ã‹Å"Judges and the Lawà ¢Ã¢â€š ¬Ã¢â€ž ¢ https://www.open.edu/openlearn/society/the-law/judges-and-the-law/content-section-2.1 accessed 12 November 2014 à ¢Ã¢â€š ¬Ã‹Å"Legislation.gov.ukà ¢Ã¢â€š ¬Ã¢â€ž ¢https://www.legislation.gov.uk/ukpga/1981/54/section/49 accessed 12 November 2014 à ¢Ã¢â€š ¬Ã‹Å"TheNationalArchivesà ¢Ã¢â€š ¬Ã¢â€ž ¢ https://www.nationalarchives.gov.uk/pathways/citizenship/citizen_subject/law.htm accessed 11 November 2014 Cases Bank of Boston Connecticut v European Grain and Shipping Ltd Central London Property Trust Ltd v High Trees House Ltd Cresswell v Potter (1978) 1 WLR 255 Cuckmere B rick Co Ltd v Mutual Finance Ltd Earl of Oxfordà ¢Ã¢â€š ¬Ã¢â€ž ¢s Case (1615) 1 Rep Ch 1 Napier and Ettrick (Lord) v Hunter Tinsley v Milligan United Scientific Holdings v Burnley Borough Council Walsh v Lonsdale Statutes Supreme Court Act 1981 Supreme Court of Judicature Act 1873 (36 37 Vict C. 66) Supreme Court of Judicature Act 1875 (38 39 Vict C. 77) 1 [1] (per Somer J, Elders Pastoral Ltd v Bank of New Zealand [1989] 2 NZLR 180 at 193). [2] Elizabeth Martin and Jonathan Law, A Dictionary of Law (Oxford University Press, USA 2006). [3] Sarah Worthington, Equity (OUP 2003). [4] [1978] 1WLR 255) [5]Theodore FT Plucknett, A Concise History Of The Common Law (Liberty Fund 1956). [6] à ¢Ã¢â€š ¬Ã‹Å"Judges and the Lawà ¢Ã¢â€š ¬Ã¢â€ž ¢ https://www.open.edu/openlearn/society/the-law/judges-and-the-law/content-section-2.1 accessed 12 November 2014. [7]à ¢Ã¢â€š ¬Ã‹Å"The National Archivesà ¢Ã¢â€š ¬Ã¢â€ž ¢ https://www.nationalarchives.gov.uk/pathways/citizenship/citizen_subject/law.htm accessed 11 November 2014. [8] Martin (n 2) 109. [9] Ibid 109. [10] Lady Doris Mary Stenton, English Justice Between the Norman Conquest and the Great Charter, 1066-1215 (1st edn, Allen Unwin 1964) [11] Martin (n 2) 109. [12] David Kelly and Gary Slapper, The English Legal System (11th edn, Routledge 2010) [13]GJ Toome r, John Selden: A Life in Scholarship (Oxford, OUP 2009). [14] Iain McDonald and Anne Street, Equity Trusts Concentrate: Law Revision and Study Guide (Oxford University Press 2014). [15] (1615) 1 Rep Ch 1 [16] Lord Ellesmere, in the Earl of Oxfords Case [1615] 1 Rep Ch 1 [17] McDonald (n 13) 9. [18] Supreme Court of Judicature Act 1873 (36 37 Vict c. 66) [19] Supreme Court Act 1981 [20] Supreme Court of Judicature Act 1873 (36 37 Vict c. 66) and the Supreme Court of Judicature Act 1875 (38 39 Vict c. 77) [21] McDonald (n 13) 9. [22] P. Baker, à ¢Ã¢â€š ¬Ã‹Å"Future of Equityà ¢Ã¢â€š ¬Ã¢â€ž ¢, (1977) 93 Law Quarterly Review 529 540 https://www.heinonline.org.ergo.glam.ac.uk/HOL/Index?index=journals/lqrcollection=journals accessed 12 November 2014. [23] Martin (n 22) 1. [24] ibid [25] Bank of Boston Connecticut v European Grain and Shipping Ltd [1989] A.C. 1056 at p. 1109. [26] Rachel Jho, à ¢Ã¢â€š ¬Ã‹Å"The à ¢Ã¢â€š ¬Ã…“Fusion Fallacyà ¢Ã¢â€š ¬Ã‚ between Equity and Common Law: A Criticle Analysisà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2014) 56 NSWLR https://racheljho.files.wordpress.com/2014/04/the-fusion-fallacy-between-equity-and-common-law.pdf. [27] Pty Ltd [2003] NSWCA 10 [28] [1914] AC 932 [29] W Ashburner, Ashburnerà ¢Ã¢â€š ¬Ã¢â€ž ¢s Principles of Equity. (2nd edn, Butterworth 1933). [30] Supreme Court of Judicature Act 1873 (36 37 Vict c. 66) and the Supreme Court of Judicature Act 1875 (38 39 Vict c. 77). [31] JD Heydon, WMC Gummow and RP Austin, Cases and Materials on Equity and Trusts (4th edn, Butterworths 1993) 27. [32] United Scientific Holdings v Burnley Borough Council AC 904 924-925. [33] ibid [34] Roderick Meagher, John Dyson Heydon and Mark Leeming, Meagher, Gummow and Lehaneà ¢Ã¢â€š ¬Ã¢â€ž ¢s Equity: Doctrines and Remedies (4th edn, 2002) 2-105. [35] R Meagher and J Heydon, Meagher, Gummow and Lehaneà ¢Ã¢â€š ¬Ã¢â€ž ¢s Equity, Doctrines, and Remedies (Butterworths LexisNexis 2002). [36] ibid [37] Ibid (n 34) [38] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. [39] (1882) 21 ch D 9. [40] PETER SPARKES, à ¢Ã¢â€š ¬Ã‹Å"WALSH V LONSDALE THE NON-FUSION FALLACYà ¢Ã¢â€š ¬Ã¢â€ž ¢ (1988) 8 Oxford Journal of Legal Studies 350. [41] ibid [42] AWB Simpson, à ¢Ã¢â€š ¬Ã‹Å"the Survival of the Common Law System; Then and Nowà ¢Ã¢â€š ¬Ã¢â€ž ¢ (Sweet Maxwell 1974). [43] Ibid (n 26) [44] Michael Tilbury, à ¢Ã¢â€š ¬Ã‹Å"Fallacy or FurphyÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒâ€šÃ‚ ¯: Fusion in a Judicature Worldà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2003) 26 (2) U.N.S.W. Law Journal 357, 26 U.N.S.W.L.J. 357 2003. [45] Martin (n 22) 1. [46] ibid (n 13) 9. [47] A Burrows, à ¢Ã¢â€š ¬Ã‹Å"We Do This At Common Law But That In Equityà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2002) 22 Oxford Journal of Legal Studies. [48] Baker (n 22) [49] Meagher (n 35) 2-320. [50] David A Hughes, à ¢Ã¢â€š ¬Ã‹Å"A CLASSIFICATION OF FUSION AFTER HARRIS V DIGITAL PULSEà ¢Ã¢â€š ¬Ã¢â€ž ¢ 29(2) UNSW Law Journal 38. [51] United Scientific Holdings v Burnley Borough Council AC 904 924-925. [52] Cuckmere Brick Co. Ltd. v. Mutual Finance Ltd [1978] A.C. 904. [53] Napier and Ettrick (Lord) v. Hunter [1993] 2 W.L.R. 42. [54] Tinsley v. Milligan [1993] 3 All E.R. 65. [55] Jill Martin, à ¢Ã¢â€š ¬Ã‹Å"Fusion, Fallacy and Confusion; a Comparative Studyà ¢Ã¢â€š ¬Ã¢â€ž ¢ [1994] Conveyancer and Property Lawyer. [56] P Baker and P Langan, Snellà ¢Ã¢â€š ¬Ã¢â€ž ¢s Principles of Equity (29th edn, Sweet Maxwell 1990). [57] Ibid (n 1) [58] Gary Watt, Equity and Trusts Law Directions (Oxford University Press) 10.

Cyber Bullying And The Rise Of Technology Essay - 1055 Words

In reading 8, Bullies Move Beyond the Schoolyard, Patchin and Hinduja discuss the ways that bullying has expanded and increased in the rise of technology. Before technology bullying was a face-to-face interaction, usually at school or coming and going from school. Bullying can cause emotional, physical, or social harm. Now that Internet is available in everyone’s home and on his or her phones people can be bullied from any location not just at school. Bullies are also becoming anonymous by using fake names to attack their victims, making the bullies unrivaled. Cyber bullying is at an all time high because of the amount of technology that is available to children ages 12 to 17 years old. Bullying is a deviant act that is becoming more and more easier to do, and research shows that bullies can create long-term damage to the victim’s mental health causing them to be depressed or respond to issues with extreme violence. An example for this is the Columbine shooting in 1999 , the shooters were bullied their whole lives by students and turned their anger into something catastrophic such as killing other students in cold blood. Research also found that bullies are more likely to grow up and commit violent crimes. The research method that Patchin and Hinduja decided to use a survey method while using the Internet, which is the main source of bullying today, the web-based questionnaire, was put on a popular musicians website. Hence, this questionnaire was meant to attract bullies,Show MoreRelatedCyber Bullying is a Crime Essay examples1326 Words   |  6 Pagesmay break my bones, but words will never hurt me†. With today’s technology, that saying may no longer hold true. Studies show that in the past five years, online bullying has quadrupled (M. Ross, 3). 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Ghost’s Child Essay Free Essays

Feather made the right choice, he should not have stayed with Maddy. Intro: Sonya Hartnett’s The Ghost’s Child reveals the mystifying story of Matilda’s remarkable journey up the mountain of life. Even though the departure of Feather pained Maddy emotionally, the overall outcome significantly boosted her emotional strength and confidence. We will write a custom essay sample on Ghost’s Child Essay or any similar topic only for you Order Now Feather loved Maddy so much, but he knew he couldn’t change, so he had to do what was best for Maddy in order for her to be happy. The loss of Feather as well as the Fay encouraged Maddy to embark on many new adventures. At the end of Matilda’s glorious journey of life, she was, truly, happy. BP1: All Feather wanted was for Maddy to be happy, and the only way that was possible was to free her from herself by leaving her and letting her go. Maddy had thought that because of all the times he crept off to the beach, and to be with just the water and sand, that â€Å"Feather didn’t care† about her, but it was not her, it was that Maddy was â€Å"less important than this strange, mysterious summoning thing†. Feather knew he couldn’t change his lifestyle to live with Maddy, and if he didn’t, he would continue to hurt her inside. The only way to satisfy them both was to leave. It was not the fact that Feather could not change for Maddy, but that he could not change enough for Maddy. Feather is willing to do anything for Maddy to â€Å"make her happy†. Even when he says that â€Å"it makes no difference† to him, it actually does, and he knows that if he does â€Å"move to the desert† with Maddy, they won’t be able to live happily together because of Feathers urge to get back to his old life. Maddy was holding Feather back by making him more civilized and changing him to be the opposite of the person she fell in love with. After living with Feather for quite a while, Maddy â€Å"still called him Feather, but it was easy to forget why† because of the new clothes she made him wear and his hair was washed and looked smart, and he had just lost the â€Å"strange smoky shimmer that swam from him† like the sun reflecting off a gold fish, in clear blue water. This shows that Feather left Maddy, not only to help her be happy, but also to let himself be happy. BP2: When Feather left Maddy, he freed her from the windowless â€Å"box† inside her head, and enabled her to live life without worrying about love or oss, and as a result Maddy proceeded to have many great experiences that heavily influenced her life. The loss of Feather strived Maddy to actually do something with her life, rather than dwelling on all of the bad things that have happened. Whether Feather meant to or not, he enabled Maddy to fight for what she wanted, and actually do the things she wanted to do right now. The â€Å"i sland of stillness† gave Maddy many new experiences and helped her learn a lot from them. The most vital thing that Maddy learns on the island is that â€Å"love is not the strongest or most important thing in the world†. She accepted the fact that she had lost the Fay, and now was losing Feather. After learning this she can properly move on with her life and leave Feather and all their memories together in the past. Maddy going to help with the war was a very significant experience as it gave her the epiphany that she wanted to be an eye doctor for the remainder of her career. She was inspired by the fact that the blind injured men in the war had lost the biggest thing of all, â€Å"they had lost the sight of beautiful things†. This tells us that one bad experience, can often lead to several good life changing experiences BP3: In the end, all of Matilda’s great journeys and adventures love and loss, finally enabled her to accept that the loss of Feather did help her learn to be happy. Love can be brutal and leave you injured, but eventually we learn that we can move past this and learn from our experiences to help us become wiser more knowledgeable. Through all the amazing good times, and the ever-lasting bad times, all Matilda’s memories made up an overall happy life. After the island of stillness and the war, Maddy was living her perfect life, a job she wanted to do and nothing to worry about. It is strange to think of the outcome if she was still living with Feather, and if she would be doing what she was doing now. In the end, all alone â€Å"Matilda was standing on the mountain top, and looking back along the path she’d walked and she was satisfied with what she saw. † Feather leaving, not only hurt Maddy, but more importantly it taught her valuable lessons in life and gave her many amazing experiences. Sonya Hartnett was trying to explain that love can give you as much pain as it does happiness and to really experience great love, you must first experience the bad times as well as the good. Even if something bad does happen and you end up losing the one thing you love most, you must accept the fact that it has happened and that you cannot change it, and use it as a learning experience. No matter what happens, you have to learn to move on and enjoy all of the good things in life. As Matilda’s eyes saw the last things they would ever see, â€Å"on her face were the remnants of a smile†. How to cite Ghost’s Child Essay, Essay examples

Hofstede and GLOBE National Culture Models †MyAssignmenthelp.com

Question: Discuss about the Hofstede and GLOBE National Culture Models. Answer: Introduction: We are living in a global era whereby all people are brought together and closer by technology. This implies that people from different cultures are working together and communicating to their colleagues more and more (Hofstede et al., 2010, p. 350). Despite this being exciting, it could turn out to be frustrating and fraught with uncertainty. How does a person relate to another of a different culture management? What does he/she say or not say to start a conversation? Are there any culture-bound taboos that one has to be aware of or not? Establishing connections with different people from varying cultural backgrounds is important to an organization. Building connections is a factor to consider when motivating personnel, structuring projects, and implementing strategies (Tung and Verbeke, 2010, p. 33). How we understand cultural differences is relegated to learning from our mistakes and the general guidelines that have to be followed. Fortunately, Hofstede researched these questions in the 1970s. What emerged after ten years of research and thousands of interviews was a cultural dimension model that today is internationally recognized as a business standard management. Hofstede accessed people working in the same company in over 40 countries where he gathered cultural data and proceeded to analyze his findings (Valente, 2010, p. 1900). Initially, he identified four cultural dimensions that help in differentiating one culture from the rest. He later added a 5th dimension that forms todays model. Hofstede scored every country on a scale of 0 to 100 for the five dimensions (Hofstede, 2010, p. 55). The higher the score, the higher that dimension is manifest in the society and workplace. After gathering sufficient database about cultural statistics, He analyzed his results and found out that there were clear patterns of differences and similarities amid the responses along these 5 dimensions (Minkov and Hofstede, 2012, p. 10). Hofstede research was undertaken on IBM employees only, which enabled him to characterize the patterns of national differences in culture by significantly alleviating the challenge of the differences manifest in a company culture management. The five Hofstede dimensions are: Power or distance (PD) Individualism (IDV) Masculinity (MAS) Uncertainty or Avoidance Index (UAI) Long-term orientation (LTO) In todays workplaces, it has been interesting to see how employees with different cultures react and interact with foreign colleagues in their nation, including Australia. In Eastern Europe nations, the main reaction to foreign workers is age. However, given sufficient knowledge then knowledge is not a barrier to Hofstede dimensions. To begin with, Professor McSweeneys view of national cultures will be presented. The myth of national culture is nothing more than just the collection of media and social imaginings that live in a permanent exception to the realities of a nation. The exception is assumed to waterproof national culture against interaction with foreigners while destroying the meaning of nationals outside the national territory at the same time (Burgess and Gold, 2015, p. 40). The question about whether everything addressing this aforementioned reality is exceptional and contains local causes, then the much people know and think about national culture is dismissed with no validity beyond their borders. The myth states that a nation is like an orphan and in this case an orphan, or an autistic individual who faces massive challenges while attempting to establish a meaning outside the relationship with his/her state-territory-origin (Venaik and Brewer, 2013, p. 469). This is the reason why nation-states pr ovide themselves with the folklore of national animals that face death when they cross the States border, from the Purto Rican coquito the Iberian lynx, which is a Disneyfied model of the primary national virtue, being unable to exist outside of the borders of the State and its imagination. On the other hand, Hofstede survey on Australia provides revealing results on national cultures. Hofstede generalizes about the whole national population in all countries using questionnaire responses from the IBM. There is no evidence that the feedback he gathers is nationally representative of all nations. His 5 model is based on assumptions that every person share a common national culture with the other people from other countries. Hofstedes assumption that all people are equally plausible like those of IBM is a myth and cannot be relied upon. Relying on his assumption requires people to assume that the average national culture is acceptable among all groups of people. However, there is no evidence based on sound reasoning that the average IBM responses reflected the national average. His assumption can be termed as a mere leap of faith. The IBM respondents were already permanently mentally programmed with three non-interacting culture hence subverting its reliability. Based on t hese justifications, Professor McSweeneys view on national cultures is more compelling than that of Hofstede (Venaik and Brewer, 2010, p. 88). Finally, a single culture can be applied in determining the actions of the entire population as postulated my Prof McSweeneys view on national cultures. Conclusion National culture has to be against the kind of activities that people do but has to be okay with them. People with different cultures are able to work together in a different country that offers a different cultural setting that all of the employees are comfortable with. In summary, national culture goes hand in hand with cultural differences, and this forms a national unity. Bibliography Burgess, J. and Gold, J.R. eds., 2015.Geography, the media, and popular culture. Routledge. Hofstede, G., 2010. Geert Hofstede. National cultural dimensions. Hofstede, G., Garibaldi de Hilal, A.V., Malvezzi, S., Tanure, B. and Vinken, H., 2010. Comparing regional cultures within a country: Lessons from Brazil.Journal of Cross-Cultural Psychology,41(3), pp.336-352. https://geert-hofstede.com/countries.html https://www.youtube.com/watch?v=u_l84Dj2eXY Minkov, M. and Hofstede, G., 2012. Hofstedes fifth dimension: New evidence from the World Values Survey.Journal of cross-cultural psychology,43(1), pp.3-14. Tung, R.L., and Verbeke, A., 2010. Beyond Hofstede and GLOBE: Improving the quality of cross-cultural research. Valente, J., 2010.The myth of manliness in Irish national culture, 1880-1922. University of Illinois Press. Venaik, S. and Brewer, P., 2010. Avoiding uncertainty in Hofstede and GLOBE.Journal of International Business Studies,41(8), pp.1294-1315. Venaik, S. and Brewer, P., 2013. Critical issues in the Hofstede and GLOBE national culture models.International Marketing Review,30(5), pp.469-482.