Draft title of module – Equity
The number of credits: 15 to be taken by 2nd year students or adaptable for year 3/4
No. of terms over which it will be taught: 1
I. Intended Learning Outcomes:
1. General Outcomes:
To undermine the conventional apprehension of equity as an obscure historical adjunct to
the common law and promote an appreciation of the presence of equity as a body of legal
knowledge distinct from that of common law and as a different method of legal
interpretation, thereby fostering an understanding of equity as an original and continuing
source of legal development in the sphere of remedies.
To foster an historical and cultural understanding of the jurisprudential, ethical and political
considerations, which form and inform the development and application of equitable
remedies and thereby encourage a critical and imaginative understanding not only of the
subject itself but perhaps most importantly of the complex interrelation of law with ethics,
of justice with politics, and of legal outcomes with policy objectives.
2. Subject Specific Outcomes:
a) To give students an overview of the historical development of common law and equity.
b) To locate the historical development of the relationship of common law and equity in its
economic, political and cultural context, and thereby explore the interdependence of law and
society.
c) To communicate a sound grasp of the concepts, methods and principles, which form and
inform the jurisprudence underpinning equitable remedies.
d) To critically evaluate the dominant interpretations of specific developments in the area of
equitable remedies and to introduce students to contemporary reformulations of these
classical accounts.
e) To develop an understanding of equity’s remedial strategies through comparison of the
jurisprudence in a number of commonwealth jurisdictions (with emphasis on Australia,
Canada and New Zealand).
3. Skills:
-To encourage the development of independent research skills.
-To foster students' critical and analytical skills.
-To stimulate creative thinking about legal issues.
-To develop an ability to apply and use comparative approaches to legal material.
-To develop an ability to use of historical analysis of legal materials.
-To enhance learning through the employment of the hermeneutical approach to reading of
legal texts.
II. A Brief Synopsis of the Curriculum:
Weeks
1+2
Theme/lecture topic
What is equity?
Equity as a system of remedies
Seminar/ case class ideas
Week 2 Seminar:
The purpose would be to illustrate and
A different method for reading legal ‘facts’
The centrality of the principle of
conscience in equitable jurisprudence
The relationship of equity and common law
– a historical and comparative approach
The relationship equity to the law of
obligations and to that of property
understand the hermeneutical
traditions of equity. The readings will
range from the work of Victorian jurists
on the nature of equity (e.g. Pollock
and/or Maitland) to modern textbooks
(introductory chapters on equity) or
relevant journal articles
Equity, conscience and ‘things of
confidence’
The nature of equitable obligations
-Obligation of confidence
-Fiduciary duties
-Fiduciary obligations
-Who is a fiduciary? and what is the nature
of the fiduciary’s liability?
-Jurisdictional comparisons (Canada,
Australia and England)
Week 4 Seminar:
The purpose would be to explore
current assumptions in the literature
and teaching of equity that equity is
part of property law (the trust).
Specific set of readings (extracts from
pre-19th century equity ‘textbooks’) will
be used to reveal a different alliance,
the association of equity with the law
of obligations. This historical
understanding will be complemented
with readings from the modern judicial
and often varying understanding of the
notion of equitable obligation in
different common wealth jurisdictions
(Canada and England). This judicial
understanding would be grounded
upon the reading of case law from
these jurisdictions.
5-7
(excepting
reading
week)
Third Parties Liability
Remedial strategies for the protection of
equitable obligations
Types of remedies for the breach of
equitable obligations
Defences
Jurisdictional comparisons - Canada,
Australia and England
Tracing
Jurisdictional comparisons - common law
and equity
Week 7 Seminar (assuming that
week 6 is reading week):
The seminar will be orientated to a
discussion and understanding of the
policy and jurisprudential issues
emerging from the ‘infiltration’ of
equitable obligations into the
commercial world. The material for
this seminar (primarily based on case
law) will be chosen and read with the
intention of exemplifying the
interaction of judicial hermeneutical
strategies and policy considerations in
the use of equitable remedies for the
breach of fiduciary obligations in the
commercial world. For example it may
focus on the transition from strict to
fault based liability of the fiduciaries,
the significance of cases such as the
Quistclose or Luff Developments and
the judicial attempts to ‘abolish’ the
jurisdictional distinction of tracing.
8+9
Equity’s interaction with contract law
Reviewing promises - equity and the
unconscionable transaction (undue
influence and the unconscionable bargain
– limited reference to the inequality of
bargaining power)
Week 9 Seminar
The seminar will focus on the policy
considerations which underlie the
historical development of equitable
remedial strategies in the area of
contract law.
3+4
Historical origins of these doctrines in the
equitable concept of fraud and their
subsequent development through an
analysis of case law
Jurisdictional comparisons (Australia,
England and Canada)
Enforcing promises – the doctrine of
estoppel (estoppel by representation,
promissory and proprietary)
Historical development and current
jurisprudence
Jurisdictional comparisons (Australia and
England)
10
Interlocutory Injunctions
Searching and Freezing Orders
Judicial discretion in the award of
injunctions and the development of the
remedy
11
The Future of Equity
The fusion of equity and common law
Jurisprudential fusion
Practical fusion (at the level of remedies)
Week 11 Seminar
The seminar will focus on jurisdictional
comparisons of remedial strategies
(Canada, Australia, New Zealand and
England). It will emphasize the
political and cultural elements which
underlie the judicial hermeneutical
attitudes in the different jurisdictions,
and the implications they have for the
future of equity.
12
Writing week
Writing week
III Learning and Teaching:
1. Nature and number of contact hours of different types.
a) Two lectures a week or one lecture and one case class
b) Fortnightly seminars of one hour.
2. Assessment methods
The module is assessed by 20% coursework (case commentary of essay) and 80%
examination.