Equity and Law: Fusion and Fission

doi:10.1017/9781108367820

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.

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Contents

Equity and Law
pp i-ii
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Equity and Law - Title page
pp iii-iii
Fusion and Fission
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Copyright page
pp iv-iv
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Contents
pp v-viii
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Figures
pp ix-x
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Table
pp xi-xii
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Contributors
pp xiii-xiv
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Acknowledgements
pp xv-xvi
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Abbreviations
pp xvii-xxii
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Table of Cases
pp xxiii-xxxviii
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Statutes
pp xxxix-xlviii
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1 - Fusion and Theories of Equity in Common Law Systems
pp 1-28
- By P. G. Turner
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Part I - Legal Systems and Legal Institutions
pp 29-200
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2 - Equity
pp 31-45
Notes on the American Reception
- By Samuel L. Bray
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3 - The Union of Law and Equity
pp 46-69
The United States, 1800–1938
- By Kellen Funk
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4 - What Did the Makers of the Judicature Acts Understand by ‘Fusion’?
pp 70-96
- By Michael Lobban
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5 - At the Crossroads of Fusion
pp 97-117
British North America/Canada, 1750–2000
- By Philip Girard
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6 - Fusion–Fission–Fusion
pp 118-143
Pre-Judicature Equity Jurisdiction in New South Wales, 1824–1972
- By Mark Leeming
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7 - Fusion without Fission
pp 144-178
Equity and the Judicature Acts in Colonial Victoria
- By James McComish
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8 - Are Equity and Law in Scotland Fused, Separate or Intertwined?
pp 179-200
- By Daniel J. Carr
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Part II - Fusion and Fission in Doctrine and Practice
pp 201-306
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9 - Equity and the Common Counts
pp 203-228
The Development of the Action for Money Had and Received
- By Ben Kremer
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10 - Mistake and Unfairness in Contract Law
pp 229-253
- By Stephen Waddams
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11 - Lex Sequitur Equitatem
pp 254-279
Fusion and the Penalty Doctrine
- By P. G. Turner
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12 - Rediscovering the Equitable Origins of Discovery
pp 280-306
The ‘Blending’ of Law and Equity Prior to Fusion
- By Patricia I. McMahon
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Part III - Functional, Analytical and Theoretical Views
pp 307-420
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13 - Wrongful Fusion
pp 309-330
Equity and Tort
- By John C. P. Goldberg, Henry E. Smith
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14 - Avoiding Anarchy?
pp 331-352
Common Law v. Equity and Maitland v. Hohfeld
- By Ben McFarlane
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15 - Equity and the Modern Mind
pp 353-373
- By Emily Sherwin
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16 - An Argument for Limited Fission
pp 374-393
- By Matthew Harding
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Fusion and Fission

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