перевод текста EQUITY: The Issue of Fair
EQUITY: The Issue of Fairness
I think that by now you can see the propensity for the law to pile rules upon rules upon rules. This can produce a certain form of a strait-jacket, which is exactly what happened.
To compound matters, in the fields of tort, contract and property, the courts developed the doctrine of stare decisis - "precedent". It is a commitment to the rules, procedures, principles, and holdings of prior cases. The courts saw themselves as bound to these past cases, and were unable to change to meet new situations. As time went by, more and more people began to bring disputes, so more and more "unusual" situations were faced.
Bound by stare decisis, the law began to stagnate.
And, the remedies available, that is, "I won; so what?" at law were proving too inflexible to meet the "peculiar" needs of new victims and new cases. So people began to petition the king for extraordinary relief outside of law. As it was extraordinary, the king referred the cases to his religious officer (chancellor), for a review of the moral issues involved. From this developed the chancellery courts and equity, with its own set of requirements, remedies, defenses, and rules of proof.
Once you proved a basic case under tort, contract, or property law and you had to make that proof before asking for equitable remedies -you only needed to ask the following additional questions:
Was your remedy at law adequate? If not, then equity would act.
Did you come to the court with "clean hands"? Since you are ask¬ing for justice, and for an extraordinary remedy, you may not do so if you have some fault in the matter.
Have you been guilty of laches? That is, have you slept on your rights, allowing the other party to change their position in reliance upon your silence, to their detriment?
What is fair? What should be done?
Because the remedies available in equity were very powerful, the judges were concerned that skillful lawyers might manipulate a jury to an unjust result. To avoid such potential abuses, the jury was denied in equity.
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