Essay On Civil Law

 

The main question that has been raised by Mark Pawlowski is whether equity is past the particular age of the childbearing. In the article that has been forwarded by Mark Pawlowski, he has essentially asked as to whether equity is still having a creative, inspired and an inventive role to perform in the expansion, growth and progress of the new principles and doctrines. The article by Mark Pawlowski actually looks fleetingly at the contribution that has been made by Lord Denning in the above said situation. The article has made an attempt to evaluate the influence and impact of Lord Denning’s involvement and decision upon the above stated matter. Furthermore, the article actually examines and inspects other judicial proponents of a lot more creative, inspired and inventive approach in relation to the application of the equitable doctrines and principles. The above said article by Mark Pawlowski also takes into consideration the present judicial attitudes and conduct in relation to ingenuity, creativity and inventiveness, as well as what future role might be played by equity in the expansion, growth and progress of the prevailing doctrines, especially, the constructive trust and the proprietary estoppel in the setting or background of family home. In the article, the main conclusion that has been drawn is that equity is actually not at all past the particular age of the childbearing, although, more deep-seated creativity shall not transpire or materialize in the absenteeism of any kind of statutory intervention. The essay shall forward an explanation and evaluation in relation to the arguments that have been forwarded in the particular article, which encompasses the Pawlowski’s arguments in favor of his viewpoint and thought, as well as the likely arguments in order to contradict the viewpoint and thought of Pawlowski.

 

 

In an extensive general sagacity, Equity can be considered as the structure or build of principles that provide as well as regulate the exceptions in connection to the specific Law. Equity means justice and fairness. It can be said to be a structure of the law that originates in English chancery. It consists of an official body of procedural and substantive doctrines as well as rules that aid, supplement, or else override the statutory and common law. Equity is essentially based upon any judicial evaluation of fairness, which is actually in contradiction to the rigid and strict rule relating to common law. Equity grew and advanced to supplement and aid the inflexible implementation of the common law rules. The law relating to equity started in court of chancery that had been established due to the fact that it was not possible to give a just and fair with the help of the common law in case of the unsuitable monetary compensation instances as well as in case of the narrow and rigid writs. The decisions forwarded by the common law courts and the court of chancery, were always contradictory. The existence of these 2 types of courts resulted in the unavoidable clash amidst the Court of Chancery and the common law courts. This particular rivalry ultimately ended in Earl of Oxford’s case (1615) 21 ER 485, where it had been specified by the King that if any conflict arises amidst equity and common law, then, in such instance, equity must prevail. Presently, the above said 2 courts are united and same specific judges forward decisions out of equity as well as common law.

 

The influential case cited as Pennington v Waine [2002] 1 WLR 2075, actually signifies a possible oceanic alteration in the specific law concerning when equity will make any imperfect gift perfect, with perhaps extensive and wide-ranging significances for the purpose of voluntary dispositions of the property. The particular decision that has been forwarded in the above said case of Pennington v Waine, is in strident contradiction to Equity’s conventionally firm approach to enforcing or imposing transfers and gifts (that should be held upon trust) of the concerned property when every mandatory legal formality or rule have not been adhered to, as was stated in the case of Milroy v Lord (1862) 4 De GF & J 264. The article by Pawlowski has argued that the Pennington v Waine case has notably eroded or removed the maxim, which stated that ‘equity will not perfect an imperfect gift’. The particular article even pursued to illustrate the manner in which the decision forwarded in the Pennington v Waine case, goes to a greater extent than the prevailing ‘exceptions’ in that have been specified in the case of Rose & Ors v IRC [1952] Ch 499 as well as in the case of T Choithram International SA v Pagarani [2001] 1 WLR 1. The article even states that the Pennington v Waine case potentially fashioned a new exception or exemption in relation to the particular maxim by stating that equity shall not assist or aid any volunteer except when it would be unconscionable and unacceptable to not provide such assistance or aid. The article also specifies that the decision in Pennington v Waine is vague and ambiguous in the instance of the reasoning, thereby giving it an extensive scope. However, Pawlowski argued that the pure vagueness and uncertainty of the specific decision in the Pennington v Waine case essentially mean that the precise degree of its effect or bearing is not known. Pawlowski states that due to so little guidance, the courts, afterwards, shall have the opportunity to make their own specific determinations regarding understanding and application of the (new) rules. In the light of such thought, Pawlowski has discussed the as to how ‘Equity is not past the age of child bearing’.

 

 

In accordance to Pawlowski, the kind and generous desire of Arden LJ to temper or disrupt the wind to shorn lamb in the Pennington v Waine case can be said to be reminiscent of the approach of Lord Denning of forming and generating new rights and privileges in the equity where it might be demanded by the wants and requirements of justice. It was also stated by Pawlowski that the attempt made by Arden LJ in the Pennington v Waine case, can also be said to be reminiscent of the particular maxim ‘equity is not past the age of childbearing’, as was forwarded in the case of Eves v Eves [1975] 1 WLR 1338. It has been specified by Pawlowski that the criticism by Arden LJ regarding the ‘paternalistic objective’, which underlies the maxim (for safeguarding the donor) can be considered as additional evidence of the degree up to which the particular decision forwarded in the Pennington v Waine case, shifts away from the conventional approach that was forwarded in the Milroy v Lord case. 

 

 

In the famous case of Eves v Eves [1975] 1 WLR 1338, that particular maxim ‘Equity is not past the age of child bearing’ had been specified and confirmed by Lord Denning. When equity initially advanced as a ‘shine’ upon common law, it was actually pioneering and ground-breaking. It was able to recognize new rights as well as develop new remedies where common law was not successful to act. The effectiveness of equity had mostly been because of its capacity to acclimatize, transform and invent, yet unavoidably, such advancement itself became governed in a similar manner to the advancement of common law. There can be said to be maxims of the equity that shall be able to determine the result of the disputes. Even though the concerned judge may have a choice and power in granting equitable remedy, such choice and power is essentially exercised as per the settled principles. Therefore, it could be stated that equity cannot develop any further. The rules in relation to precedent determine the result beforehand. However, it is actually contradicted by several new advancements in the equity that equity cannot develop. As the instances, one may consider the growth and development of the remedies, the acknowledgement of the restrictive covenants, the advancement of the doctrines like ‘proprietary estoppel’, the improved position of the contractual licenses and, as specified above, the fresh new model ‘constructive trust’ by Lord Denning. All these can be regarded as illustrations of the advancements in the equity. Such developments or advancements can be justified with the help of the precedents and judicial creativity.

 

 

In the case of Cowcher v Cowcher [1972] 1 WLR 425, it was stated by Bagnall J that such advancements and developments shall not give rise to the meaning that the equity is essentially past the childbearing, instead, such developments merely mean that the progressions should be legitimate with the help of any precedent out of any principle. It must give rise to such instance, or else any lawyer shall not be able to safely guide and counsel on the title of his client and each and every quarrel shall result in a specific law-suit. Equity gave effect to the development of the remedies relating to the specific performance, injunction, account, rescission and rectification. The particular area relating to injunction can be said to have been a ‘growth’ or advancement area. In the well-known case cited as Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, the search order actually reflected the growth and advancement of fresh new technology as well as the necessity to safeguard the ownership rights in relation to the concerned property. Intellectual property like the computer programs and the audio and video tapes can be demolished very easily prior to any possibility of bringing any kind of action for violation of copyright.

 

 

Confidential and private information in relation to the industrial procedures can vanish, thereby, leaving any claimant without any kind of means of evidence or proof. The development of the search order allowed or permitted any claimant to go into the premises of any defendant in order to search for as well as seize a specific property where a clear and an unambiguous risk exists that the concerned property would be demolished prior to the trial. The particular area relating to equitable ingenuity and creativity is still in the process of being refined with the help of the judges. Such is evident in the cases like Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840 and Columbia Picture Industries Inc. v Robinson [1986] 3 All ER 338. Such cases are helping the judges to lay down the directives and guidelines for the implementation of such a strict and austere order. 

 

 

The ‘freezing injunction’ can be considered to be another instance or example in relation to a refined and polished application of a recognized remedy that has been developed in the known case quoted to be Mareva Compañía Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509. The decision in Mareva Compañía Naviera SA v International Bulk Carriers SA was followed by the decision in Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093. In this regard, it must be noted that even though any claim might be successful, if it does not become possible to impose any judgment due to the absence of the assets, then, in such instance, the concerned judgment shall be considered to be worthless.

 

To conclude, it can be said that Pawlowski might have concluded that equity is not actually past the particular age of the childbearing, however, it can be said that taking into consideration the later advancements and developments in relation to the law of equity, one can certainly state that equity is actually past the particular age of the childbearing. Even though Lord Denning confirmed in Eves v Eves [1975] 1 WLR 1338 that ‘Equity is not past the age of child bearing’, equity was able to recognize new rights as well as develop new remedies where common law was not successful to act. Equity was able to acclimatize, transform and invent, although, such advancement itself became governed in a similar manner to the advancement of common law. However, it should be noted that equity cannot develop any further because several new advancements exist in the equity that equity does not have the capacity to develop.

 

Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55.

 

 

Bray, Samuel L., and Paul B. Miller. "Christianity and Equity." (2022).

 

 

Columbia Picture Industries Inc. v Robinson [1986] 3 All ER 338.

 

 

Cowcher v Cowcher [1972] 1 WLR 425.

 

 

Earl of Oxford’s case (1615) 21 ER 485.

 

 

Eves v Eves [1975] 1 WLR 1338.

 

 

Mareva Compañía Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509.

 

 

Milroy v Lord (1862) 4 De GF & J 264.

 

 

Mousourakis, George. "The Development and Function of Equity in the English Common Law Tradition." Comparative Law and Legal Traditions. Springer, Cham, 2019. 251-280.

 

 

Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093.

 

 

Pawlowski, Mark. "Is equity past the age of childbearing?." Trusts & Trustees 22.8 (2016): 892-897.

 

 

Pennington v Waine [2002] 1 WLR 2075.

 

 

Rose & Ors v IRC [1952] Ch 499.

 

 

Singh, Satyaveer. "Development of Equity and Its Relation with Rule of Law." Jus Corpus LJ 2 (2021): 118.

 

 

T Choithram International SA v Pagarani [2001] 1 WLR 1.

 

 

Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840.