But sometimes c would take his complaint higher up he

  • No School
  • AA 1
  • 59

This preview shows page 49 - 51 out of 59 pages.

B an offer he could not refuse. But sometimes, C would take his complaint higher up. He would petition the Chancellor. You could not get much higher than that, kings generally being otherwise occupied. This sort of thing happened so often that the Chancellors developed a set of rules to govern the situation. The Chancellors did not deny that B was the legal owner of the land. They took the view, though, that C too had an interest, an ‘equitable’ interest, which could be enforced against B. B could be required to do with the land what A had intended, and prevented, for example, from selling it and keeping the proceeds. The result, of course, was that B was placed in a different position from that of other owners of property, who could (more or less), do what they wanted with it. In substance, the Chancellors were changing the law, because they were creating rights, and obligation, where there were none at common law. However it was not in the spirit of English law to see things in this way. The English pattern of legal development is generally that existing institutions and rules are preserved in modified form, rather than scrapped and replaced by something brand new. Looking back, it seems to us that the pattern seems also to have been that people were reluctant to admit that the law had been changed. Anyway the theory was that the new rules invented by the Chancellor did not directly contradict the common law rules, but avoided their effect. 49
Image of page 49

Subscribe to view the full document.

CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY How was B’s obligation to be enforced? Not by compelling B to transfer land to C, because B was the legal owner. Also , if the land had been simply transferred to C, A would not have achieved his objective, since A wanted C’s interest in the land to be protected, but did not want C to become the legal owner. Not by an award of damages, for this might not be adequate. A remedy was needed that the common law did not provide, and the Chancellor invented it. The Chancery developed special remedies of its own - in this case, it might issue an ’injunction’ commanding B to abide by the trust. If he did not, he could be punished, perhaps by imprisonment for contempt of court. This was the origin of the modern trust , which forms an important part of the law today… To return to the past, the Chancellors in a similar fashion developed a number of other rules - our modern law of mortgages, for example, is based on equity. They also developed special remedies arising from breach of common law rights. For example, under the common law, breach of a contract entitled the other party to the contract to damages as compensation for the breach. But the common law would not actually force the wrongdoer to perform the contractual obligations. Equity filled the gap, by providing the remedy of ‘specific performance’: the person was ordered to carry out the contract, and failure to do so could lead to imprisonment for contempt of court.
Image of page 50
Image of page 51
  • Fall '19

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Ask Expert Tutors You can ask 0 bonus questions You can ask 0 questions (0 expire soon) You can ask 0 questions (will expire )
Answers in as fast as 15 minutes