History of equity Origins of the common law[ edit ] After the Norman Conquest of England in the 11th century, royal justice came to be administered in three central courts: The common law developed in these royal courts. To commence litigation in these royal courts, it was necessary to fit one's claim within a form of action.
However in contrast, if exemplary damages, a legal remedy, were applied to an equitable wrong that only arises in equity such as breach Fusion fallacy a fiduciary duty, this would be considered a fusion fallacy as it would have been impossible prior to The reason for this is because in the absence of statutory authority, in equity, the Chancery could Fusion fallacy have applied legal remedies as equitable rights were not recognized at law, nor were legal remedies available in support of such rights.
This argument persuades one to argue that though equity and the law are not completely fused, perhaps the crossover of remedies in both directions may be useful in certain cases as equity and the law are becoming increasingly intermingled.
He also proposed that the flexibility of the remedy and desire for justice should prevail over any concern for the historical origins of causes of action. Rather, the appointment of legally trained Chancellors and now the concurrent administration of law and equity by judges of similar educational background and experience has meant that equitable remedies are more likely to be based upon rules of law.
This is most certainly the view held in the decision of the New Zealand Court of Appeal in Aquaculture Corporation v New Zealand Green Mussel Co Ltd25 in which it was established that the substantive fusion of law and equity in relation to breach of confidence had been achieved.
In contrast, evidence from the United States, a substantively fused system, suggests that fusion has lead to the demise of equity. Amalgamation of law and equity is in the interest of judges, the courts and the plaintiff seeking a remedy as it allows them access to a wider range of remedies from which the most appropriate one will be applied.
Critics of the aforementioned views have argued that a cross over of remedies and subsequent fusing of common law and equity was not the intent of the Judicature Act of and therefore should only be supported if legislation specifically provided for it.
However, if one examines the Judicature Act in detail it is quite apparent that it, nor any other legislation, prohibits the fusing of law and equity. Anti-fusionists also claim that fusion of law and equity is likely to bring about uncertainty and confusion in the law as some aspects of the legal system would be substantively fused whilst in other aspects, equity and law would remain separate.
However, as Mason J argued in Harris, it would be absurd if the same fact scenario rendered two different outcomes, one in which exemplary damages were awarded and one in which it was not, depending on whether the plaintiff was suing in equity for breach of fiduciary duty or in common law for deceit.
In conclusion, proponents of the fusion fallacy pose numerous challenges to fusing common law and equity, particularly in regards to the crossover of remedies, claiming that the trust-like basis of equity along with its discretionary nature and lower thresholds suggest that the scope for amalgamating law and equity is quite limited.
Thus, it is evident that concurrent administration and changing social realities pose a need for this amalgamation. Despite equity and law being historically distinct creatures once administered separately and independently, administrative fusion has inevitably led to close intermingling and intertwining of the two jurisdictions.
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In her article The ‘Fusion Fallacy’ Revisited, Fiona Burns sets out the four view points found in case law as to whether the fusion of law and equity exists. This essay will argue in favour of the third view which is called the empirical approach.
Equitable compensation for breach of fiduciary duty: causation and contribution: the High Court dodges a fusion fallacy in Pilmer Appears In Australian Bar Review, v, no.2, Aug . Fusion Dynamics CEO, Dan Bruder, speaks about the fallacy of work/life balance and explains that the separation between the two is not practical in today’s world .
x. Notes for Fallacy, Definition, and Science. Common Informal Fallacies Begging the Question Complex Question False Dichotomy Division Composition Appeal to the People Appeal to Authority Appeal to Ignorance The idea that cold fusion is possible is interesting, but it can’t be right because it was proposed by a college professor from a.