Fusion or no Fusion of Equity and the Common Law at a Substantive Level

Since the administrative fusion of the common rectitude and candour Courts afterwards the 1873 and 1875 Acts, there has been a lot of controversy over whether to go both equity and common law. there are valid arguments both for and against fusion. Those arguing for the fusion of loveliness and park Law at a substantive level often comment on the inconsistency created by equitys interposition in law.There would sometimes be arbitrary gaps in the common law, that is situations where the common law re amalgamate a claim despite allowing claims in other situations which were materially similar.1 With both crude Law and truth whirl different solutions to the alike(p) legal issues, it is argued that for justice there must(prenominal) be consistency with judicial rulings.2 The menstruum system means that in certain elusions the right to an equitable remedy is more valuable.An example of inconsistencies in the midst of case verdicts due to fair play and Common Law having dif ferent principles is that of having legal and equitable title to property. If a psyche has the legal beneficial title to a house and the deeds are stolen and sold to a third party they can only claim the value of the house back. Whilst with equitable title the person could use Equity to get the house back. Examples like this reinforce the argument for fusion because everybody would get the same remedies.Some might also argue that rather than the facts of the cases organism used to determine the outcome of a case, with Equity the fact that different people made the decisions at different times had an influence on the rulings. utilize Equity to bypass the Common Law rather than amending the Common Law. Another reason for fusion is that Equity allows judges to depart from common law and statutes in order to create new law. With Parliament being sovereign the idea of unelected judges creating law is undemocratic.Without the power to use Equity to depart from Common Law judges would be more accountable to parliament. If Equity and Common Law were both fused past the discrepancies between cases would disappear. A mix of Equity and Common Law principles would be applied and the same demonstration would be found in each case. Although Equity and Common Law have already fused the courts in which they apply the substantive law has not been fused yet. There is a good case against the fusion of the 2 on a substantive level.Many argue that the purpose of the Judicature Acts was only to fuse the administrative aspects of Equity and Common Law. Those who argue for a substantive merger are often incriminate of committing a fusion fallacy.3. Equity has often paraphernaliaed Common Law where the interests of justice and of social and scotch change arose. Equitys trust concept and the modern law of mortgages would not exist if it was not for the intervention of equity. Although it may seem that the twenty-four hour period of equity establishing legal principles before t heir time has passed, one day equity may be needed again.However there is a danger that we will have expansive equity to the status of free-standing moral guardian of society4.If equity is still allowed to have the power of extending the boundaries of the law. This is life-threatening because there would be no legislative body to check the power of equity. Despite all this it would be extremely difficult to actually unify the two, let alone compare them because they are entirely different. Equity accordingly gives the common law a much needed injection of morality.If Equity was merged with Common Law it wouldnt be able to express its identity and intervene in cases of unconscionability, due to the rigidity of common law. The two are so ideologically distinct that one of the two would be governing over the other. They are working in different ways towards the same ends, and it is therefore as haywire to assert the independence of one from the other as it is to assert that there is no difference between them.6 However it would be wrong to say that the two have not mingled. Many believe it is damp to view the two as distinct and mutual dependent of each other.With the fusion of Equity and Common Law would come the destruction of equitable concepts Equitable concepts like trusts, equitable estates and consequent equitable remedies must continue to exist apart, if not in isolation, from common law rules.8 These concepts have been formed in areas where Common Law would not allow suitable solutions to be created. Equity and common law might soundly be merged one day but the harmonization process required to allow them to integrate with one another would probably change the two so much that they are no eternal as they started as.This would mean one would likely become dominant over the other. I believe that the two should be kept distinct and separate from one another, Equitys sole purpose is to supplement the Common Law where it would operate harshly. If the two became fused together Equity would no longer be able to deviate from the strict rules of law to deliver an equitable solution for those in need. It is said that Equity workings on discretion, though some might believe the common law now works on a degree of discretion, and so the need for them to be fused together is not heretofore necessary never mind more desirable.