In contrast, evidence from the United States, a substantively fused system, suggests that fusion has lead to the demise of equity. Fusion fallacy 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.
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. 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.
How to Fusion fallacy this page Choose cite format: 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.
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.
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.
However in contrast, if exemplary damages, a legal remedy, were applied to an equitable wrong that only arises in equity such as breach of a fiduciary duty, this would be considered a fusion fallacy as it would have been impossible prior to 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.
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.
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. The reason for this is because in the absence of statutory authority, in equity, the Chancery could not have applied legal remedies as equitable rights were not recognized at law, nor were legal remedies available in support of such rights.
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.
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.
Thus, it is evident that concurrent administration and changing social realities pose a need for this amalgamation.The Fusion Fallacy - Assignment Example On In Assignment Sample Jurists have long drawn a distinction between equity and common law, a divergence that can primarily be attributed to equity’s historical evolution.
The ‘fusion fallacy’ exists to the extent that the Judicature Act itself does not permit the fusion of Equity and Common Law jurisdiction. above n A term coined by Australian authors in reference to the view that integration (fusion) of the doctrines and remedies of the common law and equity is permitted, either because of.
The 'Fusion Fallacy' Jurists have long drawn a distinction between equity and common law, a divergence that can primarily be attributed to equity's historical evolution.
Fusion is a fallacy The views expres~A by Meagher, Gummow and Lehane~s represent the most conservative approach to this matter.
These commentators have stridemly and continuously opposed the mi-centre.com fusion of law and eqmty. First, they maintain that. THE ‘FUSION FALLACY’ BETWEEN EQUITY AND COMMON LAW: A CRITICAL ANALYSIS [L]egal and equitable features compete on a level playing field, largely commingled and sometimes indistinguishable.
The argument about law and equity is over; now we argue about what the rules ought.Download