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Equity: Conscience Goes to Market

Equity: Conscience Goes to Market

作者： Irit Samet
出版商： Oxford University Press
ISBN: 9780198766773
出版时间 December 2018
规格： Hardback
适应领域： U.K. ? 免责申明：
Countri(es) stated herein are used as reference only

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This book presents a theoretical account of the law of equity. The law of equity is a unique junction where doctrinal private law, moral theory, and social perceptions of justice meet. Against critics who believe equity to be at odds with the ideal of the rule of law, the book argues that it promotes 'accountability correspondence' and offers a method of tallying legal liability under the common law with circumstantial moral duties. Equity acts where the common law's fixation with clear, prospective, and general rules leads to a dangerous schism between the defendant's moral accountability in the circumstances and her legal liability to the claimant. It employs a morally sensitive and flexible method of legal reasoning that enables judges to set aside common law rights where necessary.

Equity should be viewed as a pivotal body of law which seeks to align people's legal rights with their moral duties to other members of the community. This book offers a study of both the specific instances in which equity amends the legal rights of parties so that they better correspond to their moral duties, and the general philosophical basis of this unique area of law. It shows how unpacking the ethical ramifications of freighted locutions used in equity, like 'conscience' or 'loyalty' can help us to understand how and why equity is used to sidestep established private law rules. The book shows how a better understanding of equity's foundations will help courts develop their jurisprudence in a clear and coherent way. An introductory part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands.
1: Why Equity Needs a Room of its Own
2: Proprietary Estoppel: On the Conscionability and Efficiency of Precontractual Negotiations
3: Fiduciary Law as Equity's Child
4: On Clean, Soiled, and Spattered Hands
5: Conclusion
Appendix

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