Commercial Law

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Commercial Law

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Commercial Law

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In granting the remedy that is equitable, the word equity often stands misplaced and wrong fully applied by the courts. In the wider sense, the term equity means and refers to fairness. In any legal system, the terminology equity refers to that, law body that is involved in addressing the concerns that are outside common law’s jurisdiction. The term equity is also used to make the description of the value of money of any property that is the addition to the liens, mortgages or claims on that property. In the legal system of the United States, the equity law can be traced to have emerged from England. In England, the equity law emerged from the procedures that are rigid of the law courts of England. The judges of the territory of England in the thirteenth and the fourteenth centuries made the development of the system of common law[1].
The system of common law means the system of deciding and accepting the cases that are based on the legal principles that are shaped and qualified for redress of the legal problems. It is often seen that a court might rely heavily on the precedents that are equitable and the remedies that are equitable for making the decision regarding the bargain of those terms of any contract that are hard. Those decisions are considered as suspicious those rely heavily on the equity principles[2]. The flexibility that is involved in the principles of equity is often subject to criticism. The flexibleness of the equity law is often considered as the background of specified rules of mistake, misrepresentation, estoppel and undue influence. In spite of all the criticisms, it has been seen that the equity norms have the great effect in repairing the gaps of the of injustice that exists in the law of contract.
Critical Analysis  
Case No. 1    
The case of Waltons Stores Interstate Ltd v Maher (1988) 164 CLR 387, is a reputed case relating to the contract norms of Australia. The decision of the case emerged from the Australian High Court. The Court held primarily in the case that the promissory estoppel doctrine or principle might stand as the cause of action in several cases. In the case, it was seen that Maher was the owner of a property, where Waltons Stores desired to form a departmental store. Waltons made the representations and depending upon them; Maher started the demolishing work of the store that is existing. Maher also started to establish a new building in that place. The primary issue of the case suggests that the contract that existed between the two parties of this case was never complete[3]. It is because Waltons refused to deliver their signature on the lease as Maher was hostile against them. The High Court of Australia made the denial of the contract entirely and estopped Walton’s unconscionable conduct. Since Maher acted trusting the representations made by Waltons, there was the need for the intervention of the doctrines of equity. The justice of the case Mason pointed out that there lie certain differences between an equity of estoppel and contract. Any obligations relating to contract is formed by its parties whereas the obligations that are created from the equity law does not regard that contract that the parties are bound to[4].
The case of Collier v P & MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329, created some similar principles like that of the above case. In this case, Collier happened to be a partner of the three partnered firm of property developing. The firm gave its assent in making the payment of £46,000 to a company Wright Ltd. The amount was agreed to be delivered in a monthly installment, each of £600. In that firm, there was a joint liability on the partners to make the payment of the said amount. There was a meeting that was organized in the year of 2000, where Wright Ltd took the decision that the partners of the firm would be liable and entitled to make the payment of an amount of £15,600. The two others partners of the firm became bankrupt and insolvent in the year of 2004 and 2006 respectively[5]. However, Collier made the payment of his required amount. Wright Ltd made the issue of a notice that demanded from the balance amount that was remaining in the debt. The Judge in the said case made the decision by the application of the principles of promissory estoppel. The Judge made the decision that may aid and help Mr. Collier. The case suggests that Collier gave assurance of making the payment of the amount that was due on his part and not the other partners. In accordance to that assurance, Collier made the payment of his part. On that basis, the Court also made the point that the amount was pending was not equitable of payment by Collier to Wright Ltd[6]. 
Case 2
The second case is regarded as a popular case of contract law of Australia and equity law. The case was Commercial Bank v Amadio (1983) 151 CLR 447. In this case, there was the guarantee that was given by the Amadios for the indebtedness of their son. The guarantee was rendered to the Commercial Bank of Australia regarding mortgaging a land of their ownership. The primary issue that involved in the case was the application of the “unconscionable conduct” due to the lack of knowledge and education and its effect on the power of bargaining. The son of Amadios was engaged in the business of building and there his parents became the guarantors without having knowledge. There was a contractual relationship that was entered by their son with the referred bank and also rendered their building as the property of mortgage[7].
The defense that the Amadios took was that the contract of the mortgage was unenforceable as it contained unconscionable terms. There is no specific meaning that is rendered to the term unconscionable behavior[8]. The duty or the onus of the determination of the meaning of unconscionable terms of any contract depends on upon the sole discretion of the presiding judge[9]. The determination of the factor whether the facts of any case complies with the provisions that are statutory depends upon the judge’s discretion. The decision that was rendered in the given case depicts that the Amadios could be regarded as liable for the reason that they failed to understand the legal obligations of such contract. The Judge while delivering the decision of the case made his reliance more on that of the principles of equity and not much on the provisions that are statutory.
The Court made the clarification of the circumstances where the principle of unconscionable conduct or behavior is applicable in the case of ACCC v. Lux [2013]. The Judge relied deeply in his discretion in making the decision whether the rule of unconscionable conduct is applicable in the case. In the Consumer Law of Australia, there is no meaning that is specifically provided for the term unconscionable conduct[10]. However, the unconscionable conduct may mean that action that does not consider into account the rules relating to conscience. In the said case, Lux was held responsible by the Court for conduct that is unconscionable in relation to transactions of business. The case also saw that the Judge depending on the equity principles for rendering the final decision of the case.  
At the time of the development of the equity principles, it was viewed by several judges that the primary function of the theories of equity are to make the justification of the harshness that evolved in cases where the terms of contract are hard to interpret by the application of the principles of natural law. The principles of equity are very flexible and that too is subject to several criticisms. There were many theorists that held that the doctrines of equity grant wide powers that are discretionary to the judges in deciding those cases where the application of the legal and statutory principles do not render proper and treasonable meaning[11].
The primary feature of the relief that is equitable is that it makes the consideration of those things that are not ordinary but extraordinary. The foremost result of the said axiom is that the principle of relief that is equitable must be considered as a right and not a matter of discretion. Hence, it is not considered as uncommon for the courts to make the application of the equity laws in those scenarios where there is failure on the part of the common law to render the proper remedy[12]. As the application of the equity principles depend upon the discretion of the court, it raises several questions regarding the certainty of the common laws in certain situations. As it is opted by the judges to make the usage of the equity doctrines, it create a wide doubt inn many minds regarding the uncertainty of the civil law or the common law that administers the conduct of the human beings. 
Reference List 
Furmston, Michael Philip, Geoffrey Chevalier Cheshire, and Cecil Herbert Stuart Fifoot. Cheshire, Fifoot and Furmston’s law of contract. Oxford University Press, 2012.
Graw, Stephen. “An introduction to the law of contract.” (2012).
Harris, Daniel. Equitable estoppel in the 21st Century: Revisiting the lessons of Waltons Stores V Maher. Diss. Murdoch University, 2014.
Hart, Herbert Lionel Adolphus, et al. The concept of law. Oxford University Press, 2012.
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Milsom, Stroud Francis Charles. Historical foundations of the common law. Butterworth-Heinemann, 2014.
Mutlu, Canan, Mike Peng, and Marc van Essen. “The corporate governance literature identifies two major governance models. The first is based on equity finance, controlled by capital markets, and mostly seen in common law system countries such as the United Kingdom and the United States. The second is based on debt finance, controlled by finan-cial institutions, and mostly seen in continental European countries (such as.” Shareholder Empowerment: A New Era in Corporate Governance (2015): 239.
Osborn, Percy George. A Concise Law Dictionary-For Students and Practitioners. Read Books Ltd, 2013.
Penner, James. The law of trusts. Oxford University Press, 2016.
Pettit, Philip H. Equity and the Law of Trusts. Oxford University Press, 2012.
Rodrigo, Thanuja. “Unconscionable demands under on-demand guarantees: A case of wrongful exploitation.” Adel. L. Rev. 33 (2012): 481.
Sheleff, Leon Shaskolsky. The future of tradition: Customary law, common law and legal pluralism. Routledge, 2013.

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