Equity in Commercial Law, 1st Edition

Equity in Commercial Law, 1st Edition

Book

$104.00* $260.00 RRP Save: $156.00 (60%)

Date: 24/11/2005

Code: 9780455222080

Lawbook Co., AUSTRALIA

Available Formats

Format Title Date Code Price
Book Equity in Commercial Law, 1st Edition 24/11/2005 9780455222080 $104.00

Description

Based on the papers presented at “Fusion: The Interaction of Common Law & Equity in Commercial Law”, this book brings together in one volume a series of chapters from a team of prestigious contributors analysing the interaction of common law and equity in commercial law.

The Editors, Drs Simone Degeling and James Edelman have specifically chosen commentaries that reflect current problems in legal analysis from the viewpoint of commercial legal practitioners. Providing a rigorous discussion of the emerging cases and trends in commercial law, this work of exceptional legal scholarship presents a compelling offering for judges, barristers, academics, commercial litigators and anyone interested in where the law is heading in this area.

Providing access to views from the world’s leading commentators in this field including esteemed judges, legal practitioners and academics from Australia, Canada, England, Ireland and New Zealand, this publication will become a classic in legal literature.

Contents include: tracing, specific performance, directors duties, accounts of profits, unjust enrichment, principles of the law of trusts, fiduciaries, equitable property rights, misdirected transfers and recipient liability, mitigation in equity, punitive damages and gain-based damages in equity, proprietary restitution, private international law and equity.

Editorial Reviews

From: (2006) 27 Australian Bar Review
Reviewed by Geoff Lindsay SC, Editor
 
The publication of this important book of conference papers could (one hopes) mark a watershed in never ending debates about the relationship between Law and Equity in Commercial Law. Selection of the title suggests that it might.
 
There would be nothing remarkable about a title as dry as Equity in Commercial Law were it not for the fact that the theme for the conference that spawned the book was more provocatively focused on the existence or otherwise of a ‘fusion of law and equity’ and its corollary, ‘fusion fallacy’.1    The passions aroused by the word ‘fusion’ are very real in some quarters.  Whatever the story underlying selection of the title of the book, one can but hope that omission of the word ‘fusion’ was an act of reconciliation.  A number of conference speakers remarked upon the need to focus upon the substance of doctrinal development of the law, and not to be diverted by polemical debate about ‘fusion’.
 
In promoting the conference in the lead up to it the editors of the conference papers correctly observed:
 
This conference will bring together many of the world’s leading judges, academics and practitioners to consider contemporary and unresolved issues relating to the relationship between common law and equity in commercial law. Underlying many of these issues is a question of deep theory about which there is acrimonious debate: what is the relationship between those ‘common law’ doctrines deriving historically from the King’s Courts and those doctrines of ‘equity’ deriving from Chancery?2
 
Much of any ‘acrimonious debate’ has centred upon the views respectively championed by the late Professor Peter Birks, on the one hand3 and Meagher, Gummow and Lehane, on the other hand.4  The deeply ingrained differences of opinion between those who favour and those who oppose ‘Equity’ as a separate field of study are manifest in Equity in Commercial Law.
 
From the perspective of an Australian practitioner, greater importance might attach to knowledge that these differences exist than to particular theories about how they might be resolved. That is because a practitioner needs to be able to judge the forensic strengths and weaknesses of academic commentaries available for citation.
 
An advocate who wants to experience the full range of learning available on the topic could do worse than to read the chapters of Equity in Commercial Law contributed by Australian judges: Sir Anthony Mason (Ch 1); Justice Keith Mason (Ch 3); Justice J D Heydon (Ch 9); Justice Peter W Young (Ch 19); and Justice W M C Gummow (the concluding chapter). Those chapters provide parameters within which the book as a whole can be read for edification and enjoyment.  Equity in Commercial Law is an indispensable reference work for any lawyer interested in general law principles touching upon Equity as a separate field of study; the relationship between Law and Equity; the Law of Restitution; Commercial Law; or the influence of taxonomy on the application and development of law.
 
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1 The conference was held in Sydney in December 2004. It was hosted by the University of New South Wales, and organised by James Edelman and Simone Degeling, editors of the published papers.

2 J Edelman and S Degeling, ‘Fusion: The Interaction of Common Law and Equity’ (2004) 25 Aust Bar Rev 195.

3 Peter Birks died on 6 July 2004. He was a charismatic teacher, a keen student of Roman Law, a seminal authority for the modern law of restitution and an advocate of a ‘new taxonomy’ in which ‘Equity’ would cease to be recognised as a separate field of study. His Australian Obituaries include (2004) 25 Aust Bar Rev 99–102 and (2004) 78 ALJ 615–16, the latter of which was written by his former student, Justice Keith Mason. Equity in Commercial Law is dedicated to the memory of Peter Birks.

4 The first edition of Equity: Doctrines and Remedies was published in 1975. The fourth edition (edited by R P Meagher, J D Heydon and M J Leeming) was published by Butterworths LexisNexis (Australia) in 2002. It is the modern classic on ‘Equity’ as a separate field of study.

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