L'équité considère cela comme fait, ce qui devrait être fait

(6) Equity looks on that as done which is ought to be done.

Particular case that illustrates this rather well: a woman had taken out a car insurance. Because of an insurance broker (broker = intermédiaire) who created the pb. The woman had this transfer for the insurance. The woman was the policyholder (l’assuré). A policyholder is entitle to a no claim bonus (here was a no claim discount = reduction dans le prix). So she was given insurance by this new CP on the basis that she was entitled to this no claim bonus (Discount). They allowed her to discount what had to be pay. She needed a confirmation from her older insurance CP that she was entitled to this no claim discount. However the 1st CP did not send the information and the new CP cancelled the policy. At the same time she was involved in an accident. She claimed from the CP. The normal procedure for the CP was to warned the policyholder that the confirmation had not been given concerning the no claim discount and give the person time to produce the proof of the entitlement to the no claim discount.

Problem here: equity says “that which ought to be done, should be done”.  The CP ought to have warned the policyholder, but didn’t do it. Then the insurance policy is not cancelled.

(7) Equity imputes an intent to fulfill an obligation

Eg. A trustee has an obligation to act in the interests of the beneficial. The trustee has a bank account and uses it for his own purposes and the purposes of the trust. Then one day the tax authority sees money from this account to pay a fine.

Problem arises: whose money was taken? Court: The tax people are taking the money from the trustee own money (and not from the funds provided by the trust).

Why? Because this is what the trustee has an obligation to seek to do.

(8) Equitable remedies are discretionary

Nb:

- Plaintiff /complainant = demandeur acts against the defendant.

- Equity: plaintiff = a petitioner (during the olden day, because the case started with a petition and not a summon) against the respondent (funny thing: we call it sometimes the “co respondent” who committed the adultery).

- Appellant against the respondent.

Miler and Johnson case: (About the cricket ground): the plaintiffs went to court and asked for remedies concerning a private nuisance. Indeed the court said yes, you bought this house next to the ground, cricket balls are breaking stuffs. So they gave damages interests because they were suffering damage. The plaintiffs also asked for injunction. It is an order from the court for stopping playing cricket. The Court said not, because there are special circumstances. The reason is that the equitable remedy for an injunction is discretionary.

Ratio decidendi & Obiter dictum

Obiter Dictum: This is what a judge says in a case about law, but this is not the decision, it’s not binding in subsequences cases. Very important because it has a persuasive value. If you are lawyer you know that the judge said “I believe this question on the case is that…”. If you are in front of the judge with your client, it is a valuable information, you know what is its opinion. Plus the fellow judge is influenced by what his colleague said.

Ratio decidendi: it is the application of the law to the fact in the given case, it is the principle in the decision that you can extract.

Injunctions:

Perpetual injunction (finally injunction): Référé fr: you go in front of the judge and you ask an order from the judge which is compelling, in order that a party stop doing something, in order to maintain the status quo

Interlocutory injection (temporary injunction): decision of the court, you can only do an appeal after that.

Permanent injunction: it can be the equivalent of the 1rst or 2nd injunction, depending on which court you in front of.

(9) Delay defeats equity: base on the idea of limitation periods (=prescription): If you don’t take advantage of your equitable right, and time passed, other people are affected by that, and then you can lose your equitable right.

(10) Concept of equity comes with clean hands: there was an equitable lease (bail) (=/= from legal lease).

- Equitable lease: recognized according to the rules of equity

- Legal lease: recognized from the rules of common law if that lease has been registered. Registered = taken before the authorities and stamped at certain duty pay. When it has been paid, you also paid a bound money (= caution). When all of these things have been done: you have a recognized legal list.

E.g.: You go to the real estate agency; you signed a lease on a printed form, all the forms have been carried out, but the real estate agent forgot to give it to the government, then it has not been registered, therefor this is not a legal lease. However what you signed is nevertheless recognized by the rules of equity, because this was your intention  this is an equitable lease.

There was a time when people did not bother to register it, it was almost a legal lease.

A covenant:a solemn promise (person swears to do something). In this covenant there was a promise to not sublet. The tenant broke the solemn promise and sublet to its own CP.

The case came in front of the judge, the landlord tried to eject the tenant (he asked for an ejectment). The tenant replied: I admit it, I broke the covenant, you have to right to make me pay damages, but I’m not going to be ejected from it. Court: if the lease had been a legal lease it would have been possible, but this is an equitable lease. Your hands are not clean, you broke the promise  therefore you have lost you lease.

(11)He who seeks equity must do equity: A person made a guarantee, there were 2 parts: 1) you guarantee past & present debts 2) you guarantee future debts. The problem was: the person who made the guarantee thought it concerned only future dates. Court: this guarantee, we find there is reason to be annulled (destroyed) however you did intent to guarantee future debts, so because of this we will allow the guarantee to exit in respect to future debt.

(12) Equity regards the balance of convenience: a promoter start building on your land, on a hill with a nice view. However the owner of the land went on vacation 3 years, came back and

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