scholarly journals L’arrêt Eve et le droit québécois

2019 ◽  
Vol 18 (3) ◽  
pp. 643-655 ◽  
Author(s):  
Robert P. Kouri
Keyword(s):  
Common Law ◽  
Parens Patriae ◽  
Court Of Chancery

Le but de ce texte est de démontrer que l’arrêt Eve a relativement peu de pertinence en droit québécois. Deux aspects sont examinés. Le premier a trait aux pouvoirs de la Cour supérieure quant à la doctrine de parens patriae. À la différence des tribunaux de droit commun des provinces de common law du Canada, les tribunaux québécois n’ont jamais bénéficié des pouvoirs d’une Court of Chancery et n’ont jamais reçu par délégation les pouvoirs de parens patriae. Le deuxième aspect porte sur le droit du curateur de consentir seul à la stérilisation de personnes sous sa charge. L’auteur est d’opinion que même s’il s’agit d’une situation qui peut entraîner des abus, ce pouvoir existe actuellement. Les réformes proposées dans le domaine du droit des personnes corrigeront sans doute ces lacunes.

Remedies for equitable wrongs

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Breach Of Contract ◽  
Turn On ◽  
The Supreme Court ◽  
The Common ◽  
Law Courts ◽  
Substantive Law ◽  
Court Of Chancery

Torts and breach of contract are termed common law wrongs because they were historically developed in the common law courts. Equitable wrongs are civil wrongs that historically were developed in the Court of Chancery. Despite the fusion of the common law courts and the Court of Chancery by the Supreme Court of Judicature Acts 1873–1875, much of the substantive law has not been fused. One example is the continued distinction between common law and equitable wrongs. In a rational fused system, nothing should turn on whether a civil wrong is common law or equitable. But that is not the present law.

1. Foundations

2020 ◽  
pp. 3-32
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Legal Rights ◽  
History Of ◽  
The Common ◽  
Special Concern ◽  
Trust Property ◽  
Court Of Chancery ◽  
Conceptual Foundations ◽  
The Relationship ◽  
Historical Origins

This chapter focuses on the historical and conceptual foundations of trusts and equity, first examining the history of the relationship between law and equity, including the historical origins of the trust. It then explains the idea of equity and how it is intertwined with the common law, and compares the trust with concepts such as gifts and contracts. The chapter shows that the trust arose in response to equity’s special concern to ensure that legal rights are not used in bad conscience, but later developed into a sophisticated institution governed by established rules. It looks at the reform of the Court of Chancery and considers trust property, equitable rights under a trust, separation of legal and equitable title, and the paradox of property and obligation.

Children's Rights

2013 ◽  
Author(s):  
Karen M. Staller
Keyword(s):  
Common Law ◽  
Children's Rights ◽  
State Intervention ◽  
Children’S Rights ◽  
Chronological Age ◽  
Rights Of The Child ◽  
Parens Patriae ◽  
The Common ◽  
The Right ◽  
Family Autonomy

Children's rights can refer to moral rights—basic human rights regardless of age or station—and legal rights, those awarded based on chronological age or level of maturity. They are conceptualized in three categories: protection rights (the right to be free from harm and exploitation), provision rights (the right to have their basic needs met), and participation rights (the right to have a say). Children's rights can conflict with family autonomy, and state intervention is based on the common law doctrine of parens patriae. The UN's Convention on the Rights of the Child is the most comprehensive statement of children's rights to date.

The Last Forty Years of the Irish Bar

1929 ◽  
Vol 3 (3) ◽  
pp. 365-375
Author(s):  
Serjeant A. M. Sullivan
Keyword(s):  
Common Sense ◽  
Common Law ◽  
Good Deal ◽  
The Other ◽  
Old Order ◽  
Other Hand ◽  
The Law ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Doors

Forty years ago in my old country the legal world was in a state of transition. The old order was changing in a great number of ways. The Judicature Act had just got into swing and although four Courts still opened in the hall beside the Liffey they were soon to be fused into one. These were at that time the Court of Chancery, the Court of Queen's Bench, the Court of Exchequer, and the Court of Common Pleas, and the doors of these four opened on the Central Hall and their names stood over them. The Court of Chancery stood by itself, but it was thought in those days that you had your choice of three Common Law Courts in which to have your case tried. If you had some merit on your side but thought that the law was against you, you issued your writ in the Queen's Bench, which was presided over by Mickey Morris, as he was invariably called although he was a lord, because Mickey had a good deal of common sense, a great deal of humanity, but his ideas of jurisprudence were peculiarly his own. On the other hand, if you were strongly of opinion that however iniquitous your client was, he had the law on his side, you issued your writ in the Court of Exchequer, presided over by Christopher Palles, the greatest judge before whom I have ever appeared. Christopher Palles decided according to what he believed to be the law, and would pay no attention to any other consideration that might be advanced before him.

16. Equitable maxims, doctrines, and remedies

2020 ◽  
pp. 563-606
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Special Function ◽  
Common Law ◽  
Legal Rights ◽  
Court Cases ◽  
Very Old ◽  
The Common ◽  
Court Of Chancery ◽  
Over Time ◽  
The Way

In general, the leading court cases on equitable doctrines and remedies are very old. The fact that they still have the power to determine modern cases proves that equity is inherently adaptable. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied (since the Judicature Acts 1873–1875) by the unified Supreme Court of England and Wales. In addition, equity, as a dimension of law, has retained its special function of restraining or restricting the exercise of legal rights and powers in certain cases. This chapter considers particular principles (including maxims), doctrines (including conversion, satisfaction, performance, and election), and remedies that have been developed over time to help predict the way in which equity will operate in various types of cases.

20. Equity: doctrines and remedies

2019 ◽  
pp. 477-506
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Knowledge ◽  
Very Old ◽  
England And Wales ◽  
Key Points ◽  
The Common ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Way

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.

Thomas Jefferson and the Uses of Equity

2015 ◽  
Vol 33 (1) ◽  
pp. 151-180 ◽  
Author(s):  
Matthew Crow
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Thomas Jefferson ◽  
Court System ◽  
Classical Literature ◽  
Intellectual Culture ◽  
High Court ◽  
Commonplace Books ◽  
Legal Arguments ◽  
Court Of Chancery

In 1795, a disgruntled George Wythe published his own edition of decisions from Virginia's newly formed High Court of Chancery, of which he was the sitting judge. Wythe's volume was replete with rebukes of his fellow justices in the court system for their lack of erudition and grounding in the distinctive principles and procedures of common law and chancery jurisdictions. His own copy of the volume, which, like many of his books that found their way into the library of his prize pupil, Thomas Jefferson, includes Wythe's handwritten appendix to the series of references he had made to classical literature and rhetoric in his own remarks, including several to the legal arguments of Demosthenes, and most strikingly to Sophocles'Antigone. Like much of their correspondence, their respective legal arguments as attorneys, and Thomas Jefferson's own massive commonplace books of common law and equity jurisprudence, Wythe's extensive commentaries signify not only the continued appeal and display of an early modern humanist legal and intellectual culture, but also the centrality and power of the idea of equity in that culture and for its successors acting in the Atlantic and imperial constitutional crisis of the second half of the eighteenth century.

The Irish courts of law, 1801–1914

1957 ◽  
Vol 10 (40) ◽  
pp. 363-391
Author(s):  
R.B. McDowell
Keyword(s):  
Nineteenth Century ◽  
Seventeenth Century ◽  
Sixteenth Century ◽  
Thirteenth Century ◽  
Common Law ◽  
The Other ◽  
James I ◽  
Charles I ◽  
Law Courts ◽  
Court Of Chancery

At the beginning of the nineteenth century there were six superior courts in Ireland—chancery, the three common law courts (king’s bench, common pleas and exchequer), the admiralty court and the prerogative court (an ecclesiastical court with jurisdiction over testamentary matters).Four of these courts were of medieval origin. The exchequer was probably in existence before the close of the twelfth century, the Irish chancery was founded early in the thirteenth century, the first Irish chancellor being appointed in 1244, and the antecedents of the courts of king’s bench and common pleas are to be found in the thirteenth century. The other two courts were comparatively modern. The court of prerogative and faculties based its rights to exercise jurisdiction on two sixteenth century acts and two seventeenth century patents, one of James I and one of Charles I. And though admiralty jurisdiction had been exercised in Ireland from medieval times, the Irish court of admiralty had been created by statute in 1784. From the court of chancery and the three common law courts there was an appeal to the court of error (known as the court of exchequer chamber) composed of the judges of the three common law courts, and in 1857 it was enacted that the court of exchequer chamber when hearing an appeal should consist of the judges of the two courts from which the appeal did not arise. From the admiralty court and from the prerogative court there was an appeal to delegates in chancery.

scholarly journals LANDASAN DOKTRINER HAK GUGAT PEMERINTAH TERHADAP KERUGIAN LINGKUNGAN HIDUP DI INDONESIA

2020 ◽  
Vol 5 (1) ◽  
pp. 156-175
Author(s):  
Dona Pratama Jonaidi ◽  
Andri G Wibisana
Keyword(s):  
Natural Resources ◽  
Theoretical Basis ◽  
Common Law ◽  
Public Trust ◽  
Environmental Damage ◽  
Legal Basis ◽  
The Public ◽  
Public Trust Doctrine ◽  
Parens Patriae ◽  
The Government

ABSTRAKMeskipun hak gugat pemerintah atas kerusakan dan/atau pencemaran lingkungan hidup telah menjadi hal yang lazim dewasa ini, namun di Indonesia landasan doktriner gugatan pemerintah tersebut masih jarang diperbincangkan. Dengan menggunakan metode penelitian hukum doktrinal, penelitian ini dimaksudkan untuk menganalisis landasan teoretis hak gugat pemerintah. Berdasarkan kajian analisis atas peraturan dan putusan pengadilan yang berlaku, serta melakukan perbandingan dengan doktrin-doktrin yang berlaku dalam tradisi common law, tulisan ini menemukan bahwa gugatan pemerintah telah diajukan dalam beberapa dasar teoretis yang berbeda, antara lain: i) pemerintah sebagai wali lingkungan hidup; ii) kerugian negara; dan iii) konsekuensi tanggung jawab negara terkait lingkungan hidup. Selain itu, hak gugat pemerintah di Indonesia memiliki karakteristik yang serupa dengan yang ditemukan dalam doktrin public trust dan doktrin parens patriae. Kemiripan ini membawa pada konsekuensi hukum bahwa gugatan pemerintah atas pencemaran harus ditujukan semata-mata untuk memulihkan lingkungan hidup yang mengalami kerusakan/pencemaran.Kata kunci: doktrin; hak gugat pemerintah; kerugian lingkungan hidup. ABSTRACTDespite the government’s right to sue for environmental damage is a common practice in various countries nowadays, in Indonesia the theoretical basis of it is rare to be discussed. Using a doctrinal-research, this article analyzes the government’s right to sue with prevailing laws and court rulings and compares it to several common law doctrines. This article finds the government’s right to sue in Indonesia is based to three different theories, including: i) the government as a trustee of public natural resources; ii) state’s damage; and iii) the tail of state’s responsibility. In addition, the government’s right to sue also shares similar characteristics found in the public trust doctrine and parens patriae doctrine. The similarities bring about the legal basis that the government’s suit against pollution should primarily aim at restoration.Keywords: doctrine; environmental damage; government’s right to sue.

scholarly journals The Eve Decision — A Common Law Perspective

2019 ◽  
Vol 18 (3) ◽  
pp. 657-675 ◽  
Author(s):  
Edward W. Keyserlingk
Keyword(s):  
Supreme Court ◽  
Prince Edward Island ◽  
Common Law ◽  
Medical Procedures ◽  
Supreme Court Of Canada ◽  
Mentally Disabled ◽  
The Supreme Court ◽  
Parens Patriae ◽  
The Law ◽  
Do So

By its decision in the Eve case, the Supreme Court of Canada clarified and settled the law in at least two important respects. From now on, provincial statutes can only be used to authorize guardians to permit involuntary contraceptive sterilizations if their wording clearly and explicitly so provides. The Prince Edward Island statute in question did not do so. Secondly, though the Court's parens patriae jurisdiction is of unlimited scope and does extend to cases involving medical procedures, it cannot serve as the basis for authorizing non-therapeutic sterilizations. By ruling out the applicability of parens patriae, and by insisting that judges are not able to deal adequately with such cases, the Supreme Court may have strengthened the case for new legislation in this area. The writer argues that such legislation should provide for access to contraceptive sterilization for the mentally disabled, and the needed safeguards to protect those unable to consent or refuse from the imposition of sterilization in the interests of parties other than themselves.

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