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Buachaill, Barrister
Category: UK Law
Satisfied Customers: 10623
Experience:  Barrister 17 years experience
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My name is ***** *****.. I am researching this question ‘The

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Customer: my name is ***** *****. . I am researching this question ‘The Judicature Acts 11873-75 clearly ‘fused’ the administration of law and equity by the creation of the High Court of Judicature… A disputed question is whether the Acts, or the subsequent development of the law and equity, should be regarded as having effected the fusion of law and equity themselves.’
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Submitted: 1 year ago.
Category: UK Law
Expert:  Buachaill replied 1 year ago.

1. The principal point to be aware of in relation to the Judicature Acts is that whilst the drafters might have had in mind a fusion of law and equity, in practice what has happened is that there still is reference within the law to both the legal and the equitable rule to find which one better fits a given situation. So, there has been an imperfect fusion at best. This is particularly marked in areas of the law, such as contracts and remedies where reference is continually made to different legal and equitable rules.

Expert:  Buachaill replied 1 year ago.

2. The fusion of law and equity is more marked in the newer developing areas of the law, such as the Law of Restitution where academic commentators have driven the synthesis of the different legal and equitable rules so as to achieve a one rule result which is derived from the cumulative wisdom encapsulated in both the legal and equitable rule. However, these developments are progressing very slowly and don't feature at all in the areas in which academic commentary is non existent, namely, in the less fashionable areas of the law.

Expert:  Buachaill replied 1 year ago.

3. In the less litigated areas of the law, reference is still made to the legal rule and the equitable rule, in the manner in which Ashburner in Principles of Equity used his famous anteduluvian metaphor that law and equity flow in the same channel but in different streams. In areas of law, such as secured interests, assignments, set off, reference is made to both the legal and equitable rule in conceptually distinct silos within the law. here there is no fusion.

Expert:  Buachaill replied 1 year ago.

4. From a conceptual point of view, it is an inefficient legal system that has two rules for the same factual system. Such an approach would be unheard of in Continental legal systems. It defies logic and betrays an unpalatable with the overhangs of historical divisions between courts, polluting the current smooth and simple operation of the law.

Expert:  Buachaill replied 1 year ago.

5. That should read "..unpalatable preoccupation with the overhangs"

Customer: replied 1 year ago.
thank you are there any other points i should include
Expert:  Buachaill replied 1 year ago.

6. Fusion is more efficient from an economic point of view as it avoids the need to consult lawyers and provides certainty. The notion of two different legal rules is only a historical remanant of a legal system which did not function efficiently and which had a multiplicity of courts.