Equity

Abstract

This chapter assesses the relationship between Equity and the New Private Law. It addresses two general questions. The first is what the New Private Law can do for Equity. Recent work on Equity not only exemplifies the significance of the New Private Law but is also vital to justifying the continued distinctiveness of Equitable, as opposed to common law, principles. The second general question is what Equity can do for the New Private Law. If Equity owes much to the New Private Law, the reverse is also true. The distinctiveness of private law lies in the correlative nature of the legal relations it recognizes. By recognizing that duties and liabilities of a defendant correlate to rights of a claimant, it places the claimant in a powerful position. If, then, the distinctiveness of private law lies in the bilateral relationship between defendant and claimant, justifying that distinctiveness requires the identification of mechanisms to deal with the risks created by such a relationship. And Equity provides just such mechanisms. Specific Equitable principles play an important role in justifying the operation of key private law rules, as those Equitable principles mitigate potential specific injustices, as between claimant and defendant, that would otherwise arise from those primary private law rules.