What are &quot;equity&quot; and &quot;equitable remedies&quot;? What is equity and/or an equitable remedy? How does it relate to the common law?
In legal systems descending from English law, the term equity refers to an aspect of those legal systems that has origins distinct from positive law and the traditional common-law writs. Equity traces its origin to the Court of Chancery. Much of what follows can be found in Snell's Equity. Equitable remedies (equitable relief) are those remedies available through rules and principles of equity, today applied by courts of unified jurisdiction. Some distinctions Equity as part of law: equity is certainly part of law in the sense that it is part of the legal system, applied by courts, and can result in equitable remedies. &quot;Equity in this sense has been a feature of many legal systems from ancient times&quot; (Snell's Equity, §1-002). Equity versus law: equity is distinct from &quot;law&quot; (or common law) in the sense that equitable remedies are meant to supplement &quot;legal rights.&quot; The common law and equity operated in their own areas of specialisation. Even in cases where common law and equitable rules touched on the same subject matter, the rationale of equitable intervention was not to conflict with the common law. The Chancellor's jurisdiction over the parties was in personam and enforceable by specific remedies, unlike those of the common law which were generally for the orders for the payment of money. (Snell's Equity, §1-012). Legal and equitable remedies: &quot;The division between legal and equitable remedies is an accident of history which cannot be explained in any other terms. No defining characteristic sets the remedies developed in Chancery, as a class, apart from the remedies developed by the common law courts.&quot; (Snell's Equity, § 14-001) History and the present A well-accepted unifying feature of &quot;equity&quot; and &quot;equitable remedies&quot; is their origin in the Court of Chancery of specialist equitable jurisdiction (Snell's Equity, §1-003). Even though today, this distinction in jurisdiction has been abolished by the Judicature Acts of 1873 and 1875, equity still means that body of law with its origins in Chancery. While equitable rules and principles have certainly continued to evolve, they all trace their pedigree to the jurisdiction of the Court of Chancery (Snell's Equity, § 1-004). Equitable doctrines have retained their distinctiveness as &quot;secondary&quot; to legal rights. They impose an overlay: that &quot;primary legal rights should be exercised consistenly with good conscience&quot; (Snell's Equity, § 1-033). This view from Canson Enterprises Ltd. v. Boughton &amp; Co., [1991] 3 SCR 534 highlights the messiness and debate about the confluence and remaining distinctiveness of equity and law: I am aware that reservations have been expressed in some quarters about this fusion or, perhaps more accurately, mingling of law and equity... But no case was brought to our attention where it has led to confusion, and there are many cases, some of which I have discussed, where it has made possible a just and reasonable result. It simply provides a general, but flexible, approach that allows for direct application of the experience and best features of both law and equity, whether the mode of redress (the cause of action or remedy) originates in one system or the other. There might be room for concern if one were indiscriminately attempting to meld the whole of the two systems. Equitable concepts like trusts, equitable estates and consequent equitable remedies must continue to exist apart, if not in isolation, from common law rules. But when one moves to fiduciary relationships and the law regarding misstatements, we have a situation where now the courts of common law, now the courts of equity moved forward to provide remedies where a person failed to meet the trust or confidence reposed in that person. There was throughout considerable overlap. In time the common law outstripped equity and the remedy of compensation became somewhat atrophied. Under these circumstances, why should it not borrow from the experience of the common law? Whether the courts refine the equitable tools such as the remedy of compensation, or follow the common law on its own terms, seems not particularly important where the same policy objective is sought. Equity prevails Even though equity has developed as supplemental and secondary to the common law, &quot;in a conflict between the two, equity would prevail&quot; (Snell's Equity, §1-010). For example, where a contract would be enforceable by its terms at common law, an equitable remedy developed called recission that allows for the &quot;extinction of a contract and the resotration of the parties to their original positions&quot; (Snell's Equity, § 15-001). This has been codified in some jurisdictions. See British Columbia's Law and Equity Act, s. 44: If rules of equity and law conflict, equity prevails 44 Generally in all matters not particularly mentioned in this Act in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity prevail. Where this distinction can matter This distinction can still matter. As just one example: &quot;Different rules of following and tracing have evolved at common law and in equity&quot; (Snell's Equity, § 30-052). See Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 SCR 805 at para. 58: In my view, a distinction should be made between the imposition of liability in “knowing receipt” cases and the availability of tracing orders at common law and in equity. Liability at common law is strict, flowing from the fact of receipt. Liability in “knowing receipt” cases is not strict; it depends not only on the fact of enrichment (i.e. receipt of trust property) but also on the unjust nature of that enrichment (i.e. the stranger’s knowledge of the breach of trust). A tracing order at common law, unlike a restitutionary remedy, is only available in respect of funds which have not lost their identity by becoming part of a mixed fund. Further, the imposition of liability as a constructive trustee is wider than a tracing order in equity. The former is not limited to the defence of purchaser without notice and “does not depend upon the recipient still having the property or its traceable proceeds”; see In re Montagu’s Settlement Trusts, supra, at p. 276. If a remedy is understood to be a legal right, then the innocent/wronged party is owed that right once the wrong is recognized by a court. However, if the remedy is understood to be equitable, no one ever has a claim as of right to the remedy, and it will always be subject to the discretion of the court to grant the remedy even if accepting the wrong underlying the claim. Some equitable remedies Wikipedia gives one list of equitable relief consistent with much of what is in Snell's Equity. Here I'll only list some of those that you'll most likely recognize: injunctions (Snell's Equity, § 18) specific performance (Snell's Equity, § 17) rescission (Snell's Equity, § 15) rectification (Snell's Equity, § 16) tracing (Snell's Equity, § 30-051) equitable estoppel (as a family of related doctrines), as distinct from common law estoppel (Snell's Equity, § 12) Maxims of equity Wikipedia also lists various maxims of equity also consistent with much of what is in Snell's Equity, § 5). I'll only highlight a few that are still widely relevant and known: &quot;He who comes into equity must come with clean hands&quot; &quot;Equity aids the vigilant and not the idolent&quot; (the principle behind laches) &quot;Equity looks on as done that which ought to be done&quot; (the principle behind equitable assignment)
You have read it: legally It doesn’t matter if you haven’t read it in fact. At law, you have. Therefore you cannot avoid obligations or consequences by saying “ I didn’t read it”. It’s an extension of the common law principle that if you affix your ‘mark’ to a document you were acknowledging that you understood it and would abide by it: even if your mark was an X because you were illiterate. There are protections. At common law an unconscionable term is unenforceable and may void the contract entirely. Additionally, many jurisdictions have passed legislation to make unfair contract terms unenforceable, particularly in contracts of adhesion. Further, consumer protection laws often have non-excludable warranties that operate in spite of the contract.
Termination is a matter of fact That is, it has either happened, or it hasn’t. Whether it has or hasn’t depends on a multitude of factors including the terms of the contract, the actions of the parties, and communication between them. These factors are so case specific that it is impossible to generalise. Further, within a given case, reasonable parties may differ on if a contract has been terminated, which party initiated the termination, and if that termination was lawful. Usually, these cases involve mutual allegations of repudiation by the other party and rightful termination in response by our side. These issues are likely to be the major ones that the court or tribunal will have to determine. A claim for damages would need to be pursued as part of the overall case but the deadline for raising them is a procedural matter for the court or tribunal. Failing to raise them as an issue in pre-litigation correspondence would not be a bar to raising them in a claim or counter-claim. However, failing to raise them at the earliest opportunity denies the offending party the opportunity to mitigate the damage and, if they can show that there were actions they could have reasonably taken to mitigate but couldn’t because they weren’t informed, then that may reduce or eliminate the damages payable.
Each case is decided on its own facts I know you want a clear answer to where the bright line between illegality and legality but there simply isn’t one. The reason you feel there is a “legal grey area” is because there’s a legal gray area. The way the common law works is that there are some acts and omissions that are clearly crimes/torts/breach of contract, some that aren’t and some that live in that grey area. When someone brings a case in the grey, the court will make a ruling that will apply to similar facts and we get a little light on the subject. Then the legislature changes the law and it all goes dark again. Each of your bullet points is simply too vague and encompasses so many fact patterns that it’s impossible to say. For example, “Using a fake name/birthday”: do the ToS prohibit this? is there an intent to mislead or deceive? are there laws that prohibit this? is a benefit being received dishonesty? etc. If you come with a specific, detailed fact pattern there might be case law that is specifically relevant that will allow an answer with a high chance of being right. However, nuances matter and no two fact patterns are exactly the same and the difference might be enough to distinguish your case from the precedent. Or there might not be a relevant precedent because no one has sued/prosecuted on this fact pattern before. Then we are in virgin territory and even experts are only making educated guesses until the judge (and the appeals court(s)) hand down their decision. These are the most interesting cases to watch but the most terrifying to be part of. If you need to ask the question”where’s the legal line on this?”, there’s a decent chance you have a foot on each side.
Actions in common law tort exist for both scenarios. Potential torts are negligence, trespass to chattel, and/or conversion. Putting the largely apparent tort of negligence aside, since that is nearly always available when something and/or someone is damaged by another (requiring only the [negligent] act, causation and damages) I'll focus on the other tort potentially applicable to scenario 1. The minority rule concerning trespass to chattel can be established even when the interference is negligent, whereas the majority rule requires intent to deprive. Interestingly, when the Restatement 2d of Torts talks about minority rule vs. majority rule, it really means "least often applied" vs. "most often applied", rather than merely "in some (fewer or greater) defined jurisdiction(s)". With these type of uncommonly pled torts, you could find a huge jurisdiction like California having lower courts (especially small claims or district courts) applying both the minority rule in some courts and the majority rule in others. This, all within one judicial jurisdiction if that state's law court has not weighed in on their interpretation of preference. The Restatement 2d (Second) of Torts § 217 and §218 define liability in trespass to chattel as "intentionally (negligently - minority rule ): (a) dispossess(ing) the other of the chattel, or; (b) the chattel is impaired as to its condition, quality, or value, or; (c) the possessor is deprived of the use of the chattel for a substantial time, or; (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. Trespass to chattel can consist of mere "intermeddling with or the limited use of the possession" and no damage need occur to the property, as damage is per se; however in your scenario, actual liability would occur in the destruction of the possession. The 2nd scenario would lie in the more serious tort of conversion. The tort of conversion will always requires intent to deprive the owner of his property, and the majority view is that the deprivation is intended to be total or forever (whether by continued deprivation or by destruction). There are 3 elements required to establish conversion: plaintiff's ownership or right to possession of the property at the time of the alleged conversion; defendant's conversion by a wrongful act or disposition of plaintiff's property rights; damage(s). While anticipating the follow-up question to either scenario, being "what about the fact that you didn't take the ball, but rather it ended up on your land, and shouldn't that count for something"...the answer (to the unasked question :~) is no. The act of taking possession over property to satisfy the necessary prong in both torts may take any number of forms, but need not be wrongful to begin with. All that is required to establish possessory control over the chattel in a tortious manner is merely interfering with the plaintiff's right of possession, which is a wrongful deprivation of something the owner was entitled to possess (so in other words, even if you didn't go and take it, once you know it's there, it's not yours, and you seek to keep it, either temporarily, permanently &ndash; the act of wrongful possession has occurred. The way the property was acquired is not at issue. Conversion and Trespass in Chattel are often spoken of interchangeably despite the fact that they are different. The difference between a cause of action for conversion and one for trespass against chattel is measured only by the degree of interference with the plaintiff's rights in their chattel. While the distinction seems subtle in a vacuum, in the old English cases where these torts were typically decided, conversion was one small step from criminal activity, whereas today conversion may be the civil adjunct to a criminal suit. *for those not familiar: chattel is any possession that is not real estate.
How can he compel the seller to cancel the new auction and sell him the item as they contracted to do? Expectation damages are the typical remedy for breach of contract The general measure of damages for breach of contract is expectation damages: &quot;the plaintiff will be entitled to the value of the promised performance&quot; (Bank of America Canada v. Mutual Trust Co., 2002 SCC 43 at paragraph 26); &quot;the purpose of expectation damages is to put the plaintiff in the same position it would have been if the contract had been performed (Grandeur Homes Inc. v. Zeng, 2021 ONSC 4005 at paragraph 19). This is a general principle of common-law contract law rooted in English jurisprudence. See Robinson v. Harman (1848) 1 Ex. 850, p. 855: The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. This was recently confirmed by the U.K. Supreme Court in Morris-Garner v. One Step (Support) Ltd., [2018] UKSC 20: Damage for breach of contract are ... a substitute for performance. That is why they are generally regarded as an adequate remedy. The courts will not prevent self-interested breaches of contract where the interests of the innocent party can be adequately protected by an award of damages. Specific performance is not usual Specific performance (cancelling the new auction and forcing the first sale) is an exceptional remedy for breach of contract. Specific performance is an equitable remedy. As an equitable remedy, it is always discretionary; the wronged party does not have a right to specific performance. Specific performance may be ordered when: expectation damages are inadequate as a remedy where the contract was for a sale of a particular piece of land (but even this has been limited in some jurisdictions to circumstances where the property is particularly unique) difficulty in quantifying damages Specific performance is typically not ordered when a substitute is available by which expectation damages would be demonstrated. See generally Chitty on Contracts, §30-015–30-025.
Not the same way as there's protection against double jeopardy in the criminal system. If Person A and Person B both have claims against Person C, even if it's for the same act or omission, each of them can independently pursue those claims. Imagine what would happen if that weren't the rule: Whoever filed first would functionally be preventing the other one from recovering their claim. What's worse, Person A and Person C could collude (say, by presenting a bad case on Person A's side) and prevent person B from accessing relief that they're entitled to. The way that the courts prevent abuse of the system by people who want to keep re-litigating the same issue is a principle called res judicata. But that's a principle that only applies when it's the same parties – say, Person A sued Person C and lost, and so sued Person C again for the same claim. This limitation protects Person B against any collusion or just bad lawyering on the part of Person A.
would it be interpreted in favor of the person who did not draft the terms? Yes, provided that the interpretation is reasonable. That is known as the doctrine of contra proferentem. Here, the term "deliverables and associated documents" might entail a contradiction if that term [allegedly or literally] encompasses "source code or content". That depends on what definition(s) of "deliverables and associated documents" can be adduced from the contract. The term could refer to items that are not "source code or content", such as the binary files (i.e., executables and DLLs), instructions &amp; documentation on how to operate and troubleshoot the application, and so forth. In that case, there would be no contradiction because there is no overlap between these items and the source code. if term A) is written on line 10 and term B) is written on line 11, is it resonable to assume term B) takes precedence or modifies term A? No. The sequence of clauses/terms itself does not determine which one outweighs or qualifies the other. Instead, the language used in the contract is indicative of the parties' intent and therefore how the terms of that contract relate to each other.