9. The doctrine of anticipation:

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Supreme Court ◽  
Legal Rights ◽  
The Supreme Court ◽  
The Creation ◽  
The Impact ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter describes how equitable interests may arise through the application of the maxim ‘equity looks on as done that which ought to be done’. The acquisition of equitable rights through this maxim is attributed to the decision in Walsh v Lonsdale. The doctrine of anticipation applies where parties enter a specifically enforceable contract for the creation or transfer of legal estates and interests in land. The doctrine is important in identifying the rights and duties of parties during the course of the transaction. The impact of the doctrine is to develop equitable proprietary rights mirroring the legal rights that ‘ought’ to be granted. Where the effect of the doctrine is to separate legal and equitable entitlement to the same estate, a trust is imposed. The nature of the trust is on usual and its operation has recently been scrutinized by the Supreme Court.

The Use of United States Decisions by the Supreme Court of Canada Under the Charter of Rights and Freedoms

1990 ◽  
Vol 23 (3) ◽  
pp. 499-518 ◽  
Author(s):  
Christopher P. Manfredi
Keyword(s):  
United States ◽  
Civil Rights ◽  
Supreme Court ◽  
Constitutional Law ◽  
Preliminary Analysis ◽  
Legal Rights ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Potential Impact ◽  
The Impact

AbstractThe adoption of the Canadian Charter of Rights and Freedoms has generated considerable interest among legal commentators who question the potential impact of United States civil rights jurisprudence on Charter adjudication. This article offers a preliminary analysis of the impact of US constitutional law generally, and civil rights jurisprudence in particular, on Charter adjudication in the Supreme Court of Canada between 1984 and 1988. Focussing on the Supreme Court's citations of US decisions, the study finds that the frequency of such citations has increased under the Charter. Moreover, the Court's use of these decisions has had a significant substantive impact in defining the nature of constitutional interpretation and the content of the Charter's legal rights.

THE SUPREME COURT AS AN ARENA FOR ACTIVISM: FEMINIST CAUSE LAWYERING’S INFLUENCE ON JUDICIAL DECISION MAKING*

2020 ◽  
Vol 25 (2) ◽  
pp. 221-244
Author(s):  
Holly J. McCammon ◽  
Minyoung Moon ◽  
Brittany N. Hearne ◽  
Megan Robinson
Keyword(s):  
Supreme Court ◽  
Gender Equality ◽  
Legal Mobilization ◽  
Legal Rights ◽  
Feminist Movement ◽  
Political Opportunities ◽  
The Supreme Court ◽  
Judicial Outcomes ◽  
The 1960S ◽  
The Impact

Beginning in the 1960s, U.S. feminist movement litigators organized public-interest legal organizations to promote women’s rights through legal mobilization in the courts. We investigate all U.S. Supreme Court decisions involving gender equality from 1965 to 2016 to discern the impact of involvement of these feminist movement litigation groups as legal counsel. Our findings show that organized feminist cause lawyers increase the likelihood of decisions expanding women’s legal rights and/or promoting gender equality. Our results also indicate that broader legal and political opportunities combine with legal-activist efforts to produce these judicial outcomes. However, when the Supreme Court is highly conservative regarding abortion rights, feminist cause lawyers face difficulty winning cases. Our research suggests the importance for movement scholars of considering activist litigation, and our findings indicate that a theory of the joint effects of activist legal mobilization and broader legal/political opportunities can explain the judicial outcomes movement actors seek.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

ON THE CONCEPT AND CONTENT OF “ANOTHER ORDER OF PRE-TRIAL SETTLEMENT OF DISPUTES, ESTABLISHED BY THE AGREEMENT”

2021 ◽  
Vol 11 (4) ◽  
pp. 282-298
Author(s):  
D.G. FILCHENKO ◽  
E.A. EVTUKHOVICH
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Dispute Settlement ◽  
Critical Assessment ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Characteristic Features ◽  
Dispute Settlement Procedure ◽  
Settlement Of Disputes ◽  
The Impact

The article analyzes the provisions of the arbitration procedural legislation and the practice of its application on a different pre-trial dispute settlement procedure established by the contract. A different pre-trial procedure is considered as an alternative to the general claim procedure for resolving disputes. The characteristic features of a different pre-trial order have been revealed. The authors summarized the practice of arbitration courts, highlighting other demanded pre-trial dispute settlement procedures. In particular, examples of atypical other methods of dispute settlement are provided. Separately, the issue of the admissibility of the cancellation of the general claim procedure for the settlement of disputes by the agreement was considered. An independent subject of the authors’ analysis was mediation as a pre-trial dispute settlement procedure. The work also focuses on the impact of a different pre-trial dispute settlement procedure on the course of the limitation period. The article discusses the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 22 June 2021 No. 18 “On Some Issues of Pre-Trial Settlement of Disputes Considered in Civil and Arbitration Proceedings”. Some of the recommendations of the Plenum of the Supreme Court of the Russian Federation received critical assessment. The authors note the existing contradictions in the legislation and possible ways to overcome them, formulate individual conclusions as a result of studying the materials of the practice of arbitration courts.

Regspraak: Novasie en delegasie van skuld – hoe raak dit die versekering van die tersake skuld?

2021 ◽  
Vol 2021 (2) ◽  
pp. 356-378
Author(s):  
JC Sonnekus ◽  
EC Schlemmer
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Secured Debt ◽  
Personal Rights ◽  
The Supreme Court ◽  
Preferential Position ◽  
The Creation ◽  
D 20 ◽  
Court Of Appeal ◽  
Secured Creditors

Personal rights may be transferred by means of cession, and, in such an instance, the cedent (creditor) does not need the debtor’s permission, but once the debtor has been informed, the debt is redeemed only if he performs against the cessionary. If however, someone owes a debt, he (the debtor) can free himself of the obligation only if he redeems the debt, if he is released, or through the running of prescription. But sometimes it might be necessary that a restructuring of someone’s debts takes place or the debtor may want to be replaced with someone else who is willing to take over his obligation. This can be done only with the cooperation and agreement of the creditor. In such a case the debtor delegates his obligation to another person, who then becomes the new debtor of a new debt – the creditor relinquishes his right against the old debtor and accepts the new debtor and the new debt. The old debt no longer exists. It is also possible to rearrange the debt and create a new obligation which extinguishes the old debt – a novation takes place. This contribution starts with a discussion of these general principles and particularly the role that they (should) play when one is dealing with a secured debt which the debtor wants to delegate or when novation comes into play. This leads into a discussion of Wilke NO v Griekwaland Wes Korporatief Ltd (1327/2019) 2020 ZASCA 182 (23 Dec 2020) and the judgments in the earlier courts in which the supreme court of appeal and the other courts did not consider the implications of delegation and novation on an underlying debt when that debt was secured. Delegation and novation extinguish the underlying debt and any security right fortifying that debt is thereby also extinguished because of the principle of accessority. If the creditor requires the new debt to be secured, a new security right needs to be established by meeting all the requirements for the establishment of such security whether it is a right of suretyship or a real security right. A creditor must carefully consider agreeing to a delegation or novation of a secured debt since the implication is that he loses his secured and preferential position, and, even with the creation of a new security right, he loses the ranking he initially held in the line of secured creditors when a right of mortgage, for example, is at stake – qui prior est tempore potior est iure (D 20 4 11pr).

scholarly journals The Impact of the Voting Rights Act on American Political Parties

1994 ◽  
Vol 14 ◽  
pp. 565-575
Author(s):  
Howard A. Scarrow
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Voting Rights ◽  
Voting Rights Act ◽  
Legal Standards ◽  
The Past ◽  
The Supreme Court ◽  
The Impact

The weakening of American political parties has been a theme featured in the writings of political scientists for the past several decades. This essay is addressed to developments which may further that decline-developments which have undermined the very purpose which American political parties are said to serve. I refer to legal standards which were established by the Supreme Court in 1964, and which have since been expanded by the Court and then incorporated into the Voting Rights Act of 1965 and its amendment in 1982.

scholarly journals Glosa do wyroku Sądu Najwyższego z dnia 17 października 2018 r. (II KK 73/18)

2020 ◽  
Vol 29 (1) ◽  
pp. 291
Author(s):  
Cezary Kulesza
Keyword(s):  
Supreme Court ◽  
Criminal Liability ◽  
Civil Law ◽  
Complex Behaviour ◽  
The Supreme Court ◽  
Bank Employees ◽  
The Impact

<p class="PreformattedText">The gloss refers to the problem of the impact of bank employees’ performance on borrowers’ liability for fraud. The author approves the view formulated in the thesis of the Supreme Court that the employees of the injured bank were obliged to exercise special diligence in checking the accuracy of the documents submitted by the accused necessary to obtain a loan. The position taken by the Supreme Court in the commented judgement can be considered as at least a partial departure from the previous jurisprudence of the Supreme Court accepting that the victim’s contribution to the occurrence of fraud is not relevant to the responsibility of the perpetrators. The author, starting from the results of victimological research, accepts the view that the basis of criminal liability for fraud is the complex behaviour of the perpetrator (extraneous) and representatives of the injured bank (intraneus) and their mutual activity. In the last part of the commentary, the author indicates the specific obligations of banks when granting loans. He also emphasizes the inclusion in civil law of the victim’s contribution to damage as a basis for its mitigation.</p>

scholarly journals Patterson v. McLean: A Confirmation of the New Right at the U.S. Supreme Court

2005 ◽  
Vol 30 (4) ◽  
pp. 987-1009
Author(s):  
George M. Sullivan
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Reagan Administration ◽  
Ronald Reagan ◽  
The United States ◽  
National Elections ◽  
Presidential Appointments ◽  
The Supreme Court ◽  
The Impact ◽  
The U.S

In two consecutive national elections a conservative, Ronald Reagan, was elected President of the United States. When Justice Lewis Powell announced his retirement during the late months of the Reagan administration, it was apparent that the President's last appointment could shift the ideology of the Court to conservatism for the first time since the presidency of Dwight Eisenhower. President Reagan's prior appointments, Sandra Day O'Connor and Antonin Scalia, had joined William Rehnquist, an appointee of President Nixon and Bryon White, an appointee of President Kennedy to comprise a vociferous minority of four in many instances, especially cases involving civil rights. The unexpected opportunity for the appointment of a conservative jurist caused great anxiety in the media and in the U.S. Senate, the later having confirmation power over presidential appointments to the Supreme Court. This article examines the consequences of the Senate's confirmation of Justice Anthony Kennedy to the Supreme Court. The impact, which was immediate and dramatic, indicates that conservative ideology will predominate on major civil rights issues for the remainder of this century.

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