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Friday, March 14, 2014

Summum ius, summa iniuria?

Dear students,

with reference to the discussion we have started this morning, I would like to ask you to continue it here. You can write answers to all the following questions or just one.

You can also have a look at this:

1) What could be the "dangers" of equity?
2) Can you give examples of the use of equity (in any historical period and in any place)?
3) What is the purpose of law?
4) What is the aim of a trial today in your country? 


  1. This comment has been removed by the author.

  2. Gemma Di Stefano

    The conflict between jus strictum (ie literal interpretation) and aequitas that we found in the play The Merchant of Venice has ancient origins. It was born in Republican Rome (509 b.C- 27 b.C)
    Rome was no longer a predominantly agricultural economy but it was becoming a commercial power. In this context, the ancient laws of the city (ius civile) were not suitable for the new needs of society, so the Romans used the aequitas to correct the injustices arising from the literal interpretation of laws.
    A well-known case of application of equity was the so-called Causa Curiana, in 92 B.C
    The case concerned the interpretation of a testament in which a certain Coponius instituted as heir his yet-unborn-son; and he appointed Curius as substitute heir in the event that this son should die before reaching his majority. Then Coponius died and no son was born.
    Coponio's relatives wanted the revocation of the will, because the prior condition (birth of the son) had not been fullfilled, instead Curius pretended that the substitution remained valid in the absence, in general, of a heir.
    This trial shows the conflict between ius strictum and equity with the struggle between the most eminent jurists of the day, Q. Mucius Scaevola, and the orator, L. Licinius Crassus.
    The great orator Crassus won the trial, and his client Coponius became the owner of the inheritance.
    So the concept of aequitas prevailed and was rejected the claim of a formalistic interpretation of the written words.
    We commonly hear of the Praetor's edict as the source of aequitas: it became one of the most important factors in adapting the Roman law to new conditions and to the principles of equity and good faith.
    From a certain point of view there is a parallelism between the Edict of the Praetor and the Chancelor jurisdiction in England. Each formally respects the existent system but,
    by new remedies and new defences, adapts the right to the needs of the practice.

  3. I would like to continue to talk about the role of equity in Republican Rome. In this period equity was identified in the “ius honorarium”, which was used “vel adiuvare, vel supplere, vel corrigere” (to help, to add to, to correct) the “ius civile”. Celsius, in the 2nd century d.C. gave a “smart definition” of law: he described it as “ars boni et aequi”. But what was “aequum” in that period? It was something really particular, an idea surprisingly far from the one of Aristotle. Although in that period Rome was deeply influenced by Greek dialectics, Republican Rome jurists produced a very original idea of equity. Aristotle used equity as an integrative principle, when law could not resolve the case because there were gaps. The judge had to use his discretional power to find the right solution OUTSIDE the legal system. Republican Rome jurists thought completely in a different way. They separated ethics and law. Equity was neither external, nor opposite to law: it was the ESSENCE of the law. In this way of thinking, the right solutions for the cases had to be found in the legal system and not in judges’ consciences.

  4. Equity represents the name that has been attribued to a complex of law principkes in all those Nations provided by a common law system that is used in all cases in which strict law seems to be too strong and consequently inappropriate.Equity then operates such as a legal method that analyse all the particularities and all human feelings correlated to the legal case that should be resolved.One of the most importante differences between law and equity is based on the sources of regolamentation thank to what the legal case is risolved.Legal sentences assumpted on common law system are based on docrtine or on written law.Instead,in all legal sentences based on equity the maxims of equity are taken as benchmarks.According to me the raison why the legal instrument of Equity can be harmful is based on the subjctivity of the system to which it refers.As a matter of fact,the Lord Chancellor is able to issue judgments excessively linked to its personal sense of justice and injustice,and consequently in the trial the emergence of truth and the restoration of the moral balance may be random results.The judicial system in the instrument of Equity has been the subject of numerous criticisms.The most resonant is contained in the work entitled "Bleak House" written by Charles Dickens. At the center of the novel is the long-running lawsuit known as Jarndyce v Jarndyce ",debated for years without any outcome in the rooms of the Justice Chancellery of Lord Chancellor.The cause is a hereditary legacy challenged by several heirs, and his long trial has already cost between 60.000 and 70.000 pounds in legal costs,emblematic of the bankruptcy procedure of the Chancery.The fierce attack powered by Dickens to the British judicial system is motivated in part by his own experience as a legal practitioner,and partly from experience gained in various causes for the copyrights of his early novels.His scathing criticism of slowness and antiquity of the operational mode of the Chancellery of Justice gave a memorable body existing at the author's frustrations towards the system.The novel helped the modernization process of the whole judicial system culminated in the 1870 's legal reform.
    Finally, to answer the last question, I want to focus attention on the role of the parties involved in a judicial process.Although they can be detected many subjective reasons for which an individual decides to establish a judicial process, according to me the most noticeable cause is based on the desire to people whose rights have been unfairly harmed to receive a service whereby their rights return to be respected or to return,through the identification of perpetrators,dignity to those who were unable to defend themselves for abuses suffered.To give a practical example I would mention the position of the mother of journalist Ilaria Alpi, which 20 years ago was killed in Somalia because it was investigating on the transport of harmful waste and weapons from Italy to Somalia.The mother in an interview this week spoke in this way: "twenty years have passed,5 judges,rivers of inquiries.I no longer have hopes, but I do continue my battle,because the historical truth now established is not enough for me.I want a guilty and a sentence.There is one thing that nobody can take away from me:the right to continue to ask for Justice".

  5. Gemma Di Stefano

    “Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out.” ( Francis Bacon, Essays, Of Revenge, 1625)
    On Friday we talked about the aim of a trial, and someone said that the process is vengeance.
    So, from a certain point of view, I agree with my fellow student: I think that revenge and justice aren’t the same thing, but they always intimately connected. The starting point for understanding this connection is the Oresteia, a trilogy of Greek tragedies (Agamennon, The Libation Bearers, The Eumenides) written by Aeschylus in 458 b.C.
    The tragedies show that the archaic way of resolving disputes, that is revenge, generates more deaths and more crimes. Murder generates other murders, nothing else can wash away a bloodstain but more blood: this is a never ending chain that does not restore the social order.
    In the Eumenides we can see the born of the process, which is the correct way to resolve disputes. The main theme of the trilogy is the shift from the practice of personal vengeance to a modern system of litigation. Community must intervene to punish the guilty and stop the mechanism of revenge. Thus is born the Dike (i.e. Justice).
    The process is born as the social embodiment of violence; it’s the only place where citizens can claim their rights: nowadays the use of private justice, in Italian legal system, is a crime. In fact the art 392 c.p. punishes who arbitrarily exercises its own rights. Even in the 21st century we need a law to remind us not to use private justice!
    We also said that the meaning of the trials is, nowadays, the truth. I think that the truth is one of the purpose of the criminal trial, not the civil trial.
    Italian civil and procedural laws does not give to the judge tools for bridging the gap between historical truth and truth of the trial, no rule gives the process the task of seeking the truth. The court has not the power to seek the truth outside of allegations and evidences (iudex secundum alligata et probata iudicare debet). The judge cannot ask for investigations ex officio and when Civil Procedure exceptionally attributes to the court powers in the search of evidence (art 421 cpc), these are rarely applied in judicial practice.
    In English criminal law the guilt of a man must be proved “beyond reasonable doubt”; but the plaintiff in a civil action is required to prove his case “on the balance of probabilities”.
    According to these reasons I think that the main aim of the civil process is the restoration of the balance broken by an anti-juridical behaviour.

  6. "Ius est ars boni et aequi" what Celso wrote many centuries ago. Aequitas has always been an alternative legal instrument to apply the law of a community, when such law strictly interpreted could not solve a case. Nevertheless we are aware that this wise tool called equity may hide some danger. But why? In my honest opinion Equity is an explanation of the general belief that people have of the justice. Hence equity changes as people change their mind, instead of staying linked to an universal justice and the plot of the Merchant of Venice proves this fact within its unfair end: Shylock is bound to change his religious beliefs!
    According to what i have already said i suppose that Equity is the essential requirement to complete the purpose of the Law, that is to give a rule with wich the members of a society can have a mutual confrontation. When the match between two different positions doesn't succeed so a trial should balance the lost equilibrium. Trial is the instrument to realize the purpose of the Law.

  7. Moving away from the philosophical aspects of equity I wanted to give a brief outline of the current use of equity in German law.
    In Germany equity is particularly important in the field of civil law.
    The so called ‘Billigkeitskontrolle‘, which could be translated as ‘equity control‘, is a judicial control of contracts which is strongly relying on the singular case considering his individual particularities.
    Since written law for the most part establishes merely general and abstract rules equity is used as a tool for judges to correct provisions in individual cases to assure an application of law which represents not only justice but also justness.
    ‘Billigkeit‘ (equity) therefore ‘completes‘ the ius strictum to avoid or moderate undue hardship. It is a form of ‘Situationsrecht‘, situation law, and lacks a strict definition.
    The meaning of equity rather depends on the existing case law. Most importantly the jurisdiction of the Bundesgerichtshof (short BGH).
    ‘Billig‘, according to the settled case law of the BGH, is what corresponds to the conception of all people thinking just and fair. Besides Billigkeit requires an examination and evaluation of the objective economic interests of both parties (see BGHZ 41, 271, 279).
    Since in most contracts of sale performance and reward are precisely determined by the contract usually there isn‘t any room for a consideration of equity.
    Diversely is the case of continuing obligations. These cases can under certain circumstances demand a supplementary price adjustment. According to § 315 BGB the newly stabilized price becomes valid only when he has been settled in accordance with the requires of equity. This means that the party who has settled the price can use their discretionary power only in the framework of a well-balanced relation between performance and reward.
    Another important scope of application of equity can be found in the field of consumer protection provisions like the General Terms and Conditions of business, the so-called ‘Allgemeine Geschäftsbedingungen‘ (short AGB).
    According to the §§ 305 ff. BGB an AGB can be declared invalid when it places a disadvantage on the consumer or infringes the principles of good faith.
    Also in tort law in § 829 BGB we have the principle of equitable liability.
    Considering the principles of equity it is possible to claim compensation also from a person who due to his lack of legal responsibility could normally not assume liability for the damage caused by him.
    The idea of equity is finally used for the general interpretation of law in the sense that legal rules, on principle, have to be just and equitable.

  8. Equity was in the Republic Rome the idea of justice. It was indipendent and it was the opposite of the so called Ius Civile, which was firm and formal.
    We can see here the conflict between Ius Aequum and Ius Strictum and we can still find this conflict in our modern society when we talk about the dualism between equity and common law.
    It is not easy to find a complete definition of equity, but we can say that it is a legal method that analize a concrete case when the law is unjust.
    Why in Italy we don't use often equity?
    In our system we can distinguish between integrative equity and substitutive equity. In the first one the judge can only specify some rules of law (for example art. 1226 c.c.) and in the second one the judge can abstain from the law and can decide in a different way (for example art. 114 c.p.c.).
    These are the situations where an italian judge can adopt equity.
    The reason why we don't use equity is very simple: we are really attached to our written and concrete law and we think that this law represents the real idea of justice and equity is just an integration to this law, a remedial action.
    Maybe we are just afraid to use equity because we think that it can damage our garantee of law (certezza del diritto),but this is just my opinion.

  9. The fundamental role that equity assumes in the evolutionary path of law undoubtedly emerges through numerous examples given by Roman law.

    Labeone, in my opinion, is one of the scholars that has been more successful in the description of the central role that equity assumed in the evolution of law. In the double sale case, for example, Labeone describes how equity is a fundamental evaluation parameter in the process of regulation of two different rights that are equally protected by imperial edicts ( the protection of a 25 years old minor, for whom the sale is void, and a third party in good faith, that bought a good from a second insolvent party who previously acquired it from the minor). In this case, Labeone, considering that both situationsituazione and rights were, according to the principle of equity, protected by law, guarantees protection to the minor, instead of the third party in good faith, because the minor was unable to find reparation for the loss through the assets of the insolvent second party.

    Labeone, then, uses equity to guarantee protection to the minor, but also to overcome the static nature of the law, and create new protective measures.

  10. It 's interesting to note that even today it is possible to use _ equity on the part of the judge: the Code of Civil Procedure Article 144 says that the court may at first instance and on appeal, to decide the merit in equity when it relates to available rights of the Parties (in the arbitration only at the request of the parties). The well-known jurist, Norberto Bobbio remarks that the _ Equity in issuing the judge is configured as a source of law, but not as a main source, but only as subordinate source, because he may issue such a judgment only if it is authorized by law and never in contradiction to it, thus making it legitimate to his judgment, resolving a conflict of interest with a particular ruling is not based on an existing general rule.