DAMAGE AS REQUISITE TO RESCISSION FOR MISREPRESENTATION

Authors

Glenn A. McCleary, University of Missouri Law SchoolFollow

Abstract

The decadence of equity during the nineteenth century has long been an accepted phenomenon. The attempt to make law coincide with morals in the seventeenth and eighteenth centuries was followed in the nineteenth century by the gradual fixing of rules and a consequent stiffening of the legal systems, in which moral principles became lost in a mass of rules derived from such principles. What were once equitable doctrines tended to become mechanical rules. The former strength of equity has been weakened in the various jurisdictions, due in a large measure to the administration of law and equity by the same bench. The judges, familiar with a single body of precedents, tended to treat a subject in a crystallized fashion, overlooking the fact that it may have had different contents in equity and in law when these two branches of the law were administered separately. In general, a legally protected interest tends to possess the same incidents, whether it is invoked in law or in equity, except that equity will afford its own distinctive remedies. Other agencies assisting in this tendency, as pointed out by Dean Pound, are the adoption of the theory of binding precedents, resulting in "case-law equity," and the procedural changes whereby the distinction between law and equity has been abolished, so that both or either may be administered in the same court. Among the early movements in this direction was the adoption by the common-law courts of the equitable defense of fraud and misrepresentation. All of these factors have given renewed vigor to the maxim, Aequitas sequitur legem.

Recommended Citation

Glenn A. McCleary, DAMAGE AS REQUISITE TO RESCISSION FOR MISREPRESENTATION, 36 Mich. L. Rev. 1 (1937).
Available at: https://repository.law.umich.edu/mlr/vol36/iss1/2