The equitable doctrine
Has the equitable doctrine outlived its significance?
The equitable doctrine prohibiting the imposition of a clog on a mortgagor's correct to redeem was described by Lord Mersey in Kreglinger v New Pattagonia Meat and Cold Storage Co Ltd [1914] AC 25 at 46 as "like an unruly dog, which, if not securely chained to its unique kennel, is prone to wander into places wherever it ought not to be".
This landmark judgment has raised stout defenders and protagonists ever since it was proclaimed. Throughout the last century and up to now there have been unending arguments and pros and cons over a issue. Significantly, this really is likely to continue from the foreseeable future as well.
The reason for this issue being, and remaining, alive is embedded during the simple fact that Human Behavior is incorrigible. From time immemorial the powerful have prevailed over the weak in far more ways than 1 can conceive. Putting it mildly it has been called “persuasion”, though the advocated of downtrodden have declared it to become “oppression”. But in all cases the manipulation continues like a manifestation of our nature. No doubt the Ontologists will gleefully wring their hands at the opportunity to explain it, but enable it rest for now, as this can be not a philosophical discourse.
The root of this ailment lies in “need”. There often has been, and often is going to be a need by somebody to borrow including a lender is often at hand to perform the needful. This builds a case to become persuasive or oppressive, as the situation maybe, and a clogging clause is gently forced from the agreement. Commonly suspicion does not enter the mind at this stage, as the mind is already clogged with the urgency in the need,
So far so good, as the excellent old saying goes. But the case takes a dramatic turn, once by a stroke of fortune, or misfortune as some might say, the borrower wishes to shed the shackles he has been wearing for some time. Suddenly he is faced with an unbelievable case that he has already surrendered his appropriate to freedom. That he has chosen to remain a slave to his master’s wishes dawns on him as rude shock. That, there is a clause that prohibits the recovery of his security without penalties.
It is really a moot question that the legal profession in all its wisdom now takes over. The ever-eager legal beagles discover their bread and butter, overlooking the fact that it was indeed an individual from their brotherhood that had earlier patronized the introduction of the clog and gave it a legal status.
The question that arises, has the doctrine outlived its importance or does the borrower nevertheless need protection inside the risks presented by an avaricious lender?
In this age on the informed consumer, with an explosion of data out there to him, the theory of lassaise faire or customer beware needs to be redundant. So much is recognized through education, print media as well as the internet, that the borrower need to not need anybody to factor out that he is putting his neck within the noose by accepting a clog in the agreement or contract.
It just isn't that in all cases the borrower is unaware of the clog, while it must be conceded that sometimes a clog is slipped through even though he accepts the agreement in good faith. It also occurs that he fails to recognize the consequences of his acceptance.
Why then must he not be penalized for his ignorance or effortless mindedness? Certainly he is expected being aware in this age.
Why then the need of a law that takes upon itself the responsibility of setting aside a situation that has been earlier agreed to by the borrower himself.
Before we attempt to judge the statement and draw conclusions, enable us set down the details that eventually result in this doctrine.
Borrowing, lending and securitizing this sort of transactions through a mortgage is a historical fact. The methods have changed on the period of time and been largely influenced by the advances that civilization has created more than the centuries.
We see that inside the earlier stages of our culture mortgage was a token of pressure on the borrower to return the loan. Justice, far more widely identified as Moral Code, was comparatively effortless and was omnipresent. It was understood by our ancient fathers that fairness was the basis of transaction along with relationships.
Traveling down time we find that inside the last century this thought of Moral Law was fine-tuned to be termed as Equity. Equity has been defined as Natural Justice. Like the previous notion of satisfying require from the procedure of borrowing and lending, equity as well is an associated thought that these kinds of a transaction should be according to natural justice, that is the progression in the earlier moral code.
It just isn't out of location to mention that the Church gave this Moral Code or Equity a really high pedestal to sleep upon. This gave equity a sanction that was later identified by the judiciary and resulted within the doctrine, that may be now becoming questioned.
The Church has grown towards largest institution today. In terms of numbers, it has the largest right after and growing, yet it's the commonly the last being resorted for decisions in any matter of economical or political significance. Indeed inside sphere of social needs as well it has lost much of its relevance in this age of liberalization.
However, the 1 area how the Church’s dictat has been able to keep its high is Equity. The civilized world, in a single voice, holds that Reality and Justice are paramount. That practice differs from declarations is evident in the fact that we have the require in the doctrine to rein in individuals who go astray.
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