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Equity's Content Equity's Judgement

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Chapter Summary

?Legal judgement? must be distinguished from ?equity?s judgement?. The former takes place before a legal norm which is to be applied. ?Equity?s judgement?, by contrast, may be seen as an ?acephalian? syllogism. That is, one lacking in a major premise. This kind of acephalic syllogism which makes up equity Aristotle called ?rhetoric?. Equity?s judgement is always a ?relational? and ?relative? judgement; there are neither unconditionals nor absolutes where equity is concerned. The essential difference between legal and equity?s judgement derives from the pre-existence, or lack thereof, of a positive norm which, abstractly, foresees how a fact should be dealt with. The crucial point is whether the judge should weigh the litigious case submitted to his decision according to the norm or should he rather derive the norm from the case. The differences between legal and equity norms might be set out as follows: the latter are singular and subjective.

Keywords: equity's judgement; legal judgement



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