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Equity's Limits

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Chapter Summary

There is a limit to the use of equity: there is discretion used, it is true, but this does not imply arbitrariness. It sometimes happens that equity, rather than being applied to legal norms, is inspired by the norms, as well as by considerations of justice and of fact. In spite of the singular character of equity?s judgement, when compared to legal judgement, the judge should make every effort to lead discretional judgement in general?and equitable judgement, in particular?back to positive bases?at least to the overriding principles upon which the legal system is founded, those proclaimed in the Constitution, the law of laws. As we mentioned before, this is what LUIS SÁNCHEZ AGESTA called a ?super-law?.

Keywords: comparative law; equity

10.1163/ej.9789004164635.i-336.32
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