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1.6 Should Equity Be Assimilated Into the Common Law? 27 to the more flexible, equitable interpretation of the bar that rescission will be denied if the claimant cannot restore the defendant to their pre-contractual position. This would appear to be a situation, therefore, in which the Common Law is being assimilated with Equity. 1.6.3 Should Equity and the Common Law be assimilated? For a number of commentators 141 and judges, having two separate systems of law is illogi cal and unprincipled. Some commentators have analysed private law generally by refer ence to a scheme that makes no reference to Equity at all. The main proponent of this scheme was Professor Peter Birks, 142 who distinguished between events and responses. He identified four types of event that trigger responses in private law. These events are consent, wrongs, unjust enrichment, and other events. Equity has no specific place in this scheme but operates within each event, and it is for this reason, among others, that this scheme should be rejected as not providing a useful map with which to analyse private law. In particular, much of Equity has to fit within the fourth category, especially because the principle of unconscionability is undoubtedly an event that triggers an equitable re sponse, but is not founded on contract, wrongdoing, or unjust enrichment. 143 Once this is recognized, it becomes clear that there must be a distinct place for the recognition of equitable events within private law. For other judges and commentators, the very existence of two systems is not a matter of concern. For example, Lord Millett has said: 144 Those who favour the fusion of law and equity might perhaps reflect that the three greatest systems of jurisprudence in the Western world have all been dual systems. Jewish law had its written and oral law; Roman law its civil and praetorian or bonitary law; English law common law and equity. In each case the duality served a similar function. One system provided certainty; the other the necessary flexibility and adaptability to enable justice to be done. But the common law and equity are not two separate and parallel systems of law. The common law is a complete system of law which could stand alone, but which if not tempered by equity would often be productive of injustice; while equity is not a complete and independent system of law and could not stand alone. This is the preferable view. There is evidence of assimilation of the systems in certain areas, or perhaps this might be preferably characterized as cross-fertilization, but the continued existence of a separate body of law known as Equity is essential. For example, complete assimilation of Common Law and Equity would not result in the abolition of the trust, but would render its analysis much more complex, and the subtleties and nu ances of the law would be lost. 145 Kitto J has described Equity extra-judicially as follows: 146 141 See, especially, Burrows, ‘We Do This at Common Law but That in Equity’ (2002) 22 OJLS 1. See also Worthington, Equity (n 3), ch. 10. 142 See e.g. Birks, ‘Property, Unjust Enrichment and Tracing’ (2001) 54 CLP 231. 143 See Section 9.3.8, p. 308. 144 Millett, ‘Proprietary Restitution’ in Equity in Commercial Law , ed. Degeling and Edelman (Sydney: Law Book Co, 2005), 309. 145 See Virgo, ‘Restitution through the Looking Glass: Restitution within Equity and Equity within Restitution’ in Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn , ed. Getzler (Oxford: Oxford University Press, 2003), 106. See also Martin, ‘Fusion, Fallacy and Confusion: A Comparative Study’ [1994] Conv 13. 146 Kitto, ‘Foreword’ in Equity: Doctrine and Remedies , ed. Meagher, Gummow, and Lehane (London: Butterworths, 1975). © Oxford University Press

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