Equity in Commercial Law by Simone Degeling and James Edelman (eds)
| Published date | 01 January 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00631_1.x |
| Date | 01 January 2007 |
an open invitation, whatever one’s ultimate interests, to think about what and
who we are’ (p. 200).This relaxed but mature work reveals Lawrence Rosen ^
perhapsu nexpectedly ^ as a romantic; but it is an important book, makingit well
worthwhile to take time o¡ from thinking about law only as framing structures
of domination and as the preserve of a specialist service profession.
Simon Roberts
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Simone Degeling and James Edelman (eds),Equity in Commercial Law,Sydney:
Lawbook Co, 2005, 518 pp þindex, hb $175.00AUS
The inspiration for this excellent set of nineteen essays was a conference on the
topic of fusion organised by the editors in Sydney in December, 200 4.The idea
of fusion never fails to ignite the tinder of academic interest with dramatic
exothermic e¡ects, but, as Justice McLachlin points out in her foreword, it also
engages the pragmatic interest of practitioners and judges by raising contempor-
ary questions about the role of equitable doctrines and remedies in the ¢eld of
commercial law.
The vigorous debates which rage throughout the book about the role of equi ty
in commerce are therefore not simply historic and abstract, but concrete, salient
and immanently important.Their outcome a¡ects the equilibriumbetween £ex-
ibility and certainty in commercial rules and standards; the balance between
property and obligation (with its attendant implications for third party interests
and priorities in insolvency); the proper approach to choice of law questions; the
standards of liability attaching to recipients of misappropriated funds; the strin-
gency of causal and remoteness principles attaching to compensatory awards in
cases of ¢duciary wrongdoing; and the vulnerability of such ¢duciaries topuni-
tive damages, to name but a few key matters. Practitioners and academics alike
will bene¢t from the rigorous attention they receive here and the appeal of the
book is appropriately cross-jurisdictional in the sense that it draws on material
from England, Canada, Australia and New Zealand. Originally intended to
include a contribution from the late Professor Birks, it is ¢ttingly dedicated to
his memory. The passion for disciplined rationality which was a central tenet of
Birks’ work and his lasting legacy represents the dominant force behind all exer-
cises in ‘fusion,’ whether at the level of language, procedure, remedyor right. It is,
in an important sense, the standard to which all those who resist ‘fusion’ must
respond.
The book is divided into two clear parts.The ¢rst, more historical and analy-
tical partaddresses the fusion debate in its ownterms.Whilst all acceptthe force of
the argument that like cases should be treated alike, material di¡erences persist in
the extent to which convergencebetween equitable and legal principles is consid-
ered desirable. Sir Anthony Mason (chapter 1) makes the point that rationality
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Law Department,London School of Economics and Political Science.
Reviews
163
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(1)MLR 161^174
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