Law System Equity

Nevertheless, over time, a consensus has create in western courtlyization that the rigors of the law need to be leavened or eased by more familiar concepts of fairness or natural justice.

Classical notions of candour. Aristotle's concept of equity or epieikeia was that "though just, [it] is not good justice, but a rectification of legal justice" . . . "equity is justice that goes beyond the written law" and "embodies the highest justice because it is flexible and gives priority to the essential situation" of the persons involved and is faithful to "the spirit of the law" (Peter Charles Hoffer, The Law's moral sense Equitable makeupalism in America 8 (1990); and Gary L. McDowell, Equity and the Constitution The Supreme Court, Equitable Relief, and Public Policy 16-17 (1982)).

The Romans agreed with Aristotle that equity, aequitas, delineate universal principles which went beyond the letter of the law. That law, which Cicero said is "right causa", derived its force from nature and "establishes justice." (Cicero, On the Laws, Book I, ch. 12, 412-413 in The immanent Law Reader, at 57 (Brendan F. Brown ed., 1960)). Always practical, the Romans added to their commercial codes the equitable concepts of good faith (bona fide) and full disclosure.

Antecedents in incline Law. One of the translators of Roman natural law to England

Harry G. Prince, "Unconscionability in California: A expect for Restraint and Consistency," 46 Hastings L.J. 460-554 (Jan. 1995).

Use of Arbitration as an Alternative Dispute Resolution Technique. Arbitration and early(a) choice dispute resolution (ADR) techniques are designed to supplement the legal system and to provide an alternative to it in much the alike way as the Courts of Chancery did during the middle ages.

The growing popularity and change magnitude use of arbitration and other ADR techniques suggest that it (and they) corresponds to a felt up need for an alternative system of justice to the regular lawcourt system at least in certain types of civil cases.

However, even in cases involving two business firms, the doctrine of unconscionability has been utilize when the overreaching is very great, such as in weaverbird v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971), where a large anele company required a service station proprietor to indemnify it against the oil company's own negligence or, in other cases, if there is strong evidence of 'sharp practice' by the stronger party. For example, the creditor in ITT Indus. impute Co. v. Alex Cowley's Ballroom, Inc., 726 F.2d 1559, 1561 (11th Cir. 1984), obtained the guarantee of a wife and a mother in law on a debt without ever showing them the primal loan documents.

Weichert Realtors v. Ryan, 128 N,J, 427, 608 A.2d 280 (Supr. Ct. N.J. 1992).

Black's Law Dictionary (4th ed., 1951).

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