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11 - What is left of equity's relief against forfeiture?

Published online by Cambridge University Press:  10 November 2010

Elise Bant
Affiliation:
University of Melbourne
Matthew Harding
Affiliation:
University of Melbourne
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Summary

All law students learn about equity's jurisdiction to relieve against forfeiture. Suppose a purchaser has paid 90 per cent of the instalments on a diamond necklace, but defaults on the final instalment. Should the vendor be able to terminate the contract for breach and keep both the necklace and the instalments? Many would think that result patently unfair, and that the law should protect the purchaser from ‘forfeiture’ of the necklace, or at least from ‘forfeiture’ of the instalments already paid. But is the outcome unfair? Or, more pointedly, is it always unfair? Does it make any difference that the contract is for a necklace rather than for some other benefit? Or that 90 per cent rather than 5 per cent of the instalments have been paid? Or that the purchaser is never going to be able to find the additional money? Or that the contract itself expressly provides for termination and forfeiture, and has been freely negotiated between competent parties? And if the outcome is unfair, which of the ‘forfeitures’ should be remedied? Is the proper solution to give the purchaser extra time to find the final instalment and complete the contract (also paying for any consequential damage to the vendor because of the delay), so that she gets her necklace, or is it to allow the vendor to terminate the sale agreement but compel him to return the instalments? These are the puzzles in ‘equity's relief against forfeiture’.

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Exploring Private Law , pp. 249 - 274
Publisher: Cambridge University Press
Print publication year: 2010

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References

Harpum, C, ‘Relief against Forfeiture and the Purchaser of Land’ [1984] 43 CLJ134CrossRefGoogle Scholar
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Smith, L, ‘Relief Against Forfeiture: A Restatement’ [2001] 60 CLJ178CrossRefGoogle Scholar
Bryan, M, ‘Equitable Relief from Forfeiture: Performance or Restitution?’ in Rickett, CEF (ed), Justifying Private Law Remedies (Hart Publishing, Oxford 2008) 363Google Scholar
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Worthington, S, Proprietary Interests in Commercial Transactions (Oxford University Press, Oxford 1996) 27–33Google Scholar
Birks, P, An Introduction to the Law of Restitution (rev'd edn Oxford University Press, Oxford 1989) 242–8Google Scholar
Burrows, A, The Law of Restitution (2nd edn Butterworths LexisNexis, London 2002) 333–6Google Scholar

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