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Philosophical Foundations of the Law of Equity$
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Dennis Klimchuk, Irit Samet, and Henry E. Smith

Print publication date: 2020

Print ISBN-13: 9780198817659

Published to Oxford Scholarship Online: June 2020

DOI: 10.1093/oso/9780198817659.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 03 December 2021

Some Varieties of Consent in Equity

Some Varieties of Consent in Equity

Enhancing and Protecting Autonomy?

Chapter:
(p.313) 15 Some Varieties of Consent in Equity
Source:
Philosophical Foundations of the Law of Equity
Author(s):

Simone Degeling

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198817659.003.0016

This chapter studies the role of equity in preserving the autonomy of vulnerable members of the community. It focuses on the equitable domains of trusts, fiduciary relationships, undue influence, and unconscionability, where an imbalance of power exists in which one party has only limited or bounded ability to make decisions. Equity takes great care to protect the independence aspect of autonomous decision, but is less concerned about the availability of choice between meaningful options. A party will be deemed by equity as consenting if their agreement is anchored in freedom and information. Thus, great care is taken by the Courts of Chancery to ensure that no impediment to the exercise of the claimant's will was present in the circumstance. In addition, relevant information must be provided, and at times nothing less than independent advice from a third party would satisfy this requirement. Equity thus conscripts its particularistic nature to offer strong protection for two elements that are crucial for autonomous decision-making: freedom from coercion and information.

Keywords:   equity, autonomy, trusts, fiduciary relationships, undue influence, unconscionability, autonomous decision, Courts of Chancery, autonomous decision-making

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