衡平法对没收租赁的救济管辖权——一个历史视角

M. Pawlowski
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摘要

本文试图追溯衡平法对没收租赁的救济管辖权从17世纪初的案例到今天的演变。尽管1806年决定的著名的Sanders v Pope案标志着一种更灵活(自由裁量)的衡平法救济方式的趋势,但在1811年Eldon勋爵(Lord Eldon)在Hill v Barclay案中作出判决后,这一趋势是短暂的,Eldon拒绝对因故意违反契约而被没收的租赁给予救济,即使该契约不涉及未能支付租金,即使该契约能够获得足够的赔偿。这种情况一直持续到1973年,当时上议院在Shiloh Spinners Ltd诉Harding案中借此机会审查了衡平法管辖权范围的整个问题,以缓解没收。所出现的是一种给予衡平法救济的原则性办法,这种办法不限于两种正统的救济类别:(a)没收权是作为支付租金的担保而插入的;(b)违约是由于欺诈、意外、错误或意外造成的。希洛案的裁决为对违反其他契约的行为给予救济铺平了道路,就像在租金的情况下一样,即防止没收,房东可能得到充分的补偿,并获得有关未来履行的适当承诺,因此没收条款仅仅是实现这些结果的保证。
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EQUITY’S JURISDICTION TO RELIEVE AGAINST FORFEITURE OF LEASES – AN HISTORICAL PERSPECTIVE
This article seeks to trace the evolution of equity’s jurisdiction to relieve against the forfeiture of leases from the early 17 th century cases through to the present day. Although the celebrated case of Sanders v Pope , decided in 1806, marked a trend towards a more flexible (discretionary) approach to equitable relief, this was to be short lived following Lord Eldon’s judgment in Hill v Barclay in 1811 declining to grant relief against forfeiture of a lease for a wilful breach of covenant not involving the failure to pay rent even where the same was capable of adequate compensation. This remained the position until 1973, when the House of Lords in Shiloh Spinners Ltd v Harding took the opportunity to review the whole question of the scope of equity’s jurisdiction to relieve against forfeiture. What emerged was a principled approach to the grant of equitable relief which was not limited to the two orthodox heads of relief: (a) where the right to forfeit was inserted by way of security for the payment of rent nd (b) where the breach had been occasioned by fraud, accident, mistake or surprise. The Shiloh ruling paved the way for the granting of relief for breaches of other covenants in the same way as that in the case of rent, namely, to prevent a forfeiture where the landlord may be adequately compensated and receive proper undertakings as to future performance, so that the forfeiture clause is merely security to achieve these results.
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