ABSTRACT
One of the principal interactions between commercial law and equity has been a desire on the part of commercial lawyers to keep equity out of commercial cases. 2 The thinking is this: the law dealing with commercial contracts requires certainty so that commercial people can transact with confidence as to the legal treatment of their activities. Consequently, it is said, discretionary remedies and equitable doctrines are likely to disturb commercial certainties and therefore should be avoided. This issue of certainty is typically linked by the judiciary to a need to protect the integrity of commercial contracts and not to allow other considerations to intrude unless absolutely necessary. The problem is said to be the intervention of some legal principle outwith the expectation of the parties. As Robert Goff LJ has said, recognising the need for certainty in commercial transactions: 3
It is of the utmost importance in commercial transactions that, if any particular event occurs which may affect the parties’ respective rights under a commercial contract, they should know where they stand. The court should so far as possible desist from placing obstacles in the way of either party ascertaining his legal position, if necessary with the aid of advice from a qualified lawyer, because it may be commercially desirable for action to be taken without delay, action which may be irrecoverable and which may have far-reaching consequences. It is for this reason, of course, that the English courts have time and again asserted the need for certainty in commercial transactions – the simple reason that the parties to such transactions are entitled to know where they stand, and to act accordingly.
