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The Equitable Doctrine by Lord Mersey - Essay Example

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In the paper “The Equitable Doctrine by Lord Mersey” the author analyzes the equitable doctrine prohibiting the imposition of a clog on the mortgagor's right to redeem. This landmark judgment has raised stout defenders and protagonists ever since it was proclaimed…
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The Equitable Doctrine by Lord Mersey
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Download file to see previous pages The reason for this issue being, and remaining, alive is embedded in the fact that Human Behavior is incorrigible. From time immemorial the strong have prevailed over the weak in more ways than one can conceive. Putting it mildly it has been called “persuasion”, while the advocated of downtrodden have declared it to be “oppression”. But in all cases the manipulation continues as a manifestation of our nature. No doubt the Ontologists will gleefully wring their hands at the opportunity to explain it, but let it rest for now, as this is not a philosophical discourse.
The root of this ailment lies in “need”. There always has been, and always will be a need by someone to borrow and a lender is always at hand to do the needful. This builds a case to be persuasive or oppressive, as the case maybe, and a clogging clause is gently forced in the agreement. Normally suspicion does not enter the mind at this stage, as the mind is already clogged with the urgency of the need,
So far so good, as the good old saying goes. But the situation takes a dramatic turn, when by a stroke of fortune, or misfortune as some may say, the borrower wishes to shed the shackles he has been wearing for some time. Suddenly he is faced with an unbelievable situation that he has already surrendered his right to freedom. That he has chosen to remain a slave to his master’s wishes dawns on him as rude shock, that there is a clause that prohibits the recovery of his security without penalties.
It is a moot question that the legal profession in all its wisdom now takes over. The ever-eager legal beagles find their bread and butter, overlooking the fact that it was indeed someone from their brotherhood that had earlier patronized the introduction of the clog and gave it a legal status.
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