Professor Matthew Harding presents

Professor Matthew Harding

Matthew Harding is a professor and Deputy Dean of the Melbourne Law School at the University of Melbourne.  He has taught and published widely in the fields of equity and trusts, land law, and the law of charities and not-for-profit organisations. Matthew is the author of Charity Law and the Liberal State (CUP 2014), and has co-edited major collections of essays on private law and not-for-profit law.  He is an editor of the Journal of Equity and the Chair of the Charity Law Association of Australia and New Zealand.  He has held visiting appointments at the University of Otago, Queen’s University Belfast, the University of Toronto and the University of the Western Cape.


Equity and the Value of Certainty in Commercial Life

This seminar questions the proposition that certain aspects of equity are inconsistent with the value of certainty in commercial life.  Professor Harding considers equity’s role in imposing legally enforceable norms on commercial parties.  To the extent that equity does this, it might be thought that equity interrupts and interferes with freely formed bargains and injects a degree of uncertainty into those bargains as a result.  Professor Harding argues that in some cases where equity imposes norms on commercial parties, uncertainty is generated not by equity but rather by contract law. Further, Professor Harding argues that in other cases, far from undermining commercial certainty, equity’s imposition of norms might in fact contribute to it.  Professor Harding will also consider the role of judicial discretion in equity.  To the extent that findings of liability in equity and the award of equitable remedies turn on exercises of judicial discretion, it might be suggested that in equity the outcomes of litigation are in some significant sense uncertain because they are unpredictable; and this unpredictability might be thought especially unwelcome to commercial parties who are repeat users of the courts and seek to factor litigation risk into their business planning.  Professor Harding will argue that there are reasons to question the proposition that equity tends to undermine commercial certainty because of the judicial discretion that is entailed in it.  These reasons point to the institutional settings in which equity is practised.