Date: Wed, 16 Jul 2003 12:59:32 -0400

From: Jason Neyers

Subject: Formal Equality: A Clarification

Dear Colleagues,

Several people have e-mailed me saying that they were unsure what I meant in my use of the term "formal equality". What I meant was the principle that in private law "it does not matter if a decent [or poor] person has taken from a base [or rich] person, or a base [or rich] person from a decent [or poor] person ... Rather the law looks only at differences in the harm, and treats the people involved as equals." (Aristotle, NE, supra note 2 at 1132al-8)

I was wondering if anyone knew of a classic or modern case where the courts have said something to this effect explicitly. Of course, the principle is implicit in many cases such as those stating that matters of insurance have no relevance to issues of liability, or which insist on the need for factual causation even though tragedy has ensued, or which state that change of position is not a general hardship defence.

Any thoughts? Or in other words, how would you prove doctrinally (explicitly or implicitly) that this is indeed a principle of the private law if you were asked by a court/skeptical lawyer?

Jason

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