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39 Dick. L. Rev. 211 (October 1934 to June 1935)
The Balance of Convenience Doctrine

handle is hein.journals/dlr39 and id is 217 raw text is: THE BALANCE OF CONVENIENCE DOCTRINE FREDERICK G. McKEAN* The concept of convenience is, in all likelihood, one of the most prolific sources of law, for we find vast bodies of doctrine based upon notions of con- venience; such as, the rule imposing the burden of proof or onus probandi upon him who substantially alleges the affirmative of a proposition; the rule de min- imis non curat lex; divers maxims; and numerous rules of presumption. Speci- fically the subject of these notes is a principle developed in English equity, probably indigenous; but at the same time the student of comparative law may observe a parallel growth in at least a few civil law jurisdictions such as Louisiana, Quebec, Scotland and South Africa. At the outset of this discussion it must be acknowledged that there is a conflict of authority as to the solution of numerous questions involving the subject of this paper. So much is this the case that committees framing moot court cases can find much suitable material in this topic which is ad- mirably suitable for debate. If however, we bear in mind the principle voiced by the brilliant Sir George Jessel. that the rules of courts of equity were in- vented for the purpose of securing the better administration of justice;1 it may prove possible to extract a few rules, characteristic of the practical working of the doctrine, which will be serviceable in dealing with questions as to the applicability of the principle. Employing the Jessel observation as a pole-star it is fairly obvious that the balance of convenience principle is seldom prim- ary or fundamental, but is generally subsidiary or accessory, and frequently unnecessary to the disposition of reported cases in which the expression bal- ance of convenience has been employed as a stock phrase. Furthermore, there are many conditions in which it would be manifestly unjust and squarely opposed to current morality and present-day public policy for a chancellor even to consider comparative convenience or inconvenience where injunctive relief is sought. Hence it is not surprising to find a preponderance of author- ity supporting the proposition that in equitable proceedings the balance of con- *LL.B., Harvard University, 1897; Judge of District Court of Virgin Islands of United States, 1920-1924. Member of Pennsylvania Bar. Contributor to numerous legal periodicals. 'In re Hallett, 13 Ch. D. 696, 710 (Eng. 1879).

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