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Lecture notes Equity And Trusts (M3027)
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EQUITY AND TRUST COMPLETE LECUTE NOTESM3027
TOPIC ONE: INTRODUCTION TO EQUITY AND TRUSTS
Equitable Remedies
TOPIC TWO: INTRODUCTION TO THE TRUST
The Settlor, the Trustee, and the Beneficiary.
TOPIC THREE: WRITTEN FORMALITIES AND THE CONSTITUTION OF THE
TRUST
FORMALITIES REQUIRED WHEN CREATING A TRUST
TOPIC FOUR: THE BENEFICIARY PRINCIPLE AND UNINCORPORATED
ASSOCIATIONS (private purpose trusts)
TOPIC FIVE: CHARITIES (public purpose trusts)
TOPIC SIX: IMPLIED OR IMPUTED TRUSTS - RESULTING TRUSTS
TOPIC SEVEN: IMPLIED OR IMPUTED TRUSTS – THE COMMON INTENTION
CONSTRUCTIVE TRUST
TOPIC EIGHT: TRUSTEES DUTIES / FIDUCIARIES DUTIES AND BREACH
TOPIC NINE: ACCESSORY LIABILITY AND TRACING
,TOPIC ONE: INTRODUCTION TO EQUITY AND TRUSTS
Equitable Remedies
Introduction
- Putting into practice and separate what is legal, what the law is, and what is equitable.
- To understand what a trust is we need to understand what equity is and how the trust
arose.
- The trust is a mechanism that is used to hold and manage property.
o A way of managing, holding and splitting property. And this property can be
anything - from a coffee to a house.
- Connection to land law, these are modules about property. A trust is a mechanism for
owning / managing a property. Not necessarily just land.
- Separate but intertwined concepts.
- What is equitable and what is legal.
- Trust is a device used to hold and manage property. Splitting ownership of property
and this property can be anything, it’s not just land.
WHAT IS EQUITY
“Equity can be described as the body of rules which evolved from those rules applied and
administered by the Court of Chancery before the Judicature Acts 1873 and 1875” per
Hayton & Marshall
Dudley (Lord) v Dudley (Lady)
“Now, equity is no part of the law, but a moral virtue, which qualifies, moderates and
reforms the rigour, hardness and the edge of the law and is a universal truth; it does also
assist the law where it is defective and weak in the constitution[…] and defends the law from
crafty evasions, delusions and new subtleties invested and contrived to evade and delude the
common law, whereby, such as have undoubted right are made remediless: and this is the
office of equity, to support and protect the common law from shifts and crafty contrivances
against the justice of the law. Equity therefore does not destroy the law, nor create it, but
assists it.” per Lord Cowper LC.
- What is this quote saying?
o It is a description of what equity does and the relationship is has with the law.
Equity exists to supplement the law. To rectify situations where the law, the
legal remedy, might fall short of doing justice, or that equity can step in where
someone is trying to use the law for improper or immoral purposes.
Sometimes the application of the law is not all fair, this is where equity can
step in to modify the edge of the law.
HISTORICAL DELEVLOPMENT OF EQUITY
, - Starting point is 1066, at the Norman conquest which changed the way law was
administered in this country. In the period between 1066 – 1873 equity came into
existence, separate form and alongside the law. Courts were administrating the
common law - legal remedies. Alongside these courts was the birth of equity. Another
judication and another court at one time which administered slightly different rules of
law, and outcomes. There was a clash between these courts. Common lawyers and
judges did not like that this other court was giving different answers to legal
questions. There was a political clash of power. Before the Judicature Acts this was
all very separate and in conflict. The Earl of Oxfords case, and the Judicature Acts
settled the way the law and equity were administered, together in one court now. Still
separate, but in one court, and how the rules that come from this legislation are the
same that we have today. Now administered in one court.
From “a patchwork of tribal customs” (Hudson) to a system of law that is common to the
entire realm
- Before the Norman conquest of 1066, Hudson describes the administration of the law
in England as “a patchwork of tribal customs” (Hudson) applied unevenly. The
Normans then in 1066 introduced a whole new legal system. The Normans in
changing the way law was administered, strode to make the same legal principles, the
same law, applicable throughout the land. To make the law and its application
common to the entire realm. Before the Norman invasion, the law was applied locally,
and was different across the country, no connection or communication of what was
being decided. Now when a case is decided you can read about it in the law reports.
This was a long time before that, meaning there was no idea of everything being done
the same.
Example (made up by professor)– if someone trespassed on your land in Cornwall, they
would have their legs removed, where if someone trespassed in Manchester you might have
gone to jail for a week. There was no connection, or universality in the application of the law.
It was different and local everywhere; this is what Hudson describes as a patchwork of tribal
customs applied unevenly. The Normans did not like this. It was untidy and unfair. If you
want a law for people to respect, and adhere to, it needs to be applied universally. Same to all
people. If you trespass in Cornwall, you know what the law is going to be, and it will be the
same everywhere. This at the ever-basic level is the idea of a common law system. The idea
that the law is applied commonly to everybody. This is the LAW, not equity.
Where does equity come in? The Lord Chancellor as the keeper of the King’s conscience and
keeper of the King’s seal
This attempt to change everything to common after 1066 meant the court system,
remained an itinerant system. By the 12th century, most cases were heard in local shire courts,
by local lords. To manage this affectively, the king who was sovereign at the time, the king
and his court had to travel to administer government and dispensing justice. They were
checking out what has happening in different locations in relation to the law. Making sure
what was done in the last place is done in the new place. By the end of the 12th century, they
had so successfully superimposed a single system, on this former multiplicity of local
, customs. There is reference to be found at the end of the 12th centuries in court records to the
custom of the kingdom.
By the 13th century, the first permanent common law courts began to emerge. The
court of Exchequer, The court of Common Pleas, and the Kings Bench. Moving away from
local courts, to looking to have permanent courts where this law is being applied. There
began this centralization, which is what we have today. A centralization of legal authority.
and importantly, growing institutional authority for these new courts. They are assuming not
only the role of applying the law, but with that comes great institutional power and authority.
To commence an action in one of these courts, a person had to have an a rit – a claim
form. There is a process, you do not just go in saying something is wrong. You had to be
issued with a rit. Decided the cause of action, the form of action. Meaning, what is it you are
complaining about? What right is it that you allege has been infringed? Has someone
trespassed on your land, injured you? What is the cause of action? At one time, in the
beginning of these courts, the rit would be handwritten, bespoke, meaning whatever your
problem was that you wanted the judge to settle on, you would decide it. We did not have a
list of causes of action. It was especially for you and whatever your problem was. This is not
efficient, and as the system became successful, as more people started to use the court
system, the rit system of doing it individually on a bespoke basis became incredibly
inefficient. So, they streamlined the causes of action, making the system more effective. You
had to come in and say, THIS is what happened, someone has trespassed, someone has run
me over, instead of just describing the issue. But if the thing that has happened to you that
you wished to get access to the court for, was not on the list of causes of action, you did not
get into court. The system became a victim of its own success. Because more people are
coming to use the system, but because it became so busy, the streamlining effectively meant
that some people were now note getting access to the common law court. Because the wrong
was not on this list of claims. In a good justice system, we do not want this, but this still
happens today. If your grievance did not match one of these forms, the law was not helpful.
The Lord Chancellor. Courts of Chancery – the court of equity.
One of the most important members of the Kings court. A role we still have today.
This was normally a political ally of the King. The chancellor has the Kings ear. The Keeper
of the Kings Conscious. This idea of conscious is very important when it comes to equity.
This affectively gives him power to act on behalf of the King. This gives him the power to
issue a different type of rit from those issued in the common law courts - a royal rit, on
behalf of the King. These royal rits were issued by the chancellor to deal with particular
issues. He did not get involved with the day to day run in of the legal system. He was
interested in issues that would threaten the court. With issues that fell within the kings
propagative. The king in turn was concerned with a number of matters.
Matters falling within the King’s prerogative:
- Treason
- Murder
- Unjust judgments
This is the beginning of Equity. The Chancellor had the power to deal with unjust
judgements or a default of justice. Where a legal decision had been taken and was just wrong
and unjust, the Chancellor on behalf of the King had an interest in that. Where justice had not
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