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Summary Nature of Equity - Equity & Trusts Law (LLB)

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  • Equity And Trust
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Nature of Equity (Introduction) Summarised Notes for the Equity and Trusts Law module, LLB, at City, University of London (achieved a 1st class using these) - can of course be used for other universities as well! Should be used with the full bundle of notes!

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Document information

  • May 21, 2020
  • 4
  • 2018/2019
  • Summary

Subjects

  • equity and trust
  • equity
  • trust
  • law
  • llb
  • llb
  • university
  • introduction
  • nature of equity
  • city university

Written for

  • City University (City)
  • LLB Law
  • Equity And Trust
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THE NATURE OF EQUITY

NATURE OF EQUALITY
 Equity= system for certainty in rule-making to achieve fair results in individual circumstances,
common law less strict to prevent injustice to individual cases
 Conscious is key, law either prevents any benefit growing to D due to some unconscionable
conduct or compensate any loss suffered by claimant from some unconscionable conduct
 Equity allows courts with discretion to disapply statutory or common law rules whenever good
conscious requires it – but modern permits limited amount of discretion
 Ensures fairness on moral basis – Lord Ellesmere in Earl of Oxford’s case “correct men’s
consciences for frauds, breach of trusts, wrongs and oppressions.. and soften extremity of law”
 Understanding equity’s role in English legal system
oCollection of substantive principles developed over centuries by Courts of Equity (mainly Court of
Chancery) to judge people’s consciences
oHas procedural rules developed by Courts of Chancery under Lord Chancellor
 Equity balances the rigidity of common law, flexibility allows to cope with social developments
 Most significant early case in equity in England – The Earl of Oxford’s case – uses concepts from
Aristotle, where justice in some circumstances the creator of rules could not have anticipated
oARISTOTLE “For equity, though superior to justice, is still…justice and equity coincide, and
although both are good, equity is superior. What causes the difficulty is the fact that equity is
just, but not what is legally just. It is a rectification of legal justice” (tailors to individual cases) +
shows where statute or common law fails to anticipate a situation or create unfairness then
equity would intervene
 Early Lord Chancellors were bishops and therefore were more religious conscience until 17 th
century
 ‘Conscience’= with knowledge – control for things you have done wrong
 Conscience comes from objective stimuli, outside mind, so courts position to judge a person’s
conscience
 Equity undertakes a moral task to prevent individuals benefitting from taking bribes, fraud etc –
Lord Chancellor Cowper states equity as a moral virtue similar to Aristotle who says equity
prevents any unfairness which might otherwise arise from rigid application of legal rules

Effect of Judicature Act 1873
 Before Act litigant had to decide whether claim related to common law or equity if selected
wrong jurisdiction than claim would be thrown out and sent to other court. Judges were known
for delays in reaching their judgements which would take several years
 By 1873 pressure for reform, Dickens played pivotal role led to Judicature Act 1873. 2 aims of
fusing equity and common law (by any court to award common law or equitable remedies), and
reorganise the courts with proceedings beginning in High Court divided into the divisions today
o s.25 of Judicature Act provided in all matters where there is any conflict between rules of equity
and rules of common law, rules of equity shall prevail
o Earl of Oxford’s case thus received statutory form
o Equity functions now on doctrine of precedent but not due to 1873 Act; until 1873 Act no more
clear distinction between sets of courts of common law and equity courts empowered to
apply both

Common law and equity has distinct claims and distinct remedies
 E.g. of Common law claims: breach of contract, negligence, fraud
 E.g. of Common law remedies: damages, common law tracing, money had and received
 E.g. of Equity claims: breach of trust, tracing property, claiming property on insolvency




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