100% satisfaction guarantee Immediately available after payment Both online and in PDF No strings attached
logo-home
Equity and Trusts SQE1 FLK £30.49   Add to cart

Lecture notes

Equity and Trusts SQE1 FLK

 8 views  0 purchase

Hello! These notes are a complete review of the SQE1 course from the University of Law. They contain everything you need to know to pass. I successfully completed both SQE1 and SQE2 both times and I attribute it to these notes which were incredibly effective when reviewing prior to the exams.

Preview 3 out of 18  pages

  • January 31, 2024
  • 18
  • 2023/2024
  • Lecture notes
  • University of law
  • All classes
  • flk
  • sqe
  • sqe1
All documents for this subject (155)
avatar-seller
alexmclements
Equity and Trusts Exam Review
- Reference Australian and Canadian law, show higher thinking and comparative analysis!

Tradition of equity and it’s place in modern law  Leonel
Smith
Historical understanding
 Aristotle: equitable justice is a correction of law due to the law’s universality and generality
o Comparing what is equitable and what is just. He says that the problem is that the
equitable is just, but not necessarily legally just but instead possibly a correction of legal
justice. The reason is that all law is universal but laws cannot cover all possibilities,
which means the legislator has failed by oversimplifying the law.
o The equitable is just and better than legal justice but not better than absolute justice
because errors can arise from the absoluteness of a statement of justice.
 Maitland: believes that Equity cannot be defined
 Christopher St. Germain
o The key to understanding equity is conscience. Christopher St. Germain argued that "the
circumstances of human life are so infinitely various that it is impossible to make a
general rule which will cover them all." Argued that equity based upon conscience is
necessary for any legal system to preserve justice.
o Ties in well with Earl of Oxford’s Case (1615):
 The Lord Chancellor held: "The Cause why there is Chancery is, for that Mens
Actions are so divers[e] and infinite, that it is impossible to make any general
Law which may aptly meet with every particular Act, and not fail in some
Circumstances."
 The judgment stresses that the legal position for chancery (equity) is tempered
to dealing with failures in the common law.
 Law and Equity are distinct, both in their Courts, their Judges, and the Rules of
Justice; and yet they both aim at one and the same End, which is, to do Right; as
Justice and Mercy differ in their Effects and Operations, yet both join in the
Manifestation of God's Glory

Common law vs equity  fusion of Equity and Common Law
 Significance of acting in personam: when common aw and equity are in conflict, Equity prevails
over the law – it does not take away the common law judgement, but makes it unenforceable
 Common law vs equity
o Common law is based on precedence and the courts’ decisions. Essentially, it is a
generalization of the law. Based on jurisdiction. Distinguishes between case law and
legislation.
o Equity is the system of law designed to offer remedies for wrongs which for any reasons
are not legally recognized under the common law of England or for which no adequate
remedy was provided by the common law  in certain circumstances, is founded on
discretion.
 Procedural fusion – Judicature Acts of 1873 and 1875

, o Created a new High Court of Justice
o Introduced a new Divisional structure where work was divided according to areas of
practice rather than jurisdiction
o Equity after 1873: the problem of substantive fusion
 Practical problem  differences between substantive rules from Common Law
and Equity
 Ex.
 Damages vs equitable compensation
 Strict restitution at law vs knowing receipt in equity
 Personal remedies at law vs proprietary relief in equity
 Equity as a distinct tradition
o Intervenes due to inadequacy of law and legal remedies
o Principle and language of conscience/unconscionability
o Discretion and flexibility
o Maxims, techniques and values
 Equity acts in personam
 Equity looks to substance rather than form
 Equity regards as done that which ought to be done
 Creative jurisdiction
 Worthington on Equity
o Rules and their natural evolution
 It is universally recognized that any general rule will inevitably operate unfairly
in certain circumstances  effective rule evolution is commonly based on
repeated practical experience
 There must be coherence or chaos will ensue
 The best systems of rules usually evolve within an integrated hierarchy, not a
dualist structure
o Originally, Equity was only called upon to intervene when the Common Law rules were
seen to be inadequate
 The common law and Equity adopted quite different remedial strategies 
Equity usually orders the D to do something
 Another difference between the Common Law and Equity is in the different
enforcement techniques
o What four differences does Worthington identify between common law and equity?
 Purpose
 Procedural differences: Common Law tends to be more formal with the writs,
Equity has a sense of informality and liquidity
 Remedial strategies: Common Law usually gave out compensation (what you
possess – links back to legal rights), while Equity usually orders the D to do
something (acts in personnam)  historically, consequences of failure to listen
to an Equitable order led to being held in contempt of court and possibly jailed,
whereas in common law you would be stripped of assets

,  Enforcement techniques: when Common Law and Equity are in conflict, Equity
prevails over the law  acts in personam: does not take away the common law
judgement, but makes it unenforceable
o Worthington’s project
 The unremitting goal is to keep evolving an increasingly sophisticated legal
regime designed to best fit the society’s ever-evolving needs
 If Equity was not its separate system, it would still survive (fusionist approach)
 Objectives:
 1) Expose Equities influences on the modern legal landscape 
understanding of Equity as something that is part of other legal
traditions, rather than distinct
 2) Expose the integration of Equity and Common Law  wants to show
that Equity is part of common law, goes against the idea that they are
two separate and unintegrate-able systems (ie. one influences the
other)
 Smith on fusion and tradition
o There is irrationality in inconsistency in legal systems  so, it makes sense that alike
cases must be resolved similarly
o Although the principles of Equity do not constitute a complete system of law, it seems
clear enough that Equity constitutes a legal tradition distinct from the common law
 It developed differently and for different reasons
 A legal tradition means that boundaries (set out by the system) are followed,
which means rules are upheld  may be too strict and lead to a situation where
the tradition remains unchangeable and does not reflect the changes in society
 Certainty may be brought into question. Boundaries may not be precise.
o What does Equity provide which the common law differs from?
 Many argue that it is unproductive to have two sets of terminology or concepts
in play
 It is not true that Equity is flexible while the common law is rigid  reductionist
approach is largely inaccurate
 Some argue that Equity is a conscience-based jurisdiction
 Differences of underlying moral norms
 The common law, in the narrow sense admits that there is a possibility
that someone can commit a wrongful act by interfering with the
fulfilment of another person’s obligation
 In Equity, people are bound by other people’s obligations – not bound
to perform them, but bound not to interfere with them
 Equity inquires into good faith (ex. a white lie and a malicious one)
 David Hayton on equity
o Equity often forces the man to act like a good man, while common law allows someone
to be a bad man  look at Aristotle’s ‘equitable man’
o Ex. conscience in Equity, motives (good faith), discretion is prominent in Equity

The benefits of buying summaries with Stuvia:

Guaranteed quality through customer reviews

Guaranteed quality through customer reviews

Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.

Quick and easy check-out

Quick and easy check-out

You can quickly pay through credit card for the summaries. There is no membership needed.

Focus on what matters

Focus on what matters

Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!

Frequently asked questions

What do I get when I buy this document?

You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.

Satisfaction guarantee: how does it work?

Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.

Who am I buying these notes from?

Stuvia is a marketplace, so you are not buying this document from us, but from seller alexmclements. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy these notes for £30.49. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

84669 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy revision notes and other study material for 14 years now

Start selling
£30.49
  • (0)
  Add to cart