What is equity and Trusts law - Lecture one

• Discuss the origins of equity

  • Before the Norman conquest of 1066 system of 'custom' was applied, different regions had various ways of applying the law
  • To claim the court, claimants used writs, writs = inflexible. Claimant could not change it after it was sent
  • King delegated his role to the Lord Chancellor (decided if a case was CM law or not)
  • CM provided limited remedies i.e monetary damages
  • the court of chancery was created by the LC and equity= created because CM was rigid
• Further, discuss the origins of equity

  • equity and common law existed as two separate jurisdictions before the Judicature Act of 1873/1875
  • before, the two had opposing conclusions and there were tensions between the two laws
  • The Oxford case stated that If there was a conflict between equity and common law, equity would prevail.
• What did the Chancery courts function as?

  • courts of conscience
  • In 1452 Fortescue CJ stated 'We are here to argue conscience here, not the law'
  • Lord Ellesmere LC in the Earl of Oxford's case argues - that the office of the chancellor (equity) is to correct men's conscience for frauds, breach of trusts, wrongs and oppression... and to soften and mollify the extremity of the law'
• Discuss Lord Selden's view on equity

  • 'equity is a roguish thing. For common law, we have a measure... Equity is according to the conscience of him that is Chancellor, and as that is longer or narrower, so is equity.'
• Describe the Earl of Oxford's case

  • concerned with a grant of land made to the Magdalene College, Cambridge
  • strict statute laws about how universities could dispose of land
  • Queen Elizabeth I wanted the college to be able to make a profit
  • they created a plan where the college sold her land she leased the land for development
  • this led to conflict again some years later for the same bit of land
  • one obtained a judgment in the common law, the other in the courts of equity
  • one of the two had to prevail, therefore equity prevailed.
• What is the law of equity?

  • used when the application of common law does not produce a fair outcome/when common law leaves certain gaps that equity fills to do justice
  • common law sometimes may do injustice as it strictly follows precedent and in some individual cases, this may be unfair.
• What does equity entail?

  • its rights and obligations
  • its remedies (injunctions/specific performance)
• What is Trust law?

  • Trusts are equity's most important creation
  • Trusts make it possible to split ownership of a property between the legal owner(person who is registered and holds the legal title) and the equitable owner (beneficiary) who is not listed as the owner but who enjoys the benefits
  • trusts are an addition to the law of property
• What does the equitable maxim, equity must follow the law mean?

  • equity follows the rules of common law unless there is a good reason to the contrary
• Discuss the maxim Equity acts in personam

  • refers to the person rather than their property
  • a judgement can be for a specific individual i.e specific performance
• Discuss the maxim he who seeks equity must do equity

  • refers to the idea if you are looking for justice/fairness it goes both ways
• State the equitable maxims

  • equity acts in personam.
  • equity acts on the conscience
  • equity aids the vigilant
  • equity will not suffer a wrong without a remedy
  • equity follows the law
  • equity looks at the intent, not the form
  • where equities are equal, the earlier in time prevails
  • he who seeks equity must do equity
  • he who comes to equity must come with clean hands
  • equity looks on that as done which ought to be done
• Discuss the maim, equity looks at the intent, not at the form

  • equity looks to the reality of wat was intended rather than the way in which it is expressed
• Discuss the maxim, equity will not suffer a wrong without a remedy


  equity will not allow a person whom it considers as having a good claim to be denied the right to sue
• Discuss some talking points about equity

  • common law is concerned with predictability
  • equity's idea of justice is concerned with discretion - is justice subjective
  • have we lost the idea of discretion because we live in a parliamentary society
  • has equity become to rule-bound are there any gaps in equity
  • is fairness subjective
• What three contributions does equity make?

  • process
  • substance
  • remedies