A more recent version of these Introduction To Equity And Trusts notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Equity and Trusts Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Equity - Introduction to Equity and Trusts How equity developed historically (similar/dissimilar to common law)
? Equity = A system of law
? Pre 1066 = local courts applying local customs across different counties. Little centralization, but the concept was coming about embryonic.
? Anglo-saxon system - depended on local courts in each region, which adjudicated on legal matters. Problem with no simple local custom resulted in no unified system of law. Not homogenous. More centralisesd system of law developed with King.
? 1066-1485 - Development of Common Law: o Normans take over and take us to the end of Medieval period. Common law developed in this period over 4 centuries.
? 1485 - Development of Equity = from early modern period to present. o System of law parallel to but separate from common law. Developed into a system based on rules than just conscience. th
? 18 C onwards - Consolidation of Equity: o Shaky time between Equity and Common Law saw conflict. Modern version of Equity that is used today by Courts.
? 21st C - Resurrecting conscience (?) - potentially, as the foundation of Equity. Possibility and concept discussed in module.???
Why did Equity develop: Common law problems = was rigid/inflexible and didn't help to address individual legal problems. (a) Rigid writ system - to get relief in Common Law you had to pay for and submit writ. Fine until society changed and different legal problems no one had envisaged developed (required remedies to novel circumstances). Moving away from traditional legal problems that writ system was designed to address, people couldn't get relief for problems they had (no new writs after 13thC). (b) Complex Procedures - Didn't provide conducive atmosphere to resolution of legal problems. Common law was complex so didn't help. (c) Limited Remedies - at common law: o Real action for return of land. o Damages (remedies available at Common Law, not helpful, as money not useful - needed something else)
= common law issues, saw development of equity. Difficult to get relief you wanted and get 'justice', people started to appeal directly to Monarch.
Development of Equity:
? Litigants appeal directly to Monarch with a petition (king/queen - fountain of justice), as only way to resolve legal problems. Straightforward in early
?days as numbers were limited as King was able to deal with petitions directly. Once more people started doing this, then delegated to Chancellor (passed litigants to him). Established the separate Court of Chancellor (to deal with litigants in equity). Traditional basis of decisions in equity was seen to be conscience-based (by clergy). Appealed to conscience of monarch, either grant relief or they wouldn't. Foundation of equity was unconscienceability - led to large amount of uncertainty, as conscience based on subjectivity depending who hears your case.
Problems with Equity:
? (a)Uncertainty = no real certainty as its based on conscience, difficult to predict.
? (b) Conflict = arose with common law, where common law would not enforce equitable orders (court orders). Started to see two parallel two legal systems.
? = Started to be settled in the 17th C o Principles established o Maxims in Equity (paraphrased) o Earl of Oxford's Case (1615) - famous, established that equity will take precedents over the common law when a conflict. Enshrined by the: o Judicature Acts 1973-1875 = two courts fused together. Two legal systems still exist, not independently, but still separate. Enabled all courts to apply the rules of common law and equity?= Administrative merger of those two courts (any court can administer common law or equity).
= Substantive differences - remain - but administered by same courts.
= Equity - foundation of maxims, remedies exist separately today to common law, and the concept of the Trust (most important developments in English law).
1. Equitable concepts (maxims)
? Underpins equity and how they apply in the law
? Foundational elements (maxims) =
o He who comes to Equity must come with clean hands = if you seek relief in Equity, you have to be seen to be acting properly. Otherwise equity will not assist you Argyll v Argyll (1967). o Equity will not assist a volunteer = If you are a person who has done nothing, equity will not assist you. I.e. enforce a gift, even though
formalities for transferring have been met. You haven't helped yourself, providing no consideration, nothing in return. o Equity looks on as done that which ought to be done = (important to implied trusts). I.e. set up trust, but forget to use particular formality dictated by statute. May give you an implied trust. o Equity acts in personam = (acts against the person, not the property)??
Equity Developed: New procedures = Subpoenas forcing people to appear before the court New Remedies =
o Miller v Jackson (1977) - tort of negligence, sought injunction (equitable remedy to restrain certain activities). Good example how common law damages would not really assist the claimant, so sought injunctive relief to stop cricket club; not something able to do at common law. Illustrates limitations of common law remedies. New Rights = Equity of Redemption to protect borrowers against unscrupulous lenders who could otherwise retain the mortgaged property themselves and still sue for debt. Equitable mortgages, leases or easements when created for value without proper legal formalities.
2. Define the Trust
? Quintessentially English, at core of the module and developed in our jurisdiction.
? Developed very much within equity and based on conscience.
? History: o Started through conscience of individuals through Crusades in late 11th C. Fundamentally the trust was about land. o Called a Trust - as the absolute owner of the property puts his 'trust' in the trustee (the brother) to act properly and care for his family while he is away.
? In Common law - Legal title holder (brother) seen to be the owner of that property.
? In Equity - Not the case, owner of the land is seen to be the beneficiary.
? = Very old concept.
3. Modern uses of trusts
? Myth - antiquated mechanism. Exceptionally adaptable and can change very quickly to any number of circumstances - one of the most flexible/useful mechanisms in English law (mechanisms that have gone far beyond concept of land ownership).
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