History Of Equity + Trust

Question 1

What is equity according to Maitland

Answer 1

• “equity is the branch of law, which, before the judicature acts 1873 and 1875 was applied and administered by the court of chancery”

Question 2

Talk about common law

Answer 2

• based on a system of ‘writs’
• developed by the royal courts of the king
• highly formalistic in nature

Question 3

Basics of equity

Answer 3

• 15th century it emerges
• remedy the issues that existed in the formulaic law
• began as an unwritten, highly flexible system of justice, over time developed its own system of courts, principles and precedents

Question 4

Mischiefs of common law

Answer 4

• uncertainty of jury trials
• damages only
• system is highly formal
• available to litigant only
• unreliable of the sheriffs
• complex forms of pleading/ rules of evidence

Question 5

Earl of Oxford’s case [1615]

Answer 5

• Kind James 1 intervened in this case and said that at times of conflict between common law and equity ‘equity prevails’

Question 6

Equity’s mischiefs

Answer 6

• would form procedural defects far worse than the CL
• in Victorian times a litigant had to chose which system their claim related to
• Equity’s ‘one-man’ court was not designated for the number of cases - huge back logs and great expense

Question 7

Judicature act 1873

Answer 7

• primary objective of the Victorian reform was ‘procedural fusion’
• led to the enactment of the judicature acts 1873-75
  + fused common law and equity
  + re-organised the courts
• old system of courts was replaced by a single high court, consisting of king’s bench Div, chancery and family divisions
• equity no longer segregated and could be applied in any division
• equity prevails

Question 8

What are the two primary arguments in fusion

Answer 8

• substantive fusion
• administrative fusion

Question 9

The fusion fallacy

Answer 9

• inclusion of s 25(11) JA 1873 (now s 49 senior courts act 1981)
• demonstrates that equity and common law can still be considered as separate streams
• also shown in the trust, as Lord Selbourne (chancellor) demonstrates

Question 10

Walsh v Lonsdale 1882

Answer 10

• effect of s 25(11) [fusion fallacy] demonstrated
• can be used to argue that equity has a greater level of flexibility than the common law

Question 11

Salt v Cooper 1880

Answer 11

• conflict of law and equity also discussed in this case by Jessel MR

Question 12

Wood V Commercial First

Answer 12

• court concluded that in some cases the common law should be assimilated to equitable remedies
• Derek Whaymans article

Question 13

Lord Dudley v Lady Dudley 1705

Answer 13

• ‘equity therefore does not destroy the law, nor create it, but assist it’
• thus equity has been describes as a gloss on common law

Question 14

Conscience in equity

Answer 14

• runs through equity
• chancery once described as ‘a court of conscience’
• primarily from the doctrine of ‘unconscionability’

Question 15

John Selden

Answer 15

• ‘equity is a roughish thing’
• “for law we have a measure”
• ‘equity is decided according to the conscience of him’
• ‘the standard for the measure a chancellors foot’

Question 16

Modern contributions of equity

Answer 16

• exclusive jurisdiction
• concurrent jurisdiction
• auxiliary jurisdiction

Question 17

Equitable maxims

Answer 17

• hugely important today
• these are principles of how equity should be exercised
• Lord Neuberger respects these signposts of the equitable jurisdiction

Question 18

Who supports substantive fusion

Answer 18

• sir George Jessel MR
• Lord Diplock
• Lord Denning

Question 19

What does Ashburner say about the fusion fallacy

Answer 19

‘ the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters. The distinction between legal and equitable claims - between legal and equitable defences - and between legal and equitable remedies - has not broken down in any respect by recent legislation’