Скачать или смотреть 1 Intro to Equity

This is an introduction to Equity & Trusts; suitable for students reading English law.
The lecture notes follow:
INTRODUCTION TO EQUITY

Learning outcomes

• To understand the difference between common law and equity.
• To understand the development of equity and how it came to be part of the law.
• To understand the significance of the Judicature Acts

The term `Equity` has a wide range of meanings; for many people - `fairness` & `justice`, but for lawyers it has a narrow meaning: that body of rules developed and applied by the Court of Chancery, presided over by the Chancellor and the rules developed under that authority.

Historical Sources of English Law

• Common Law
This term reflects the fact that the law as administered by the King’s court became the common law, supplanting local custom.

• Equity
Developed to remedy the deficiencies in the common law, leading to the formal development of the Court of Chancery, until its abolition in 1875.

• Legislation
Originally, scarcely distinguishable from common law, the growth of parliament as the dominant force, led to the growth of legislation as a major source of law. Legislation & delegated legislation = the fundamental sources of law.


Development of Equity

Court of Chancery
Judicature Acts 1873 - 75
Supreme Court of Judicature Act 1873 s25(11); now Senior Courts Act 1981, s49

Jurisdiction of the Court of Chancery

• Keeper of the King’s conscience
• Equity is now a fixed set of law and principles, it is doubtful that any new principles can be introduced but see later notes on constructive trusts.

The Relationship between Common Law & Equity

• Generally, equity followed the law unless there was a reason to do otherwise. However, there was bound to be conflict.
• Earl of Oxford’s Case (1615)
• Judicature Acts 1873-75 [Now: The Senior Courts Act 1981]

Fusion of common law and equity?
Joseph v Lyons (1984) 15 QBD 28 - equity and the law subsist side by side and do not mingle
Errington v Errington [1952] 1 KB 290 – Per Lord Denning MR – equity and the law are fused

United Scientific Holdings v Burnley BC [1978] A.C. 904 – per Lord Diplock – equity and the law are fused

Lord Dudley & Ward v Lady Dudley (1705) Pr Ch 241 per Sir Nathan Wright LJ:-
Equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigour, hardness and edge of the law, and is a universal truth; it does also assist the law where it is defective and weak .... and defends the law from crafty evasions, delusions, and new subtleties, invented and contrived to evade and delude the common law, whereby such as have undoubted right are made remedies....

NB: the issue on the fusion of law and equity is interesting but never-ending. It was included as a side interest and a starting point should you wish to read further on the subject. You will NOT be examined on this issue.