The Law of Equity and The Role of the Trust
Equity
- Common Meaning
- Usually associated with the shared of ownership you own in a property and more importantly the value
of these shares
However this is not what we will be focusing on
- Historically, the law of equity and common law were two distinction legal routes in which an individual
was able to pursue their legal adjudication
History Lesson
- Norman Invasion happened in 1066
- There was a new legal system which was shortly introduced which was described as being “common”
throughout the whole kingdom (hence; Common law)
- Common law court was under the king's court
There was a variety of growing issues with the system
- Rigid
- Slow
- Limited range of remedies
- Not all types recognised
- Appeals had to be made to the king himself
The creation of the court of chancery
- Making an appeal to the king under the common system was the only redress present. This meant that
the king was soon to become overburdened and so fourth handed the job forward to the lord chancellor
- The lord chancellor was guided by religion principles of fairness and approached the appeals in a much
more flexible manner
- Soon a separate court of chancery was established
- This was guided by equitable principles
- Granted equitable remedies
- Recognized new rights
The mindset of equity is multicoloured
- Life is not black and white
- “Black letter law” - to every situation could be injustice
Common Law is is black and white
- Black letter law can be very useful - provides legal certainty however can also be very blunt
- Key idea - equity has flexibility
Equit and conscience
- Another key concept
- Equity seeks to prevent individuals from gaining a benefit from peoples unconscionable conduct
When will a right be legal or equitable ?
- To answer this, we need to ask 2 more questions
1) Is the right capable of being legal? (capacity test)
2) How was it created (Creation test)
Capacity
- What do we mean by this>
- Section 1 of the LPA 1925 - provides a list of all rights which may be legal
Equity
- Common Meaning
- Usually associated with the shared of ownership you own in a property and more importantly the value
of these shares
However this is not what we will be focusing on
- Historically, the law of equity and common law were two distinction legal routes in which an individual
was able to pursue their legal adjudication
History Lesson
- Norman Invasion happened in 1066
- There was a new legal system which was shortly introduced which was described as being “common”
throughout the whole kingdom (hence; Common law)
- Common law court was under the king's court
There was a variety of growing issues with the system
- Rigid
- Slow
- Limited range of remedies
- Not all types recognised
- Appeals had to be made to the king himself
The creation of the court of chancery
- Making an appeal to the king under the common system was the only redress present. This meant that
the king was soon to become overburdened and so fourth handed the job forward to the lord chancellor
- The lord chancellor was guided by religion principles of fairness and approached the appeals in a much
more flexible manner
- Soon a separate court of chancery was established
- This was guided by equitable principles
- Granted equitable remedies
- Recognized new rights
The mindset of equity is multicoloured
- Life is not black and white
- “Black letter law” - to every situation could be injustice
Common Law is is black and white
- Black letter law can be very useful - provides legal certainty however can also be very blunt
- Key idea - equity has flexibility
Equit and conscience
- Another key concept
- Equity seeks to prevent individuals from gaining a benefit from peoples unconscionable conduct
When will a right be legal or equitable ?
- To answer this, we need to ask 2 more questions
1) Is the right capable of being legal? (capacity test)
2) How was it created (Creation test)
Capacity
- What do we mean by this>
- Section 1 of the LPA 1925 - provides a list of all rights which may be legal
