The nature of equity
Saturday, 25 September 2021 10:37
What is equity?
- 'Equity' means fair or impartial
- The law of equity developed to limit and modify the common law rules
- The aim was to prevent unconscionability
- Developed in the 12th - 16th centuries
○ The Chancellor was the King's advisor in the 12th century
○ In the 14th century the Chancellor's role developed - he could provide a remedy when
the common law rules caused injustice
The Earl of Oxford's Case (1615) 1 Rep Ch 1
○ Statute limited the capacity of a landowner to sell land - anything that exceeded the
capacity was a nullity
○ Landowner (S) sells to Queen Elizabeth who sells to C
○ All parties believed that this evaded the statute
○ C spends £20,000 on improving the land
○ 40 years later, S sells to D who claims that the original conveyance is voided by statute
○ It was held by Coke CJ in King's Bench that the conveyance was void - the Crown was
not above the law (common law)
○ It was held by Lord Chancellor Ellesmere that the judgment in Kings Bench should be set
aside; D was injuncted from enforcing his common law rights (equity)
▪ Why?
□ The Law of God speaks for the plaintiff (Deut 28)
□ Equity and good conscience speak wholly for him (C)
□ Nor does the law of the land speak against him. But that and equity ought
to join hand in hand, in moderating and restraining all extremities and
hardships
□ 'The cause why there is a Chancery is, for that men's actions are so diverse
and infinite that it is impossible to make any general law which may aptly
meet with every particular act and not fail in some circumstances. The
office of the Chancellor is to correct men's consciences for frauds, breach of
trusts, wrongs and oppressions of what nature so ever they be, and to
soften and mollify the extremity of the law, which is called summum jus.
Law and equity … both aim at the same end which is, to do right (Lord
Ellesmere LC)
Unconscionability
- "But if equity is ultimately about 'unconscionability' then we have a problem: Equity is a
roguish thing: for law we have a measure, know what to trust to: equity is according to the
conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one
as if they should make the standard for the measure we call a foot, a Chancellor's foot; what
an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a
third an indifferent foot: 'tis the same thing in a Chancellor's conscience." - Edward Fry: The
Life of John Seddon (1689) 177.
18th and 19th centuries
- Equity developed to work with common law
- There was too great a demand for equitable solutions
○ Separate Court of Chancery caused delays and confusion as litigation might occur in
both the common law and equitable courts
- Judicature Acts 1873-1875 merged the courts to create the Supreme Court of Judicature
○ No longer any need to consider whether you need an equitable or common law remedy
○ Equity pervades all areas of law
Equity and Trusts Page 1
Saturday, 25 September 2021 10:37
What is equity?
- 'Equity' means fair or impartial
- The law of equity developed to limit and modify the common law rules
- The aim was to prevent unconscionability
- Developed in the 12th - 16th centuries
○ The Chancellor was the King's advisor in the 12th century
○ In the 14th century the Chancellor's role developed - he could provide a remedy when
the common law rules caused injustice
The Earl of Oxford's Case (1615) 1 Rep Ch 1
○ Statute limited the capacity of a landowner to sell land - anything that exceeded the
capacity was a nullity
○ Landowner (S) sells to Queen Elizabeth who sells to C
○ All parties believed that this evaded the statute
○ C spends £20,000 on improving the land
○ 40 years later, S sells to D who claims that the original conveyance is voided by statute
○ It was held by Coke CJ in King's Bench that the conveyance was void - the Crown was
not above the law (common law)
○ It was held by Lord Chancellor Ellesmere that the judgment in Kings Bench should be set
aside; D was injuncted from enforcing his common law rights (equity)
▪ Why?
□ The Law of God speaks for the plaintiff (Deut 28)
□ Equity and good conscience speak wholly for him (C)
□ Nor does the law of the land speak against him. But that and equity ought
to join hand in hand, in moderating and restraining all extremities and
hardships
□ 'The cause why there is a Chancery is, for that men's actions are so diverse
and infinite that it is impossible to make any general law which may aptly
meet with every particular act and not fail in some circumstances. The
office of the Chancellor is to correct men's consciences for frauds, breach of
trusts, wrongs and oppressions of what nature so ever they be, and to
soften and mollify the extremity of the law, which is called summum jus.
Law and equity … both aim at the same end which is, to do right (Lord
Ellesmere LC)
Unconscionability
- "But if equity is ultimately about 'unconscionability' then we have a problem: Equity is a
roguish thing: for law we have a measure, know what to trust to: equity is according to the
conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one
as if they should make the standard for the measure we call a foot, a Chancellor's foot; what
an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a
third an indifferent foot: 'tis the same thing in a Chancellor's conscience." - Edward Fry: The
Life of John Seddon (1689) 177.
18th and 19th centuries
- Equity developed to work with common law
- There was too great a demand for equitable solutions
○ Separate Court of Chancery caused delays and confusion as litigation might occur in
both the common law and equitable courts
- Judicature Acts 1873-1875 merged the courts to create the Supreme Court of Judicature
○ No longer any need to consider whether you need an equitable or common law remedy
○ Equity pervades all areas of law
Equity and Trusts Page 1
