Law Express: Equity and Trusts

John Duddington

• Publisher: Pearson
• Year: 2021
• ISBN:
  9781292295282
• Edition: 8
• Topic: Droit
• Subtopic: Éducation juridique

Revise with the help of the UK's bestselling law revision series.

Designed for students, this book will help you:

• Understand how to review essential cases, statutes, and legal terms
  
  

• Learn how to assess and approach the subject by using expert advice
  
  

• Learn how to lead further discussions
  
  

Find additional support on our Law Express companion website, which contains a host of extra resources to provide you with pre-exam guidance.

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John Duddington was Head of the Law School at Worcester College of Technology before retiring to focus on writing and research. He also teaches property law at the University of Worcester.

1

Nature of equity and trusts

Revision checklist

Essential points you should know:

• •The meanings of the term ‘equity’
• •The reasons why equity developed as a separate system of law
• •What is meant by the concept of a trust
• •The later development of equity in outline
• •The modern arguments for and against whether equity and the common law are now fused

Topic map

Long Description

The topic at the top is, meaning of equity. This topic leads to, consider the following and contrast with equity, conscience, justice, mercy and historical development of equity, contrast with common law. The topic historical development of equity, contrast with common law leads to Judicature Acts 1873 to 1875. Question of fusion which further leads to Walsh versus Lonsdale and Modern equity, development since 1875.

A printable version of this topic map is available from go.pearson.com/uk/lawexpress

Introduction

This chapter is perhaps the most important in this book.

However, unlike all other chapters, it does not contain all the material needed to answer an examination question.

The reason is that this chapter sets the scene for a study of equity and, in addition to guiding you on the meanings of the term ‘equity’ and the history of its development, it points you in the direction of various themes in the study of equity. The detail on some of these will be found in later chapters. The answer to any question on the nature and/or development of equity will obviously require an essay. This is one area where it is absolutely essential to read beyond the standard textbooks in order to gain an above-average pass and this chapter points you in the direction of a variety of additional reading in the ‘Impress your examiner’ sections.

There is also a separate section on the development of the trust and the uses to which trusts can be put today. This often forms the subject of an exam question and, again, this section points you in the direction of themes which are picked up in more depth in later chapters.

Assessment advice

An essay question can take one of these forms:

• •The historical development of equity. This would be less likely than the other possibilities.
• •The relationship between equity and the common law. This is the most likely area, as it will involve you looking at the distinctive features of equity and contrasting them with the common law. There is an opportunity to use your knowledge of other areas (e.g. contract and tort) when you discuss the common law, and this will gain extra marks.
• •The possibility of equity and the common law converging in the future. This is an area on which a good deal has been written recently, so you need to have read widely in order to be able to answer it well. On the whole, it is not dealt with in much depth in standard textbooks.
• •The uses to which trusts can be put, with an emphasis on their versatility.

Two other points:

•It is possible for a question to cover all these issues; for example, it may ask you to analyse the reasons why equity developed, how significant it is today, and how it may develop in the future.

•Be careful to check whether the question asks you to discuss ‘modern equity’. ‘Modern’ really means since the Judicature Acts, so no credit will be given for historical material. It is a common error among students to feel that they must include historical material whatever the question asks. Resist it!

Meaning of equity

Equity has various meanings. In a general sense, equity means fairness or justice. However, this is too general on its own for law exams and it also takes us into a wider debate about what precisely ‘fairness’ and ‘justice’ mean. Instead we need to:

•consider the term ‘conscience’: this has a long history in equity – the Chancellor was known as the Keeper of the King’s Conscience;

•consider cases where the courts have used the term ‘unconscionability’, which at least is derived from conscience (see, e.g., Pennington v Waine (2002) in Chapter 5);

•make it clear that equity today does not mean the same as justice in the broad sense;

•contrast equity with other terms (e.g. charity and mercy);

•consider and apply the principle that equity may intervene where the application of a strict rule of law would cause injustice (e.g. it might allow a mortgage to be redeemed even though the actual redemption date had passed);

•state that, in the legal sense, equity means the body of principles developed by the Court of Chancery.

Impress your examiner

You will certainly improve your mark in an essay question on the nature of equity if you read beyond the standard textbooks in this area. A good place to start is Watt (2009), especially pages 36–41 on ‘Multiple meanings of equity’. Even better would be to read (or see!) Shakespeare’s Measure for Measure, which has a lot to say on these themes.

In an essay on the nature of equity you could then discuss the characteristics of equity: it is discretionary, it acts as a supplement to the common law (not a complete system on its own), it acts in personam, etc.

For all these points you need examples drawn from equity and this is a good opportunity to show your w...