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EQUITY AND PROPERTY
In addition to the proprietary rights operating at common law, a large part of the law of property consists of rights operating through Equity. In order to understand the nature of these rights and how they differ from, and interrelate with, common law proprietary rights, it is necessary to appreciate the relationship between Equity and the common law. This lecture therefore outlines the nature of that relationship, first in general and then with particular reference to property rights. The main equitable right regarding property, the trust, is then introduced. In the following weeks will involve description of the other main types of equitable property rights.
Definition of "Equity"
"Equity" in the pure sense means justice, particularly abstract justice as opposed to the accurate application of rules. Aristotle defined it as "a correction of law where it is defective owing to its universality". In this sense of an appeal to a higher justice above rules, equity forms part of many legal systems. In English law, however, equity has been institutionalised and the term now refers to a particular set of rules, which have developed from an original appeal to equity in the pure sense. The classic definition of equity as part of English law is that of the legal historian, Maitland1:
"We ought to think of Equity as supplementary law, a sort of appendix added on to our code, or a sort of gloss written around out code, an appendix or gloss, which used to be administered in courts specifically designed for the purpose, but which is now administered by the High Court as part of the code."
Equity is thus a set of rules, additional to those of the common law, which were not applied by the old common law courts and, until the Judicature Acts 1873-1875, were only applied in the separate Court of Chancery. This set of rules is not, however, a complete, or alternative, system but has always existed as an addition to or, as Maitland says, a supplement to, the common law. Although the equitable rules are now applied in all courts, along with common law, and statutory, rules, the distinction between rules and concepts which form part of the central body of the law and those which come from equity, and were originally only applied, as an appendix, in a separate court, can still be
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