The Development of Equity and Trusts

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08006174Equity & Trusts

The meaning of equity is basically a system of law which stables out the need for certainty in rule- making in order to accomplish fairness for individual’s circumstance. Equity supports and decreases the strictness of the common law. The early common law method was very complex and costly. Legal procedures were based on writs which would be produced for each individual whom wanted to begin and take action in a centralised system that was formed during that period.

This was created to bring together the legal system of the country in to one centralised system. The problems and issues of this method was stopped by the Provisions of Oxford 1258 and the Statute of Westminster, these provisions and statutes narrowed down the number of writs and a few times they have not allowed a legal action simply due to the fact that there wasn’t a legal writ that covered it. Therefore if there was not an existing writ previously formed for their action consequently it would not let them take any matters further. The strict and rigidness of the common law regulations could have an impact in leading to injustice.

The common law system in conjunction with, individuals had a possibility to appeal to the king’s conscience in order for them to be supported with justice. The king as he was acknowledged as the “fountain of justice,” people were complaining to the king and trying to do petitions against him. These complaints were merely passed down to the chancellor as the king did not have the time to deal with it. The chancellor was known as the “Keeper of the king’s conscience.” The general public ultimately began a petition against the chancellor; this made the chancellor give his own decisions with his authority without any of the king’s verdict. The chancellor was making decisions with religious morality. A high number of appeals continued to grow, a separate court of equity was introduced the court of chancery, it was a court were decisions were made with religious belief and morality and it gradually made equity a rival method to the common law.

A conflict between equity and the common law arose in the case of, “Earl of Oxfords Case,” “The office of the Chancellor is to correct man’s consciences for frauds, breach of trusts, wrongs and oppressions of whatsoever nature and to soften and mollify the extremity of the law ... When judgement is obtained by oppression, wrong and a hard conscience, the chancellor will frustrate and set it aside, not for any error or defect in the judgment but for the hard conscience of the party.” This quote above was said by (Per Lord Ellesmere LC); here in this case the King said that if equity and the common law were ever to conflict then equity would succeed, therefore the quote by Lord Ellesmere above explains this. It is very important to know that equity is a method that’s not able to work independently because it works as an add-on towards existing issues inside the common law. This therefore means that it works along with the common law and often supports towards the issues that already exist inside the common law.

In the nineteenth century the existing legal system had undertaken a major reform with two acts, often referred to as the Judicature Acts 1873-1875: The Judicature Acts 1873-1875 have helped merge both equity and the common law, this approved equity and common law shall form together and to be run within one set court in order to produce a simpler and stronger legal system. The Judicature Acts 1873-1875 have created the modern legal system of England and Wales. On the other hand the fusion debate arose from this. Professor Ashburner explained in his “Principles of Equity (2nd edn 1933),” here Ashburner famously distinguished law and equity as to being part of two separate streams that “though they run in the same channel run side by side and do not mingle their waters.”

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 However Professors Ashburners statement was not very helpful because it was very hard to imagine two streams in one channel and not mingling together as one. Lord Diplock had taken Ashburner’s statement further in the case, United Scientific Holdings Ltd v Burnley Borough Council, Diplock concluded Ashburner’s statement by saying, ‘obiter, that’ “it may be possible for a short distance to discern the source from which each part of the combined stream came, but ... the waters of the confluent streams of law and equity have surely mingled now”. In the case above on agreeing with Lord Diplock, here he explains ...

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