Equity

Question 1

How do we define equity?
- Frank Kitto

Answer 1

• no easy way to define equity
• “The lawyer dreads the layman’s question, What is Equity? For no crisp answer will satisfy the earnest inquirer”

Question 2

How do we define equity?
- Maitland

Answer 2

“Equity now is that body of rules administered by our English Courts of Justice […]” which would’ve been administered by the Court of Equity

Question 3

What was the historical distinction?
- How did Hackney describe it?

Answer 3

• one of courts
• it was “ludicrous” to have 2 separate courts that had a lot of overlap & often competed

Question 4

What is the legacy of equity?

Answer 4

• provides vital flexibility
• invauable protection
• e.g. proprietary estoppel

Question 5

What does equity seem to undermine?

What helps counter this?

Answer 5

• formalities and strict requirements of common law & statute
• certainty of clear legal rules
• against core value of rule of law

Land Registration System preserves distinction between legal and equitable interests

Question 6

What does equity help provide?

Answer 6

• a vital ‘safety valve’ by giving courts a mean to prevent a party from exploiting strict legal rules
• mitigates potential harshness from legal rules

Question 7

What has equity traditionally dealt with?

Answer 7

cases of ‘near fraud’ / things that couldn’t be proven as fraud

Question 8

How does H. Smith describe equity?

Answer 8

• equity ensures that people respect the strict legal rules, knowing there is a safety net

Question 9

When does equity step in according to Aristotle?

Answer 9

• “the nature of the equitable, a correction of law where it is defective owing to its universality”
• when the law is too broad or where there are errors, equity can make corrections

Question 10

What is equity equated with by Lord Ellesmere?
- in what case?
- How does J. Selden respond to this?

Answer 10

• a conscience -> Early chancellors used conscience to establish when a judgment should be set aside -> when it is “obtained by oppression, wrong and a bad conscience”
• Earl of Oxford’s case [1615]
• argued that equity being equated to the conscience of a chancellor was not an accurate or consistent measurement

Question 11

What is established in Gee v Pritchard [1818] about equity?

Answer 11

• “The doctrines of this Court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied”

Question 12

What does Maitland argue about equity and the common law, with regards to sufficiency?

Answer 12

• “Equity was not a self-sufficient system, at every point it presupposed the existence of common law. Common law was a self-sufficient system.”
• argues that we could remove equity fully → we’d be left with a harsh system but it would function
• equity is intertwined with common law

Question 13

How does O. W. Holmes respond to the accusation of the illogicality of equity?

Answer 13

“The life of the law has not been logic; it has been experience.”

Question 14

What does Sinclair v Brougham [1914] say about equity?

Answer 14

equity starts from the personal and then ends up “creating what were in effect rights of property” though they aren’t recognised by the common law

Question 15

What does Byers v Saudi National Bank [2023] say about equity?

Answer 15

• “One of the fundamental purpose of equity is to impose carefully measured constraints upon unconscionable conduct otherwise permitted by the law […] equity generally acts in personam […]”
• equity “enabled purely equitable personal rights to harden into property rights, in the form of equitable interests”

Question 16

What does the Senior Courts Act 1981 s.49(1) say?

Answer 16

when the rules of equity and common law conflict
equity prevails

Question 17

What does Maitland say about the relationship between equity and the common law?

Answer 17

• Equity and the law are not in conflict
• “Equity has not come to destroy the law, but to fulfil it”

Question 18

5 examples of equitable interests and doctrines?

Answer 18

• trusts
• mortgages and equity of redemption
• proprietary estoppel
• restrictive freehold covenants
• remedies e.g. rectification

Question 19

5 examples of maxims about equity

Answer 19

• “Equity follows the law”
• “Equity regards as done that which ought to be done” → summary of doctrine of equity
• “Equity acts in personam”
• “an equity by estoppel” → a mere equity
• ”at law” v “in equity” distinguishes the two