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Equity and Trusts – Introduction & Historical Origins (2)

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Equity and Trusts – Introduction & Historical Origins (2). Maitland. Other jurisdictions outside of the corpus of the common law jurisdiction of the British Empire have never had the concept of the trust. Legal ownership.

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Other jurisdictions outside of the corpus of the common law jurisdiction of the British Empire have never had the concept of the trust

legal ownership
Legal ownership

In Roman law (from which civil system partly derives) central concept was ‘dominium’: all the rights of ownership concentrated in an individual – essentially the rights to use / to give away / to sell / or to destroy particular property

Whereas English law recognises a complex bundle of rights in respect of particular things that can shared

beneficiary rights
Beneficiary rights

The shift from merely personal rights to proprietary rights brought beneficiaries considerable benefit

For example: where trustees are insolvent what happens to the beneficiaries’ property? Proprietary rights allowed bens to take priority over other creditors

beneficiary rights1
Beneficiary rights

Beneficiaries also cam to enjoy rights of protection against anyone interfering with the property - when it is given away by mistake or taken deliberately

fiduciary duties
Fiduciary duties

Fiduciary duties hold trustees (but now also many others) to certain standards of behaviour in the management of trust property

equity s creativity
Equity’s creativity

Equity lay took rights that existed at common law and split off from it a new bundle or rights in the form of equitable ownership – so that there were now two separate bundles of rights – one at common law and one in equity.

problems in understanding equity
Problems in understanding equity

Judicature Acts of 1873 and 1875 brought equity and law into relation with each other by sharing the same court structure. Since that date arguments using law and/or equity can be heard in the same hearing.

NB – although law and equity are argued together in the same hearing they remain separate system of legal thought.


“Conscience” is essentially a Christian concept.

Asking the court to recognise something in conscience is asking that that the court recognise the moral imperative in a given situation

NB – the equitable maxim – he who comes to equity must come with clean hands

living equity
Living equity

“here we are in the world of doctrine, not of neat and tidy rules ... the court in the exercise of this jurisdiction is a court of conscience. Definition is a poor instrument when used to determine whether or not a transaction is unconscionable. This is a question that depends on the facts of the case.”

Lord Scarman: National Westminster Bank PLC v Morgan [1985] 2 WLR 588 at 602. See also Pennington and another v Waine and others [2002] EWCA Civ 227. Tinsley v Milligan [1992] 2 All ER 391

equity s creativity1
Equity’s creativity
  • It would recognise a claim which was not recognised at law
  • It could be utilised for people who could not hold legal title

It was used to develop new juridical entities specifically the trust

  • It has had a important role in developing other types of remedy
changing equity
Changing equity

Equity is concerned to do “justice in conscience”

But – concept in practice is subject both to competing claims and is now very different from the position that prevailed before the coming of the modern market economy

trusts not trust
“Trusts”not “trust”

NB many different contexts and forms the trust has taken and may yet take – for example pension funds and offshore fiscal devices – but also – it is simply not possible to extrapolate a doctrine of trusts that fits all their various forms

social justice
Social justice

Something to consider: why is it that equity did not become a plank in a wider scheme of social justice?

two quotes
Two quotes

“There cannot be a more useful set of men to the public nor a more unthinking sort of people than common sailors who, as soon as ever they get on shore, for the sake of a little immediate pleasure are willing to part with their right to anything in expectation, for a very little in possession … I do not say that every contract with a sailor is void, or ought to be set aside, but every contract with them must be fair.” Lord Hardwicke in Baldwin & Alder v Rochford (1748) 1 Wils. KB.229

“It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts when entered into freely and voluntarily shall be held sacred and shall be reinforced by the Courts of Justice. Therefore you have this paramount public policy to consider that you are not lightly to interfere with the freedom of contract.” Sir George Jessel MR in Printing and Numerical Register Company v Sampson (1875) LR 19 Eq 465

sailor s case
Sailor’s case

Sailors would sometimes sell future rights rights to e.g. prize money for much less than there value just to realise some cash


The two quotes usefully illustrate a point of contrast between two different views of society: 18th Century paternalism and 19th C Liberalism

kenyon j 1800
Kenyon J 1800

“Though in a state of society some must have greater luxuries and comforts than others yet all should have the necessaries of life; and if the poor cannot exist, in vain may the rich look for happiness or prosperity. The legislature is near so well employed as when they look to the interests of those who are at a distance from them in the ranks of society. It is their duty to do so; religion calls for it; humanity calls for it and if there are hearts that are not awake to either of those feelings, their own interests would dictate it. The law has not been disputed for though in an evil hour all the statutes that had been existing for above a century were at one blow repealed, yet thank God, the common laws were not destroyed …”

the coming of the market
The coming of the market

The paternalistic attitudes expressed by Kenyon came rather late in the day …

a gradual transition
A gradual transition

Throughout this period conflicting decisions made by chancellors on points of economic liberalism meant the courts were unpredictable on this point

19 th c view
19th C view

By the mid 19th c it was settled practice that courts would not remake contracts – there must be no interference in the principle of the liberty of the contracting parties and their fictional quality of equal status

kenyon j
Kenyon J

“Speculation has said that the fear of such an offence is ridiculous, and a very good man, a learned writer has said that you might as well fear witchcraft. I wish Dr Adam Smith had lived to hear the evidence today, and then he would have seen whether such an offence exists, and whether it is to be dreaded.”

kenyon j1
Kenyon J

“If he [the poor man] had been told that cattle and corn were to be brought to market and then bought by a man whose purse happened to be longer than his neighbours, so that the poor man who walks the street, and earns his daily bread by his daily labour could get none but through his hands, and at the price that he chose to demand; that it had been raised … would he have said that there was no danger from such an offence.”

the common law offences
The common law offences

Regrating: the offence of buying goods and reselling them in the same market –Forestalling: the offence of buying or selling goods before a market

Engrossing: the offence of buying up goods in order to speculate by forcing up the price

the just price and the fair exchange
The just price and the fair exchange

Behind the offences was a simple concept – the ‘just price’

Thus even up to the early 1800’s – to be enforceable a contract had to be fair – as in the example of the sailors above

origins of equity
Origins of equity

Equity is a concept inherited from the civil legal system that began with the Greeks

aristotle defines equity
Aristotle defines equity

“it is equity to pardon human failings, and to look to the lawgiver and not to the law; to the spirit and not to the letter; to the intention and not to the action; to the whole and not to the part …”

Rhetoric I.XIII.1374a.

“what creates the problem is that the equitable is just, but not the legally just but a correction of legal justice. The reason is that all law is universal but about some things it is not possible to make a universal statement which shall be correct.”

Ethics (v.x)

origins of equity1
Origins of equity

Equity in clearly a part of what is called natural law from which we derive the term natural justice.

“the prevention of unjust enrichment as a distinct and independent principle tends to be recognised late in the development of any legal system, and has to struggle for a place in the legal firmament because, as a latecomer, it cuts across other principles already expressed in doctrines and reinforced by rules.” John Dawson

conceptions of unfairness
Conceptions of unfairness

Unjust enrichment now a developing area of the law of restitution

Derives originally from Roman law and was the principle underlying the Roman legal device of quasi-contractual relationships


The interventionist courts of equity up to 1800’s took a very broad view of what exactly constituted an unfair contract.

“it was not only fraud or misrepresentation in the modern sense that sufficed it was also any unfair dealing, any form of imposition, any taking advantage of the poverty or distress of another, any weakness of understanding, any mistake …” Patrick Atiyah “The Fall and Rise of Freedom of Contract”

civil system
Civil system

The principles of discretionary justice that had begun with the Greeks and passed into Roman law found their way eventually into English law but is a far more explicit part of the civil legal system practised within continental Europe

models for the trust
Models for the trust?

Models proposed include for example, the Roman fideicommissum and the Germanic Salmann

equitable remedies
Equitable remedies
  • enforcement of trust obligations
  • grant of specific performance
  • the right of redemption
  • injunctions
  • discovery
the old and new worlds
The “old” and “new” worlds

What was the old world that the coming of the free market replaced and why was there a need for the application of the equitable jurisdiction to change in order to accommodate it?

religious influences
Religious influences

Property relationships became individualised and the ecclesiastical courts and later the Court of Equity enforced the Christian conception of property as shared – then possible to conceive as a legal owner owing obligations to the equitable owner