Equity and the Law of Trusts

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equity is still secondary to Common Law insofar as it presupposes the existence of Common Law rights [Maitland: Common Law can exist without equity, but not the other way round] This growing 'course' became increasingly inflexible. In 1617 the Lord Chancellor, Francis Bacon, appointed an official reporter for the first time. This reporter sat at his feet and took notes of his judgements, allowing them to be easily and comprehensively cited. By the second half of the century, cases in the Chancery were being cited in argument regularly. While this was not universally accepted, the use of precedent in the Chancery was increasingly accepted and expected. Chancellors also reacted to this development by giving more detailed reasons for their decisions more and more often. This allowed cases that were alike to be treated alike. This process culminated with Lord Nottingham's famous statement that he could not decide cases according to his own private conscience, but that "the conscience by which I must proceed is merely civilis et politica and tied to certain measures." [48] Thus, Equity "hardened into a kind of law" such that large areas of its jurisdiction, like the law relating to mortgages were clearly regulated by rules as certain as those provided by the Common Law. [49] Early reforms: Commonwealth and Restoration [ edit ] Corruption and inefficiency [ edit ] The word "equity" normally suggests justice and fairness i.e. to act equitably is to act fairly. However, in a legal sense “Equity” refers to a specific body of law, one which has a history that is quite distinct from the “Common Law”. Up to 1875, Equity was administered by the Court of Chancery, whilst the Common Law was administered in an entirely separate but parallel system of courts. Certain remedies were found only in Common Law, whilst others were only found in Equity. This chapter will examine how and why Equity developed separately, as well as the question of whether the two systems have been "fused" by the Judicature Acts of 1873 and 1875. objects is the "any given postulant” test or “is or is not” test, as stated in Re Gulbenkian and

Granted prior to a court hearing because plaintiff may suffer un-repairable damage if right is breached which cannot be compensated by money. The plaintiff must prove to the judge that there is sufficient reason to believe that the damage will be caused to them. These are charitable trusts. Since charitable trusts are for the benefit of the society as a whole, a The trustees have complete control over the assets and the income they generate, deciding how and when to give

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Conduct of the parties will also affect whether the judge will grant them an injunction (Chappell v Times Newspaper 1975) Interlocutory Injunction

wished to terminate the accumulation. Similarly, if the trusts are held for X for his life, and then But this legislative change was short lived! Right to devise freehold land by will eventually reestablished by the Statute of Wills 1540. Feudal incidences eventually abolished anyway. Sources: in the early days, law was mostly developed by successive Chancellors, as they extended protection of B (first against transferees with notice of the use, then against heirs of third parties who inherited the property, and then against anyone except Equity's Darling) Where two parties want the same thing and the court can’t honestly decide who deserves it most they will leave it where it is Equitable Remedies Injunctions Dealing separately with the two transactions, identify the relevant principles, apply them to the facts and reach a conclusion.a b Johnston, David (2015). "11: Succession". The Cambridge Companion to Roman Law. CUP. p.206. doi: 10.1017/CCO9781139034401.015. ISBN 9781139034401. The Common Law, however, would not take notice of uses. One effect of this, as Baker notes, is that uses could be utilised to put land outside the reach of creditors. [11] Another effect, however, is that it left those enttiled to the benefit of the land (called the cestui que use) without recourse in the Common Law courts. Initially, Uses would have been a mere matter of morality. It was only by appointing several notable local people, threatened with the shame of depriving another of their inheritance, that due execution of the use could be guaranteed. further, Court of Chancery was prerogative court, with Lord Chancellor exercising discretion while acting as King's delegate: Common Law courts were hostile to this. The beneficiary can get income from the trust straight away but cannot control the assets that provide the However, a trustee under a discretionary trust still has an obligation to carry out the terms of the

Bare trusts are often used to pass assets on to young people – the trustees look after them until the beneficiarySet out if damages would be a suitable remedy. It must be impossible to quantify damages and must give an under taking which means in the event of an injunction not being granted they must compensate the other party for any losses. In Federal Commerce & Navigation Co Ltd v Molena Alpha Inc, The Nanfri [1978] 1 QB 927, Lord Denning MR stated These types of resulting trusts are also referred to as failed trust resulting trusts. (Vandervell v During that time the streams of common law and equity have flown together and combined so as to be indistinguishable the one from the other. We have no longer to ask ourselves: what would the courts of common law or the courts of equity have done before the Judicature Act? We have to ask ourselves: what should we do now so as to ensure fair dealing between the parties? [59]