Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource.
This book deals with the emergence of equity and how it differs from the common law. The trust concept is explained and the different types of trust that exist outlined. These include resulting, constructive, and charitable trusts. Trusts must obey certain basic rules such as legal formalities and the three certainties of intention, subject matter, and the need for a beneficiary. There are exceptions to these strict rules, such as proprietary estoppel and certain gifts made upon death, for example secret trusts and donatio mortis causa. The office of trustee is considered, including the methods of appointment; their powers of maintenance, advancement, variation, and investment; and the fiduciary nature of their office. Equitable remedies, such as injunctions, specific performance, and tracing are included. The use of constructive trusts in cohabitation disputes is analysed.
Book
Richard Clements and Ademola Abass
Chapter
1. What is equity?
This chapter defines equity. Equity is both a different system of law which recognizes rights and obligations that the common law does not, and a system which seeks to address the inherent gaps which can exist in following any set of rules. Equity plays a large, but largely hidden, role in all our lives. For instance, buying houses with a partner, borrowing money, investing in private or company pensions, making complex arrangements in a will, or preventing human rights abuse all use some form of mechanism developed in equity, such as trust. Thus, equity, even if we do not always appreciate it, intrudes into many parts of our lives.
Chapter
5. The constitution of trusts
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The formality requirements of a trust aim to prevent secret fraudulent dealings and to achieve certainty through the recording of transactions. In contrast, no trust exists if the requirements of valid constitution are not complied with. These requirements are designed as a precaution against the casual creation of trusts, a sensible approach given the dramatic consequences of the typical express trust of property. This chapter deals with the constitution of trusts and discusses the distinction between requirements of constitution and formality in relation to the creation of trusts. It also looks at a validly constituted trust, the maxim that equity will not assist a volunteer, how the common law can assist in the constitution of trusts and a valid donatio mortis causa. In addition, the chapter considers constitution by transfer of legal title to trustees as well as assistance from Roman law with respect to constitution of trusts.
Chapter
1. Introduction to equity and trusts
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The trust is an important invention of equity, a branch of English law compatible with common law. The history of equity oscillates between compatibility and competition with common law. This chapter serves as an introduction to equity and trusts. It outlines the major stages in the historical development of equity and trusts, examines the theoretical distinction between equity and the common law, explains how to correctly use the maxims and doctrines of equity, and discusses the distinction between equity as an inventive, flexible, remedial branch of law, and equitable institutions that are now settled and established, including the trust and the mortgage. The chapter also considers equity in relation to morality, co-operative remedies in equity and common law, equity and crime, and equity and restitution, before concluding with an assessment of the place of equity in the modern world and its possible future development.
