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Chapter

Cover Complete Equity and Trusts

16. Tracing  

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. Tracing is a powerful means of locating and then recovering trust property. Property may change hands, change into another form of property, be mixed with other property and even increase in value, and yet it can still be recovered, as long it is still identifiable. This chapter discusses the definition of tracing; common law tracing; equitable tracing; tracing against volunteers and bona fide purchasers for value; tracing into a mixed fund including bank accounts; and the principle that the wrongdoer spends his own money first.

Chapter

Cover Equity & Trusts

1. Introduction to Equity  

Paul S Davies and Graham Virgo

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the concept of Equity and defines it as the body of law that has been made and developed by judges in the Chancery courts to modify the rigid application of the common law. It is grounded on rules, principles, and doctrines that are strictly interpreted, but their application and the remedies awarded can be tempered by the exercise of judicial discretion to ensure a just and fair result. It plays an important role in many contemporary aspects of the law, including commercial and corporate law. A distinction between property rights and personal rights lie at the heart of Equity, and there exists no substantive fusion between Common Law and Equity as bodies of rules — even if their administration has been conjoined into a single procedural system. The chapter also discusses a variety of equitable maxims that are useful generalizations of complex law.

Chapter

Cover Complete Equity and Trusts

17. Trusts of the family home  

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. Cohabiting couples could save themselves considerable legal trouble and expense if they make a written declaration of trust when acquiring a home to live in, but most do not. This chapter discusses the following: that cohabitation gives no special legal status; that a trust of land must be in writing; and that resulting and constructive trusts are an exception to the writing requirement. It also looks at the difference between the two categories of trust in Lloyds Bank v Rosset and the difference between the claim to an equitable interest in the property and the quantification of that interest as explained in Stack v Dowden.

Chapter

Cover Equity & Trusts

20. Equitable Orders  

Paul S Davies and Graham Virgo

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the commercially significant remedies of injunctions, specific performance, rectification, and rescission — paying particular attention to injunctions. Although it is true that damages for the breach of Common Law obligations are available ‘as of right’, and that equitable remedies are inevitably discretionary, it is important to recognize that such discretion is informed by a number of key principles. Importantly, equitable remedies are only available where Common Law remedies are inadequate: Equity can only intervene where the Common Law fails to do justice. However, equitable orders can be made in support of both legal and equitable rights. Failure to comply with an equitable order constitutes the crime of contempt, the punishment for which may be imprisonment, sequestration of the defendant’s assets, a fine, or a combination of these sentences.

Chapter

Cover Equity

10. Moving Forward—Integrating Equity  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter presents an argument for the integration of Common Law and Equity jurisdictions by focusing on two objectives. The first is to show that the practical task of integration is unlikely to be as difficult as is often supposed. The second objective is more demanding. Whatever the practical and intellectual advantages of integration, there remains a persistent and powerful perception that integration is now impossible. The arguments invariably focus on allegations of profound and unbridgeable philosophical and jurisprudential divides between the two jurisdictions. The core concerns are that Equity is a uniquely conscience-based and discretionary regime whereas the Common Law is a rules- and rights-based regime. The chapter seeks to challenge that view.

Chapter

Cover Equity

1. Dual Legal Systems: Common Law and Equity  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter focuses on different aspects of the bizarre common law dualist legal system, with its separate bodies of Common Law and Equitable rules. It describes the origins of common law dualism and then discusses the early distinguishing characteristics of Common Law and Equity. It then sets out the two main objectives of the text. The first is to expose Equity's impact on the modern legal landscape. The second objective is to expose the possibilities for coherent substantive integration of Common Law and Equity.

Book

Cover Complete Equity and Trusts
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.

Chapter

Cover Equity

3. Creating Property  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. For many, Equity's greatest contribution to the law has been its manipulation of traditionally accepted concepts of property. This chapter deals with two strategies that Equity adapted to achieve its radical ends. Equity's first strategy is straightforward. Equity would sometimes regard certain assets as property even when the Common Law did not. This meant that these assets could be traded; they became usable wealth, at least in Equity's eyes. Equity's second strategy for manipulating concepts of property is more complicated. Equity will sometimes say that A ‘owns’ a car (or a company share, or an insurance pay-out) even though the Common Law says that B does. The chapter considers what it means when Equity says that A ‘owns’ property, and why the assertion is so ingenious.

Chapter

Cover Equity

6. Supplementing Civil Wrongs  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter illustrates escalating concerns about the risk of unacceptable disjunctions between Equity and the Common Law. The first section considers the relatively simple matter of Equity supplementing existing Common Law remedies. The next sections consider the more controversial question of Equity and the Common Law embarking on separate paths to deal with the same underlying wrong of negligence. The final sections deal with the intractable problem of how Equity protects Equitable property from abuse by the trustee and interference by other third parties. Each section explores the differences between the Equitable rules and their Common Law counterparts. It is crucial that these differences be soundly justified if they are to remain part of the common law.

Chapter

Cover Equity

9. Correcting Misconceived Transfers  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the strategies Equity has developed to ensure the return of property that has fallen into the wrong hands. It focuses on the law of unjust enrichment, the third branch of the law of obligations that provides remedies whenever defendants receive some benefit, or enrichment, at the claimant's expense in circumstances that make it unjust for them to keep it. Equity's role in the law of unjust enrichment is highly controversial, and has been the subject of some profound and difficult modern revisions. To understand these debates it is first necessary to understand when and why any unjust enrichment remedies are warranted. How this model is structured determines, in large measure, how easily Common Law and Equitable learning on this issue can be integrated.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

15. Family homes: Postscript  

In this chapter, there is a recognition that the intervention of equity in the family home represents a pragmatic response to a real problem, but it is not a perfect solution. It considers some of a number of grounds of critique of the current approach, including attempts at legislative reform to provide a solution. It can be criticized on a number of grounds, quite apart from the issue as to whether it constitutes a usurpation of a legislative function. There is also a consideration of whether the approach we have now has moved away from traditional assertion of property principles to a sense of redistributive justice more familiar to family lawyers.

Chapter

Cover Equity

8. Enforcing Promises  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines a range of Equity's incursions into the Common Law of contract. Because of these interventions, the landscape of contract law is broader and more varied than it might otherwise have been. The chapter discusses five different Equitable strategies that give the flavour of Equity's various forms of interference. These are overriding the need to comply with formalities; avoiding privity requirements; re-examining consideration; implying terms; and Equity's ability to anticipate or secure the Common Law outcome.

Chapter

Cover The Principles of Equity & Trusts

1. An Introduction to Equity  

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

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

Cover Equity

4. Amplifying Property Rights  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter considers Equity's special techniques for safeguarding property interests. Property's primary protection comes from rules that enable disputing parties to resolve title conflicts and priority disputes. Absolute justice is unlikely; the law must simply decide who has the stronger claim. Property's secondary protection is more controversial. Equity's tracing and claiming strategies allow claimants to assert new proprietary rights in substitute assets. These rights preserve the insolvency priority of the initial proprietary claim or secure entitlements to windfall secondary profits. Neither of these options follows inevitably from the initial assertion of a proprietary right.

Chapter

Cover Equity

7. Reviewing Promises  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter is concerned with instances where Equity allows one party to escape the rigours of an apparently binding promise. The justification for contradicting apparently binding contractual agreements and perfectly properly intended gifts is simply the perception that it is sometimes unfair or unconscionable for the defendant to insist on his strict legal rights. The offending deals are then unwound; the defendant is forced to give up any enrichments that he should not have obtained. The different forms of intervention can be categorized under three heads. The first category is confined to written contracts, where the writing does not embody the real agreement between the parties. The writing may either misrepresent or omit certain critical features of the deal. Equity may then intervene to ensure that injustice does not ensue. The second category is devoted to procedural unfairness, and focuses on flaws in the claimant's consent to the underlying deal. The third category is concerned with substantive unfairness. Here Equity's intervention is far more paternalistic. It will sometimes intervene if the terms of the deal are unfair. This is a most aggressive form of intervention. It means interfering with a bargain even though there is no suggestion that the parties did not truly consent to the arrangement.

Chapter

Cover The Principles of Equity & Trusts

1. An Introduction to Equity  

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines a fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.

Book

Cover Equity

Sarah Worthington

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. Equity sets out the basic principles of Equity, and illustrates them by reference to commercial and domestic examples of their operation. The text, which is the second edition, describes the role of Equity in creating and developing rights and obligations, remedies and procedures that differ in important ways from those provided by the Common Law itself. This edition offers a reworking of the material traditionally described as Equity. In doing this, it provides an examination of the fundamental principles underpinning Equity's most significant incursions into the modern law of property, contract, tort, and unjust enrichment. In addition, it exposes the possibilities, and the need, for coherent substantive integration of Common Law and Equity. Such integration is perceived in this text as crucial to the continuing success of the modern Common Law legal system.

Chapter

Cover Equity & Trusts Law Directions

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

Cover Equity & Trusts Law Directions

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.