01_History - Equity and Trusts 01 History PART I A HISTORY...

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Equity and Trusts 01 – History © Jaani Riordan 2006 Page 1 of 23 http://www.jaani.net/ P ART I A H ISTORY OF E QUITY I Background A Definition ‘Equity’ describes a body of law whose doctrines share a historical pedigree and possess particular normative and remedial characteristics. What follows is an attempt to elaborate upon these attributes — primarily through the vehicle of an historical analysis — so as to better understand the nature and rationale of equitable doctrines and remedies. The historical component features prominently in traditional definitions of equity: Equity can be described but not defined. It is the body of law developed by the Court of Chancery in England before 1873. 1 Contemporary definitions stress the dynamic nature of this body of law, which has undergone significant extension and reformulation in the years since 1873: By ‘Equity’ I mean the distinctive concepts, doctrines, principles and remedies which were developed and applied by the old Court of Chancery, as they have been refined and elaborated since. 2 By contrast, the common law developed through judicial pronouncements in common law courts. Besides this historical basis, equity is also distinguished by its peculiar moral and discretionary attributes: the ecclesiastical natural law foundations of equity, its concern with standards of conscience, fairness, equality and its protection of relationships of trust and confidence, as well as its discretionary approach to the grant of relief, stand in marked contrast to the more rigid formulae applied by the common law… 3 Equity, then, is the body of law having its foundations in the Court of Chancery and evincing, in general, a concern with issues of conscience and natural justice, and imposing flexible remedies on a discretionary basis. Thus, equity is: Informed by ‘ conscience ’ (on this more later); In large part, discretionary and remedial ; and The result of a long historical process. However, as Meagher, Heydon and Leeming observed above, any more precise definition of equity is bound to fail, being either too inclusive or too narrow. 1 R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4 th ed, 2002) 3. 2 Sir Anthony Mason, ‘The Place of Equity and Equitable Remedies in the Contemporary Common Law World’ (1994) 110 Law Quarterly Review 238, 239. 3 Ibid.
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Equity and Trusts 01 – History © Jaani Riordan 2006 Page 2 of 23 http://www.jaani.net/ B Relevance One initial objection to a study of equity history is its relevance to modern legal practice. However, as will be seen, even doctrines as antiquarian as trusts, fiduciary relationships and estoppel are of continuing importance to contemporary commercial and domestic transactions — indeed, are singularly relevant to these environments. For example, equitable estoppel is commonly pleaded as an alternative (or primary) cause of
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This note was uploaded on 08/17/2010 for the course BUSLAW 730-462 taught by Professor N/a during the Three '10 term at Melbourne Business School.

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01_History - Equity and Trusts 01 History PART I A HISTORY...

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