Equity and Trusts
01 – History
© Jaani Riordan 2006
Page 1 of 23
‘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.
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
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
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…
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 ‘
’ (on this more later);
In large part,
The result of a long
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.
R P Meagher, J D Heydon and M J Leeming,
Meagher, Gummow and Lehane’s Equity: Doctrines and
ed, 2002) 3.
Sir Anthony Mason, ‘The Place of Equity and Equitable Remedies in the Contemporary Common Law
World’ (1994) 110
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