equity and trust law Flashcards
what is the purpose of equity
equity is the means by which a system of law balances out the need for certainty in rule making on the one hand, with the need for sufficient judicial discretion to achieve fairness in individual factual circumstances on the other - clements and abass 2009
what are the two major conceptualisations of equity
thereotical and legislative
what is trust
the trust is the most important creation of equity and is a rorm of ownership of things which allows someone to manage proorty fir someone fit - pearce and stevens 2015
what is the theoretical approach
relate to the ideas of morality, justice and fairness
what ia the legalistic approach
body of law which developed out of common law,
what did lord dudley v lady dudley say
now equity is no part of the law but a moral virtue which qualifies, moderates and reforma the rigour, hardness, and the edge of the law, and is the universal truth. equity therefore does not destroy the law, but assists it
history of equity
writ, royal writ system, provisions of oxford 1258, establishment of the court of chancery, court of chancery location fixed under edward the third in westminister hall, it had two purposes, court of chancery became independent under richard the second, conflict of common law and the chancellor, fusion, 1873 lrod chancellor lord selborne issued the supreme court of judicature bill, a no of provisions would be amended unto the supreme court of judicature act of 1875, court of chancery cease to exist, mew courts established having dual jurisdiction
maxims of equity
equity will not suffer a wrong to be without a remedy, equity is equality, delay defeats equity, he who seeks equity must do equity, he who comes to equity mist come so with clean hands, equity acts in personam, equity will not perfect an imoerfect gift, equity follow the law, equity regards ad done that which ought t be done, where the equities are equal the first in time prevails
he who seeks equity must do equity
if an individual is looking to seek some kind of relief from equity, they must themselves act in a wy which is fair towards the opposing party
equity follows the law
unless there is some reason to not to do so, equity will follow the rules of the common law.
where the equities are equal the first in time prevails
where there may be two claims in equity which both have merit in their own right. the person who makes their claim first will be the one which has priority over the other
equity acts in personam
it looks to the person in each and every individual case
individuals in a trust
settlor, beneficiary, trustee
express trusts
created expressly
chrcteristics of a trust
protect soem kind of property, entail transfer of oegal title to the trustee, trustee has duty to manage said assets, trust can be created during life or after death, trusts maybe expressly made or implied through a multitude of different systems, equitable obligations between the trustee and beneficiary, trustee powers outlined in the terms of the trust
main requirements of an express trusts
certainty of intention, certainty of objects and subject matter
how are express trysts created
through a deed, a will, an oral agreement etc
bare trust
tristee has no duty but to hodl the property on trust until the beneficiary decides they want a conveyance of the property.
executed trust
which the settlor has given clear direction as to the tranfor of legal title to any of the beneficiaries.
discretionary trust
it will give the trustee a certain amount of power in reltion to how they will divide the trust property
secret trust
created on the death of the settlor
name implied trusts
resulting trust and constructiev trusts
resulting trust
where there ia sime title or property hekd by one person, but that the true owner of all or part of the property is another individual on the basis of their contribution
what is a fiduciary relationship
is someone who manages money or proerty for someone else
