Intro to Equity

Question 1

What is equity?

Answer 1

A correction of legal justice - Nicomachean Ethics.

Courtman v Convers - Common law rules disapplied, as the behaviour by D was unconscionable, so the borrower ought in equity to be relieved.

Question 2

Nature of equity

Answer 2

Penn v Lord Baltimore - Equity acts in personam on the litigants - defendant’s right in CL remains intact, but court of equity will not allow defendant to insist on their right if it is unconscionable

Question 3

Arguments against equity

Answer 3

1. For law we have a measure of what will happen, whereas equity is according to the conscience of judges. If we know a foot is a foot, it is not helpful to refer to a ‘judge’s foot’ as we do not know what this is.
2. Undermines rule of law in its discretionary adjudication. Counter-argue that in complicated legal settings, standards do a better job and comply with the rule of law.
3. Conscience is dangerous to rely on as a standard.
   Counter: Standard of conscionability in equity is objective, universal and accessible to all people - eg proprietary estoppel - we do have set standards which people know about (or ought to know about)
4. Samet ‘Equity’ - Sacrifices clarity, predictability and horizontal justice of land law, by allowing informal acquisition of rights in land. By having fixed, strict rules, we allow people to make plans with regard to their property without intervention from state - equity mars that.

However, Samet counter-argues that a thicket of rules is too complex to be a useful guide for citizens, as they can a be manipulated by parties with effective lawyering to exploit more vulnerable people.
It also appeals to objective moral judgement which is shared by most reasonable people.

Rather than changing rules itself, which would be an endless exercise, equity employs open-ended principles and conscionability to achieve results which are fair and just - E-L dualism is good for a healthy balance.

Question 4

Judicature Acts

Answer 4

Combined the Courts of the Common Law and the Chancery to one, which applies both where necessary.

Question 5

S1 LPA

Answer 5

Sets out the only estates which can subsist or be created at law (freehold and leasehold), and interests or charges which are also capable of such (easements, rentcharges and charges etc).

All other estates, interests and charges in or over land take effect as equitable interests.

Question 6

Senior Courts Act 1981, s49

Answer 6

Every court, in civil matters, there is a conflict between common law rules and equity shall allow equity to prevail.

Question 7

Burrows’ article

Answer 7

Criticises the failure to fuse certain categories between CL and equity - eg why do we have common law wrongs and equitable wrongs when they attract the same remedy?

Punitive damages only available under Rookes for torts - they should be available for equitable wrongs such as breach of fiduciary duty.

CL damages only give remedies for accrued wrongs whereas E damages can be awarded for anticipated AND accrued wrongs - this distinction should be ridded.

Ultimately we should do the same at equity as we do at common laaw.