Introduction to Equity

Question 1

The problem

Answer 1

• Harsh, rigid common law
• Unsympathetic legislature
• Third way: ‘Equity’ in the technical sense of the word, usually requires ‘equity’ in the lay sense of the word.

Question 2

Origins of English Equity

Answer 2

• Mediaeval – petition the king, who delegated the issue to his Lord Chancellor
• Early modern onwards – Court of Chancery
• Post-1877 – absorbed in to the High Court system

Question 3

Discretionary and Moral

Answer 3

• Lord Dudley v Lady Dudley

Question 4

Selden v Eldon

Answer 4

• ‘Equity is a Roguish thing…’

- Gee v Pritchard (1818)

Question 5

The Present Era

Answer 5

• ‘[T]his court is not, as I have often said, a Court of Conscience, but a Court of Law’.
• Re National Funds Assurance

Question 6

Residual Appeals to Fairness and Good Conscience

Answer 6

• ‘A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior… the level of conduct for fiduciaries [has] been kept at a level higher than that trodden by the crowd.’
• Meinhard v Salmon 164 NE 545 (NY 1928) 546 (Cardozo J)
• Take extreme care over any reference to ‘unconscionability’