Unit 1

Question 1

Maitland’s definition of Equity

Answer 1

Equity is the branch of law, which, before the Judicature Acts 1873 and 1875 was applied and administered by the Court of Chancery

Question 2

Maitland defines a ‘trust’ as follows

Answer 2

A trust arises when a person holds rights but is bound to exercise them for the benefit of another or for a specific purpose. That person is called a trustee.

Question 3

What is a Trust? – Maitland’s View

Answer 3

Maitland described the trust as “the greatest and most distinctive achievement” of English law, developed over centuries to become a unique legal concept.

Question 4

Aristotle on Equity

Answer 4

• Equity is superior to justice, but both are forms of fairness.
• Justice and equity often overlap, but equity is more flexible and addresses gaps in legal rules.
• Equity is a correction or rectification of what is too rigid in legal justice.
• The focus of equity is to achieve true fairness, even when the strict letter of the law would produce an unjust result.

Question 5

John Selden, Table Talk 1st edn., 1689.

Answer 5

Selden compares this to using a Chancellor’s foot as a measurement standard — some have long feet, others short, meaning there is no fixed measure for equity.

Question 6

Modern Contributions of Equity

Exclusive Jurisdiction

Answer 6

Equity created new rights and institutions not available in common law, such as trusts and succession law.

Question 7

Modern Contributions of Equity

Concurrent Jurisdiction

Answer 7

Equity provides remedies that complement common law, including:
* Specific performance (forcing someone to fulfil a contract),
* Rescission (cancelling a contract),
* Rectification (correcting a document), and
* Injunctions (orders to do or stop doing something).

Question 8

Modern Contributions of Equity

Auxiliary Jurisdiction

Answer 8

Equity introduced new legal procedures to assist the administration of justice, such as:
* Writ of subpoena (compelling witnesses to attend court), and
* Interrogatories (written questions requiring a formal response).

Question 9

Uses: the medieval forerunner

Answer 9

• Trusts originated as the medieval “use” (from Latin ad opus, meaning “on behalf of another”).
• By the 12th-13th centuries, feudal tenants could transfer land to their heirs or alienate it without the lord’s consent.
• The Statute of Quia Emptores (1290) allowed land to be transferred without feudal obligations, further solidifying the concept of trusts.

Question 10

Dod v Chyttenden (1502)

Answer 10

Walmsley J describe the medieval “use” - An abstract idea tied to the trustee’s responsibility.

Question 11

Ancient Influences on Trusts

Answer 11

• Roman fideicommissum (a legal arrangement to transfer property).
• Islamic waqf (a religious endowment from the 3rd century AD).
• Salic salmunnus (an early Germanic legal concept).

Question 12

Avini

Answer 12

argues there is no definitive proof that these systems directly influenced each other.

Question 13

Equity’s Darling

Answer 13

refers to the bona fide purchaser for valuable consideration of legal title without notice of the trust

Question 14

Trust in the eyes of Common Law

Answer 14

The Common Law considers the trustee to own the property outright. It is Equity that sees the legal owner as obliged to hold the property for the benefit of the beneficiary.

Question 15

Types of Trusts in terms of how it was created

Answer 15

Express Trusts
Inter Vivos Trusts
Testamentary Trusts
Common Law Trusts

Question 16

Types of Trusts in terms of their purpose

Answer 16

Public trusts
Private Trusts

Question 17

Types of Trusts in terms of trustee discretion

Answer 17

Fixed Trusts
Discretionary Trusts

Question 18

Types of Trusts in terms of nature of the trusts

Answer 18

Bare Trusts
Protective Trusts

Question 19

Types of Trusts in terms of their legal implications

Answer 19

Resulting Trusts
Constructive Trusts

Question 20

Earl of Oxford’ Case (1615) 1 Ch Rep 1

Answer 20

King James I stated that Equity Prevails.

Question 21

Cook v Fountain (1676)

Answer 21

Lord Nottingham’s judgment in Cook v Fountain is considered a turning point in the development of equity. It established that:

✅ Equity is based on legal principles and rules, not on moral discretion.
✅ Trusts and other equitable rights require clear evidence.
✅ Equity became more formalised and predictable.

Question 22

Sir George Jessel MR (1881)

Answer 22

The Judicature Acts abolished the separate courts of law and equity. Now, there is one unified legal system where equity rules prevail in conflicts.

Question 23

Lord Diplock (1977)

Answer 23

The distinction between law and equity is misleading and no longer relevant post-Judicature Acts. Both systems were effectively fused into one unified legal process.

Ashburner’s metaphor criticised by Lord Diplock in 1977.

Question 24

Lord Denning (1973)

Answer 24

Over time, the distinction between law and equity has disappeared in practice, with both systems operating as one cohesive body of law.

Question 25

Ashburner’s Metaphor (1933)

Answer 25

The two streams of jurisdiction… run side by side and do not mingle their waters.

Question 26

Lord Selbourne LC (1873)

Answer 26

Despite the fusion of courts, distinctions between legal and equitable estates are necessary for trust law to function properly.

Question 27

Walsh v Lonsdale [1882] 21 Ch D 9

Answer 27

Effect of s.25(11) shown

Conflict between law and equity.
At common law, the action failed.
In equity, the agreement was good enough and the tenant was liable.

Question 28

Salt v Cooper [1880]

Answer 28

Jessel MR makes it clear that:

• The Judicature Acts merged the courts, not the substance of law.
• Equity and common law remain distinct bodies of law.
• In cases of conflict, equity prevails over common law (per Jessel MR).
• The fusion fallacy is the mistaken belief that equity and common law have been completely merged into one set of legal principles.

Question 29

Medforth v Blake [2000]

Answer 29

Richard Scott VC
* The distinction between common law duties and equitable duties is irrelevant in practice.
* Focusing on whether a duty arises from law or equity is unhelpful because the outcome remains the same.
* The key concern should be the substance and result of the duty, not the label (whether it’s a legal or equitable obligation).

Question 30

Wood v Commercial First

Answer 30

the court suggested that in such cases common law should be assimilated to equitable actions.

Question 31

Lord Dudley v Lady Dudley [1705]

Answer 31

• Equity is a moral virtue, not part of common law.
• It softens the harshness and rigidity of legal rules.
• Equity supports and assists the law by preventing evasion and exploitation of legal loopholes.
• It corrects injustices that arise from strict application of the law.
• Equity does not destroy the law, but enhances and supplements it.

Question 32

Earl of Oxford’s Case [1615]

Answer 32

Ellesmere LC:

• Human actions are too varied and complex for a single, rigid set of laws to cover every situation.
• General laws will inevitably fail to address unique circumstances.
• Therefore, equity steps in to rectify gaps and injustices where the general law falls short.

Question 33

Eves v Eves (1975)

Answer 33

Lord Denning argues that equity is still evolving and capable of creating new principles, like the modern constructive trust, which was introduced in Gissing v Gissing [1971] by Lord Diplock and later developed further by the courts.

Question 34

Lord Diplock

Answer 34

introduced new equitable models in 1971.

Question 35

Re Diplock (1948)

Answer 35

Lord Greene MR

Claims in equity must have historical roots.

Question 36

Cowcher v Cowcher (1972)

Answer 36

Bagnall J

[T]he length of the Chancellor’s foot has been measure or is capable of measurement.

Equity is measurable and lacks flexibility.

Question 37

Lord Neuberger

Answer 37

Has Equity had its day?

• Meaning: He questions whether equity is still relevant and innovative in modern legal systems.

Question 38

Westdeutsche Landesbank Girozentrale v Islington BC [1996] AC 669 HL

Answer 38

Principle (i): Conscience
Principle (ii): Factual awareness
Principle (iii): Identifiable trust property
Principle (iv): From the date of creation

Question 39

Rouchefoucauld v Boustead [1897]

Answer 39

A trust concerning land usually needs to be in writing (as per s 53(1)(b) LPA 1925), but if enforcing that rule would result in fraud, the courts can admit oral evidence to uphold the trust.

Question 40

Trust constitution

Answer 40

The legal title is properly vested in the trustee(s).

Question 41

Milroy v Lord (1862)

Answer 41

Method 1: Self-declaration of trust
Method 2: Transferring property to trustee

If a settlor fails to fully transfer legal title through a recognised mode (gift, transfer to trustee, or self-declaration of trust), the transaction fails, and the court will not enforce the incomplete gift.

Question 42

Jones v Lock (1865);
Richards v Delbridge (1874);
Paul v Constance (1977);
Choithram (T) International SA v Pagarani [2001].

Answer 42

For self-declaration, writing is not required, however, writing is best as oral declarations have been evaluated carefully by the courts.

Question 43

Strong v Bird (1874)

Answer 43

Rule in Strong v Bird – Fortuitous Vesting

If a donor intends to make a gift but the transfer is incomplete, the gift may still be perfected if:
1. The donor intended the gift to be immediate.
2. The donor later appoints the donee as executor of their estate.
3. The donor continues the intention until their death.

Question 44

Re Rose [1952]

Answer 44

Every Effort Rule

If a donor has done everything in their power to complete the transfer of the gift, the court may treat the gift as perfected in equity, even if legal title has not formally passed.

Question 45

T Choithram International SA v Pagarani [2001]

Answer 45

Self-Declaration of Trust by a Settlor

The court ruled that equity will not allow a trust to fail for want of a trustee. If a settlor declares themselves as one of the trustees, the trust may be treated as immediately constituted, even if the transfer to the other trustees is incomplete.

Question 46

Re Cook [1948] Ch 212

Answer 46

a husband and wife held land on trust for themselves. When the husband died, the wife’s legal and equitable interests merged, leaving her with absolute ownership of the land. The court held that the trust was terminated because no separate equitable interest remained to enforce. As the judge stated, a trust cannot exist if there is no beneficiary to enforce it.

Question 47

Re Bowden [1936] Ch 71 per Bennett J.

Answer 47

Once the trust is created, the settlor (in that capacity) loses all
control or interest in the property.

Question 48

Saunders v Vautier

Answer 48

A beneficiary with an absolute interest can demand trust property before the specified period if they are competent to give a valid discharge.

Question 49

Shell UK Ltd v Total UK Ltd [2011] EWCA Civ 1333

Answer 49

Modified Proprietary Rights, where legal proprietary rights are treated as primary, and equitable rights as secondary or supportive.

Question 50

Judicature Act 1873

Answer 50

(i) fused common law and equity; and (ii) re-organised the courts.

Question 51

Section 25(11) Judicature Act 1873

Section 49(1) Senior Courts Act 1981

Answer 51

If there’s a conflict, equity prevails

Question 52

Section 1 of the Recognition of Trusts Act 1987

Answer 52

For the purposes of this Convention, the term trust refers to the legal relationship created – inter vivos or on death – by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.’

Question 53

Section 9 of the Wills Act 1873

Answer 53

No will shall be valid unless it is:
In writing
Signed by the testator
Witness and signed two witnesses
In the testator’s presence

Question 54

s 53(1)(b), Law of Property Act 1925

Answer 54

A declaration of trust respecting any land or interest therein must be in writing and signed.

Question 55

s 53(1)(c), Law of Property Act 1925

Answer 55

The transfer of an existing equitable interest or trust must be in writing and signed by the person disposing of the interest.

Question 56

Section 53(2) of the Law of Property Act 1925

Answer 56

the requirement for writing in Section 53(1) does not apply to the creation or operation of resulting, implied, or constructive trusts.

These types of trusts can arise automatically based on the circumstances or conduct of the parties, without the need for formal documentation or writing.

Question 57

s 52(1) LPA 1925

Answer 57

requires conveyances of land or any interest therein to be made by deed.

Governs the transfer (conveyance) of legal title to land or an interest in land