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Is equity the answer to failings of the common law

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Equity has been the focus of much debate through the centuries. This has added to the evolution of the doctrine and how it co-exists with the law. In relation to the question the first point that has to be addressed is the point of what exactly is equity, its’ origins and how it has emerged into modern day society. Secondly there is the importance of how in reality it is applied, examining relevant cases as a means to achieving this insight. Furthermore there has come into existence the concept of fusion, which bares significance in consideration of the statement in question. The term general rules is also present which will evidently be given close attention and examination.

This statement when analysed and considered is true, however, there remain certain limits and thus room for debate concerning the degree to which this it is a reflection of reality in relation to the nature and application of modern equity. It is undeniable that without the general rules, meaning the common law, society would not run smoothly. Furthermore the statement is accurate in arguing that these general rules work for the majority of cases. As the layman understands that if he does something wrong there is usually a law set in place in regards to the act committed, hence the individual can appreciate what statute he has broken and have a certainty of where he stands. There are inevitably, as the question suggests, always going to be a set of unforeseen facts that arise, where the law is not sufficient in accomplishing a fair and just outcome. Lord Ellesmere in the Earl of Oxfords Case stated that

“men’s actions are so diverse and infinite that it is impossible to make any general law which will aptly meet with every particular and not fail in some circumstances. The office of the Chancellor is to correct men’s consciences for fraud, breaches of trust, wrongs and oppressions…and to soften and mollify the extremity of the law.” [1]

The Chancellor has the opinion that it is his duty to correct man’s consciences, and this is relevant in relation to modern equity as it strives to prevent individuals from acting unconscionably. The word ‘unconscionable’ translates as to something that is so grossly unfair and inexplicitly offensive to the conscience that the court will denounce it and prevent the perpetrator of the conduct to benefit, using equity as a vehicle to accomplish this feat.

Therefore, in relation to the question when the general rules do not produce substantial fairness, there is a need for an intervening source of law. Ad hoc there has through the centuries emerged equity. It attempts to intervene, to fill in the gaps as it were, that are exposed in the common law. And this is a critical point of analysis in regards to whether equity actually does succeed in achieving justice where the common law fails.

The key debate of this statement hinges on whether equity is as the question suggest the solution to the failings of the common law. It also becomes significantly apparent that flexibility seems to be a primary focal point when weighing up the attributes of the doctrine. From the positive view point that equity is the perfect barricade for preventing injustice sliding through the somewhat stubborn English legal system, there are many cases that illustrate it is.

In Binions v Evans[2] the common law left widowed Mrs. Binions with no legal or equitable property right as such, however due to equity’s trust concept Lord Denning asserted her right to remain in the property if she wished. The trust concept is equity’s most practical benefit as there is a great deal of scope and therefore ideal in coping with the majority of ‘unforseen facts.’ The academic Pearson also acknowledged the immense advantage the concept with held, finding it to be, “the greatest and most distinctive achievement performed by an Englishmen in the field of jurisprudence.”[3]

In relation to Mrs. Binions the discretion of the court found a constructive trust to be created, this form of trust is defined is in Millet[4] as arising

“whenever the circumstances are such that it would be unconscionable for the owner if the legal title to assert his own beneficial interest and deny the beneficial interest of another.”

In relation to the question it is vital as it affords equity to communicate its values where it ascertains that the counterpart, common law, has fallen short. This point was described by Mr. Justice Cardozo who stated:

“A constructive trust is the formula through which the conscience of equity finds expression”[5]

In Ottaway v Norman[6] Brightman J provides a useful test to prove the existence of a fully secret trust. This assessment is immensely profitable as without it, secret trusts are usually difficult to identify due to the concealment of instructions, thus making it problematic to recognise fraud. The imperative component needed for this test is that; intention must be communicated to the trustee and there to be evidence he accepts this on occasions onerous duty. In reference to the question another strength of equity has been highlighted as the test demonstrates how equity has emerged ever further in an attempt to prevent such unconscionability. Furthermore this shows equity’s capability to evolve, always aiming to seek and execute the true intention of the Settlor.

The maximum, ‘Equity regards the substance and not the form,’ is imperatively instrumental in prohibiting substantial unfairness, as the doctrine overcomes the letter of the law in cases where justice is hindered by technicalities. Such is the case Hussey v Palmer [1972] 1WLR 1286, 3 All ER 744 is the leading example of this, verifying that equity to be the solution when the general rules are unsuccessful in a fair outcome.

McPhail v Persons Unknown [1973] Ch 447, [1973] 3 WLR 71 exposed a fundamental weakness in modern equity, displaying that situations do arise where there is no equitable remedy. In regards to this scenario the courts had no authority to delay a possession order, fixing a negative light over equity, exposing its incapability in assisting the general rules of the common law when called upon. In contrast some dispute this view, believing that relief should not be afforded where the common law has been breached.

An example of where equity has been proven the victor and achieved a conscionable outcome is in Ottoway v Norman.[7] triumphs as it was Mr. Harry Ottaway’s obvious intention to make Miss Eva Hodges the trustee of Ashcroft bungalow and for her to leave it in her will for Mr.Ottaway’s son William upon her death. Furthermore she changes her will to leave the property and its contents to Mr. Norman, this has created substantial unfairness and under the common law Mr. Norman would be legal entitled, however equity intervenes to achieve a just outcome.

Flexibility v Inflexibility in relatin to the unforeseen set of facts as if it is flexible it will be a better as the statement suggests equity being the body of laws suited to dealing with as the question refers to an unforeseen set of facts that will arise.

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