Equity -non-recognition of trusts, Business Law and Ethics

Equity -Non-Recognition of Trusts

Therefore the common law did not recognize "trusts".  Like a case whether A conveyed property to B "on trust" for C the common law courts could not compel B to utilized the income from the property for the benefit and profit of C.  In fact the Lord Chancellor intervened in that cases and the overall effect of the intervention was the development of the body of principles and rules that constitute the basis of the current Law of Trusts.  Although in particular, the Court of Chancery would compel B to need the income from the "trust property" to the benefit of C.

Whereas it should be noted that equity is "a gloss upon the common law".  So however it was developed to supplement the common law but not to supplant it. So then it does this through  it were, as filling in the gaps left through the common law and, when appropriate, providing alternative remedies to litigants to whom the remedies obtainable at common law are inadequate. However, the substance of common law and the doctrines of equity are applicable in England only if the circumstances of England and its inhabitants permit and subject to such qualifications or modifications as those circumstances may render necessary.

Therefore the English Judicature Act 1873 gave that whether there is any conflict between common law and equity, equity is to prevail.  In fact there is no England statute to that effect.  Further the Act appears to be a statute of simple application that such was in force in England on 12th August, 1897 so it is prima facie applicable to England.  Whether so then any conflict between a rule of common law and a doctrine of equity, that arises in a England Court should be resolved through applying the doctrines of equity.

Posted Date: 1/21/2013 5:44:35 AM | Location : United States

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