Equity

Nature of Equity Equity is a body of principles and procedures which developed side by side with the common law and statute law. Early common law was rigid and could produce arbitrary and unjust results in many cases. Equity originated with the Courts of Chancery, which sought to mitigate the harshness of the early common law. As a court of conscience, equity was not bound by the rigours of the common law. The Courts of equity were synonymous with conscience, fairness and even-handed dealing. In its formative years, it emphasised common sense, flexibility and fairness. Equity was and largely remains flexible, discretionary and responsive to circumstances than the common law. The early Chancellors had ecclesiastical backgrounds and were trained canon lawyers. They dispensed justice in accordance with principles of conscience and morality. Some of the earlier Chancellors considered themselves to be keepers of the King’s conscience. Some early Chancellors took the view that the law should follow the law of God.… Read the rest

More

Property Law and Equity The Chancery Courts and the rules of equity are intimately linked with property law. See generally our sections on legal history, equity remedies, and trusts. As will be seen in several contexts, the courts recognise both legal and beneficial (or equitable) ownership or interests in property. Since 1877 all courts administer both law and equity so both types of ownership are recognised. Legal and beneficial ownership coincide in the vast majority of cases. Where both types of interest subsist, the beneficial interest represents the substantial real interest in the asset. Equitable or beneficial owners are usually taxed and treated for all purposes, as the true “owner”. Legal ownership arises when the title is created and transferred in the way prescribed by law. In the case of registered title, the legal owner is the person registered on the Register as such. Equally, in the case of unregistered title, the legal owner is the person in whom the title is vested under the most recent Conveyance of the legal estate.… Read the rest

More

Conversion Where a person is under a duty to convert property of one type to another, (e.g. real property to personal property or vice versa), it may cause injustice, if it continues to be in its original form, because there is a failure to perform an obligation.  The doctrine of conversion is a principle of equity that regards what ought to be done, as done.  It may deem one type of property to be another type, by reason of an obligation to convert it from one form to another.  This notional conversion is deemed to occur in equity, in order to do justice. The principle was once extremely significant in the context of intestacy, as freehold real property passed to the heir at law, whereas other property, including latterly, registered freehold estates, leasehold estates and movable property passed to the next of kin.  The Succession Act has assimilated real and personal property and both pass to the successors as defined by the Act, or under and in accordance with the terms of a will.   … Read the rest

More

Development of Equitable Remedies The Chancery Courts were established in Ireland, in the 13th century in parallel with the Common law courts, in accordance with the English model. In the early years of the Common Law, it was extremely rigid. Cases would fail unless they could be brought squarely within the terms of certain pre-existing “writs” or forms of claim. Justice, fairness or discretion was not central to the process. The Chancery courts, (otherwise described as Courts of Equity), developed separately from the Common Law courts. They grew up as a counter-balance and originally operated as courts of conscience. The earlier Chancellors who presided over the Chancery Courts were clerics. In contrast to the Common Law courts, they were prepared to consider the circumstances of a case and impose a fair and equitable solution. Equitable remedies are generally discretionary. This does not mean discretionary in the sense of being arbitrary. Equity is dispensed in accordance with reasonably predictable criteria.… Read the rest

More

Types of Estoppel There are two species of so-called equitable estoppel, namely promissory estoppel and proprietary estoppel. Both involve a representation made by words or conduct on which a third-party relies and acts to his detriment. The person who makes the representation is not permitted to later act in a manner inconsistent with it, if this would be inequitable and unconscionable. Promissory estoppel may arise where a person promises or implies that he will not rely on his strict legal rights, but the promise is not binding under contract law, due, for example, to lack of consideration. Where a promise is made, which is intended to create or affect legal relations, with the knowledge that the addressee is going to act on or rely on it, and this in fact occurs, the principle may apply. Promissory estoppel is generally only available as a defence. Proprietary estoppel, arises in the context of property rights, generally with reference to land and buildings, but also in the context of other types of property.… Read the rest

More