Modern Equity

"Equity administers individual justice and this is reflected in its standards based approach to adjudication whereas common law administers universal justice and this is reflected in its reliance on rules".

Evaluate this statement in relation to the nature and purpose of modern Equity:

Martin considers the debate concerning the nature and understanding of equitable rights and the interests of the beneficiary; this debate concerns whether the rights and duties under equity are in personam or in rem or possibly in the modern day fused and there is no distinction between the two categories. This debate has arisen from the encroachment of equity on property rights and law; which affords the beneficiary with equitable rights of ownership. This debate, Mockler, argues due to Austin's distinctions that rights either have to be in rem or in personam but not both. Mockler defines an in rem right as a right enforceable against the world with respect to a particular thing; in other words these rights are enforceable against the whole world that is property, which is also known as equity's darling the bona fide purchaser without notice. However the debate as Mockler and Martin argue has been caused by the beneficiary under a trust muddying the waters in the distinction between rights in personam and in rem.

Martin further presents the problem that faces investigation into the nature of equitable rights and determining whether equity is validly doing what is just, i.e. dealing with the deficiencies and injustices at common law. However a majority of modern equity is concerned with property rights and interests within property, i.e. matrimonial home trust. The trust is a machination for the courts to use in order to ensure that individuals who are being treated unfairly at the level of common law, in relation to property, are given rights within this property.

In order to understand the following discussion the purpose of equity has to be defined:

Equity: 'modification of common law: the system of jurisprudence that supplements common and statutory law, when those bodies of law are inadequate in the attainment of justice; justice tempered by ethics: justice applied in conformity with the law, but influenced at the same time by principles of ethics and fair play; [and] fair claim: a claim that is judged to be just and fair.'

An Equitable Trust: 'position of obligation: the position of somebody who is expected by others to behave responsibly or honourably; something in which confidence is placed: somebody that people place confidence or faith in; law holding of another's property: the legal holding and managing of money or property belonging to somebody else, for example, that of a minor; arrangement to manage another's property; [and] a legal arrangement by which one person (trustee) holds and manages money or property belonging to somebody else'.

In Personam Rights: 'law directed at somebody: made about or directed at a person rather than at property'.

In Rem Rights: 'law directed at property: made about or directed at property rather than a person'.

The above dictionary definitions introduce some very important notions that deal with justice, but not the justice of contracts or organizations but the individual. In addition the equitable trust, which is either set up by the property owner to safeguard the future of an individual or by the court to remedy injustice to the individual, due to deficiencies at the common law. Therefore the notions of responsibility and obligation of one individual(s) for another is important, e.g. fiduciary relationship, by the court in the interest of justice; hence resulting in the importance of personal conscience

History of Equity and Proprietary Interests:

The most important notion that equity created was it dealt in personam at the discretion of the Chancellor, i.e. in the interests of justice. This became historically important in protecting the Lord's benefit in his vassal's (feoffee) land. As Martin argues equity works in respect to maxims is that equity's rights are in personam, i.e. historically equity acted at the discretion of the Chancellor. The origins of the use of equitable rights, by the Chancellor, were run by the liege's (feoffees) for the benefit of the liege lord (cestui que use); even though legal ownership was in the hands of the liege. As Maitland argues:

'Equity did not say that the cestui que trust was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust'.

Hence Martin and Maitland illustrate that equity was originally used to protect the natural order and hierarchy in land ownership, i.e. the interests of the Lord and King were protected, but the ownership was vested in their vassals. However as the notions of land ownership and governance changed over the centuries equity was no longer used to protect the King's interests; instead it was used to protect those persons who could not hold an interest in land. This discretion of the Chancellor has today developed into a body of law whereby in personam rights have been used to protect rights to do with ownership of property and land. Martin then goes further to distinguish that these property rights are not in rem, because the legal owner is the person that holds the in rem rights; however the legal owner cannot override the interests of the equitable owner. In other words the trustee must protect the rights of the owner of equity and the theory that equity acts in personam is still arguably valid:

The beneficiary asserts his rights by an action against the trustees to enforce their duties; the old theory that equity acts in personam is wholly acceptable.

The historical notion has a strict separation of equitable rights and remedies and those at the common law level; however there has been a body of debate from 1875 when the two courts were amalgamated whether this distinction of in rem rights for legal ownership and in personam rights for equitable ownership. The following section will discuss the fusion of equity and legal rights; however as one can already surmise the notion of property and property rights dominates the notion of equity.

A Critical Application of Equitable Interests:

In response to the effect of equity and rights there are three views, especially with the combining of the two courts into a single court with the 1875 High Court Judicature Act, the traditional view was illustrated by Ashburner:

'The two streams of jurisdiction though they run in the same channel; run side by side and do not mingle their waters'.

There are those that have argued that equity now prevails over the common law system, especially in respect to the fusion of the equity and common law courts into one, which was a concern reported by Sir Jessel:

'There are not two estates as there were formerly, one estate in common law by reason of the payment of rent from year to year and an estate in equity under the agreement. There is only one court, and equity rules prevail in it.'

On the other hand those have argued that this mixing of equity and common law has caused confusion and possibly eradicated the need for a separation of equitable remedies from the common law, because all can be protected at the common law level, i.e. the law has naturally evolved to protect equitable rights, which are no longer discretionary but dictated by common law precedent but equity does not prevail, because legal rights are a very important notion and Ashburner's metaphor is incorrect, as well as the notion that there is only a court ruled by equity and in personam rights and not common law and in rem rights. This view was presented by Lord Diplock in United Scientific Holdings Ltd v Burnley Borough Council; he argued that Ashburner's explanation of the distinction between rights in personam and in rem is outdated and conservative. Instead Diplock argues that rights in personam and in rem, like the courts of equity and common law, are fused. Therefore if the modern view is the correct view then there is no separation of rights in rem and rights in personam in relation to equitable rights and remedies versus legal rights and remedies; however the most important distinction between the equity and the legal is held within the Law of Property Act 1925; whereby the difference between equitable and legal ownership is defined. However this falls into the trap that equity is overly concerned with property and is it sufficiently acting to ensure that the duties of the legal owner's conscience coincide with the interests of justice, i.e. the reason why equity was created:

'I do not, for my part, think it matters one jot whether the duty is expressed as a common law duty or as a duty in equity. The result is the same.'

In other words the interests of justice are satisfied, which is the central reason that equity was formulated; however the current debate whether there is a distinction between equitable rights and remedies and those provided at the common law indicate that the amalgamation of the legal and equitable systems have not yet filled the holes of deficiency within the common law. As the Medforth v Blake case indicates that the two bodies of law are coming together, which is not a dreadful notion but an indication that English Law is adapting to the modern age, where the old notions of property ownership is no longer applicable. However this development is still necessary to continue, because the equitable and legal rights are still significantly important until such a time that there are no longer deficiencies in the common law system:

'What can be said is that a century of fused jurisdiction has seen the systems working more closely together; each changing and developing and improving from contact with the other; and willing to accept new ideas and developments, regardless of their origin. They are coming closer together. But they are not yet fused.'

The Family Home - A Modern Problem in Equity:

The following case study will attempt to explain the importance of equity dealing with property law, especially in respect to those who do not hold property rights, socially and traditionally. Hence the reason for choosing women, because traditionally women never held property, in fact they were seen as property, at the worst, and akin to children, at the best, and equity became involved to ensure that women were protected under equity. In the modern era, women can own property and are seen as equal to men; however socially women still do not own property at the same scale as men and traditionally are the home and child carer and the financial contributions to the mortgage are usually be the husband, therefore equitable protection is very important in the case of marital break up. It must be noted that this notion can protect the husband, if in the weaker position; also there is possible indications that it is viable for common-law couples and possibly in the future the modern notion of same-sex couples.

This has become a very modern problem, because the nature of the family and the home is changing; however women traditionally are the non-legal owners of property and the titles are vested in the husband. Judges in the late 60s and 70s recognized this problem, as well as the growing number of co-habiting couples and had not entered into the institution of marriage and aimed to protect the rights of women, which the common law was neglecting when families split up because these women did not hold property rights. Lord Denning developed this to ensure that non-financial contributions to the home were recognized and the matrimonial constructive trust was created. However the House of Lords rejected this approach as encroaching on property and in rem rights, but did allow for a trust to be created if substantial contributions were submitted to the matrimonial home, e.g. mortgage payments and home improvements. However there was an outcry and protection was afforded to women statutorily; yet there are still problems that equity is still trying to deal with, such as unmarried couples and same-sex couples and as Sir Scott Medforth states:

'I do not, for my part, think it matters one jot whether the duty is expressed as a common law duty or as a duty in equity. The result is the same.'

Therefore it is justice that equity is aiming to create and its flexibility is important, if it shies away because of the property rights versus equitable rights debate then it is not filling the voids and deficiencies of the common law.


The above exploration has considered the notions of in personam and in rem rights and the involvement of equity in property ownership; it must now be discussed whether equity's involvement in property ownership is valid. As already mentioned a lot of English law is based on the notion of property ownership; however the present legal system has had centuries of deficiencies in protecting ownership rights because certain categories where unable to own property, such as women, and only recently in the history of English law has the notion of property ownership changed, i.e. all capable persons may own property, including women and children; however with regard to real property children cannot be legal owners but can be beneficial owners, hence equity's role. Equity has a very important role because it is flexible, unlike common-law, due to its historically discretionary basis and creativity. Therefore it is able to fill the voids within the English law in a more efficient manner than the common-law, which is based on years of precedent; whereby if equity never became involved in the law of property and proprietary interest then it would not be satisfying the needs of justice.


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