ORDER NOW i to my accountant and good friend, Eustace, the best part of my collection of antique coins, entreating him to divide the lions share between the curators of all museums in europe established before i was born In order for a trust to be valid, the three certainties1 must be complied with2, namely certainty of intention, of subject matter and of object matter.
In this context the expression natural justice is used in the broad sense of recognising and giving effect to justifiable rights of aggrieved parties based on principles of fairness and conscience that were not acknowledged by the common law courts. The common law system was perceived as being too formalistic and rigid in its outlook with the result that the potential rights of certain litigants were subject to abuse.
The principles which gave effect to the rights of litigants and which were not recognised by the common law courts were known as equity. Equity, unlike the common law, was not an independent system of legal rules. It did not stand alone. It presupposed the existence of the common law, which it supplemented and modified.
The rules of equity were originally based on conscience and principles of natural justice, and were applied on a case-by-case basis. Where there were gaps in the common law rules that created injustice to one or more of the parties, the rules of equity filled in these gaps.
Thus it has been said that Equity came to fulfil the law, not to destroy it.
The two systems of rules were complementary to each other. The rules of equity were regarded as that portion of natural justice that was judicially enforceable but which for a variety of reasons was not enforced by the courts of common law. The effect was that although the rules of equity did not directly contradict the common law, the application of equitable rules was capable of producing an effect which was different from the common law solution.
A modern example of the operation of equity is illustrated by Cresswell v Potter[footnoteRef: Nevertheless, it should be remembered that the English Courts of Equity have never expressly acknowledged that they are operating on any one philosophical basis; although, as will emerge in the next few paragraphs of this coursework, it may appear that they do have such grand aspirations hidden within their judgments.
Hegel was one of the foremost philosophers of the last years not a lawyer but his definition of the activities of equity in its legal sense is particularly useful. Equity permits the achievement of fair or just results where statute or common law might otherwise admit unfairness or injustice.
Hegel set out the following definition of equity: Equity involves a departure from formal rights owing to moral or other considerations and is concerned primarily with the content of the lawsuit.
A court of equity, however, comes to mean a court which decides in a single case without insisting on the formalities of a legal process or, in particular, on the objective evidence which the letter of the law may require.
Further, it decides on the merits of the single case as a unique one, not with a view to disposing of it in such a way as to create a binding legal precedent for the future.
Hegels summary, however, should be treated with some caution because he wrote as a German philosopher rather than as an English lawyer. Yet it captures the fact that the court is concerned only with the merits of the case between the claimant and the defendant, and not necessarily with the broader context of the law.
In this way the court can focus on reaching the best result in the circumstances, even where a literal application of statute or common law might seem to require a different result.
Maitland, in lectures published at the beginning of the 20th century, would have us believe that equity is founded on ancient English elements and rejected the idea that equity was taken from Roman law.
In truth the provenance of the English courts of Equity is a mixture of the ecclesiastical courts and a body of law which developed in terms of a line of precedent from onwards. However, the basis of equity as a counterpoint to the common law is not an idea which should be considered to be simply English.
There are echoes of it in the ancient Greek philosophers when, as Aristotle argued that equity is the rectification of legal justice in so far as the law is defective. Laws are general but the raw material of human behaviour is such that it is often impossible to pronounce in general terms.
Thus justice and equity coincide and both are good, but equity is superior. The genesis of English polity and the structure of its legal system are the result of the Norman invasion of [footnoteRef: The composition of that kingdom had itself been the result of hundreds of years of consolidation of warring tribes.
The development of England and Wales as a single legal jurisdiction results from hundreds of years of wars of conquest fought by the insurgent English against the Welsh.
Scotland retained its own, distinct legal system despite the Act of Union of The years after the battle spread what is known as common law] The Norman Conquest is vitally important though.According to this principle, for there to be a valid trust there must be, amongst other things, a beneficiary in whose favour the court can enforce the trust.
Recently, the case of Re Denley encapsulates a new pragmatism within the courts as far as this area of law is concerned.
The term “Pareto principle” can also refer to Pareto efficiency. The Pareto principle (also known as the 80–20 rule, the law of the vital few, and the principle of factor sparsity) states that, for many events, roughly 80% of the effects come from 20% of the causes.
The GDL Elite Revision Manual (full version available at kaja-net.com) is a comprehensive guide providing a structured approach to problem questions and essays across 70 topics covered on the Graduate Diploma in Law.
In Morice V Bishop of Durham , the main legal element of trusts, which is known as the beneficiary principle was established. The beneficiary principle states that for a trust to be valid, the following conditions must exist: 1.
Chapter 1: Nature of equity and trusts Choose a question below: Question 1: Equity and discretion; Question 2: Equity and justice; Question 3: Equity today.
This is a sample of our (approximately) 20 page long Trusts For Purposes notes, which we sell as part of the Trusts and Equity Notes collection, and as such satisfies the beneficiary requirement (Re Denley's Trust Deed) The Beneficiary Principle And Non Charitable Purpose Trusts Notes.