Equity In Common Law

According to the English dictionary equity is the quality of being fair and impartial but legally there is no proper definition for equity but it can be described up to a certain standard. It is about flexibility, justice and fairness which require discretion and uncertainty. It acts as a supplement to the common law. Such as: Land Law, Contract Law, and Tort. Equity developed due to the lack of remedies and non-fulfillment of the common law and it could be said that equity came after the birth of common law to correct the strictness and harshness of common law.

Lord Chancellor who introduced the new system of justice called “Equity” in the famous case of Earl of Oxford’s Case [1615] . In that case Lord Chancellor held that, “men’s actions

These requirements have been establish in many cases as an example, by Lord Langdale who first conceptualized the three certainties in Knight V Knight [1840] . The certainty of intention is where court will look at the matters of focusing on the words used to establish whether or not the words can be deemed to convey imperative obligations because, many disputes have been raised due to the words of the Hope, desire, wish and belief. This can be identified in the case of Lambe V Eames [1871] . In this particular case where courts will apply the stricter approach in order to identify whether parties intended the property as the trust. After, by looking at the effect, where courts tried to reduce the strictness and the harshness of the decisions. That can be seen in the case of Comiskey v Bowring Hanbury [1905] , (Absolutely the whole of my real and personal estate... in fulconfidence that she will) in which court decided to create trust dealing as to the above statement. As a result of the development which Comiskey case made the testator to create trust in a flexible way and it has been reduced the harshness of the system in equity. The flexible nature of equity justice leads towards the uncertainty. Equity is uncertain, which is differing from case to case other than written code of law such as

Then the trustee distributes the trust property to specified beneficiaries. So it is clear that the creation of express trusts must involve four main elements for trust to be valid. They are capacity, certainty, constitution and formality. Capacity means that the settlor or testator must be legally capable of creating a trust. There are five basic principles should be satisfy according to the S.1 Mental Capacity Act 2005. It provides a statutory framework to empower and protect valuable people who are not able to make their own dictions. This is a development of private express trust. There are some statutory requirements which shows the rigid and harshness in express trust. Such as: S.52 (1) Land and Property Act 1925, S.27 Land Registration Act 2002, etc. Certainty means the three certainties which required being satisfied to create a private express trust. Another requirement in express trust is constitution which brought out by Turner LJ in Milroy V Lord [1862] . It established that “settlor must have done everything which according to the nature of the property comprised in the settlement was necessary to be done in order to render the settlement binding upon him. He may do this by; actually transferring the property to the persons, whom he intends to provide, if he transfers it to a trustee for the purpose of a settlement, declares that he holds it on trust.