'Equity gave new rights and new remedies

Equity Gave New Rights and New Remedies

Equity Gave New Rights and New Remedies

The word "equity " means fair or just in its wider sense , but its legal meaning is the rules developed to mitigate the severity of the common law . The Law of Equity , whose origins lie in the court of the Chancery was conceived as a corrective system of justice , intended to supplement the common law by reacting more sensitively and flexibly to the need for fair dealing and just outcomes . Equity created new rights by recognising trusts and giving

beneficiaries rights against trustees . The common law did not recognise such a device and regarded the trustees as owners . Equity also developed the equity of redemption . At common law under a mortgage , if the mortgagor had not repaid the loan once the legal redemption date had passed , he would lose the property but remain liable to repay the loan . Equity allowed him to keep the property if he repaid the loan with interest . This right to redeem the property is known as the equity of redemption

Far from operating separately to the common law , equity exists as a 'patchwork ' over it or , as Maitland puts it , a 'gloss ' offering a wider range of suitable remedies and recognising rights that , under the common law , would go unrecognised . Historically , its lack of formality and preoccupation with 'fairness ' on an ad-hoc basis evoked much criticism . John Selden once remarked of equity 'Tis all one as if they should make the standard (of equity 's conscience ) for the measure of the Chancellor 's foot ' However , equity has now derived an identifiable structure and a system of rules (a fact that has itself led to criticism , which enables us to examine it with some degree of certainty . This essay will seek to answer whether equity is at all times 'fair ' or whether , in a quest for fairness , unfairness sometimes results and how equitable remedies contributed to the development of new interests in land

Historically , the equity of redemption , that being a mortgagor 's equitable right to reclaim 'his ' property and redeem his mortgage long after a specified (legal ) due date , free from 'clogs or fetters ' has certainly exhibited manifest 'unfairness ' Whether this could be said to have been the result of a legitimate 'concern for fairness ' though is somewhat more than doubtful . More likely it was due to attempts to maintain the status quo and the traditional notions of Britishness . For example , the equity of redemption has always been at odds to protect the equitable rights of the mortgagor over the mortgagee and to ensure that a mortgage should not become a crude mechanism of property transfer However , the question that needs to be asked is why should it not have been ? - especially when parties (of equal bargaining power ) who were engaged in a bargain decided it to be so . To argue that those who sought a mortgage were needy or 'more open to [unfair /unscrupulous] impositions ' is itself somewhat crude and...