History and Development of Equity

6295 Words Jul 7th, 2011 26 Pages

I. INTRODUCTION It is important to appreciate, especially when reading older cases on the law of trusts, that there were, until 1873 in England, two main separate courts – courts of law and courts of equity. Trust law was a product of courts of equity. We will thus look at:
(i) the meaning of “equity” that is associated with courts of equity;
(ii) the origins of courts of equity;
(iii) the development of the law of uses and trusts;
(iv) the transfer of equity jurisdiction to Canada;
(v) the current status of the fusion of law and equity.
Be able to describe four different meanings that might be associated with “equity” and the definition of “equity” that is important for our purposes.
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But as courts of equity developed they developed their own rules that were often rigidly interpreted and thus arguably came to no longer perform this corrective function.
D. Mere Equities There are also what are referred to as “mere equities”. These are defences to legal actions that were created by courts of equity. Consider, for instance, the defence of set off in the context of an assignment. In the 17 th century courts of equity developed the concept of assignment. Suppose, for example, A owed B $10,000. B could assign to C that right to receive $10,000 from A. But suppose that B owed A $3,000 in a separate transaction. If B had claimed the $10,000 from A, A could have set the right to receive
$3,000 from off against B’s claim for $10,000 (i.e. allowing A to just pay $7,000). C was said to take “subject to the equities” when B assigned to C the right to receive $10,000 from A. That allowed A to assert the right of set off against C thus allowing A to just pay
C $7,000. C would have to seek the other $3,000 from B. Other “mere equities” that C took subject to would include claims that A might have as defences to B’s claim. For instance, A might have claimed against B that the debt arose due to duress, mistake, misrepresentation or fraud. A could also assert these defences against C. In other words, 3
C took subject to the equities of the situation between A and B. These defences of A were so-called “mere equities”.
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