Equity And The Law Reform Committee
| Published date | 01 January 1961 |
| Date | 01 January 1961 |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb00656.x |
EQUITY
AND
THE
LAW
REFORM
COMMITTEE
THERE is an apparent paradox in the idea that the collection of
rules usually described as
“
the principles of equity
”
should be
worthy of the attention of the Law Reform Committee; for
it
seems
a little strange that a system developed with the object of
modifying the stringency and rigidity of the common law, with its
attendant notions of
“
conscience,”
“
good faith
”
and
(‘
reason-
able diligence,” should itself be in need of reform; yet the reason
for this paradox must be sought in the historical developmcnt
of
the system itself.
The preoccupation of equity in its formative period with the
development and protection of the use came to an end when the
use was circumscribed by the operation of the Statute of Uses.
Deprived, temporarily at lcast, of
a
large portion
of
their juris-
diction, the Chancellors maintained their position in the legal
firmament by imposing their ideas
of
conscience and fair dealing
on
those who sought to enforce their legal rights unjustly. The
revival of the use under the name of the trust did nothing to
diminish this interference, and the post-Restoration Chancellors
occupied themselves in working out the details of what had
now
become an essential part of English jurisprudence.
In
this they
were assisted by the existence of an inflexible land law and by the
necessity of adapting the formal rules of the common law to the
circumstances of the cases. The modern rule against perpetuities;
the development of the equity of redemption; the enforcement of
secret trusts
;
the restraint upon anticipation
;
and the clarification
and manifold expansion of the equitable remedies of specific
performance and the injunction, were examples of this ameliorating
tendency. Nevertheless, when one excludes
all
those parts of
equity which concern themselves with the creation and enforcement
of trusts, one is left with a series of superficially disconnected
principles.
It
is this very lack of cohesion, indeed, that serves to
emphasise the complementary nature of the jurisdiction.
As
Maitland, the great advocate of
“
partnership
”
as opposed to
(6
fusion,” put it:
‘‘
Equity was not a self-sufficient system, at every point it
presupposed the existence of Common Law.
.
.
.
If
the legis-
lature had passed a short act saying
‘
Equity is hereby
abolished,’ we might still have got on fairly well; in some
respects our law
would
have been barbarous
. .
.
but still the
great elementary rights
.
.
.
would have been decently pro-
tected.
.
.
.
On the other hand had the legislature said
116
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