Equity and Trusts: Concerned with Moral Questions or Formal Rules?

AuthorConstantia Charalambous
[2014] Sou tha mpton Stud ent Law Review Vol.4
Equity and Trusts: Concerned with Moral Questions or
Formal Rules?
Constan tia Char alam bou s
n ‘apparent tension’1 that equity and trusts law faces is wh ether to concern
itself wit h moral question s or formal rules. Th is dilemma has a hist or ical
background, since the or igins of equ ity and, by exten sion, trust law as a subset
to equity, closely lin k it to m orality but thr ough th e passage of time it has been forced
to incorporate solid r ules.
Historically equ ity was recogn ized as a ‘moral virt ue’2 and associated with ‘morality’
[…] in gener al’ 3 Mor eover, t he moral natur e of the trust constr uct is eviden t from the
lan guage used in descr ibing var ious aspects of the relationship since the words ‘all
contain moral and ethical assum ptions u pon which have been imposed a legal
gloss’. 4
Increasingly bein g ‘associated with discretionary’5 justice an d criticized 6 for bein g
too subjective to the Lord Chan cellor ’s own sense of conscience and m or ality, equ ity
was rapidly consolidated int o a system of technical r ules, distancin g it self from its
con science and mor ality base d origins.
As seen by th e law’s cur rent str ong reliance on inflexib le rules it m ay be deduced that
it has becom e overwhelm ed by technicality, with the effect of ousting m oral
concerns. H owever , this m ay be argued to be far r em oved from realit y when
consid er in g the interp lay between th etechn ical rules like certainty […] mixed with
the fluid u nder standin g of how [] equit y ma y operate to disr upt their application.7
1 James Sheedy, ‘Civil Law Jurisdiction and the English Trust Idea’ (2008) 20 Denning LJ 173,180
2 Lord Dudley v Lady Dudley (1705) Prec 241, 244
3 Margaret Haliwell, Equity and Good Conscience in a Contemporary Context (Old Bailey Press1997) 2
4 Douglas Alderson, ‘E xpress Trust's Nocturnal Cerberus: Some Observations on the Morality of Intention to
Create on Express Trust’ (1988) 9 Est. & Tr. J. 319, 331
5 Gary Watt, Cases and Materials on Equity and Trusts (6th edn, OUP 2007) 3
6 Michael Evans, Ryan Jack Sources of English Legal and Constitutional History (Butterworths 1984) 223
7 Alastair Hudson, Equity and Trusts (7th edn, Routledge 2012) 328

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