Equity and Trusts: Concerned with Moral Questions or Formal Rules?
| Author | Constantia Charalambous |
| Pages | 24-29 |
[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
Introduction
n ‘apparent tension’1that equity and trusts law faces is whether to concern
itself with moral questions or formal rules. This dilemma has a historical
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 equity was recognized as a ‘moral virtue’2and associated with ‘morality’
[…] in gener al’3Mor eover, t he moral natur e of the trust constr uct is eviden t from the
language used in describing various aspects of the relationship since the words ‘all
contain moral and ethical assumptions upon which have been imposed a legal
gloss’. 4
Increasingly being ‘associated with discretionary’5justice and criticized6for being
too subjective to the Lord Chancellor’s own sense of conscience and morality, equity
was rapidly consolidated into a system of technical rules, distancing itself 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 become overwhelmed by technicality, with the effect of ousting moral
concerns. However, this may be argued to be far removed from reality when
considering the interplay between the ‘technical rules like certainty […] mixed with
the fluid u nder standin g of how […] equit y ma y operate to disr upt their application ’.7
1James Sheedy, ‘Civil Law Jurisdiction and the English Trust Idea’ (2008) 20 Denning LJ 173,180
2Lord Dudley v Lady Dudley(1705) Prec 241, 244
3Margaret Haliwell, Equity and Good Conscience in a Contemporary Context(Old Bailey Press1997) 2
4Douglas 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
5Gary Watt, Cases and Materials on Equity and Trusts (6thedn, OUP 2007) 3
6Michael Evans, Ryan Jack Sources of English Legal and Constitutional History(Butterworths 1984) 223
7Alastair Hudson, Equity and Trusts(7thedn, Routledge 2012) 328
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