this note is reference for student of Equity and Trust (LAW 3710) in International Islamic University, Malaysia. It's prepared by Dr. Zuraidah Ali

1. WELCOME BACK

2. Hadith From Abu Darda.
• “If anyone travels on a road in search of knowledge, Allah
will cause him to travel on one of the roads of Paradise. The
angels will lower their wings in their great pleasure with one
who seeks knowledge, the inhabitants of the heavens and the
Earth and the fish in the deep waters will ask forgiveness for
the learned man.
• The superiority of the learned man over the worshipper is
like that of the moon, on the night when it is full, over the rest of
the stars. The learned are the heirs of the Prophets, and the
Prophets leave neither dinar nor dirham, leaving only
knowledge, and he who takes it takes a big fortune.” [Abu
Dawud]

3. 3
HISTORY &
DEVELOPMENT OF
EQUITY

4. 4
LEARNING OBJECTIVES
 At the end of the lecture, student will be able
to :
 know various definition of equity
 understand how Equity develops
 appreciate the roles of equity
 know the concept of fusion of equity
 know and apply the current position of equity
after fusion

5. 5
Meaning of Equity
 Layman terms equity = justice and fairness.
 Equitably = acting ‘fairly’
 Related to Judicial decisions where cases
should be decided in a way which is fair and
right so justice is achieved between parties.

6. 6
 The state, quality, or ideal of being just, impartial, and fair.
 Something that is just, impartial, and fair.
 Law.
 Justice applied in circumstances covered by law yet
influenced by principles of ethics and fairness.
 A system of jurisprudence supplementing and serving to
modify the rigor of common law.
 An equitable right or claim.
 Equity of redemption.
 The residual value of a business or property beyond any
mortgage thereon and liability therein.
 The market value of securities less any debt incurred.
 Common stock and preferred stock.
 Funds provided to a business by the sale of stock.

7. 7
 A system of law originating in the English
chancery and comprising a settled and formal
body of substantive and procedural rules and
doctrines that supplement, aid, or override
common and statutory law
 A body of doctrines and rules developed to
enlarge, supplement, or override any narrow or
rigid system of law

8. 8
 Latin word Aequitas meaning Equity
 Hanbury
 Foundation of Equity is ‘justice and
conscience’ –the sense of right and wrong
that governs a person’s thoughts and
actions.
 A supplementary jurisdiction, an
appendix or gloss on the common law,

9. 9
Common law
 Common Law came from the Anglo-Saxon
and Norman Times.
 Forms the major part of the law of many
countries
 The term was officially used only at the end
of 13th
century, based on tradition, custom
and precedent
 Prior to institutional system, the England
and its counterparts were governed by
unwritten local custom that varied from
community to community, county to county
 Henry II, 1154, institutionalized common
law

10. 10
Sources of Common law-some
 Custom
 Roman law division of public and private law
 Canon law-protection of rights, trusts, charitable
trusts, legitimacy
 Charters
 Statutes
 Plea Rolls
 Law reports

11. 11
Common Law Courts
 During the 12/13th
Century, English Kings
developed 3 system of Courts at
Westminster
 Court of Exchequer
 Court of Kings Bench
 Court of Common Pleas

12. 12
Actions in Common Law Courts
♥ Actions begun by Royal Writ
♥ Definition of Writ-–A Command
♥ Primarily an administrative document,
authenticated by a seal, in form of a letter.
♥ Procedure
♥ Action began with a writ, obtainable only
from the King’s chancellor

13. 13
 The writ chosen would result in a particular
form of action and appropriate procedure
 Procedures are important-an error in
formalities- loss of remedy-case dismissed
 The Rule of ‘Ubi remedium, ibi jus’-where
there is remedy there is a right, unless
there is an appropriate writ, there is no
cause of action

14. 14
Defects of the CL
 Remedies
 Writ
 Jury – trial of facts
 Sources of rules : general guides known as
maxims

15. 15
EQUITY = ?
 A result of the weaknesses of the CL
system


 WHY EQUITY?

16. 16
Definition
 Hanbury
 Wide- fair and just, moral and ethical
 Technical branch of law before the COJ 1873
was applied
 Administered in the Court of Chancery
 Body of rules to mitigate the severity of the
rules of the common law court

17. 17
 Maitland;
 In origin based on moral principles designed
to removed injustices incapable of being
dealt with in the common law courts.
 A supplementary jurisdiction, an appendix or
gloss on the common law.
 Equity had come, not to destroy the law but
to fulfill it.

18. 18
 Maine: any body of rules existing by the side
of the original civil law. Founded on distinct
principles and claiming incidentally to
supersede the civil law in virtue of a superior
sactity inherent in these principles.
 Snell : layemen equity means justice.
 Law administered by the Court of Chancery

19. 19
Equity ….
 Foundation : Conscience and Justice
 Alternative solution / remedy

20. 20
Chancery Courts
 By 15th
Century-Officially-known
 THE CHANCELLOR
 Maitland described him as ‘the King’s prime
minister’ or ‘the king’s secretary of state
for all departments’

21. 21
Chancellor
 Issue Royal Writs
 Early duration 13/14th
century merely giving
relief to the cases
 ecclesiastic, civil law and canon law

22. 22
History of the Court of Chancery
 Remove injustice
 Edward 1-petitions addressed to the
Chancellor and the Council
 Dealt with procedural matters; issuing writs,
collecting fines etc
 Only in 1474 that the Chancellor made a
decree upon his own authority-Court of
Equity

23. 23
Weaknesses of the Chancery Court
 Interference-Frequent
 17/18 –defect-corruption and abuse-delaying
tactics
 Inadequate number of judicial staff-
 Too many incompetent officials
 Heavy expenses-procedure complex, slow,
bribery

24. 24
Jurisdiction
 Provide remedies –Equity acts in personam
 Chancellor-ecclesiastic, civil law and canon law
 no defined jurisdiction
 Judgements-conscience and natural justice
 John Selden-Equity varies like the Chancellor’s
foot-wide discretion
 Issues subpoena
 Q-law and fact

25. 25
Chellaram v. Chellaram [1985]
1 ALL ER 1043 at 1053
 Scott J.
 The jurisdiction of the court to administer
trusts …is in a personam jurisdiction.

26. 26
continue
 End of 17th
-rigor aequitatis
 Precedent
 Lord Nottingham –Father of Modern Equity
 Court of Conscience to Court of Precedent

27. 27
Fusion of Common Law and Equity
 Fusion of Equity and law or
 of their administration?
 Growth of Equity
 Conflict

28. 28
Several Acts before the Fusion
 Bankruptcy Act 1831 : transferred the
jurisdiction in bankruptcy to common law
 Chancery Act 1833 : Regulated proceedings
and practices of certain offices of the the
High Court of Chancery in England
 Chancery Act 1841 : equitable jurisdiciton of
the Court of Excheqer was transferred to
Court of Chancery
 Court of Chancery Act 1850 : diminished
delay and expense of proceeding

29. 29
 Court of Chancery Act 1851 : A court of Appeal was
set up. Appeal to the HOL. Lord Justice and the
Chancellor may sit together of alone
 Common Law Procedure Act 1852 : combination of
Common Law and Equity
 Court of Chancery Procedure Act 1851 : Chancery
Court to hear matter of law.
 Common Law Procedure Act 1854 : Fusion was
advance, powers are given to CL Courts to issue
prohibitory injunctions, discovery documents etc
 Chancery Amendment Act 1858 : Lord Cairns Act ;
to award damages

30. 30
Judicature Act 1873- 1875
 Supreme COJ 1873-1875
 Came into operation on Nov 1st
1875
 To establish one Supreme Court
 Concurrent administration in the Supreme
Court rules of Equity and Law
 Ashburner :
 “the two streams of jurisprudence, though
they run in the same channel, run side by
side, and do not mingle their water.”

31. 31
Equity –At present
 UK –one system
 US – Delaware- 2 separate systems
 AREAS of Equity –
 Unconscionability
 Fiduciary principles
 Estoppel
 Trust
 Relief