1. Introduction to equity and trusts

2021 ◽  
pp. 1-24
Author(s):  
Gary Watt
Keyword(s):  
Future Development ◽  
Historical Development ◽  
Common Law ◽  
Modern World ◽  
Legal Knowledge ◽  
Key Points ◽  
History Of ◽  
The Common ◽  
English Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The trust is an important invention of equity, a branch of English law compatible with common law. The history of equity oscillates between compatibility and competition with common law. This chapter serves as an introduction to equity and trusts. It outlines the major stages in the historical development of equity and trusts, examines the theoretical distinction between equity and the common law, explains how to correctly use the maxims and doctrines of equity, and discusses the distinction between equity as an inventive, flexible, remedial branch of law, and equitable institutions that are now settled and established, including the trust and the mortgage. The chapter also considers equity in relation to morality, co-operative remedies in equity and common law, equity and crime, and equity and restitution, before concluding with an assessment of the place of equity in the modern world and its possible future development.

9. Employers’ liability and non-delegable duties

2018 ◽  
Author(s):  
Vera Bermingham ◽  
Carol Brennan
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.

scholarly journals Law, Language and the Printing Press in the Reign of Charles I: Explaining the Printing of the Common Law in English

2019 ◽  
Vol 38 (2) ◽  
pp. 339-371
Author(s):  
Ian Williams
Keyword(s):  
Common Law ◽  
Printing Press ◽  
Legal Knowledge ◽  
Charles I ◽  
Professional Control ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Long Term Trend

The printing press had the potential to break the common lawyers' monopoly of legal knowledge. Early-modern England witnessed debates about the desirability of wider dissemination of legal learning. Previous scholarship has identified the long-term trend to increased printing of the law in English, focusing on ideological debates between lawyers and other key actors. Only selected texts and types of material were made available to the wider public before the 1620s. From the later 1620s a wider range of material which had hitherto existed only in manuscript was printed in English. Knowledge of the common law became more commonly available. This article identifies this crucial moment and explains the change. Rather than the ideological questions which are discussed in the existing literature, more mundane causes are identified for the legal profession's reduced control over the transmission of legal knowledge: a shift to the use of English by lawyers themselves, and a loss of professional control over manuscripts. The paper therefore demonstrates an important methodological point: understanding and assessing the history of legal printing requires engagement with older methods of transmitting the law.

scholarly journals The ‘Praecipe Quod Reddat’ Writ as a Forerunner of the English Common Law. History

2021 ◽  
Vol 1 ◽  
pp. 63-70
Author(s):  
Vsevolod F. Baranov ◽  
Keyword(s):  
Historical Development ◽  
Common Law ◽  
Previous Article ◽  
Royal Court ◽  
Royal Courts ◽  
History Of ◽  
The Common

In our previous article we defined the conception of the ‘praecipe’ writ and its significance. This article is devoted to the history of its origin and development. The role of the writs ‘praecipe’ in the development of the English Common Law is exceptionally great. No other type of writ brought so much litigation to the royal courts. We find the writ in Glanvill, but its origins go back very far and its later developments were prolific. ‘Praecipe’ is the writ in which the origin of the common law writs and actions and the sense of their history can be seen most clearly. Indeed, there the process of judicialisation of the old high-handed method of redress, that remarkable joining of power and law, can be grasped most easily. It will also be seen that the vast group of ‘praecipe’ writs was not a ready-made, cleverly invented technique to bring cases to the royal court. In fact, the writs ‘praecipe’ were the outcome of a slow historical development that stretched over many generations. The embryo of ‘praecipe’ was a royal order without a tinge of judicial implication and of a mere police character, whereas its latest forms and ultimate development, was purely judicial, not only in essence but also in forms, being a summons to a law court.

20. Equity: doctrines and remedies

2019 ◽  
pp. 477-506
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Knowledge ◽  
Very Old ◽  
England And Wales ◽  
Key Points ◽  
The Common ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Way

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.

Part VII Rights, Ch.44 Legality

2018 ◽  
Author(s):  
Meagher Dan
Keyword(s):  
Future Development ◽  
Present Status ◽  
Common Law ◽  
Statutory Interpretation ◽  
Key Points ◽  
The Common ◽  
Normative Justification ◽  
Principle Of Legality ◽  
The Relationship ◽  
Do So

This chapter identifies and explores the relationship between the common law principle of legality and the Australian Constitution. To this end, the chapter considers in some detail how the courts might use the Constitution to provide a stronger normative justification for the principle, better fix the content of the rights it operates to protect, and inform how it is applied. The analysis undertaken is based on the view that much of the recent (and likely future) development of the principle in Australia—indeed the principles of statutory interpretation more generally—may well be constitutionally driven. To do so, the present status of the principle of legality is outlined in this chapter. Its evolution in Australian law and the key points of doctrinal controversy and methodological disagreement are also traced and identified.

7. Negligence: occupiers’ liability

2020 ◽  
pp. 165-195
Author(s):  
Carol Brennan ◽  
Vera Bermingham
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.

18. Tracing

2019 ◽  
pp. 430-456
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common ◽  
Trust Property ◽  
Bank Accounts ◽  
Personal Liability

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Trustees have personal liability in an action for compensation or account. If the action proves worthless in practice because the trustees are impecunious or have been declared bankrupt, and hence cannot repay trust monies to the fund, the beneficiaries may be able to trace the value of their trust property into bank accounts and into assets that have been bought with the trust property. It is the value of the trust property, not the precise item of the property itself, which is sought or traced in most cases. Tracing is a process that gives rise to the ultimate remedy of recovering misapplied money or property. This chapter examines tracing and the limits to common law tracing, the distinction between proprietary remedies and personal remedies, and how the rules for tracing in equity may be applied to unmixed funds, mixed funds and assets purchased with such funds. It also discusses the artificiality of the distinction between common law and equitable tracing rules, defences to the common law restitutionary claim and advantages of proprietary rights.

5. The constitution of trusts

2019 ◽  
pp. 97-126
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Roman Law ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common ◽  
The Creation

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The formality requirements of a trust aim to prevent secret fraudulent dealings and to achieve certainty through the recording of transactions. In contrast, no trust exists if the requirements of valid constitution are not complied with. These requirements are designed as a precaution against the casual creation of trusts, a sensible approach given the dramatic consequences of the typical express trust of property. This chapter deals with the constitution of trusts and discusses the distinction between requirements of constitution and formality in relation to the creation of trusts. It also looks at a validly constituted trust, the maxim that equity will not assist a volunteer, how the common law can assist in the constitution of trusts and a valid donatio mortis causa. In addition, the chapter considers constitution by transfer of legal title to trustees as well as assistance from Roman law with respect to constitution of trusts.

Execrabilis in the Common Pleas: Further Studies

1921 ◽  
Vol 1 (1) ◽  
pp. 60-75
Author(s):  
T. F. T. Plucknett
Keyword(s):  
Canon Law ◽  
Common Law ◽  
The Third ◽  
History Of ◽  
The Subject ◽  
The Common ◽  
English Law ◽  
Law Courts

Under the above title Professor Maitland gave a characteristic study of the relations of the Common Law Courts to the Canon Law in the reign of Edward the Third. His object was to trace the history of an attempt by the temporal authority to “enforce” (for its own ends) the provisions of the papal Extravagant “Execrabilis” by securing its recognition in the Court of Common Pleas and excluding the spiritual Courts from their claim to the sole cognizance of the matters covered by the Bull. To his treatment of the subject it may be objected, with all due deference, that the Bull Execrabilis, interesting as it is, cannot be regarded as an altogether new factor in English law calling into operation an entirely new set of phenomena that can be isolated and studied alone; on the contrary, when the Bull made its first appearance in the English Courts of Common Law it became immediately involved in a fairly old dispute between the spiritual and temporal jurisdictions. This aspect of the subject received no consideration in Maitland's essay, with the result that his treatment of the matter is incomplete and in one important particular incorrect.

20. Equity: doctrines and remedies

2021 ◽  
pp. 473-502
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Knowledge ◽  
Very Old ◽  
England And Wales ◽  
Key Points ◽  
The Common ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Way

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.

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