Equity in common law

jurisdictions (general)
In jurisdictions following the English common law system, equity is the body of law which was
developed in the English Court of Chancery and which is now administered concurrently with the
common law.[4] In common law jurisdictions, the word "equity" "is not a synonym for 'general
fairness' or 'natural justice' ", but refers to "a particular body of rules that originated in a special
system of courts".[5]

For much of its history, the English common law was principally developed and administered in
the central royal courts: the Court of King's Bench, the Court of Common Pleas, and the Exchequer.
Equity was the name given to the law which was administered in the Court of Chancery. The
Judicature Acts of the 1870s effected a procedural fusion of the two bodies of law, ending their
institutional separation. The reforms did not fuse the actual bodies of law however. As an
example, this lack of fusion meant it was still not possible to receive an equitable remedy for a
purely common law wrong. Judicial or academic reasoning which assumes the contrary has been
described as a "fusion fallacy".[6]

Jurisdictions which have inherited the common law system differ in their treatment of equity. Over
the course of the twentieth century some common law systems began to place less emphasis on
the historical or institutional origin of substantive legal rules. In England and Wales, Australia, New
Zealand, and Canada, equity remains a distinct body of law. Modern equity includes, among other
things:[6][7]

the law relating to express, resulting, and

constructive trusts;

fiduciary law;
 equitable estoppel (including promissory
and proprietary estoppel);

relief against penalties and relief against

forfeiture;[8]

the doctrines of contribution,

subrogation and marshalling; and

equitable set-off.
The latter part of the twentieth century saw increased debate over the utility of treating equity as a
separate body of law. These debates were labelled the "fusion wars".[9][10] A particular flashpoint
in this debate centred on the concept of unjust enrichment and whether areas of law traditionally
regarded as equitable could be rationalised as part of a single body of law known as the law of
unjust enrichment.[11][12][13]

History of equity in common law

jurisdictions
After the Norman conquest of England in the 11th century, royal justice came to be administered in
three central courts: the Court of King's Bench, the Court of Common Pleas, and the Exchequer.
The common law developed in these royal courts, which were created by the authority of the King
of England, and whose jurisdiction over disputes between the King's subjects was based upon
the King's writ.[14] Initially, a writ was probably a vague order to do right by the plaintiff,[14] and it
was usually a writ of grace, issued at the pleasure of the King.[15]
During the 12th and 13th centuries, writ procedure gradually evolved into something much more
rigid. All writs to commence actions had to be purchased by litigants from the Chancery, the head
of which was the Lord Chancellor.[14] After writs began to become more specific and creative (in
terms of the relief sought), Parliament responded in 1258 by providing in the Provisions of Oxford
that the Chancellor could no longer create new writs without permission from the King and the
King's Council (the curia regis).[14] Pursuant to this authorization,[14] litigants could purchase
certain enumerated writs de cursu (as a matter of course) which later became known as writs ex
debito justitiae (as a matter of right).[15] Each of these writs was associated with particular
circumstances and led to a particular kind of judgment.[14] Procedure in the common law courts
became tightly focused on the form of action (the particular procedure authorized by a particular
writ to enforce a particular substantive right), rather than what modern lawyers would now call the
cause of action (the underlying substantive right to be enforced).

Because the writ system was limited to enumerated writs for enumerated rights and wrongs, it
sometimes produced unjust results. Thus, even though the King's Bench might have jurisdiction
over a case and might have the power to issue the perfect writ, the plaintiff might still not have a
case if there was not a single form of action combining them. Lacking a legal remedy, the
plaintiff's only option would be to petition the King.

Litigants began to seek relief against unfair judgments of the common law courts by petitioning
the King. Such petitions were initially processed by the King's Council, which itself was quite
overworked, and the Council began to delegate the hearing of such petitions to the Lord
Chancellor.[16] This delegation is often justified by the fact that the Lord Chancellor was literally
the Keeper of the King's Conscience,[17][18] although Francis Palgrave argued that the delegation
was initially driven by practical concerns and the moral justification came later.[16] The moral
justification went as follows: as Keeper of the King's Conscience, the Chancellor "would act in
particular cases to admit 'merciful exceptions' to the King's general laws to ensure that the King's
conscience was right before God".[18] This concern for the King's conscience was then extended
to the conscience of the defendant in Chancery, in that the Chancellor would intervene to prevent
"unconscionable" conduct on the part of the defendant, in order to protect the conscience of the
King.[18]

By the 14th century it appears that Chancery was operating as a court, affording remedies for
which the strict procedures of the common law worked injustice or provided no remedy to a
deserving plaintiff. Chancellors often had theological and clerical training and were well versed in
Roman law and canon law.[17][19] During this era, the Roman concept of aequitas influenced the
development of the distinctly different but related English concept of equity: "The equity
administered by the early English chancellors ... [was] confessedly borrowed from the aequitas
and the judicial powers of the Roman magistrates."[17] By the 15th century the judicial power of
Chancery was clearly recognised.
Early Chancery pleadings vaguely invoked some sort of higher justice, such as with the formula
"for the love of God and in way of charity".[20] During the 15th century, Chancery pleadings began to
expressly invoke "conscience", to the point that English lawyers in the late 15th century thought of
Chancery as a court of "conscience", not a court of "equity".[20] However, the "reasoning of the
medieval chancellors has not been preserved" as to what they actually meant by the word
"conscience",[21] and modern scholars can only indirectly guess at what the word probably
meant.[22] The publication of the treatise The Doctor and Student in the early 16th century marked
the beginning of Chancery's transformation from a court of conscience to a court of equity.[23]

Before that point in time, the word "equity" was used in the common law to refer to a principle of
statutory interpretation derived from aequitas : the idea that written laws ought to be interpreted
"according to the intention rather than the letter" of the law.[24] What was new was the application
of the word "equity" to "the extraordinary form of justice administered by the chancellor", as a
convenient way to distinguish Chancery jurisprudence from the common law.[24]

A common criticism of Chancery practice as it developed in the early medieval period was that it
lacked fixed rules, varied greatly from Chancellor to Chancellor, and the Chancellor was exercising
an unbounded discretion. The counterargument was that equity mitigated the rigour of the common
law by looking to substance rather than to form.

The early chancellors were influenced by their training in theology and canon law, but the law of
equity they applied was not canon law, but a new kind of law purportedly driven by conscience.[25]
Whatever it meant in the medieval era, the word "conscience" clearly carried a subjective
connotation (as it still does today).[25] Complaints about equity as an arbitrary exercise of
conscience by nonlawyer Chancellors became quite frequent under the chancellorship of Thomas
Wolsey (1515–1529), who "had no legal training, and delighted in putting down lawyers".[25]

In 1546, Chancellor Thomas Wriothesley, a nonlawyer, was accused of trying to inject the civil law
into Chancery.[26] This was a "wild exaggeration", but as a result, the Crown began to transition
away from clergy and nonlawyers and instead appointed only lawyers trained in the common law
tradition to the position of Lord Chancellor (although there were six more nonlawyer chancellors in
the decades after Wriothesley).[26] The last person without training in the common law before
2016 to serve as Lord Chancellor was Anthony Ashley Cooper, 1st Earl of Shaftesbury, who
served briefly from 1672 to 1673.[26] (Liz Truss was appointed as Lord Chancellor in 2016, but
this was after the position had been stripped of its judicial powers by the Constitutional Reform
Act 2005, leaving the Chancellor of the High Court as the highest judge sitting in equity in England
and Wales.)

The development of a court of equity as a remedy for the rigid procedure of the common law
courts meant it was inevitable that the two systems would come into conflict. Litigants would go
'jurisdiction shopping' and often would seek an equitable injunction prohibiting the enforcement of
a common law court order. The penalty for disobeying an equitable injunction and enforcing an
unconscionable common law judgment was imprisonment.[18]

The 1615 conflict between common law and equity came about because of a "clash of strong
personalities" between Lord Chancellor Ellesmere and the Chief Justice of the King's Bench, Sir
Edward Coke.[26] Chief Justice Coke began the practice of issuing writs of habeas corpus that
required the release of people imprisoned for contempt of chancery orders. This tension reached
a climax in the Earl of Oxford's case (1615) where a judgment of Chief Justice Coke was allegedly
obtained by fraud.[27] Chancellor Ellesmere issued an injunction from the Chancery prohibiting the
enforcement of the common law order. The two courts became locked in a stalemate, and the
matter was eventually referred to the Attorney General, Sir Francis Bacon. Sir Francis, by authority
of King James I, upheld the use of the equitable injunction and concluded that in the event of any
conflict between the common law and equity, equity would prevail.[28]

Chancery continued to be the subject of extensive criticism, the most famous of which was 17th-
century jurist John Selden's aphorism:

Equity is a roguish thing: for law we have a measure, know what to trust to;
equity is according to the conscience of him that is Chancellor, and as that is
larger or narrower, so is equity. 'Tis all one as if they should make the standard
for the measure we call a foot, a Chancellor's foot; what an uncertain measure
would this be? One Chancellor has a long foot, another a short foot, a third an
indifferent foot: 'tis the same thing in a Chancellor's conscience.[29]

After 1660, Chancery cases were regularly reported, several equitable doctrines developed, and
equity started to evolve into a system of precedents like its common law cousin.[30] Over time,
equity jurisprudence would gradually become a "body of equitable law, as complex, doctrinal, and
rule- haunted as the common law ever was".[31]

One indicator of equity's evolution into a coherent body of law was Lord Eldon's response to
Selden in an 1818 chancery case: "I cannot agree that the doctrines of this court are to be changed
with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than
the recollection that I had done anything to justify the reproach that the equity of this court varies
like the Chancellor's foot."[30][32]

Equity's primacy over common law in England was later enshrined in the Judicature Acts of the
1870s, which also served to fuse the courts of equity and the common law (although emphatically
not the systems themselves) into one unified court system.
Statute of Uses 1535
One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a role
that the rigid framework of land law could not accommodate. This role gave rise to the basic
distinction between legal and equitable interests.

In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of
trust called 'the use' that enabled one person (who was not required to pay tax) to hold the legal
title of the land for the use of another person. The effect of this trust was that the first person
owned the land under the common law, but the second person had a right to use the land under the
law of equity.

Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an attempt to
outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner of
the land the legal owner and therefore liable for feudal dues.

The response of the lawyers to this Statute was to create the 'use upon a use'. The Statute
recognized only the first use, and so land owners were again able to separate the legal and
beneficial interests in their land.

Comparison of equity
traditions in common law
countries

Australia
Equity remains a cornerstone of Australian private law. A string of cases in the 1980s saw the
High Court of Australia re- affirm the continuing vitality of traditional equitable doctrines.[33] In 2009
the High Court affirmed the importance of equity and dismissed the suggestion that unjust
enrichment has explanatory power in relation to traditional equitable doctrines such as
subrogation.[34]

The state of New South Wales is particularly well known for the strength of its Equity
jurisprudence. However, it was only in 1972 with the introduction of reform to the Supreme Court
Act 1970 (NSW) that empowered both the Equity and Common Law Division of the Supreme Court
of NSW to grant relief in either equity or common law.[35] In 1972 NSW also adopted one of the
essential sections of the Judicature reforms, which emphasised that where there was a conflict
between the common law and equity, equity would always prevail.[36] Nevertheless, in 1975 three
alumni of Sydney Law School and judges of the NSW Supreme Court, Roderick Meagher, William
Gummow and John Lehane produced Equity: Doctrines & Remedies . It remains one of the most
highly regarded practitioner texts in Australia and England.[37][38] The work is now in its 5th edition
and edited by Dyson Heydon, former Justice of the High Court, Justice Mark Leeming of the New
South Wales Court of Appeal, and Dr Peter Turner of Cambridge University.[6]

United Kingdom

England and Wales

Equity remains a distinct part of the law of England and Wales. The main challenge to it has come
from academic writers working within the law of unjust enrichment. Scholars such as Peter Birks
and Andrew Burrows argue that in many cases the inclusion of the label "legal" or "equitable"
before a substantive rule is often unnecessary.[10] Many English universities, such as Oxford and
Cambridge, continue to teach Equity as a standalone subject. Leading practitioner texts include
Snell's Equity, Lewin on Trusts , and Hayton & Underhill's Law of Trusts and Trustees .

Limits on the power of equity in English law were clarified by the House of Lords in The
Scaptrade case (Scandinavian Trading Tanker Co. A.B. v Flota Petrolera Ecuatoriana [1983] 2 AC
694, 700), where the notion that the court's jurisdiction to grant relief was "unlimited and
unfettered" (per Lord Simon of Glaisdale in Shiloh Spinners Ltd v. Harding [1973] A.C. 691, 726)
was rejected as a "beguiling heresy".[39]
Scotland
The courts of Scotland have never recognised a division between the normal common law and
equity, and as such the Court of Session (the supreme civil court of Scotland) has exercised an
equitable and inherent jurisdiction and called the nobile officium.[40] The nobile officium enables
the Court to provide a legal remedy where statute or the common law are silent, and prevent
mistakes in procedure or practice that would lead to injustice. The exercise of this power is
limited by adherence to precedent, and when legislation or the common law already specify the
relevant remedy. Thus, the Court cannot set aside a statutory power, but can deal with situations
where the law is silent, or where there is an omission in statute. Such an omission is sometimes
termed a casus improvisus .[41][42]

India
In India the common law doctrine of equity had traditionally been followed even after it became
independent in 1947. However, in 1963 the Specific Relief Act was passed by the Parliament of
India following the recommendation of the Law Commission of India and repealing the earlier
"Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and
made statutory rights, thereby ending the discretionary role of the courts to grant equitable reliefs.
The rights codified under the 1963 Act were as under:

Recovery of possession of immovable

property (ss. 5–8)

Specific performance of contracts

(ss. 9–25)
 Rectification of instruments (s. 26)

Recession of contracts (ss. 27–30)

Cancellation of instruments (ss. 31–33)

Declaratory decrees (ss. 34–35)

Injunctions (ss. 36–42)

With this codification, the nature and tenure of the equitable reliefs available earlier have been
modified to make them statutory rights and are also required to be pleaded specifically to be
enforced. Further to the extent that these equitable reliefs have been codified into rights, they are
no longer discretionary upon the courts or as the English law has it, "Chancellor's foot" but instead
are enforceable rights subject to the conditions under the 1963 Act being satisfied. Nonetheless,
in the event of situations not covered under the 1963 Act, the courts in India continue to exercise
their inherent powers in terms of Section 151 of the Code of Civil Procedure, 1908, which applies
to all civil courts in India.

There is no such inherent powers with the criminal courts in India except with the High Courts in
terms of Section 482 of the Code of Criminal Procedure, 1973. Further, such inherent powers are
vested in the Supreme Court of India in terms of Article 142 of the Constitution of India which
confers wide powers on the Supreme Court to pass orders "as is necessary for doing complete
justice in any cause of matter pending before it".

United States
In modern practice, perhaps the most important distinction between law and equity is the set of
remedies each offers. The most common civil remedy a court of law can award is monetary
damages. Equity, however, enters injunctions or decrees directing someone either to act or to
forbear from acting. Often, this form of relief is in practical terms more valuable to a litigant; for
example, a plaintiff whose neighbor will not return his only milk cow, which had wandered onto the
neighbor's property, may want that particular cow back, not just its monetary value. However, in
general, a litigant cannot obtain equitable relief unless there is "no adequate remedy at law"; that
is, a court will not grant an injunction unless monetary damages are an insufficient remedy for the
injury in question. Law courts can also enter certain types of immediately enforceable orders,
called "writs" (such as a writ of habeas corpus), but they are less flexible and less easily obtained
than an injunction.

Another distinction is the unavailability of a jury in equity: the judge is the trier of fact. In the
American legal system, the right of jury trial in civil cases tried in federal court is guaranteed by
the Seventh Amendment in Suits at common law, cases that traditionally would have been
handled by the law courts. The question of whether a case should be determined by a jury
depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the
form of money or certain other forms of relief, such as the return of a specific item of property,
the remedy is considered legal, and a jury is available as the fact- finder. On the other hand, if the
plaintiff requests an injunction, declaratory judgment, specific performance, modification of
contract, or some other non- monetary relief, the claim would usually be one in equity.

Thomas Jefferson explained in 1785 that there are three main limitations on the power of a court
of equity: "If the legislature means to enact an injustice, however palpable, the court of Chancery
is not the body with whom a correcting power is lodged. That it shall not interpose in any case
which does not come within a general description and admit of redress by a general and
practicable rule."[43] The US Supreme Court, however, has concluded that courts have wide
discretion to fashion relief in cases of equity. The first major statement of this power came in
Willard v. Tayloe, 75 U.S. 557 (1869). The Court concluded that "relief is not a matter of absolute
right to either party; it is a matter resting in the discretion of the court, to be exercised upon a
consideration of all the circumstances of each particular case."[44] Willard v. Tayloe was for many
years the leading case in contract law regarding intent and enforcement.[45][46] as well as
equity.[45][47]

In the United States, the federal courts and most state courts have merged law and equity into
courts of general jurisdiction, such as county courts. However, the substantive distinction
between law and equity has retained its old vitality.[48] This difference is not a mere technicality,
because the successful handling of certain law cases is difficult or impossible unless a
temporary restraining order (TRO) or preliminary injunction is issued at the outset, to restrain
someone from fleeing the jurisdiction taking the only property available to satisfy a judgment, for
instance. Furthermore, certain statutes like the Employee Retirement Income Security Act
specifically authorize only equitable relief, which forces American courts to analyze in lengthy
detail whether the relief demanded in particular cases brought under those statutes would have
been available in equity.[49]
Equity courts were widely distrusted in the northeastern United States following the American
Revolution. A serious movement for merger of law and equity began in the states in the mid- 19th
century, when David Dudley Field II convinced New York State to adopt what became known as
the Field Code of 1848.[50][51] The federal courts did not abandon the old law/equity separation
until the promulgation of the Federal Rules of Civil Procedure in 1938.

Three states still have separate courts for law and equity: Delaware, whose Court of Chancery is
where most cases involving Delaware corporations (which includes a disproportionate number of
multi- state corporations) are decided; Mississippi; and Tennessee.[52] However, merger in some
states is less than complete; some other states (such as Illinois and New Jersey) have separate
divisions for legal and equitable matters in a single court. Virginia had separate law and equity
dockets (in the same court) until 2006.[53] Besides corporate law, which developed out of the law
of trusts, areas traditionally handled by chancery courts included wills and probate, adoptions and
guardianships, and marriage and divorce. Bankruptcy was also historically considered an equitable
matter; although bankruptcy in the United States is today a purely federal matter, reserved entirely
to the United States Bankruptcy Courts by the enactment of the United States Bankruptcy Code in
1978, bankruptcy courts are still officially considered "courts of equity" and exercise equitable
powers under Section 105 of the Bankruptcy Code.[54]

After US courts merged law and equity, American law courts adopted many of the procedures of
equity courts. The procedures in a court of equity were much more flexible than the courts at
common law. In American practice, certain devices such as joinder, counterclaim, cross- claim and
interpleader originated in the courts of equity.

See also

Portal: Law

Court of equity

Case law

Common law
Court of Chancery

Delaware Court of Chancery

Economic equity

Equitable right

Equitable remedy

Ex aequo et bono

Inequity aversion

Maxims of equity

Plea in equity

Politics (Aristotle)

Restitution

Statutory law

Trust Law
 Undue influence

Unjust enrichment

Notes

1. Titi, Catharine (2021). The Function of

Equity in International Law. Oxford
University Press 2021. pp. 11ff.
ISBN 9780198868002.

2. Black, Henry Campbell (1891). A Law

Dictionary, containing definitions of the
terms and phrases of American and English
jurisprudence, ancient and modern (https://
archive.org/details/bub_gb_R2c8AAAAIAA
J/page/n443) (second ed.). West
Publishing Co. pp. 432–3. Retrieved 14 May
2021.
3. María José Falcón y Tella, Equity and Law
(Peter Muckley tr, Martinus Nijhoff 2008)

4. 'Common law' here is used in its narrow

sense, referring to that body of law
principally developed in the superior courts
of common law: King's Bench and Common
Pleas.

5. Farnsworth, E. Allan (2010). Sheppard,

Steve (ed.). An Introduction to the Legal
System of the United States (https://books.
google.com/books?id=eOFMAgAAQBAJ&p
g=PA105) (4th ed.). Oxford: Oxford
University Press. p. 105.
ISBN 9780199733101. Retrieved
November 17, 2020.
6. Heydon, J. D.; Leeming, M. J.; Turner, P. G.
(2014). Meagher, Gummow & Lehane's
Equity: Doctrine and Remedies. Trusts, Wills
and Probate Library (5th ed.). LexisNexis.
ISBN 9780409332254.

7. McGhee, John, ed. (13 December 2017).

Snell's Equity (33rd ed.). Sweet & Maxwell.
ISBN 9780414051607.
8. There is currently a divergence of opinion
between the High Court of Australia and the
Supreme Court of England on this point. In
Australia, the continuing existence of the
equitable jurisdiction to relieve against
penalties has been confirmed: Andrews v
Australia and New Zealand Banking Group
Limited [2012] HCA 30 (https://www.austlii.
edu.au/au/cases/cth/HCA/2012/30.html) ,
247 CLR 205. In England, this view was not
adopted: Cavendish Square Holding BV v
Talal El Makdessi [2015] UKSC 67 (https://
www.bailii.org/uk/cases/UKSC/2015/67.ht
ml) .

9. Degeling, Simone; Edelman, James, eds.

(October 2005). Equity in Commercial Law.
Sydney: Lawbook Co. ISBN 0-455-22208-8..
10. For an example of the pro-fusionist view,
see Andrew Burrows, Burrows, Andrew (1
March 2002), "We Do This At Common Law
But That in Equity", Oxford Journal of Legal
Studies, 22 (1): 1–16,
doi:10.1093/ojls/22.1.1 (https://doi.org/10.
1093%2Fojls%2F22.1.1) , JSTOR 3600632
(https://www.jstor.org/stable/3600632) .

11. Birks, Peter (13 January 2005). Unjust

Enrichment. Clarendon Law Series
(2nd ed.). Oxford University Press.
ISBN 9780199276981.

12. Burrows, Andrew (2 December 2010). The

Law of Restitution (3rd ed.). Oxford
University Press. ISBN 9780199296521.
13. Virgo, Graham (13 August 2015). The
Principles of the Law of Restitution
(3rd ed.). Oxford University Press.
ISBN 9780198726388.

14. Kerly, Duncan Mackenzie (1890). An

Historical Sketch of the Equitable
Jurisdiction of the Court of Chancery (http
s://books.google.com/books?id=xEM0AAA
AIAAJ&pg=PA9) . Cambridge: Cambridge
University Press. p. 9.

15. Goodnow, Frank J. (1891). "The Writ of

Certiorari" (https://books.google.com/book
s?id=h2U4AAAAMAAJ&pg=PA493) .
Political Science Quarterly. 6 (3): 493–536.
doi:10.2307/2139490 (https://doi.org/10.2
307%2F2139490) . JSTOR 2139490 (http
s://www.jstor.org/stable/2139490) .
16. Plucknett, Theodore Frank Thomas (1956).
A Concise History of the Common Law (htt
ps://books.google.com/books?id=maGWT
VyY-ykC&pg=PA180) (2001 reprint of
5th ed.). Boston: Little, Brown & Company.
p. 180. ISBN 9781584771371. Retrieved
27 February 2021.

17. Burdick, William Livesey (1938). The

Principles of Roman Law and Their Relation
to Modern Law (https://books.google.com/
books?id=IRkMm73NCEUC&pg=PA79)
(2002 reprint ed.). The Lawbook Exchange.
p. 79. ISBN 978-1-58477-253-8.
18. Watt, Gary (2020). Trusts and Equity (http
s://books.google.com/books?id=uKXaDwA
AQBAJ&pg=PA5) (9th ed.). Oxford: Oxford
University Press. p. 5.
ISBN 9780198854142.

19. Worthington, Sarah (12 October 2006).

Equity. Clarendon Law Series (2nd ed.).
Oxford University Press. pp. 10–11.
ISBN 0199290504.

20. Klinck, Dennis R. (2010). Conscience, Equity

and the Court of Chancery in Early Modern
England (https://www.google.com/books/e
dition/Conscience_Equity_and_the_Court_of
_Chanc/m0c3DAAAQBAJ?hl=en&gbpv=1&p
g=PA13) . Farnham: Ashgate Publishing.
p. 13. ISBN 9781317161950. Retrieved
November 11, 2023.
21. Klinck, Dennis R. (2010). Conscience, Equity
and the Court of Chancery in Early Modern
England (https://www.google.com/books/e
dition/Conscience_Equity_and_the_Court_of
_Chanc/m0c3DAAAQBAJ?hl=en&gbpv=1&p
g=PA15) . Farnham: Ashgate Publishing.
p. 15. ISBN 9781317161950. Retrieved
November 11, 2023.
22. Klinck, Dennis R. (2010). Conscience, Equity
and the Court of Chancery in Early Modern
England (https://www.google.com/books/e
dition/Conscience_Equity_and_the_Court_of
_Chanc/m0c3DAAAQBAJ?hl=en&gbpv=1&p
g=PA17) . Farnham: Ashgate Publishing.
p. 17. ISBN 9781317161950. Retrieved
November 11, 2023. As the title implies,
this source is a 314-page treatment of the
history of the concept of conscience in the
Court of Chancery, to the extent that such
history can be inferred from surviving
sources.
23. Klinck, Dennis R. (2010). Conscience, Equity
and the Court of Chancery in Early Modern
England (https://www.google.com/books/e
dition/Conscience_Equity_and_the_Court_of
_Chanc/m0c3DAAAQBAJ?hl=en&gbpv=1&p
g=PA44) . Farnham: Ashgate Publishing.
p. 44. ISBN 9781317161950. Retrieved
November 11, 2023.

24. Baker, John (2019). An Introduction to

English Legal History (https://books.googl
e.com/books?id=0S0zEAAAQBAJ&pg=PA1
14) (5th ed.). Oxford: Oxford University
Press. p. 114. ISBN 9780198812609.
Retrieved August 26, 2023.
25. Baker, John (2019). An Introduction to
English Legal History (https://books.googl
e.com/books?id=0S0zEAAAQBAJ&pg=PA1
15) (5th ed.). Oxford: Oxford University
Press. p. 115. ISBN 9780198812609.
Retrieved August 26, 2023.

26. Baker, John (2019). An Introduction to

English Legal History (https://books.googl
e.com/books?id=0S0zEAAAQBAJ&pg=PA1
17) (5th ed.). Oxford: Oxford University
Press. p. 117. ISBN 9780198812609.
Retrieved August 26, 2023.

27. Earl of Oxford's Case, I Ch Rep I, 21 ER 485

(Court of Chancery 1615).
28. Watt, Gary (2020). Trusts and Equity (http
s://books.google.com/books?id=uKXaDwA
AQBAJ&pg=PA6) (9th ed.). Oxford: Oxford
University Press. p. 6.
ISBN 9780198854142.

29. J. Selden, Table Talk; quoted in Evans,

Michael; Jack, R Ian, eds. (1984), Sources
of English Legal and Constitutional History,
Sydney: Butterworths, pp. 223–224,
ISBN 0409493821

30. Baker, John (2019). An Introduction to

English Legal History (https://books.googl
e.com/books?id=0S0zEAAAQBAJ&pg=PA1
19) (5th ed.). Oxford: Oxford University
Press. p. 119. ISBN 9780198812609.
Retrieved August 26, 2023.
31. Powell, H. Jefferson (Summer 1993).
" 'Cardozo's Foot': The Chancellor's
Conscience and Constructive Trusts" (http
s://www.jstor.org/stable/1192175) . Law
and Contemporary Problems. 56 (3): 7–27.
doi:10.2307/1192175 (https://doi.org/10.2
307%2F1192175) . JSTOR 1192175 (http
s://www.jstor.org/stable/1192175) . At pp.
7-8.

32. Gee v Pritchard (1818) 2 Swan 402, 414.

33. See, e.g., Muschinski v Dodds [1985] HCA

78 (https://www.austlii.edu.au/au/cases/ct
h/HCA/1985/78.html) , 160 CLR 583.

34. Bofinger v Kingsway [2009] HCA 44 (http

s://www.austlii.edu.au/au/cases/cth/HCA/
2009/44.html) .
35. Supreme Court Act 1970 (NSW) s 44 (http
s://www.austlii.edu.au/au/legis/nsw/consol
_act/sca1970183/s44.html)

36. Law Reform (Law and Equity) Act 1972

(NSW) s 5 (https://www.austlii.edu.au/au/le
gis/nsw/consol_act/lraea1972263/s5.htm
l)

37. Cukurova Finance International Ltd v Alfa

Telecom Turkey Ltd [2013] UKPC 20 (http
s://www.bailii.org/uk/cases/UKPC/2013/2
0.html#para20) at para. 20

38. Harris v Digital Pulse Pty Ltd [2003] NSWCA

10 (https://www.austlii.edu.au/au/cases/ns
w/NSWCA/2003/10.html) , 56 NSWLR 298
39. Lord Hoffman, in Union Eagle Limited v.
Golden Achievement Limited (Hong Kong)
(https://www.bailii.org/uk/cases/UKPC/199
7/5.html) [1997] UKPC 5, delivered 3
February 1997, accessed 13 July 2023

40. Thomson, Stephen (2015). The Nobile

Officium: The Extraordinary Equitable
Jurisdiction of the Supreme Courts of
Scotland. Edinburgh: Avizandum. ISBN 978-
1904968337.

41. "Nobile officium used to recognise English

High Court orders due to statutory casus
improvisus" (https://www.nobileofficium.co
m/nobile-officium-used-to-recognise-englis
h-high-court-orders-due-to-statutory-casus-i
mprovisus/) . The Nobile Officium.
Retrieved 11 May 2017.
42. White, J. R. C. (1981). "A Brief Excursion
into the Scottish Legal System" (http://hein
online.org/HOL/Page?handle=hein.journal
s/holdslr6&collection=journals&id=159&sta
rtid=&endid=165) . Holdsworth Law
Review. University of Birmingham. 6 (2):
155–161.

43. Jefferson, Thomas (November 1785). "To

Philip Mazzei" (https://founders.archives.go
v/documents/Jefferson/01-09-02-0056) .
Letter to Phillip Mazzei.

44. Willard v. Tayloe, 75 U.S. 557 (1869).

45. Dawson, John P. (January 1984). "Judicial
Revision of Frustrated Contracts: The
United States" (http://heinonline.org/HOL/P
age?handle=hein.journals/bulr64&div=9&st
art_page=1&collection=journals) . Boston
University Law Review. 64 (1): 32.

46. "Events Subsequent to the Contract As a

Defence to Specific Performance".
Columbia Law Review. 16 (5): 411. May
1916. doi:10.2307/1110409 (https://doi.or
g/10.2307%2F1110409) . JSTOR 1110409
(https://www.jstor.org/stable/1110409) .

47. Renner, Shirley (1999). Inflation and the

Enforcement of Contracts. New Horizons in
Law and Economics. Cheltenham, England:
Elgar. p. 20. ISBN 978-1-84064-062-5.
48. See, e.g., Sereboff v. Mid Atlantic Medical
Services, Inc., 547 US 356 (2006). (Roberts
CJ for a unanimous court) (reviewing the
scope of equitable relief as authorized by
the ERISA statute).

49. Great-West Life & Annuity Ins. Co. v.

Knudson, 534 US 204 (2002).

50. Laycock, Douglas (2002). Modern

American Remedies: Cases and materials
(https://archive.org/details/modernamerica
nre00layc/page/370) (3rd ed.). Aspen
Press. p. 370 (https://archive.org/details/m
odernamericanre00layc/page/370) .
ISBN 0735524696.
51. Funk, Kellen (2015). "Equity without
Chancery: The Fusion of Law and Equity in
the Field Code of Civil Procedure, New York
1846–76". Journal of Legal History. 36 (2):
152–191.
doi:10.1080/01440365.2015.1047560 (htt
ps://doi.org/10.1080%2F01440365.2015.1
047560) . S2CID 142977209 (https://api.se
manticscholar.org/CorpusID:142977209) .
SSRN 2600201 (https://papers.ssrn.com/s
ol3/papers.cfm?abstract_id=2600201) .
52. Sources that mention four states (e.g.,
Laycock 2002) generally include Arkansas,
which abolished its separate chancery
courts as of January 1, 2002. "Circuit Court"
(https://web.archive.org/web/2011080402
5412/http://courts.state.ar.us/circuitcourt/i
ndex.cfm) . Arkansas Judiciary. Archived
from the original (http://courts.state.ar.us/c
ircuitcourt/index.cfm) on August 4, 2011.
Retrieved July 3, 2012.
53. Rules of the Supreme Court of Virginia, Rule
3:1. See also Bryson, W. H. (2006). "The
Merger of Common-Law and Equity
Pleading in Virginia" (https://scholarship.ric
hmond.edu/cgi/viewcontent.cgi?referer=htt
ps://www.bing.com/&httpsredir=1&article=
1068&context=law-faculty-publications) .
University of Richmond Law Review. 41:
77–82.

54. Hawes, Lesley Anne (January–February

2013). "Another Conflict in the Circuits
Brewing Over Bankruptcy Court's Equitable
Powers Under §105(a)" (http://www.abfjour
nal.com/articles/another-conflict-in-the-circ
uits-brewing-over-bankruptcy-courts-equita
ble-powers-under-%C2%A7105a/) . ABF
Journal. Retrieved 18 June 2015.
References
For a history of equity in England, including the Statute of Uses 1535:

Cockburn, Tina; Shirley, Melinda (14

November 2011). Equity in a Nutshell.
Sydney: Lawbook Co. ISBN 978-
0455228808.

Cockburn, Tina; Harris, Wendy; Shirley,

Melinda (2005). Equity & Trusts. Sydney:
LexisNexis Butterworths.
ISBN 0409321346.
For a general treatise on Equity, including a historical analysis:

Worthington, Sarah (12 October 2006).

Equity. Clarendon Law Series (2nd ed.).
Oxford University Press.
ISBN 0199290504.
For a brief outline of the maxims, doctrines and remedies developed under equity:

Watt, Gary (29 March 2007). Todd &

Watt's Cases and Materials on Equity and
Trusts (6th ed.). Oxford University Press.
ISBN 978-0199203161.

External links

Christopher St. Wikiquote

has
Germain's Doctor and
quotations
Student (1518) (http:// related to
equity.
www.lonang.com/exlib
ris/stgermain/index.ht Look up
equity in
ml) Archived (https://w Wiktionary,
eb.archive.org/web/20 the free
dictionary.
140407092817/http://
www.lonang.com/exlibris/stgermain/ind
 ex.html) 2014-04-07 at the Wayback
Machine, the classic common law text
on equity.

Delaware Court of Chancery: Official site

(https://web.archive.org/web/20040810
135923/http://courts.state.de.us/Court
s/Court%20of%20Chancery/)

Equity and Trusts (http://www.routledgel

aw.com/books/Equity-and-Trusts)
Hudson, Alastair, 5th edition, Routledge-
Cavendish, London, 2007 ISBN 978-0-
415-41847-8

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