ABSTRACT
It has been said that certainty is the principal virtue of every legal system (Oakley, 1997); whether or not that is true it must be observed that chaos and complexity are the common characteristics of every problem that confronts a legal system. That is the tension at the centre of this book. While the law seeks to impose certainty, litigants bring only confusion. Traditionally, equity and the law of trusts have been concerned with providing justice to balance out the rigour of the common law. However, the modern law of trusts has seen a determination to introduce greater formality to achieve specific commercial, economic and sociological goals, as discussed in Chapter 3, ‘The Settlor’. This tension between a traditional flexibility and a modern desire for certainty underpins the interesting developments in the law of trusts in the last decade. But before jumping into the complexity of the recent case law, we should begin at the beginning …
Strictly speaking, the principles of equity are those rules that have been developed by the Courts of Chancery over the centuries. Understanding equity therefore requires a close consideration of those judicial decisions, together with the few statutes that have been introduced in this field. Philosophically, as we shall see below, equity is a concept that is also found in the works of the ancient Greek philosopher Aristotle and one which suggests that a judge may ignore a legal rule if its literal application would cause an injustice which the legislator could not have intended. The purpose of equity in this sense is to prevent injustice being caused by the automatic application of legal rules.
