ABSTRACT
There is much in this book which has had to do with commerce and much which has had to do with property. The development of the principles of equity in England and Wales has interacted closely with commercial developments – the company, the À oating charge, the trust itself – and also with the law of property – the trust of land, family settlements, and so forth. The historical competition between the courts of common law and the courts of equity saw responsibility for much of these areas move between the two jurisdictions. The courts of equity became amenable to commercial goals such as the control of contractual obligations through speci¿ c performance, 1 recti¿ cation and rescission, 2 as well as to disputes over the use of land through equitable easements, 3 the enforceability of the burden of negative covenants, 4 and the equity of redemption in mortgages. 5 There is no reason in the abstract why the courts of common law could not have developed means of achieving the same goals. After all, common law developed its own notion of fraud and could therefore have made the
small leap to a notion of unconscionability too. Throughout its complex history, however, the common law failed to develop procedural rules to allow such concepts to be developed in its own courts once they had been manufactured in equity. Amongst all of these developments it is the trust which has demonstrated itself to be the most versatile and wide-ranging technique in equity’s armoury. The modern equity which is visible to us today is the product of this history by means of which equity has both developed and discarded many forms of action, many procedural rules and many substantive concepts. But it is not just equity which has changed; the world with which equity is confronted has changed radically too over time. This chapter considers the change in the nature of the property with which equity has had to deal. Most of the discussion will focus on the trust institution, being equity’s most important tool in property disputes.
