Lionel Smith, ‘Equity is Not a Single Thing’

ABSTRACT
In this paper, I ask what are the philosophical foundations of Equity as it was defined by Frederic Maitland: the body of rules and principles that were developed over the centuries by the Court of Chancery. My answer is that there is no single purpose, approach, philosophy or norm that characterizes Equity so defined. What is characteristic about Equity is a unique manner comprehending the juridical nature of some obligations, which grew out of Equity’s regulation of uses and trusts. This approach reveals three dimensions. First, Equity requires that one who owes such an obligation perform it, if necessary by substitution; there is no option of breaching and paying compensation for loss caused. Secondly, these obligations are understood by Equity in a manner that has the effect of depersonalizing the burden of these obligations. In the civil law tradition and in the common law (in the narrow sense that excludes Equity), an obligation is a bilateral relationship. Equity’s unique philosophy in relation to some obligations turned them into something like property rights and created the office of trusteeship. Finally, Equity understood some obligations not as freestanding particles but as elements of a particular kind of relationship, and this relationship is capable of itself generating new primary obligations. All these elements taken together facilitated the creation of an enduring conceptual toolkit for the juridical apprehension of relationships in which one person acts for and on behalf of another.

Smith, Lionel, Equity is Not a Single Thing (August 23, 2018). Forthcoming in D Klimchuk, I Samet, and HE Smith, eds, Philosophical Foundations of the Law of Equity (Oxford University Press, forthcoming).

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