Equity Trust And Will Law Assignment

Equity, Trust and Will Law
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Question 1
According to the provisions of the common law, equity refers to whatever is considered fair and
right under the law. In the contemporary world, the legal systems in many countries, including
American Samoa, face various challenges in declaring judgment in some cases 1. Some of the
difficulties arise when the laws of the land do not address the issue at hand. In some cases, the
law may be considered to provide an inadequate ruling in some way. Therefore, the legal system
needs to make a fair and just ruling. Hence, the concept of equity comes in. Some of the
examples of equity in law include instructing someone to stop doing something to prevent
damage or even correcting a property line.
The concept of equity dates back to the emphasis laid by Aristotle in the early century. Equity
dates back to the early centuries; thus, it is not a new concept. However, the changes in the laws
have led to various improvements in the idea of equity2. Studies hold that equity is needed in law
to strike a balance. If someone is accused of a criminal offense, he or she should be charged
accordingly. Notably, some of the rights, such as the right to life and the freedom of expression
may not be limited for a suspected criminal. In many countries, criminals are allowed to defend
themselves in court. In such a case, the legal system ensures that there is equity in the
implementation of the law.
According to the law of equity, the rule of law may give an advantage to one party; therefore,
equity comes in to ensure that there is a balance. Additionally, the rule of equity holds that rights
1 S, Agnew. The meaning and significance of conscience in private law. (Camb Law J.
2018;77(3):479–505)
2 R, Hedlund. Conscience and Unconscionability in English Equity [Ph.D. Thesis].
(University of York; 2016)

and liabilities should be equalized among all interests. In the long run, the primary objective of
equity law is to promote fairness. In common law, conscience refers to an internal sense of right
and wrong. Conscience is based on various principles that guide the legal system in
administering justice. One of the principles of conscience is that everyone, if not obliged to form
their conscience3. If a criminal is given a chance to defend himself, he is most likely to cover his
wrongs. Ideally, conscience may not be the best determinant of right or wrong. However, it plays
an essential role in equity law.
Another principle of conscience is that a right end does not justify moral means. Even though a
lawyer may win a case in court, it does not mean that his client was innocent. Research shows
that a significant number of people have escaped charges of committing criminal offenses due to
effective defense in courts4. Conscience determines an individual’s innate sense and intuition of
right and wrong behavior. Moreover, conscience plays a critical role in embracing ethical values
in the legal system. Even though someone may be guilty of committing a particular offense, the
court can decide to apply equity considering the victim’s conscience.
The case Cornerstone Property & Development Pty Ltd v Suellen Properties Pty Ltd [2014] QSC
265 is one of the examples where equity law has been applied. The Involved allegation against a
company director for misusing information for her interest. Following the fact that she had an
opportunity to access the company’s critical data, she used the change to enrich her interest. In
3 Hobbes , May L., law, and public conscience. Crit Rev Int Soc Polit Philos. (2016;19(1):12–
28)
4 M, Oza. Equity: Conscience Goes to Market by Irit Samet. Univ Tor Law J. (2020;70(2):216–
222)

the ruling, the Supreme Court applied equity to ensure that there is fairness5. The primary role of
equity, in this case, was to strike a balance on the plaintiff’s claims and the defendant’s defenses.
One of the principles of equity holds that equity will not suffer a wrong without a remedy. In
many cases, the remedy is used to create fairness. The remedy paid to the plaintiff aims to strike
a balance in the particular case. Notably, this principle of equity is also capable of setting aside
legally required unfair outcomes. In order to promote equity, the legal system uses conflicting
impulses towards rigid technicalities. In this regard, conscience is applied in the form of
conflicting desires. The law prevails over equity. In other words, the law is given priority before
considering the aspect of equity.
In common equity, discretion has been used to express conscience in law. Preference allows a
broker to buy and sell securities without the consent of the client. In such a case, equity will be
based on conscience6. In other words, the client will assume that the broker will sell the securities
with good intentions. Trust also plays an essential role in conscience and equity. If the client
does not trust the broker, he may not allow him to sell the securities without his consent.
Conscience is commonly used in an investment where some clients are not aware of market
dynamics. Therefore, the clients depend on the broker’s conscience for an equitable relationship.
Studies show that the conscience of the judges plays a vital role in equity courts in correcting
injustice. In many countries, the judges’ conscience is influenced by religion and morality. The
law of righteousness holds that fairness should be embraced in the rule of law. Likewise,
5 M. Oza . Irit Samet, Equity: Conscience Goes to Market. (University of Toronto Press;
2020)
6 I, Samet. Equity: Conscience Goes to Market. (Oxford University Press, USA; 2019)