Equity and the origin of trusts

Abstract

THE main object of this paper is to give an idea of Trusts in English Law; to do so, however, it is essential to introduce the subject by giving a short history of the developments of Equity. In dealing with any subject of English Law the principles can be understood and their logic appreciated only if we go back to 1066 and in many cases even further back. No satisfactory definition has been given of Trust but it has perhaps been best described by Underhill as "an equitable obligation binding a person to deal with property over which he has no control for the benefit of persons (who are called the beneficials or cestui que trusts) of whom he himself may be one and any one of whom may-enforce the obligation. The essential word in this definition is the word "equitable". It is imperative therefore to understand what we mean by Equity in English Law. Equity is not a conception but a definite source of law; it is a completely different thing from aequitas in Roman Law. In certain passages of the Digest aequitas is equivalent to ratio, the correspondence between a legal rule or institution and the spirit of civil or natural law; in other passages aequitas denotes (a) the agreement between rules of positive law and the natural sense of right or (b) the decision of a legal question with special reference to the circumstances of the case or ( c) the mitigation of strict law in accordance with a higher sense of justice.