Equity law Essay Example | Topics and Well Written Essays - 1250 words

Equity law - Essay Example Practically, Hudson (2009) avers that modern equity is limited by both procedural and substantive rules, with legal writers tending to focus on prevailing technicalities. From these are drawn the twelve ‘vague’ ethical statements, referred to as the maxims of equity. The ethical statements further guide in the application of equity according to civil law (Hudson, 2009:24). The concept elicits criticisms that are traceable to historical conceptualization, during its development. This is mainly based upon its lack of fixed rules, further augmented by the fact that it later on lost a majority of its flexibility. The law on perfectly constituted trusts and perfect gifts has been ‘tolerably clear’ since 1862 (Halliwell, 2003:192). This is traceable to the authoritative statement by Turner during the Milroy v Lord case (4 De G.F. & J. 264; 45 E.R. 1185; [1861-1973] All E.R. Rep. 783). Use of the term ‘tolerably clear’ is necessitated by the presence of exceptions, which were previously articulated by courts previously. Influential in this regard is interpretation of the Privy Council’s advice, during the Court of Appeal’s hearing of the Pennington v *Conv. 193 Waine case (Halliwell, 2003:192). Subsequent interpretation of the court’s ruling was viewed as providing courts of equity the unfettered discretion, concerning whether voluntary trusts or gifts should take effect. This is with regard to the role of ‘un-conscionability in Equity’, which requires principled reasoning. Pundits are thus of the view that courts of law need to utilize principled approaches, as opposed to the exercising of unfettered discretion that is based on individual notions of judges pertaining to what is fair or not (Halliwell, 2003:194). The presence of ‘unfettered discretion’ potentially has far reaching consequences, with regard to voluntary property dispositions. Thus, the presence of voluntary settlement can occur by way of