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Essays on the History of Equity

Edited by: D. Foster, C. Mitchell

ISBN13: 9781509955121
To be Published: March 2025
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £100.00
Paperback edition not yet published, ISBN13 9781509955169

This volume presents various facets of the history of equity in England between the 14th and 20th centuries.

Writing a history (or histories) of equity automatically raises difficult questions of philosophy and theology, as well as jurisprudence and legal history. When one speaks of 'equity', for example, do we mean Aristotelian epieikeia, civilian aequitas, a theological/juridical conscience, the common law concept of the 'equity of the statute', or merely the rules applied by the court of chancery before 1875?

This terminological problem is compounded when we consider how these ideas were developed over time. Whilst conscience had been an organising concept for St German, the political disputes surrounding the Earl of Oxford's case introduced the prerogative into contemporary understandings of the chancery's jurisdiction. The emergence of clear, doctrinal rules governing (inter alia) the equity of redemption and the beneficiary's right under a trust may well be attributable to the complex interplay of theory and practice in the central courts of equity at this time.

If the earlier history of equity remains somewhat obscure, the same is no less true of developments in the 18th, 19th, and 20th centuries. Whereas the historian of the 14th century might search in vain for new material, the modern era poses the opposite problem. The overwhelming glut of undigested information in the later period – treatises, court records, reports, pamphlets, practice manuals – raises obvious issues of source selection when generating new narratives for the period.

Whether by investigating the historical foundations of the modern law, the jurisprudential underpinnings of the equitable jurisdiction, or the socio-political context of discrete legal developments, this collection of essays exposes the strands of thought which 'equity' comprises and the mechanisms by which its rules evolved. In so doing, this collection provides a useful way-marker for future studies in the nature and history of English equity.

Legal History
1. Introduction
D. Foster and C. Mitchell (University College London, UK)
2. Conceptualising Conscience in the Early Tudor Conciliar Courts
L. Flannigan (University of Oxford, UK)
3. The Statute of Richard III (1484) and the Emergence of Beneficial Ownership in Freehold Land
A. Hannay (Queen Mary University of London, UK)
4. 'Equity' in the Court of Chancery, 1529-1615
N. Jones (University of Cambridge, UK)
5. Epieikeia and the Common Law: The Rise and Fall of Equitable Interpretation of English Statutes
L. Maniscalco (University of Cambridge, UK)
6. 'The Equity of the Common Lawes' in Hake's Epieikiea
J. McCunn (University of Bristol, UK)
7. The Practical Application of Equity in the Court of Chancery in Relation to Insolvent Debtors in the Late Sixteenth and Early Seventeenth Centuries
F. Stolker (University of Oxford, UK)
8. Sir Moyle Finch's Litigation and the Equitable Jurisdiction
J. Baker (University of Cambridge, UK)
9. Suretyship in Equity
D. Waddilove (University of Notre Dame, USA)
10. Enforcing the Beneficial Interest as a Matter of Right, c.
D. Foster (University College London, UK)
11. A Re-Examination of the Expectant Heir in Seventeenth-Century Chancery
H. Saunders (Keele University, UK)
12. The Emergence of Fiduciary Duties from Lord Nottingham to Lord King
A. Douglas (University of Cambridge, UK)
13. Equity Contract Doctrine, c.
1689 to 1738
M. Macnair (University of Oxford, UK)
14. Chancery, Femes Coverts and the 'Unhappy Tyme' of the South Sea Crash: An Analysis
E. Ireland (University of Adelaide, Australia)
15. The Origins and Early History of Constructive Fraud
J. Grower (University of Cambridge, UK)
16. Ideas of Equity in Common Law Reasoning from Ellesmere to Mansfield
D. Ibbetson (University of Cambridge, UK)
17. Equity and Law before Fusion
A. Televantos (University of Oxford, UK)
18. Equity and Legal Change, 1760-1825
S. Waddams (University of Toronto, Canada)
19. Arbitrations by the Chancery Masters in Ordinary, c.
C. Mitchell (University College London, UK)
20. Title TBC
M. Lobban (London School of Economics and Political Science, UK)
21. The Code of Equity
J. Getzler (University of Oxford, UK)
22. Equity after Fusion
C. Macmillan (King's College London, UK)