The positively in many jurisdictions towards the development

The principle of conscience
can be an unclear view. Typically it means a persons awareness of right and
wrong with regards to his or her own thoughts and actions .1
Therefore conscience always includes a moral decision. Yet, the principle of
conscience, as the basis of equity, has been contributed positively in many
jurisdictions towards the development of law. The purpose of this article is to
Critically evaluate the
nature of equity’s role as ‘court of conscience’ and analyse whether its
flexibility ensures a more just legal system.

 

The law requests to use generic rules to exact cases, in
which usually expected to be fair. But however there will always be an exception
to this which will make it impossible to cover in form of the generic rule due
to idiosyncratic case characteristics, the request of the generic rule may
result in unjust results2.  Therefore, the law is undersupplied in
dealing with various and developing circumstances. The principle of conscience
could monitor the law in its request to changed and fresh circumstances.

Justice demands certainty in law. in order to attain firmness, the law relies
on rules and precedents. The harsh view that the law holds is that unfair
results occur due to the operation of these rules are merely the price paid for
a system of law. 3
On the other hand Maitland accurately spotted “certainty of law must not become
certainty of injustice”4.

Henceforward, justice too stresses that problematic rules and precedents to be
rejected and conscience to be applied. In order to arrive at just and fair
outcomes, principles of equity are efficient in setting aside the legally
required unfair outcomes. By recognising the lawfulness of equity, legal
systems integrate within themselves disputing desires towards rigid and formal
technicalities on one hand and discretionary and common sense on the other 5

 

The motivating influence of
the equity courts used in amending injustice was the conscience of the judges.

The early chancellors were religious men in which their conscience was
extremely prejudiced by religion and morality. So, they where able to add a
sense of morality into the process of law when decision-making .6
Furthermore, the only practise that had to be followed in decision making was
conscience, as the chancellors were unregulated by rules and precedents. the
judgments of early chancellors did not differ greatly due to the fact their
perceptive was founded on alike standards. Hence, some sort of certainty succeeded
in regards to the results of equity courts. However, going in further it could
be seen when legal men were appointed as chancellor, decisions varied due to
being selected from diverse sections of society, one judge’s perception may be
different to another. By organisation of equity, it was planned to remedy the
problem.

There is still space for
judicial discretions within the modern courts, even with laws and precedents. Consequently,
courts can endure requesting conscience to grow the law and offer equitable
results, this gave flexibility to the courts. However, should be noted that
judicial discretion should not be unrestricted, as unrestricted application of
conscience can bring harmful results such as discrepancy and prejudice of law.

Furthermore, judicial decision making merely on the basis of conscience may in
undeniable aspects act as a friction to the idea of rule of law which is
well-maintained as central to every jurisdiction. So a certain amount of
control is compulsory over judicial discretion. The religion founded method in
applying conscience for judicial decision making would not not be viable in
modern context. In the modern era there would barely be any uniformity of value
judgements between various religions. It is crucial that law need to be
flexible in order to achieve a more just legal system.  Society is forever changing as new conditions
develop. If for whatever reason the law lacks flexibility, then may face with
the issue of being rejected once found to be unconnected to the requirements of
later stage.7 If
conscience is used as a flexible principle this could aid in achieving
fairness. Modern courts do apply conscience via different principles which are
based upon fairness. For example the “doctrine of unconscionability” orders
that a party in social or commercial relationship with another should not be
allowed by equity to take unconscientious advantage.8

 

The
modernisation of equity has developed in rules being embedded to help the
application of equity. Hence, the conscience of separate judges has become less
meaningful. Because of the joining of equity and common law courts the judges
have been bestowed with powers of both law and equity. Hence giving them the
power to follow the law as well as the option to choose fairness, instead of
rigorously adhering to the law. However, numerous judges have found it awkward
in applying new equity law which hasn’t beforehand been applied. Pettit views
that “though there is no fiction in equity as there has been
said to be at common law that the rules have been established from time
immemorial, and though ‘it is perfectly well known that they have been
established from time to time—altered, improved and refined from time to time.

In many cases we know the names of he Chancellors who invented them’, yet, it
is in principle doubtful whether a new right can now be created”9
 Judiciary has been more apprehensive in
following certainty by firm rules and precedents since the fusion of equity and
law. The outcome was that flexibility and freedom have been exceptionally
limited.10
Nonetheless in certain aspects judges have left from strict law and precedent
in favor of fairness. So, as would be seen later, the application of conscience
still hangs on specific attitudes of the judges and the same inspection is
alike appropriate the case of other jurisdictions. Lord Denning commenting on
the state if equity in 1984 states,

“Now,
thirty years later in 1984, I can say that in my time the courts have
discovered the new equity. It is fair and just and legible, but not as variable
as the ‘Chancellor’s foot.’ It is a great achievement. If I were setting an
examination paper for students, I would ask them to give examples of the truth
of that statement. They would find them in the doctrines of promissory estoppels,
proprietary estoppels, constructive trusts, licenses of land, granting of
injunctions, and so forth.” 11

English courts locate
residence to the principle of conscience, within the introduced maxims of
equity. For example, under the maxim “equity acts in personam” the court has
the control to confine a defendant from taking unfair advantage from the
appellant 12

The attitude
of conscience assigns equity with great amount of flexibility to guide the law
in its application to evolving needs of the society. Therefore, it could be
said that conscience has been the influential factor in the equity
jurisdiction, which has enabled equity to promote justice and fairness.

However, in the modern context, equity has become a rigid system.

The law,
after all, must reply to human needs and ambitions, even if it seeks only to
detain them. Legal systems must contain fragments of earlier forms of social
life that judge control more pleasant to the public. Hence, twinges of conscience are
impracticable to be eradicated from justice, and until such time, law and
conscience will share.

The
decision in Re Rose13
primarily changed equity’s method to imperfect transactions. The decision
interests the composition of trusts, when a trust is built the courts help
beneficiaries by enforcing their rights14
even if they are a volunteer.15

In
order to evaluate the principle of Re Rose, previous and advanced case law must
be examined. It has been argued that case law prior Re Rose was somewhat frank16,
the reasonable starting point is the leading authority Milroy v Lord17.

The
decision in Milroy serves to irritate incomplete transactions rather than give
effect to the donor’s intention18
and has established disapproval for denying main principles of fairness and
justice. The narrow approach has been admired for creating a clear legal stance
on imperfect transfers. It also indicates defense of formalities, which gives
donor’s many chances to change their mind and safeguard they are certain about
their transaction.

Re
Rose19
shaped an exclusion20
to the principle in Milroy, and understood Milroy to mean that while equity
will not perfect a gift where the donor was unsuccessful to do everything in
law to transfer his title, it will give effect to an tried transfer if the
donor has done everything which he ought to do to perfect the gift.21

In
a nutshell the necessities set out in Re Rose are that the settlor must use the
precise technique of transfer and have done all that he could to complete the
transfer, which includes delivery of the documents.

The
result was a step away from Milroy, and steps towards upshotting the donor’s
intention rather than unsatisfying the transaction. The process of the rule
invades the general principle in Milroy by aiding volunteers permitting equity
to consider a transfer complete in equity before legal title has passed.22

Mascall
v Mascall23
is an illustration of the process of the rule in Re Rose. Browne-Wilkinson LJ
understood that ‘a gift is complete as soon as the settlor has done everything
he has to do… as soon as the transferee has within his control all things
necessary to enable him to complete his title’. Similar to Re Rose the donor
held the property on trust for the donee until the registration of title.24.

The
flexibility offered by Re Rose was protracted in T.Choithram25
where Lord Browne-Wilkinson held that the case did not upset the values in
Milroy and ‘though equity will not help a volunteer it will not endeavor
overbearingly to overthrow a gift’. This case is unique and only applies where
the settlor is himself a trustee26.

It
emerged that an effort to transfer shares would only be thorough if the
requirements of Re Rose were satisfied. The belief in Re Rose is no longer
absolute27,
the CA28
in Pennington29
prolonged the territory of the rule by presenting the concept of
unconscionability which if satisfied, equity will announce a transfer complete
before all procedures are finished30.

The settlor must have permanently put the transferee in a position to broad the
transaction, here the donor had planned to make an abrupt gift and the donee
had been knowledgeable and agreed to it.

It is disturbing that
beforehand authoritative procedures such as delivery were not satisfied in
Pennington, but still the transfer was believed actual in equity, Mitchell
argues that although delivery was compulsory in Re Rose it does not mean that
the obligation for delivery can be distributed with in certain circumstances31.

The
result in Pennington judges it nearly awkward for experts to positively counsel
clients undertaking property transfers in order to evade court action or to
guide clients if they are confronted with an imperfect transfer. Morris agrees
and argues that Pennington has made it ‘difficult to know where you and your
client stand’32.

Overall
agreement between academics such as Morris and Halliwell is that Pennington has
overstrained the limitations. Furthermore, Arden LJ did not speak of any
restrictions of the court’s discretion and used an umbrella term of ‘must
depend on the court’s assessment of all appropriate thoughts’ the use of
subjective insights and conscience has uncertain consequences. This has
startled academics and experts, the judiciary has not endeavored to produce a
definition or test. This gives the court a wide discretion to perfect imperfect
transactions.33  Halliwell calls this an ‘unruly beast’34
indicating the legacy of Pennington is possibly risky if not subject to
restraints.

It
is reasonable to conclude that Pennington extremely weakens the maxim that
equity will not aid a volunteer by perfecting imperfect gifts. The current
values need many formalities to be satisfied which allows donors to change
their mind at various stages in the transfer. It is monotonous to allow the
courts an unrestricted discretion on what it believes to be unacceptable to
control the efficiency of attempted transfers.

Prima
facie, the law in Re Rose should be a greeted program in equity as it moderates
versus the harshness of Milroy. From analysis of the outcome of case law it is
clear that the rule set in movement a series of case law running to Pennington.

There are presently no suggestions for reform of this area by the Law
Commission, though a Scottish debate35
has taken place.

To conclude, the norm
in Re Rose ‘diluted’36
the harsh method in Milroy without producing the concrete and theoretic
troubles which surfaced from Pennington. Equity’s position seems more equitable
but is certainly complex. It is arguable whether the policy reasons behind the
principles discussed should be commanded by fairness offered by the recent case
law, or by certainty and ease for experts offered by Milroy. The law in Re
Rose, seems to provide a mode between the two and consequently it should be
well-preserved but not prolonged to the extent in Pennington.

1 A. S. Hornby, Oxford Advanced Learner’s Dictionary of
Current English, (5th ed.) Oxford: Oxford University Press, 1996 at p.244.

2 D. R. Fox, “The Autonomy Community Balance and the
Equity-Law Distinction: Anarchy’s Task for Psychological Jurisprudence” 1993
11 Behavioural Sciences & the Law 97

3 D. R. Fox, “The Autonomy Community Balance and the
Equity-Law Distinction: Anarchy’s Task for Psychological Jurisprudence” 1993
11 Behavioural Sciences & the Law 97.

4 R. W. M. Dias, Jurisprudence, (2nd ed.)
London: Butterworth & Co. Limited, 1964 at p.170.

5 D. R. Fox, “The Autonomy Community Balance and the
Equity-Law Distinction: Anarchy’s Task for Psychological Jurisprudence” 1993
11 Behavioural Sciences & the Law 97.

6 A. W. B. Simpson, A History of the Common Law of
Contract: The Rise of the Action of Assumpsit, Oxford: Clarendon Press,
1975 at pp.396-398.

7 C. G. Weeramantry, An Invitation to the Law,
(Indian Reprint) New Delhi: Lawman (India) Private Limited, 1998 at p.139.

8 A. Dunn, “Equity is Dead, Long Live Equity!” 1999 62
Mod. L. R. 141 at p.141.

9 R. Clements and A. Abass, Equity & Trusts, Text,
Cases and Materials, (2nd ed.) Oxford: Oxford University Press, 2011 at
p.18. retion and used an umbrella termm the plaintiffiated
maxims of equity  the case of other
jurisdictionsbservation is equally appl

10 R. Clements and A. Abass, Equity & Trusts, Text,
Cases and Materials, (2nd ed.) Oxford: Oxford University Press, 2011 at
p.18

 

11 Lord Denning, Landmarks in the Law, Indian
Reprint New Delhi: Aditya Books, 1993 at p.86

12 S. J. Bailey, “The Future of Equity” 1977 93 L.Q.R. 529
at 532.

13 1952 Ch 499

 

14 Paul v Paul 1882 20 Ch.D. 742

 

15 A volunteer is a party who has not provided any
valuable consideration.

 

16 Margaret Halliwell, ‘Perfecting Imperfect Gifts and Trusts:
Have we Reached the End of the Chancellor’s Foot?’, 2003 Cov 192

 

17 1862 4 De GF & J 264 / 45 ER 1185

 

19 1952 Ch 499

20 Mitchell C, ‘Hayton
& Mitchell: Commentary and Cases on the Law of Trusts and Equitable
Remedies’ 13th edition (Sweet and Maxwell 2010) p81

21 Penner J, ‘The Law of Trusts’ 9th
edition (Oxford University Press 2014) p206

22 Pearce R,
Stevens J & Barr W, ‘The Law of
Trusts and Equitable Obligations’ 5th edition (Oxford University
Press 2011) p 205

23 1985 49. P. &. CR.

119

24 Penner J, ‘The Law of Trusts’ 9th
edition (Oxford University Press 2014) p206

25 v International SA v Pagarani 2001 1 WLR 1

26 Judith Morris, ‘Questions:
When is an Invalid Gift a Valid Gift? When is an Incompletely Constituted Trust
a Constituted Trust? Answer: After the Decisions in Croithram and Pennington’
2003 6 PCB 393 p4

27 Martin J, ‘Hanbury and
Martin’s Modern Equity’ 19th edition (Sweet & Maxwell 2012)
p132

28 Court of Appeal

29 v Waine 2002 EWCA Civ 227 / 2002 1 WLR 2075

30 Penner J, ‘The Law of Trusts’ 9th
edition (Oxford University Press 2014) p206

31 Mitchell C, ‘Hayton
& Mitchell: Commentary and Cases on the Law of Ttrusts and Equitable
Remedies’ 13th edition (Sweet and Maxwell 2010) p81

32 Judith Morris, ‘Questions:
When is an Invalid Gift a Valid Gift? When is an Incompletely Constituted Trust
a Constituted Trust? Answer: After the Decisions in Croithram and Pennington’
2003 6 PCB 393 p1

33 Jonathan
Garton, ‘The Role of the Trust Mechanism and the Rule in Re Rose’, 2003 Conv
364 p5

34 Margaret Halliwell, ‘Perfecting Imperfect Gifts and Trusts:
Have we Reached the End of the Chancellor’s Foot?’, 2003 Cov 192

35 Scottish Law Commission, Discussion
Paper on the Nature and Constitution of Trusts (Scot Law Com No 133, 2006)

36 Jonathan
Garton, ‘The Role of the Trust Mechanism
and the Rule in Re Rose’, 2003 Conv 364 p2