The concept of equity is based on conscience and unconscionability which is shown to be the collective through the law on proprietary estoppel, and constitution of trusts. The idea of conscience is in majority of cases dogged by imprecision, uncertainty and the absence of any legitimate, doctrinal underpinning and provides uncertain principles for equitable doctrines. Consequently, when a court judges in the name of conscience, it is doing so with a subjective standard “Tis all one as if they should make the Standard for the measure we call A foot, to be the Chancellors foot; what an uncertain measure would this be; tis the same thing in the Chancellors Conscience.”1 The centuries-old arguments about the efficacy of equity turn on this understanding of a conscience and reference to it only increases the crooked cord of private opinion, which the vulgar call discretion.”2
This article critically assesses Sir Mason’s view on the concepts of equity3, considering the demands of conscience. It weighs whether refining previous cases renders them more determinate, looking particularly into imperfect gifts and the concept of unconscionability. The distinction between equity (through the exercise of discretion) and common law, (through strict interpretation) is key to the background of this essay as where one system provided certainty; the other provided the necessary flexibility and adaptability to enable justice to be done4.
Conscience is widely defined as a person’s moral sense of right and wrong, guiding one’s behaviour.5 Yet also described as a roguish thing.6
“it needs to be established whose conscience is relevant when applying this concept. Unconscionability might refer to the conscience of the judge, in the sense that the judge considers that it would be unconscionable to deny a remedy; or to the conscience of a reasonable person; or to the defendants own conscience.”7
Considering it is the judge, his private knowledge of facts which could not be proved at common law because of medieval common law conceptions8funnels through his conscience and according to Mason, should guide judges in the future by setting precedent. However, it must be noted that conscience is experienced subjectively.9 It is influenced by “knowledge of oneself within oneself”.10 It is then possible to consume a judge’s knowledge with facts from previous cases rather than social messages. In theory, equity would then mature into more determinate rules and principles as cases are reflected on, refined and applied by judges. Although only in theory as Lord Upjohn’s view, recognised in Boardman v Phipps states “Rules of equity need to be applied in such a great diversity of circumstances that they can be stated only in the most general terms…”11 Suggesting, even if judges constantly refer to previous cases, reliance on conscience and discretion is necessary, hence the question of whether this renders them determinate still exists.
Nevertheless, ‘one does neither the judiciary nor common law any favour by not facing facts. Besides, it can be quite fun to find that judges have occasionally led future generations of judges into mountains of error, where they rested for a long time.12 A significant mountain of error is demonstrated through the treatment of imperfect gifts in equity. In 1862, the rule equity will not perfect an imperfect gift was established in Milroy13 with the basis that equity will not assist a volunteer. This was to be strictly applied to transfer of gifts and was indeed for many years. Milroy provided that ‘the settlor must have done everything which…was necessary to be done to transfer the property’ and that this must be done by outright gift, transfer on trust or self-declaration of trust.’ Here equity took a similar approach to common law through strict interpretation and can seem unforgiving, particularly if the failure to transfer the property has been caused by a minor procedural error or by someone else’s fault. However, this approach provided a coherent central principle to the law of incomplete gifts and was re-applied with ease in Re-Fry.14
For argument’s sake, in upholding the view that strict interpretation diminishes the necessary flexibility and adaptability to enable justice to be done, without which, equity is in danger of losing its purpose. To mitigate rigours.15 Would, in theory, have been resolved post-1952 where courts began to relax maxims and attempt to adhere to the demands of conscience on a case by case basis. This was so in Re Rose16 which established; a change in interpretation of ‘all in his power’ to mean, everything settlor can do himself not what third parties must do.17 This was still seen as straightforward.18
The issue regarding unconscionability arose through the more recent exception in Chorithiam19 which provided that even if a maxim would prevent the transfer of a gift if the settlor’s intentions are made imminently clear, it would be unconscionable not to enforce the gift. Nevertheless, this exception was made only to apply where the settlor is himself a trustee.20 Although this extended the rule vastly to meet the demands of conscience it did not offend the principles laid out in Milroy as “court of equity will not strive officiously to defeat a gift.’21 Up until this point, demands of conscience still provided clarity and is coherent with Sir Mason’s view in rendering decisions determinate.
However; the extension of the demands on conscience through refining Chorithiam in the case of Pennington v Waine22 dramatically shifted from this with the aim of giving full effect to the wishes of the testator even when the claimant had not done all within his power to transfer the gift.23 From this, it is clear, that the maxims (equity will not perfect an imperfect gift) are referred to simply as a ‘mantra’24 repeated case and case again without a basis or grounding. Re-application of this renders decisions uncertain. This is a great example of courts utilising unconscionability to arrive at decisions which have no connection with the fundamental principles at stake.25 The means of reaching this decision is a concern as Arden L.J. accepted ‘the same end could have been reached by finding that the advisor became the agent for the donor.’26 If so, arguably, judges in the future would have a stronger standpoint to refer to and apply with consistency. Using unconscionability as a standpoint means the equity of courts will still vary like the Chancellor’s foot because it may be unconscionable for the judge to deny a remedy or to the conscience of a reasonable person or to the defendants own conscience.27 Leaving the demands of conscience unclear despite reflecting, refining and re-applying the cases mentioned above.
It was till the case of Chorithiam, equity was used as a shield to he who comes with clean hands. However, post-Pennington it is used as a sword through a transition from weak to strong discretion. This issue of whether courts of equity should have open discretion or operate a system of precedent is one that is present in all areas of equity and has been refocused on the viability of the idea of “conscience”28 In that, the decisions were uncertain and precarious as they were not bound by any established rules or orders.29 Sir Mason’s views cannot be sustained as conscience would not cause judges to act arbitrarily but rather “be guided by that infallible monitor within his own breast.”30 Leading to obvious uncertainties considering each judge has a different monitor.
Another exception to the rule of imperfect gifts is established through Strong v Bird31and achieved so by setting clear conditions, which if not present, an inter-vivos gift will not be perfected. However, through reflecting, refining and re-applying this rule it was extended so much it overstretched boundaries once again. Re Stewart established that this could apply to regular gifts and was not limited to debts.32 This extension still provides clarity and meets the demands of conscience. However, the problem occurs where this is extended further once again i.e. in Re James in that the donee did not have to be the executor but an administrator would suffice33 as it would be unconscionable to deny the intended donee a remedy despite not meeting the formalities laid out in Strong v Bird34. This is clearly a mountain of error where the judges rested till Re Gonnin35 where Walton J showed reluctance to apply this rule. Up until this point, Mason’s view is accurate, in that referencing earlier cases has led to a clearer understanding. However, this view cannot be sustained given the more recent case of Re Ralli36 where a continuing intention was not required on the part of the settlor and can apply to unspecified and future. It appears the court believed it would be unconscionable to deny a remedy, hence prioritised the wishes of the settlor despite not meeting conditions. On the other hand, in the earlier case of Re Brooks St. a gift was not perfected despite meeting all other conditions solely because the trustees acquired title through a different route37. This is a clear example of contradictions between judges and is based on their inability to understand what rule to follow if solely dependent on their conscience despite having set precedents in earlier cases.
Kant in his metaphysics of morals, explains conscience as “…an internal judge; and this authority watching over the law in him is not something that he himself makes, but something incorporated into his being…”38 often unknowingly, which is the main cause of unspecific references as each judge will have a different moral standing as seen through the development of the principle in Strong v Bird.39 This reasons with Lord Coke’s view in that “all causes should be measured by the golden and straight metwand of the law and not the uncertain and crooked cord of discretion”.40 He goes further “the crooked cord of private opinion, which the vulgar call discretion”41 Visible through the judge’s private opinion arising through the blanket of his conscience via strong discretion.
This is also visible through analysis of these concepts by Dixon42 who criticised the term “unconscionability” in the doctrine of proprietary estoppel in the decisions in Cobbe43 where the doctrine was limited greatly and then reopened in Major.44 This demonstrates that unconscionability was never clearly defined. This inconsistency is present again in Hopkins45 and Klinck46, who both model that different approaches were taken in different cases where judges have mentioned the concept of unconscionability.47 Making it clear that each judge will use the idea of conscience differently and refining cases has not led to determinate rules. This is because it provides an ambiguous test making it difficult to uphold the intentions of the donor as in Gillett where the donor did not want the donee to inherit the farm and had removed him from his will.48 This provides that the exception is so vague it creates uncertainties, yet again.
Despite this, courts provide another exception through establishing Donatio Mortis Causa (DMC) where a gift due to death may, in certain circumstances, be perfected even if the necessary formalities of transfer have not been followed. It is imperative to expand on what basis the judges decide this? answer – Conscience. This rule reflects a sentimentality of the courts shown towards the dying and the desperate. A social message incorporated into their beings. On having established through Re Craven’s that the contemplation of death needs to be “within the near future”49 and only to be applied in circumstances “where a man lies in extremity…not having an opportunity to make his will”50 Judges have side-stepped these conditions in Valleé51based on unconscionability, despite the view that this rule should be struck out of law altogether.52 They have taken the role of constructive trusts too far by extending the test of ‘impending death’ where previous cases held this to be within 5 days,53 they allowed for 5 months54. The most important point to consider here is the additional reasoning of the deputy judge in Valleé who states: “I do not consider that Equity intervenes in such cases only out of sympathy for those caught out in extremis but rather to give effect to the intentions of donors…” If so, why should the court aid those who have time to make a will but choose not to, and aid those who attempt a will but inadvertently fail to execute it properly? It is this inconsistency which conscience gives rise to and makes cases difficult to predict and follow, hence, cannot be changed through referencing. Consequently, many judges have observed this doctrine to be an anomaly as it allows a donor to transfer property upon his death without complying with any of the formalities of the Wills Act55 or The Law of Property Act,56 and is the “evils” of this method of side stepping the formalities of transfer57 which does not provide a clear understanding of the requirement of legitimate, doctrinal underpinning.
In conclusion, it is established that although in theory, the unspecific references explored above should be resolved regarding errors in previous cases, the understanding courts on the demands of conscience has indeed changed over time. In developing far-reaching exceptions, the courts aim to aid the intentions of the settlor. However, as we have explored, this has been at the expense of clarity, certainty, and coherence in the law. For it does not mature into more determinate rules and principles as they are reflected on, refined and applied by judges in reality. This is due to the nature of the demands of conscience being uncertain as it varies on the length of the chancellor’s foot58. However, this is if, and only if, one passes the limit of staying within set conditions as explored through the cases above, where the concepts of conscience and unconscionability were correctly applied until formalities were side-stepped. It is, therefore, unclear as to where a judge must draw the line between conscience and fundamental principles of equity, otherwise at stake.
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– Boardman v Phipps 1967 2 AC 46, 123
– Duffield v Elwes 1827 4 ER 959
– Gillett v Holt & Anor 2000 EWCA Civ 66
– Gonin, Re 1979 Ch 16, 1977 2 All ER 720
– Hedges v Hedges 1708 Ch 269
– Hills v Hills 1841 151 ER 1095
– James v James 1935 Ch 449, 104 LJ Ch 247
– Jones v Kernott 2011 UKSC 53; 2012 1 AC 776
– Milroy v Lord 1862 EWHC J78
– Pennington v Waine 2001 1 WLR 2075
– Re Brook’s St 1939 1 Ch 993
– Re Craven’s Estate (No.1) 1937 Ch 423
– Re Fry 1946 Ch 312
– Re Ralli’s Will Trust 1964 1 Ch 288
– Re Rose 1952 Ch 499
– Re Stewart, Stewart v McLaughlin – 1908-10 All ER Rep 133
– Strong v Bird 1874 L.R. 18 315
– T Chorithiam International v Pagaraini 2001 1 WLR 1
– Thorner v Major 2009 UKHL 18
– Vallée v Birchwood 2013 EWHC 1449
– Yeoman’s Row Management Ltd v Cobbe 2008 UKHL 55?
– The Law of Property Act 1925 s.52
– The Wills Act 1837 s.9
– Coke E, ‘First Institute of the Laws of England: Commentary Upon Littleton’ (1818) SBPR 227b
– Coke E, ‘Fourth Institute of the Laws of England: Concerning the Jurisdiction of the Courts’ (1817) LB 40
– Degeling S, and Edelman J, ‘Proprietary restitution’ (2005) LBC Ch 12 309
– Delaney H, and Ryan D, ‘Unconscionability: A Unifying Theme in Equity’ 2008 72 Conv 401
– Dixon M, ‘Confining and Defining Proprietary Estoppel: The Role of Unconscionability’ (2010) 30 LS 408?
– Edward Coke, ‘Legal Maxims and Other Quotes by Lord Coke’ (Common Law, 1823)
– Francis R, ‘Maxims of Equity’ 2nd edn (1739) Lintot
– Halliwell M, ‘Perfecting Imperfect Gifts and Trusts’ 2003 Cov 192
– Harding M, ‘Equity and the Rule of Law’ (2016) 132 LQR 278
– Hopkins N, ‘Conscience, Discretion and the Creation of Property Rights’ (2006) LS 26, 475 ?
– Hudson A, ‘Conscience as The Organising Concept of Equity’ (2016) 2 CJCCL
– Kant I, ‘Metaphysics of Morals’ (1996) CUP 189?
– Klinck R. D, ‘Unexamined ‘Conscience’ of Contemporary Canadian Equity’ (2001) MLJ 46, 571 ?
– Macnair M, ‘Equity and Conscience’ (2007) 27 OJLS
– Morris J, ‘Questions: When is an invalid gift a valid gift? When is an Incompletely constituted trust a constituted trust? Answer: After the decisions in Chorithiam and Pennington’ 2003 6 PCB 393 p4
– Neuberger D, ‘Equity – The Soul and Spirit of All Law or A Roguish Thing?’ 2014
– Penner J, ‘The Law of Trusts’ 9th edn (2014) OUP 206
– Pollock F, Table Talk of John Seldon (1st edn, Seldon Society 1927).
– Todd P, ‘Re Rose Revisited’ (1998) CLJ 57
– Davies P, and Virgo G, Equity & Trusts (2nd edn, OUP 2016)
Other secondary sources:
– ‘Definition of Conscience’ (Oxford Dictionaries, 2017)
1 Fredrick Pollock, Table Talk of John Seldon (1st edn, Seldon Society 1927).
2 Edward Coke, ‘Legal Maxims and Other Quotes by Lord Coke’ (Common Law, 1823)
3 Professor Matthew Harding, ‘Equity and the Rule of Law’ (2016) 132 LQR 278
4 Simone Degeling and James Edelman ‘Proprietary restitution’ (2005) LBC Ch 12 309
5 ‘Definition of Conscience’ (Oxford Dictionaries, 2017)
6 Pollock, Table Talk of John Seldon (n 1)
7 Paul S. Davies and Graham Virgo, Equity & Trusts (2nd edn, OUP 2016)
8 Mike Macnair, ‘Equity and Conscience’ (2007) 27 OJLS
9 Alastair Hudson, ‘Conscience as The Organising Concept of Equity’ (2016) 2 CJCCL
10 ibid 276
11 Boardman v Phipps 1967 2 AC 46, 123.
12 David Neuberger, ‘Equity – The Soul and Spirit of All Law or A Roguish Thing?’ 2014
13 Milroy v Lord 1862 EWHC J78
14Re Fry 1946 1 Ch 312
15 Neuberger, ‘Equity – The Soul and Spirit of All Law or A Roguish Thing?’ (n 12)
16 Re Rose 1952 Ch. 499
17Paul Todd, ‘Re Rose Revisited’ (1998) CLJ 57
18 Margaret Halliwell, ‘Perfecting Imperfect Gifts and Trusts’ 2003 Cov 192
19 T Chorithiam International v Pagaraini 2001 1 WLR 1 ?
20 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 Chorithiam and Pennington’ 2003 6 PCB 393 p4
22 Pennington v Waine 2001 1 WLR 2075
23 Penner J, ‘The Law of Trusts’ 9th edn (2014) OUP 206
24 Jones v Kernott 2011 UKSC 53; 2012 1 AC 776, 19
25 Delaney & Ryan ‘Unconscionability: A Unifying Theme in Equity’ 2008 72 Conv 401
26 Pennington v Waine 2001 1 WLR 2075
27 Paul S. Davies (n 7)
28 Hudson, ‘Conscience as The Organising Concept of Equity’ (n 9) 263
29Richard Francis, ‘Maxims of Equity’ 2nd edn (1739) Lintot
31 Strong v Bird 1874 LR 18 EQ 315
32 Re Stewart; Stewart v McLaughlin – 1908-10 All ER Rep 133
33 James v James 1935 Ch 449, 104 LJ Ch 247
34 Strong (n 31)
35 Gonin, Re 1979 Ch 16, 1977 2 All ER 720
36 Re Ralli’s WT 1964 1 Ch 288
37 Re Brook’s St 1939 1 Ch 993
38 Immanuel Kant, ‘Metaphysics of Morals’ (1996) CUP 189?
39 Strong (n 31)
40 Edward Coke, ‘Fourth Institute of the Laws of England: Concerning the Jurisdiction of the Courts’ (1817) LB 40
41 Edward Coke, ‘First Institute of the Laws of England: Commentary Upon Littleton’ (1818) SBPR 227b
42 Martin Dixon, ‘Confining and Defining Proprietary Estoppel: The Role of Unconscionability’ (2010) 30 LS 408?
43 Yeoman’s Row Management Ltd v Cobbe 2008 UKHL 55 ?
44 Thorner v Major 2009 UKHL 18
45 Nicholas Hopkins, ‘Conscience, Discretion and the Creation of Property Rights’ (2006) LS 26, 475 ?
46 Dennis R Klinck, ‘Unexamined ‘Conscience’ of Contemporary Canadian Equity’ (2001) MLJ 46, 571 ?
47 Hudson, ‘Conscience as The Organising Concept of Equity’ (n 9) 273
48 Gillett v Holt & Anor 2000 EWCA Civ 66
49 Re Craven’s Estate (No.1) 1937 Ch 423
50 Hedges v Hedges 1708 Ch 269
51 Vallée v Birchwood 2013 EWHC 1449
52 Duffield v Elwes 1827 4 ER 959 ?
53 Re Craven’s (n 49)
54 Vallée (n 51)
55 The Wills Act 1837 s.9
56 The Law of Property Act 1925 s.52
57 Hills v Hills 1841 151 ER 1095 ?
58 Pollock, Table Talk of John Seldon (n 1)