The relationship of equity and common law

The relationship of equity and common law

To regard equitable doctrines as modular, so that they may be mixed and matched with common law rules so as to expand the judicial branch of government's regulation of self-interested action is to fail to appreciate these differences.”Do you agree with Justice Keane? Why or why not?

Yes according to Justice Keane distinction between common law and equity is that liability at common law is strict, whereas equity looks to the fault of the defendant (Birks, 1989). Neither the proprietary common law tracing claim, nor the personal action for money had and received, is dependent on the knowledge or fault of the defendant, although the personal action is subject to various defences, such as that the defendant provided consideration, or had changed his or her position (Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548).

By contrast, equity will not generally intervene unless the defendant's conscience is affected, a point reiterated in the House of Lords in Westdeutsche, so that the imposition of constructive trusteeship on the basis of knowing receipt is dependent on the defendant's knowledge. (While a proprietary equitable tracing claim does not necessarily depend on the defendant's knowledge, it is defeated by a bona fide purchaser for value without notice, and the same is true of the personal action in Re Diplock's Estate [1948] Ch 465.)

In F C Jones itself, this distinction between equity and the common law was probably not material, since Anne Jones was aware of all the relevant facts, and if legal title had passed to her, she would probably have become a constructive trustee. This would also found have founded the fiduciary relationship necessary for an equitable tracing claim, and on either basis, she would have been liable in ...