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conflict of law and equity

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1 results

14 - Avoiding Anarchy?
from Part III - Functional, Analytical and Theoretical Views
- By Ben McFarlane
Edited by John C. P. Goldberg, Harvard Law School, Massachusetts, Henry E. Smith, Harvard Law School, Massachusetts, P. G. Turner, University of Cambridge
Book:

Equity and Law

Published online:

26 July 2019

Print publication:

01 August 2019, pp 331-352
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Summary

Hohfeld argued that Maitland was wrong to consider that equity did not conflict with the common law. To Hohfeld, conflict between legal and equitable rules existed if the application of one would produce a result different from the application of the other. But Hohfeld’s own analysis shows this approach to conflict to be inadequate. On Hohfeld’s analysis, Maitland proves to be correct: when the forms of legal entitlements must be brought into account, it can be seen that the rules of law and equity in most cases indeed do not conflict. And those rules correspond to distinct purposes in law. This is demonstrated through analysis of the express trust and extended then to another area in which legal and equitable rules have been said to conflict – in the law of assignment.