An Introduction to Trust Law: Equitable Maxims

Equity is discretionary

Equity operates through judicial discretion, but that discretion is anchored in precedent rather than personal notions of fairness.

In Re Diplock [1948] Ch 465, the Court of Appeal confirmed that a claimant must show their equitable claim fits within established principles recognised by courts exercising equitable jurisdiction.

Judges cannot invent new forms of “justice” without precedent, but equity remains flexible and capable of adapting when necessary.

Equity is triggered by unconscionability

Unconscionability is central to equity’s intervention. Equity acts on the conscience of the legal owner, as emphasised in Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669.

English courts tend to treat unconscionability as a substantive rule rather than a vague moral guideline, meaning it has defined legal content. When a defendant’s behaviour is unconscionable, equity steps in to prevent them benefiting from that conduct.

Those who seek equity must do equity

A claimant seeking an equitable remedy must themselves act equitably. This maxim influences how discretionary remedies are granted.

In Chappell v Times Newspapers Ltd [1975] 1 WLR 482, employees were refused an injunction because they would not agree to refrain from striking in future. Courts may attach conditions to equitable relief to ensure the claimant behaves fairly going forward.

Those who come to equity must come with clean hands

This maxim concerns the claimant’s past conduct. Equity will not assist a claimant whose prior behaviour is legally improper.

In Dering v Earl of Winchelsea [1787] 1 Cox Eq Cas 318, improper conduct was defined in a legal sense rather than a moral one. However, Tinsley v Milligan [1994] 1 AC 340 complicated the maxim by allowing a claimant to succeed provided they did not rely on their improper conduct to establish the claim. The decision remains controversial because it appears to undermine the clean‑hands principle.

Equity treats that which ought to be done as done

The maxim was clarified in Re Anstis [1886] 31 Ch D 596: where parties enter a specifically enforceable contract, equity treats the contract as performed.

This is particularly relevant in land transactions where formalities have not been completed. The vendor retains legal title, but the purchaser gains an equitable interest, meaning the vendor holds the property on a constructive trust.

Equity will not, however, pretend something exists when it does not; the maxim only applies where performance is genuinely possible.

Equity will not assist a volunteer

A volunteer is someone who has provided no consideration.

 If a donor attempts to make a gift but fails to transfer legal title effectively, equity will not perfect the imperfect gift. The donor retains legal ownership.

However, unconscionability can override this maxim. If the donor’s conduct is unconscionable, equity may impose a constructive trust in favour of the intended recipient.

Equity acts in personam

Equitable rights operate against specific individuals rather than the world at large. Rights in rem bind everyone; rights in personam bind only the relevant party.

Because equitable interests can be defeated by a bona fide purchaser for value, they are inherently personal rather than universal.

Equity looks to substance rather than form

In Parkin v Thorold [1852] 16 Beav 59, Lord Romilly MR explained that equity distinguishes between substance and form.

If insisting on formalities would defeat the substance of an arrangement, equity will not allow form to prevail. For example, even if a settlor does not explicitly declare a trust, equity may recognise one if the intention to benefit another is clear.

Other maxims

-            Equity is equality means that where equitable interests exist in property, equity presumes equal shares unless evidence suggests otherwise.

-            Equity assists the diligent means delay can bar equitable relief; a claimant who waits too long may lose the remedy.

-            Equity follows the law means equity generally aligns with legal rules, but where conflict arises, equity usually prevails.

-            Equity is imaginative reflects equity’s flexibility compared to the rigidity of common law.

-            Equity protects the vulnerable and weak is illustrated by undue influence, which allows contracts to be set aside where one party has been improperly pressured.

Equity's cynicism is not formally recognised but underpins several doctrines, including equity’s scepticism toward gifts, often presuming that donors did not intend outright transfers without clear evidence.

Understanding these maxims provides a foundation for studying trust law. They reveal how equity thinks, how it intervenes, and why it remains essential for preventing unfair outcomes within the legal system.