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14 - Avoiding Anarchy?

Common Law v. Equity and Maitland v. Hohfeld

from Part III - Functional, Analytical and Theoretical Views

Published online by Cambridge University Press:  26 July 2019

By
Ben McFarlane
Edited by
John C. P. Goldberg ,
Henry E. Smith  and
P. G. Turner
John C. P. Goldberg
Affiliation:
Harvard Law School, Massachusetts
Henry E. Smith
Affiliation:
Harvard Law School, Massachusetts
P. G. Turner
Affiliation:
University of Cambridge
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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.

Keywords

HohfeldMaitlandconflict of law and equityanalytical jurisprudenceequitable estates and intereststrusts
Type
Chapter
Information
Equity and Law
Fusion and Fission
 , pp. 331 - 352
Publisher: Cambridge University Press
Print publication year: 2019

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