8 - Are Equity and Law in Scotland Fused, Separate or Intertwined?

Summary

This chapter enquires into the nature of equity in Scotland. It compares and contrasts equity there with equity in England and common law systems. English equity has influenced Scottish law variously: sometimes through the English judges in the House of Lords stating that the law in Scotland must be the same as in England (when it might not have been so), sometimes through a willing adoption by Scottish judges of English equitable concepts. Some English equity sits awkwardly, if at all, in Scots law because the concepts clash: the concept of dominium, for example, is difficult to square with the concept of equitable ownership in a beneficiary of a trust. However, while equity in England and Scotland are different from one another, Scottish law does possess equity. The chapter explores how separate equity is from Scots common law, concluding that it is conceptually separate but legally intertwined with the common law.