When equity developed as a parallel system to the common law, it was considered innovative by acknowledging “new” rights where common law failed to provide “justice”2. The intrinsic nature of this innovative system lay in the judicial “discretion” referred to by Lord Hoffman in Co-operative Insurance Society Limited v Argyll Stores Holdings Limited3. From a historical perspective, equity developed as a result of inflexibility of common law and “wiped away the tears of the common law”4. However, this exercise of judicial discretion led to an uneasy relationship with the common law. The clash was resolved in favour of equity and resulted in equity prevailing in the event of a conflict, which is now statutorily enshrined in section 49 of the Supreme Court Act 1981
Moreover, if we firstly consider Bill and Muriel’s position, if Charles had orally agreed for them to acquire proprietary interests in the Property, then Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (the 1989 Act) provides that “a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms, which the parties have expressly agreed in one document or, where the contracts have been exchanged, in each”.
The essence of Section 2 is the requirement that the contract must be in writing and contain all the terms expressly agreed to and be signed by both parties. If the rules are not complied with, there will be no contract.
In the past, failure to comply with the written requirements was remedied by equity when there had been part performance of a contract. Whilst there is no express provision in the 1989 Act specifically abolishing part performance, there has been an assumption that the doctrine is no longer applicable as section 2 clearly renders oral contracts void.