Chancellors as civil lawyers—and the equitable notion of “fraud”

Abstract

Abstract Professor Lupoi traces equity’s origins back to Rome’s ius commune. He explains that Chancellors were doctors in civil law. Until Henry VIII’s breach with Rome, Chancellors were also Bishops. Their cultural and spiritual anchors were very distinct from those dispensing justice in common law courts. In the course of the fourteenth century common law courts surrendered their discretionary powers and disavowed any reliance on conscience and opted for rigor juris. Equitable doctrines, enacted by Chancellors and Masters who knew only Roman and canon law, prevented unconscientious exercise of a plaintiff’s rights at law. Professor Lupoi explains the similarity between “fraus” in Roman law and “fraud” in English equity and that whilst France, Germany and other countries of continental Europe squandered the Roman law inheritance, English equity holds the torch for Roman principles.