Form and Substance in Equity

Abstract

Ben McFarlane The argument of this chapter is that the distinction between form and substance is crucial to understanding and justifying the distinction between common law and equity and, more fundamentally, the distinction between two different types of legal rule. The terms ‘form’ and ‘substance’ are used here in a particular sense: ‘form’ refers to the type of legal relation arising from the parties’ dealings and the application of particular rules to those dealings; ‘substance’ refers to the effect in practice of such dealings and rules. The argument here is not based on the notion that ‘equity looks to the substance not the form’. In fact, this chapter asserts something close to the opposite: the key to understanding much equitable intervention in the law of obligations lies in paying very close attention to the form of the legal relations involved. Three main points will be made. First, in seeking to...