Introduction

We saw in Part B that equity developed an armoury of personal remedies, such as specific performance and injunctions, directed at the person of the defendant. Their principal function is to enforce personal rights, such as performance of a contract. However, over time equity proved willing to award personal relief almost routinely, not only against owners of property but also against third parties who had received the property. This regular award of equitable personal relief was eventually perceived as having created a proprietary interest in favour of the party entitled to the relief. For example, if A signs a contract to purchase land from B, but B refuses to complete the contract, equity will grant the remedy of specific performance against B, and B will have to transfer the land to A. This happened so routinely that eventually A was treated in equity as if he held a property interest in the land once the contract was signed. Similarly, the regular awards of personal relief against trustees in breach of trust eventually gave rise to a proprietary interest in the beneficiary. All equitable property rights are sourced in a personal obligation enforced in equity.

The availability of an equitable remedy does not necessarily mean that the interest protected by the remedy constitutes property. For example, equity grants injunctions and other relief to prevent the unauthorised use of confidential information. But confidential information is not recognised as a species of equitable property. Information is only protected against misuse by parties who act in breach of an equitable obligation of confidence. A person who has confidential information has only a personal right to protection in equity. Equitable property, like common law property, must be of a kind that is recognised as property in law.