Aristocratic Indebtedness

In addition to the wider economic change, changing economic practices were also of paramount importance. As Cannadine observes, In the times of Lord Nottingham and Lord Mannesfield, mortgages were carried out through family and neighbours. Such loans were seen as a short term expedient to help a neighbour rather than a commercial transaction and therefore it was seen as unconscionable that a neighbour should take the property because of contractual breach, neither party had intended this in the case of an eventuality.

Furthermore, the Courts often looked unfavorably at a predatory mortgagee if the landed gentry had little knowledge, experience and therefore bargaining power. For example Lord Guilford claimed, with success, that he had been unaware what 60% interest meant and that assumed it was a normal rate. By the late 19th Century mortgages had become more commercialized through the route professional groups such as Solicitors, West End banks and Insurance Companies.

The importance of Insurance companies forced Bagehot to comment that that a large part of the richest land title were mortgaged to Insurances Companies. The landed Gentry became more aware of contractual obligations, especially individuals that were using borrowed money to themselves invest in enterprises such as Coal mining (Duke of Durham). By the late 19th Century E Spring argues that the landed classes were revaluating their expenditure and financial obligation in order to balance their income with their debts.

It was clear that the increased the commercialization of mortgages that touched every echelon of society, not just the entrepreneurial middle class, would make the Courts less willing to protect a fully aware party from a bad bargain. Sir Wilfred Greene MR in Knightsbridge was not willing to interfere with freedom of contract where the parties had been on equal bargaining power. Therefore the judicial change in its approach towards the equity of redemption mirrored a society that was less nai?? ve and more responsible for their own decisions.

The rise and fall of the equity of redemption can be explained by referring to the courts fear of abandoning a coherent and stable feudal structure rather than protecting an important landed class. Yet this thesis on its own provides an insufficient explanation, as it does not explain why the equity of redemption fell nor why it rapidly rose in 17th Century a hundred years before the French Revolution. Therefore, a better explanation may be seen in the courts responding to the new and rising middle class.

Yet whereas this is argument is to an extent undeniably true the rapid demise of the equity of redemption does not correspond with the upper class losing influence, as this a much slower rate. Instead, the most powerful explanation is that as the economy became more sophisticated and all levels of society responded relied less on the concept of land and became more commercially aware. The combination of these two factors allowed the courts in Fairclough to begin the restriction of the doctrine of equity.

1 Simpson: A History of Land Law, pages 141-143 and 242-2472 Spurgern v Collier (1758) 1 Eden 56, 28 ER 605 at 606 3 Thompson pp370-377. Modern Land Law (Oxford: OUP. 2003, 2nd ed. 4 Fairclough v Swan Brewery Co. Ltd [1912] A. C. 565 5 D. Sugermann and R. Warrington Telling Stories: Rights and Wrongs of the Equity of Redemption in J. Harris (ed) Property Problems From Genes to Pensions Funds (1997) 6 Sugermann 7 (1675) 8 Kreglinger v New Patagonia Meat and Cold Storage Co. Ltd [1914] AC 25. 9 David Cannadine: "Aristocratic Indebtedness in the Nineteenth Century: The Case Re-opened", (1977) 30 Economic History Review, pp. 624-649