ARCHITECTURE

3.1.2
equity as
fairness: a
substantive
view of
contracts
liberal thought over the next four centuries, is a primary
vector of modernity and capitalism.
With the slow naturalization of the autonomous
individual, property came to be increasingly
confused with things themselves (rather than understood
as rights in or to things), and also became more
fungible within a growing market economy: disposable,
saleable, and transferable by persons and firms
acting to make a profit. 4
Throughout the eighteenth century, contracts—
agreements or promises between parties—became
the chief vehicle for the commercial exchange of
property. This contrasted with older modes of codifying
transfers and arrangements, whether those of
familial inheritance, mixed tenure relations rooted
in customs, or the endowments (grants) of colonial
expansion.
However, the law was slow to engage a merely
transactional view of private commercial exchanges.
Throughout the pre-modern era, it was mostly a substantive
principle of justice that governed the courts’
determinations of contractual claims. 5 In the British
American colonies, which unevenly adopted English
law, judges ruled on disputes over exchange according
to what was considered equitable ( just) in a customary
sense. Usually, judges would rule so that the
disputed exchange could be resolved based on what
was equitable in a universal sense—for instance, if
goods had not been delivered as agreed, the judge
would rule that they should be. The persistence of
an equitable conception of contracts was related to
the fact that the rulings assumed a personal character
to the exchanges, whether these took place in the
literal face-to-face of local markets or through the
figuration of a personalized merchants’ custom in international
trades. At both levels, the courts understood
contracts as instruments to secure the terms of
transfer over specific goods and services; they were
not expected to secure a transfer of value itself, such
as with claims over an expected future return, or a
bet on a particular land deal.
In this “title” theory of contract (pursuant to
the transfer of rights over things as borne in legal
titles), values were framed as being universally ob-
3.1.3
equity as
natural
property
right: the
case of the
mortgage
jective either through their customary definitions
or through their equity in terms of fairness. The intention
was to limit unequal (unfair) exchanges, preempting
usurious or malicious gain at the expense
of others. 6 In cases where bargains were deemed to
be unfair, the courts would routinely intervene to
ensure the equity of the exchange—in effect, equalizing
the contracting parties’ sides of the bargain. The
amalgamation of cases articulated by Common Law,
upon which judges based their rulings, were used
to argue for limitations on contractual obligations
whenever these were found to be in contradiction
with equitable custom.
As early as the sixteenth century, however, a different
kind of sovereignty rooted in the “natural property”
of the individual self, and which thus could
never be expunged, had been posed as an alternative
legal-philosophical framework for governing land
and social relations. 7 This development occurred
very unevenly throughout the early modern period,
both geographically and also in terms of the legal
practices employed to manage it. The history of the
mortgage, as a contract regulating the financing of
interests in land, illustrates this ambiguity. 8
Originally, mortgages were a type of promise
(or “security”) given by the borrower to the lender,
which declared the borrower’s willingness to forfeit
the land, all at once and in one instance, if he could
not repay the full amount at the specified date when
the debt was due (hence the word “mortgage”, which
literally meant “dead pledge”). However, as the landowning
gentry and judges acquired autonomy, the
mortgage’s debt was dispersed over time rather than
being due on a specific date. As long as the full price
was eventually paid, even years later, creditors and
judges allowed the mortgagor to keep (a part of ) the
title to the property while he was paying—what was
called “equity of redemption.” This extension of the
payment over time thus affected the development of
land as a financial product, extending its status beyond
that of a substantive commodity and toward a
fungible one. When mortgagees wanted to recuperate
their stake in the land due to a non-paying mortgagor,
they had to get a judicial writ to foreclose the
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