How do you know whether you need to be looking at equity or at law?
Im so confused. My seminarist said if the covenant is positive you look at law, and if its restristictive you look at equity. But i dont understand. Is this right? Why?
at common law, the burden will not run unless it falls under the halsall v. brizell rule of 'benefit and burden', as it upsets the doctrine of privity.
if you can show that the benefit and burden exception applies, you can use the benefit at common law too.
however, most of the time that won't apply, so you move to equity. Your tutor is right in saying that equity on allows negative covenants (the rules regarding the burden of covenants at equity are set out in tulk v. moxhay). The covenant is labelled as negative by looking at it's substance not it's form.
the generic test is if the covenant requires the covenantor to use money to carry it out, it is positive.
if no money is needed, it's negative.