Common Law and Equity
ordinary language equity simply means fairness, but in law it provides for set
of legal principles which add to those provided in the common law. Equity and
common law maybe different, but both are law. Equity grew with the ideas of
fairness and natural justice.
- Historical development of Equity
was developed, after the Norman Conquest of England (1066–1088), through the itinerant justices
travelling around the country and sorting out disputes. By the twelfth century
common law courts were developed which practiced common law. Civil actions in
these courts had to be started by writ. Writ provided the grounds for the claim
made, and there grew up different types of writ. In the early stages new writs
were created to suit new circumstances, but in the thirteenth century this was
stopped. Litigants had to fit their claims into one of the pre-existing writs,
and if the case did not match with any of the pre-existing writs, he or she
could not bring the case to the common law court. At the same time common law
was itself becoming increasingly rigid and provided only one remedy, damages.
However, damages were not a proper solution to every problem.
were unable to seek redress for wrongs through the common law courts. Many of
these dissatisfied parties petitioned the king. The king passed on these cases
to his chief minister, the Lord
Chancellor. From then onwards the Lord Chancellor began to look after such
claims and the Court of Chancery began to develop.
Lord Chancellor would listen to the litigants and provide verdicts from his own
merit. The court could insist the relevant documents to be disclosed as well as
questioning the parties in person unlike the common law court. Due to the
court’s different and flexible operating system, it could enforce rights not
recognized by common law which was restricted by precedent and failed to adapt
to new circumstances. The Court of Chancery could provide whatever remedy best
suited the case. This type of justice came to be known as equity.
Due to the flexible
and more open minded operation, the Court of Chancery became popular. This
caused some resentment among the lawyers of common law who challenged the
quality of equity as it did not follow any precedent but is simply based on
merits of individual chancellor.
On the other
hand, this flexibility was seen as the great advantage of equity. It judged the
cases according to its own merit and also denied the fact that precedent should
be followed, as it would lead to injustice.
of common law particularly resented the way in which equity could be used to
restrict their own jurisdiction. In cases the Court of Chancery could issue a
common injunction, preventing the exercise of the common law right. In the Earl
of Oxford’s Case (1615), King James I of England clearly stated that where
there is a conflict between equity and common law, the equity should prevail.
the rivalry continued for some time, but gradually abated as equity too began
to be ruled by precedent and standard principle. By the nineteenth century,
equity had a developed case law and recognizable principles and was no less
rigid than the common law.
Judicature Acts 1873–1875 provided
that equity and common law could both be administered by all courts and that
there would be no longer be different procedures for seeking equitable and
common law remedies. Although the Court
of Chancery remained as a division of the High Court, it can now apply both
common law and equity like all other courts.
It is important to
note that the Judicature Acts did not fuse common law with equity, only their
administration is fused. Equity is still distinct from common law rules and
acts as an addition to it.
Although both equity
and common law lay down rules developed from precedents, equity also created
maxims which had to be satisfied before equitable rules could be applied.
These maxims were
designed to ensure that decisions were morally fair.
who comes to equity must come with clean hands. D&C Builders v. Rees (1966)
who seeks equity must do equity. Chappell v. Times
Newspaper Ltd. (1975)
Delay defeats equity. Leaf v. International
increased the number of remedies available to a wronged party.
ordering a party to do or not to do something.
Performance: compels a party to fulfill a previous agreement.
this order alters the words of a document which does not express the true
intentions of the parties to it.
Rescission: this restores parties to a contract to the position they were
in before the contract was signed.
remedies are discretionary. The remedies are only available if common law
remedies are plainly inadequate.
Equitable principles have shown great
development in the field of
of law trusts.