common law and equity essay

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Common Law and Equity Essay

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• The fact that there were only one remedy available, damages soon became a problem. Damage being money ordered to be paid as compensation for injury or loss. It soon became a common issue that remedy was not always the appropriate form of remedy and this would have no significant concluding impact within cases.
• The other major issue was that a civil action, legal action to protect a private civil right or to compel a civil remedy, could only be started with a writ. A writ was a document on which was written why and what the legal basis the person was being sued.

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Home — Essay Samples — Economics — Equity — Common Law and Equity: the Differences Between the Rules of Tracing

Common Law and Equity: The Differences Between The Rules of Tracing

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Published: Apr 11, 2019

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Differences at Common Law and Equity

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Fusion of Common Law and Equity: Fallacy or Reality?

11 Pages Posted: 11 May 2022

Mohammad Habibur Rahman

A.S & Associate; Cardiff University

Date Written: May 9, 2022

The fusion of common law and equity has become a sensible matter of controversy for ages. Many scholars interpret the concepts of common law and equity in various ways considering the issue of fusion between them. In the context of the function and nature of the Judicature Acts 1873-75 and relationship between the common law and equity, the learned author Walter Ashburner very cogently described that, “the two [common law and equity] streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters”. This is actually considered as the traditional approach of the relationship between the common law and equity which, however, requires maintenance of separation of one from the other. On the contrary, it has been emphasised that common law and equity merged with each other. Therefore, in order to determine as to whether there is a state of fusion between equity and the common law, it is necessary to focus on the definitional clarification of these notions along with their prevailing extent of differences. For this purpose, this essay would discuss the concepts and differences between the common law and equity in brief; and would critically evaluate the issue of fusion between them referring to the relevant opinions and interpretations of the cases and academic scholars.

Keywords: Equity, Trust, fusion of common law and equity

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• ON THE DEVELOPMENT OF EQUITY WITH COMMON LAW

QUESTION : “Equity had come not to destroy the law, but to fulfill it”  Frederic William Maitland Lectures on Equity: The Origin of Equity (ii). D iscuss this statement and assess its contemporary significance in describing the role of Equity in today’s legal system.

MY REFLECTIONS:

At the time, the common law had many deficiencies. Firstly, the writ system made any new claim possible only if it is based on an existing writ. And if none exists, then the case would normally not proceed. This became a big problem as many could not even initiate their petition in the common law courts. Also, there was limitation in the kind of remedies offered by the common law courts. Damages were the dominant civil remedy available, but this did not satisfy the need for justice by many litigants who would have preferred an injunction or order for specific performance. In addition, the common law courts failed to adequately recognise certain types of rights, such as beneficial owners in a Trust. The use of the Court of Equity (also known as Court of Chancery) to resolve Trust related matters became very popular.

With these deficiencies; there were growing number of unhappy citizens who petitioned the king for justice. These discretionary verdicts by the King’s court (and later the Court of Chancery); gave birth to equitable remedies, thus establishing equity as a doctrine in English legal landscape. In its early days; the Chancellors decided cases without much reference to previously written verdicts. After all, the Chancellors were expected to decide cases based on morality, fairness and good conscience.

There were concern that two parallel legal systems have developed in the country; with its attendant conflict of jurisdiction and both vying for superiority. To address this confusion; Then came the Judicature Acts of 1873 and 1875 (JA). The 1873 JA specifically stated that in case there is conflict between Equity and Common Law rules; Equity should prevail [1] .  The JA also got rid of the old separate courts of common law and equity and in its place established the High Court and the Court of Appeal to adjudicate over both common law and equity matters. The JA fused the administration of the previous two separate courts. And in practice, it also removed the need for plaintiffs to initiate multiple cases in separate courts on the same matter. In essence, the JA also fused the jurisdiction of equity and common law, although the principles of each were still distinct from each other in many matters.

With the development and increased use of ‘Trusts’ as a vehicle for asset management by the Knights going to war on behalf of the King; The need for equitable principles was undeniable to many legal observers, due to the limitations of the common law in this crucial area. And in more recent times, equity has also influenced the case law on mortgages; thanks to the many equitable maxims . In his Lectures on Equity series; Frederic William Maitland (FWM) noted in his first lecture that “…I think we may say that had there been no Chancery, the old courts would have discovered some methods of enforcing these fiduciary obligations” This affirmed the necessity of the rules and principles embodied in Equity. Maitland however acknowledged that any solution based on the common law would have been clumsy and inadequate to fully adjudicate on these matters. To me, this confirms that ‘Equitable Principles and Rules’ were a child of necessity. And in his final comment in the first lecture of his Lectures on Equity series FWM glibly dismissed the common law competence, when he noted that “a system which sends every question of fact to a jury is not competent to deal adequately with fiduciary relationships ”. This was demonstrated for example in the famous case of Walsh v Lonsdale [2] . And more recently in Patel v Ali [3] .  In this case equity stepped in to deliver justice where the basic legal facts would have achieved an unjust outcome.

So, over time, the JA inspired (together with the body of rules of the court made by judges); the creation of a Code of Civil Procedure which sought to combine the best of both common law and equity systems. This reduced significantly any obvious perception of conflict between the two systems. ‘Equity follows the law’ is a common maxim in equity jurisprudence. This means that equity follows all the dictates of the common law and will only step in if after all have been done, something was still needed to satisfy justness and equity. This is the basis of the quote by Maitland that “Equity had come not to destroy the law, but to fulfil it”. So Equity can be said to complement the law. And with the fusion of the courts by the JA, it became possible to obtain both legal and equitable remedies from the same court. Hence equity has become like an appendix to common law intended to achieve fairness and justice (after all the rules of common law has been applied and fulfilled). So equity can be said to smoothen the rough edges of the common law.  On this basis I will agree with Maitland’s quote that “Equity had come not to destroy the law, but to fulfil it”. In fact equity usually express its superiority at coming to just outcome in cases where damages will be insufficient to resolve matters; as in the case Inwards v Baker [1965] 2 Q.B. 29.

But “Trust” as a concept has been the most recognisable invention of equity. For instance; the common law considers Trustee ‘A’ to be the legal owner of Trust X set up by the Settlor. That is as far as common law goes. While Equity fully agrees with the common law, it goes further by recognising the interest of ‘B’ as the beneficiary of the trust and that A owns and holds X for the benefit of B. So Equity cannot really be said to be in conflict with the law. Equity agrees with the law; it simply ensures fairness and equitable justice by recognising the beneficial owner as well. So equity did not destroy the law in this instance; but fulfilled it.

To further support his thesis that “Equity had come not to destroy the law, but to fulfil it”; Maitland argued that Equity is not a self-sufficient system as it cannot function without the common law. But common law can function without equity, albeit imperfect and will deliver unjust outcomes in many cases. So, Equity needs the common law to operate and survive. Therefore, equity cannot destroy the law, but needs the law. Maitland encapsulated his position on this in the second lecture in his series when he stated emphatically that “Equity without common law would have been a castle in the air; an impossibility”.

There are many who argue that the fusion argument as a result of the JA is a distraction. They argue that equity and common law are now inextricably one body of law to be applied by the law court. Others believe that the two systems (though administered by one common court) are still different from each other. In Salt v Cooper, Sir George Jessel MR commented on the overriding consequence of the JA when he said the JA “has been sometimes inaccurately called the fusion of the law and equity; but it is not any fusion, or anything of the kind. It was the vesting in one tribunal the administration of law and equity in every cause, action or dispute which should come before that tribunal [4] “. However in modern times, many judges have commented that the river of equity and law are truly mingled into a single coherent body of law in the United Kingdom. For instance; this sentiment was expressed by Lord Diplock in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 and Lord Denning in Errington v Errington and Woods [1952] 1 KB 290 at 298 ; when he noted that the Law and Equity have indeed truly merged.

In today’s legal landscape, many of the remedies previously considered exclusive to equity such as Specific Performance can be ordered by the court based on common law principles. Such developments have blurred the lines that separated the two systems before the JA. In fact many believe the line no longer exist altogether. So the UK courts can now apply whichever rule best applicable to achieve justice without any dichotomy.

Before the JA, Equity was famous for its creativity and flexibility in the delivery of justice. But gradually from the existence of the JA, equity has acquired several of the rigidities of the common law as a result of its usage of precedents, fixed maxims and rules. However, despite the foregoing statement, equity still possesses lots of scope for creativity and flexibility compared to the common law. In Eves v Eves [1975] 1 WLR 1338 , Lord Denning famously declared that “Equity is not past the age of Child bearing….one of her latest progeny is a constructive trust of a new model.” While many may argue with this declaration; few will contend with the continued influence of Equity on the legal landscape and it capacity to still innovate.

Lawrence, in his book Equity Jurisprudence [5] noted that at first examination; Equity seems to be a dangerous concept as it does not provide the traditional certainty that an enduring rule of law is known for. This he claims could be seen to leave justice to the whims of the judges. But Maine in his piece Ancient Law 50 (1912); stated that Equity anchored on universal principles is sufficient to provide certainty. This position was well captured by Howard L. Oleck in a brilliant 1951 piece for the Fordham Law Review when he noted that: “ Equity as a universal moral principle supplies the required certainty by basing its decisions on Principles, rather than on rules which have the defect of undesirable rigidity. As long as these principles are sound, equity is sound. Such principles must be universal, always, and beyond any dispute as to their validity. And the chief principle upon which equity is founded, dearly, is the principle that justice must be done, despite the seeming finality of any rule of law, if that rule actually works an injustice [6] “.

Looking ahead; Equity in its self-adaptive best have continued to endure through devise of new equitable principles such as the MAREVA [7] injunction and ANTO PILLAR [8] orders. This self-adaptive characteristics has sometimes been captured by the modern term Unconscionability . Equitable remedies are discretionary even till today; whereas legal remedies are as of right. This makes equitable outcome less fully predictable compared to common law outcomes. Equity’s ability to innovate has always been demonstrated as evident in many cases where the court has been able to refine, adapt and differentiate the application of many long-standing equitable maxims, as it has always done.

It may be argued that equity’s focus on individual justice creates a conflict with the common law’s focus on universal justice. For instance, the maxim that ‘ equity will not allow a statute to be used as cloak for fraud’ has the result of preventing reliance on statutory and common law if the outcome will be unconscionable. This may be seen as a licence from equity to ignore the common law; Thus delivering individual personal and fair outcomes [9] that can vary from case to case (regardless of similar facts); instead of the universal outcome of the common law.

The courts verdict in Gillett v Holt [10] , Campbell v Griffin [11] and BCCI v Akindele [12] is evidence that the court is prepared to rely on Unconscionability as a way of providing equitable relief rather than simply rely on legal rights where there has been unjust conduct.  After all, the court of equity was also known as the court of conscience. Lord Browne-Wilkinson affirmed again that equity is conscience-driven when in Westdeutsche v Islington London Borough Council [1996] AC 699 , he noted emphatically that “Equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purposes for which the property was vested in him (express or implied) or which the law imposes on him by reason of his unconscionable conduct” [13] .

Equity therefore is and should be a changing and living legal doctrine, always adapting to avoid the law becoming frozen into inflexible and pernicious set of rules. The first basis of all legal decisions by the courts is still the common law. Equitable doctrines only come into the picture if it will be unconscionable to stay with the common law outcome [14] . Hence Maitland’s assertion that Equity had come not to destroy the law, but to fulfil it” is a valid thesis and I agree with him.

BIBLIOGRAPHY

[1] Section 44 of the Law and Equity Act codifies the principle of the Earl of Oxford (1644) case: if rules of equity and law conflict, equity prevails.

[2] Walsh v Lonsdale (1882) 21 Ch D (HC)

[3] Patel v Ali (1984) Ch. 283 (HC)

[4] (1880) 16 CH. D 544 at 549

[5] ch. 1 (1929)

[6] Howard L. Oleck, Historical Nature of Equity Jurisprudence , 20 Fordham L. Rev. 23 (1951)

[7] Mareva v International Bulkcarriers [1975] 2 Lloyd’s Rep 509

[8] Anton Piller v Manufacturing Processes Ltd [1976] Ch 55

[9] Dillwyn v Llewelyn (1862) 45 E.R. 1285

[10] [2001] Ch210, (CA).

[11] [2001] WLTR 981, CA

[12] [200] 4 ALL ER 221, (CA)

[13] Westdeutsche v Islington London Borough Council [1996] AC 699

[14] Cardozo in Graf v. Hope Building Corporation , 254 N.Y 1 at 9 (1930)

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Common Law and Equity Essay.

Gemma Louise Lang – AS law.

In very early times – before King Alfred (849-899), there was no system of justice, which applied to the whole of the country.  The population was not ruled by a single monarch, transport and communications were available to very few and no law books were available, however, the population was very small at this time, therefore meaning it was not required as much as nowadays.

In 1066, William I made changes to the old system, introducing the Curia Regis and appointing judges – common law was first introduced during this time.  The king’s representatives were sent throughout the land to check local administration and hear local cases.

Case were interpreted and customised to suit the whole country.

The Common law however, was not written down immediately, however after a period of time it was written down and later a further development was made and the ruling made by kings, were also written down.  This was a huge development for Common law in the legal system as it gave some sort of guidance with cases.

Henry II also played a major role in the development of the Common law.  Henry II made tours by judges to local villages/shires.  Henry II then divided the country into circuits and circuit judges were introduced.

Initially judges would use local customs to decide cases, yet over a period of time things began to change and the judges would discuss cases with the king at Westminster.

Eventually, the best customs were decided and became uniform, enabling the laws to be the same throughout the country.

The Common Law was based on the writ system, which could cause difficulty, as it was sometimes difficult to find writs, which fitted the exact case.

This is a preview of the whole essay

The Common Law was praised however as time has gone on and people’s circumstances have changed it was noticed that the Common Law was rigid and as a result was unable to satisfy the growing needs of the people.

Equity was first introduced to the legal system by the Court of Chancery.  It has been described as a ‘gloss on the common law’.  It was introduced to fill in gaps of the legal system and make justice fairer.

In the beginning people sent their petitions to the King to be examined, however as pressure grew on the King it was inevitable that a court was opened to deal with the problems.

With the opening of this court it meant the Chancellor was no longer bound by the writ system or technical rules of common law.

The Lord Chancellor could base his decisions on conscience and right.  This caused friction with common law courts and in 1851 the Court of Appeal in Chancery was introduced, however the Judicature Acts 1873-1875 abolished this court and its jurisdiction transferred to the Court of Appeal.

Unlike common law, equity recognised and enforced the rights of the beneficiary – not only as against the trustee but also against any transferee of the legal interest who knew of the interest of the beneficiary.

Common law has changed throughout the years however it still fails to comply with all legal aspects of today’s population it is for this reason that equity was introduced, equity now helps the justice system work more efficiently.

Nowadays, equity is used in many situations, but is mainly used in mortgage and trust problems.

The relevance of equity today is highlighted in the promissory estoppel.  Lord Denning first suggested it in Central London Property v High Tree House LTD, 1947.  Since this case it has been decided that it would be unfair in some situations to allow one party to rely on the strict terms of a contract because they had led the other party to believe that they will not do so.

An equitable principle is used to stop one party using a contract enforcing his rights when he has given his word that he will not.

Nowadays, equity is also used often in conjunction with cases concerning the husband and wife splitting up.

In a case such as the one mentioned the wife would have an equitable interest in the matrimonial home even if it were not owned jointly.  This meant the mother could remain in the property until the children were of 16 years old.  Common law wives also have the same right.

Equitable remedies are also used in employment law.  An example of this is when employees can be prevented from disclosing trade secrets, or an injunction may be granted against a trade union to prevent an unlawful industrial action.

A relevantly recent expansion of equity is Mareva injunctions.  “Mareva Company’s Naviera v International Bulk-Carriers, 1975”.  In this case this is used where there is a =risk that the assets of one of the parties will be removed out of the UK before the case has come to trial.  A Mareva injunction freezes the assets of the parties involved.  This ensures the assets will be available at the end of the case enabling damages to be paid.

Another recent expansion to equity is the Anton Pillars Orders.  This orders the defendant to allow the plaintiff to enter his or her premises and take away documents or materials that may be relevant to the case.  This is valuable in the case of equity as it prevents s the defendants destroying what may be very valuable evidence.

This is highlighted in the case of Anton Pillars KG v Manufacturing Process LTD, 1976.

Even though many remedies have been made through equity the Courts are prepared to extend these remedies.  The principle that they are all discretionary still remains.  

Equity has already seen many changes and new areas of law have been developed, however equity and its laws and constantly reviewed and new areas are still being developed.

More recent attempts to extend equity have been resisted by the house of Lords (Scandinavian Tanker Co AB v Plota Petroleum Ecutorania, 1981), however more and more possible extensions of equity are constantly being brought before the attention of the House of Lords, enabling equity to continue to grow.

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The doctrine of judicial precedent is based on the principle of stare decisis which means ‘to stand by what has been decided’. It is a common law principle whereby judges are bound to follow previous decisions in cases where the material facts are sufficiently similar and the earlier decision was made in a court above the current one in the court hierarchy. This doctrine of precedent is extremely strong in English law as it ensures fairness and consistency and it highlights the importance of case law in our legal system. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."

The Rule of Law Essay

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The rule of law is a difficult concept to grasp and proves elusive to substantive definition. However, the following work considers the attempts of various social and legal theorists to define the concept and pertinent authorities are considered. Attitudes and emphasis as to the exact shape, form and content of the rule of law differ quite widely depending on the socio-political perspective and views of respective commentators (Slapper and Kelly, 2009, p16), although there are common themes that are almost universally adopted. The conclusions to this work endeavour to consolidate thinking on the rule of law in order to address the question posed in the title, which is at first sight a deceptively simple one.

Social Justice Essay

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What is social justice and how does it relate to liberation theology? How do sin, love, grace, and human freedom affect social justice? What restricts freedom and social justice? And how does all of this play a role in the Kingdom of God?

Relationship Between Equity And The Common Law

Equity has been described as a ‘mysterious creature’ that lies distinctly alongside the common law. In considering the statement, there is an almost linear reversal in which the remedies in equity procure a type of right not necessarily available in the common law. This peculiar jurisdiction has created consistent controversy especially in regards to the fusion of the common law and equity. To understand further, this essay will consider the relationship between equity and the common law. The development of equity alongside the common law through its history and intention, and application in case law will be imperative in the discussion of the statement. In conjunction with an analysis of fusion, it will become apparent that equitable damages were enlivened, separate to, in unfair circumstances where no rights/damages existed within the common law. In trying to tread the murky waters of the distinction yet the procedural fusion of equity and common law, the contention of this essay becomes apparent. Effectively, this essay aims to highlight that the history, intention, application and fusion fallacies regarding equity, all which point to an assertion that rights in equity are indeed the product of its remedies. Whether they are merely ‘two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters’, is yet to be seen.

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Common Law Essays

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Common Law Essays & Related Services

Common law essays (page 1), lay people and their role as magistrates and jurors.

Example essay. Last modified: 21st Sep 2021

The term ‘lay people’ is used to describe the use of ordinary, non-qualified people in the legal system. It is believed that by using ordinary people in courts it makes the system fairer....

Distinctions between Common Law and Civil Law

Example essay. Last modified: 1st Sep 2021

The aim of this essay is to look at the basic distinctions between common law and civil law and also common law and equity. This essay will firstly look at the historical context of civil and common law and then contrast distinctions between the two....

The Doctrine of Res Gestae

Example essay. Last modified: 31st Aug 2021

The aim of this paper is to investigate the manner in which the res gestae doctrine has been characterised under Common Law, and to trace its development as an exception to the exclusionary hearsay rule....

Criteria for Raising a Civil Action in Negligence in Common Law

Example essay. Last modified: 28th Apr 2021

To understand the law surrounding negligence we must first look at the foundation of modern-day laws surrounding negligence at common law, these are derived from the case of Donoghue V Stevenson....

Customs Are Embodied Through Case Law and Act As Precedence

Example essay. Last modified: 3rd Dec 2020

Common law is a body of law which is based on general principles and customs; this customs are embodied through ca......

Common Law Is Case Law Made by Judges

Common law is case law made by Judges which establishes legal precedents arising from disputes between one person and another [1]. It differs from ......

Common Law Tradition Criminal Justice

Law involves dealing with words.

Example essay. Last modified: 23rd Nov 2020

The Nature and Purpose of Equity

The term “equity” is in a general sense, associated with notions of fairness, morality and justice. It is an ethical jurisdiction....

Rule of Law

Example essay. Last modified: 18th Nov 2019

The Committee on Homosexual Offences and Prostitution

Example essay. Last modified: 20th Aug 2019

STUDENT ID: 10000628 This essay is centred on the critique written by Lord Patrick Delvin in response to THE Report of the Committee on Homosexual ......

The Defence of Provocation

Analyse the defence of provocation, with special consideration given to the changes provided by the case of R v Smith (Morgan) [2000] 4 All ER 289...

A Fraud is an Intentional Deception

A fraud is an intentional deception made for personal gain or to damage another individual. The specific legal definition varies by legal jurisdiction....

Types of Defamation

The Malaysian Defamation Act 1957 does not define defamation. The matter is governed by common law. The common law recognized two forms of defamation that is libel and slander....

Equitable Remedies in Common Law, an Analysis

This will be aimed at whether the remedies afforded under equity are more reliable and fairer than that under the common law....

Provocation is a Common Law

Provocation is a common law and a partial defence to a charge of murder. Provoked killings have long been thought to be less serious than unprovoked killings....

Common Law is Developed by Judges

Example essay. Last modified: 19th Aug 2019

Common law is developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statues or executive branch action....

The Concept of Deterrence

The Concept Of Deterrence Is Fundamental To The Success Of A System Of Regulatory Sanctions, But Ensuring Optimal Deterrence Is Very Difficult....

The Communal Violence

Example essay. Last modified: 16th Aug 2019

Communal violence threatens the secular fabric, unity, integrity and internal security of a nation. With a view to empowering the State Governments and the Central Government to take effective...

Common Law Reasoning and Institutions

This is the Court of Chancery… which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners...

The Approach of the Common Law

Example essay. Last modified: 15th Aug 2019

Until recently, there was no relief available for the employee who suffered psychiatric injury arising from work-related stress. If no physical damage was found, the courts would not allow the claim to proceed....

The Principle of Separability

Example essay. Last modified: 12th Aug 2019

Ever since Heyman v Darwins Ltd the English common law has been evolving towards a recognition that an arbitration clause is a separate contract which survives the destruction (or other termination) of the main contract....

Proper Investigation is Fare Judgement

Mankind has shifted from the state of nature towards a civilized society.. award of punishment following conviction at a trial in a system ......

Common Law on Rape

I will start this essay by stating that it is relatively difficult to disagree with the statement in the question that until recently the development of the common law...

Defence of Provocation Can Be Used to Reduce the Sentence

My lord, the defence of provocation can be used to reduce the sentence of murder to the still serious offence of manslaughter......

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