Common Law and Equity

Common law or case law is basically law made by a judge . Common law developed from customs and judicial decisions. But , there were many defects in the common law . For example , the common law courts used juries who could be intimidated and corrupted , the only remedy common law provided to every problem was of damages (money compensation for the loss which was inadequate ) , it paid too much attention to formalities , for example , if a contract was made which required written evidence for it’s enforcement , then lack of such evidence meant that the common law courts would grant no remedy and the common law courts didn’t recognize trusts.

The inadequacy and inefficiency of the common law courts became increasingly obvious and intolerable , and because of this , Equity was introduced by Lord Chancellor which filled the gaps between common law and softened it’s strict rules.

Equity is a modern body of legal doctrine that serves to supplement the coercive old law . A righteousness that considers all the particular circumstances of the deed , tempered with the sweetness of mercy . It is a set of maxims , rules , rights and remedies that reign over the law and from which flow all civil laws . Equity resorts to the principles of justice and fairness and it comes into play when none of the parties to the dispute has done anything against the law , but their rights and claims are in conflicts . It is the modification of the common law , justice tempered by ethics and applied in conformity but influenced by the principles of  ethics and fair play.

However , in its early years , the equity system was largely viewed as being against common law . While common law courts were in favor of one party , the court of Chancery favored another so there was chaos . This dispute was finally resolved in the Earls of Oxford case when the king ruled that Equity should prevail.

Equity redressed the situation in a way , common law remedy of damages could not . The common law strictly applied the doctrine of stare decisis which means that it did not develop with the change in time but equitable remedies changed with time . It removed the system of corruption as a case could not be won by appealing to the jury but substantial evidence had to be provided to prove the point.

Equity was not bound by the writ system and the cases were heard in English instead of Latin , Chancellors did not used juries concerned himself with questions of facts and he issued subpoenas .

Common law treated mortgages like contracts , hence , any failure to discharge the loan by a specified date would result in the mortgaged property being forfeited to the lender despite the borrower still being liable to the debt . Hence , equity of redemption was developed which enabled the borrower to keep the property even though the date for repayment had lapsed , providing the loan and interests were repaid.

Equity created new rights by recognizing trusts and giving beneficiaries against trustees. If a testator by will transfers property to his brother requesting him to hold the property for the exclusive benefit of his son , the common law would only recognize the rights of the legal owners. Hence , if the brother defaults in his obligation under the trust , equity intervenes to ensure that the son is not caused any injury by ordering the legal owner to hold the property for the benefit of the equitable owner.

Common law neglected the rights of women by considering them non-legal owners of the property . In the late 70’s , Lord Denning developed this to ensure that the non-financial contributions to the home were recognized and the matrimonial constructive trust was created .

Equitable Remedies 

Injunction : an order to one of the people involved in the case to do something or not to do something . In Mareva v International bulk carriers , a shipowner left the mareva to a foreign charterer who defaulted on payment . Hence , an injunction was sought to freeze the account which stopped the charterer from moving money abroad before the case was heard .

Rescission : remedy which aims to return the claimant as far as possible to their precontractual position .

Specific Performance : is an order to carry out the contract as agreed .

Rectification : an order to amend the mistakes in the documents to reflect the parties intentions .

Search order : allows the claimant to to search the premises of the defendant to remove any document or material which could help the claimant prove the case.

Equitable Maxims : also ensured that equitable relief would not be granted to those who sought it for an inequitable purpose . For example , ‘ he who comes to law must come with clean hands’ guarantees that those who have acted wrongly are not entitled to equitable relief . In Tinsley v Miligan , both the parties purchased a house jointly but it was named after Tinsley . After an argument , T moved out and claimed possession of the property . The courts held that the defendant had the rights in law to assert her equitable ownership. The maxim equity follows the law clearly states that  equity will not allow a remedy that is contrary to law , hence , proving that equity was not meant to  supersede the law where there was already an established fair imperative . Unlike , the common law courts , the maxim ‘equity looks to the intent , not the form ‘ ensures that too much attention is not paid to formalities of a contract. In Berry v Berry , where a deed was held to have been altered by a single contract , common law stated that only another deed altered it . Equity decided that as parties intended to alter the deed , then it would be fair to look at the intent rather than the form.


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