The history of equity in English law

  

Date Posted: 2/15/2013 3:29:00 PM

Posted By: KOROHS  Membership Level: Gold  Total Points: 1470



By definition equity can be said to be the rules administered by the court of chancery before the year 1873 as equity courts it’s founded on natural justice and it’s a body of rules which exist side by side of the original civil law . it does not supersede the existing law but is the supplementary addition to such laws. By mid thirteenth century law administered in England was partly common and partly statutory law. On account of narrowness extreme rigidity and formalization of common law, it either gave inadequate remedy or no remedy at all. Petition was made to the king in counsel to exercise his extraordinary judicial powers and it was in dealing with these petitions that the chancellor begun his judicial functions and the court of chancery was established besides the court of common law these complaints were originally procedural in nature. The complaint was often that the jurors have been suborned or intimidated by the wealthy or well connected party to the litigation or that a successful plaintiff’s action was not being enforced by the sheriff.
Initially the complaints were dealt with by the king but later were delegated to the chancellor who was the holder of the great seal which was needed to authenticate appointments to office, grants of property, titles and writs in the common law courts. The chancellor would draft new writs for actions in common law courts but by 1350 the common law courts had begun refusing new writs on the basis that they were not in conformity with the law. This led to more substantive bases for complaints where litigants felt they could not get justice in the common law courts. It was in the context of these complaints that the chancellor begun performing equity in the sense of a corrective justice.

For example courts of law took written documentation of a debt as irrefutable evidence that the debt was owed. Normally when the debt was paid the written document would be cancelled. Sometimes however the document was not cancelled and the lender would claim again on the debt. Because the written document was irrefutable evidence of the debt, the debtor could not prove by other means that the debt was paid. The debtor could then file a bill with the chancellor and provide other evidence that the debt had been paid. The lender would then be called upon to answer a series of questions posed by the chancellor. If the lender could not provide satisfactory answers the chancellor could make order telling the defendant not to enforce the judgments received from the common law courts which came to be known as a common law injunction.

The chancellor acted on principles of natural justice and the principles were referred to as equity in contradiction with the common law and until 1873, there remained two separate systems but courts were amalgamated and the new courts assigned with the powers to enforce all the rights and remedies both legal and equitable.

Originally the chancellor had no jurisdiction but remedied the common law on grounds of conscience and natural justice and also equity varied according to individual chancellor’s conscience and remedies available at common law were damages and the plaintiff was entitled to it by right no matter how little merit it be. Equity on the other side had some other remedies which included injunctions and specific performances which are orders in personam directing a person to do or not to do something disobedience of which is contempt of court. An equitable remedy would be awarded both to enforce a right recognized only in equity and also to enforce a legal right although it would only be done where remedies in common law are inadequate.Where there exists a conflict between equity and common law, equity prevails.

Responses

No responses found. Be the first to comment.

Post Reply/Response

- Use proper grammar, spelling and family friendly language.

Next: Strengthening the procedure regarding the rights of the suspect in a criminal charge.
Previous:  The key equitable remedies as applied in Kenya
Return to Resources
Post New Resource

More Resources

Simple rules that are supposed to be adhered to in the court proceeding.
The key equitable remedies as applied in Kenya
What are the functions of law?
Strengthening the procedure regarding the rights of the suspect in a criminal charge.
The equitable remedy of injunction.