Lecture # 4. Common Law and Equity

Transcription

1 Introduction Lecture # 4 Common Law and Equity By: Salik Aziz Vaince [ ] The law of England and wales has been built up very gradually over the centuries. There is not just one way of creating or developing law; there have been, and still are, a number of different ways. These methods of developing law are usually named as sources of law. Historically, the most important ways were custom and decisions of judges. Then, as parliament became more powerful in the eighteenth and early nineteenth centuries, Acts of parliament were the main source of new laws, although judicial decisions were still important as they interpreted the parliamentary law and filled in gaps where there was no statute law. During the twentieth century, statute law and judicial decisions continued to be the major sources of law but, in addition, two new sources of law became increasingly important: these were delegated legislation and European law. Customs These are rules of behaviour which develop in a community without being deliberately invented. Custom habitual group pattern of behavior that is transmitted from one generation to another and is not biologically determined. Since societies are perpetually changing, no matter how slowly, all customs are basically impermanent. If short-lived, they are more properly called fashions. Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. Definition A traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time. Customs in Common law Most customary laws deal with standards of community that have been long-established in a given locale. However the term can also apply to areas of international law where certain standards have been nearly universal in their acceptance as correct bases of action - for example, laws against piracy or slavery. VLC Publishers Page 1

2 In many, though not all instances, customary laws will have supportive court rulings and case law that has evolved over time to give additional weight to their rule as law and also to demonstrate the trajectory (flight) of evolution in the interpretation of such law by relevant courts. Custom, in English law, an ancient rule of law for a particular locality, as opposed to the common law of the country. It has its origin in the Anglo-Saxon period (from 410 to 1066), when local customs formed most laws affecting family rights, ownership and inheritance, contracts, and personal violence. The Norman conquerors granted the validity of customary law, adapting it to their feudal system. After the great transformations of the 13th and 14th centuries, when English law was given statutory authority under the crown, the customs of the realm became England s common law. Since that time, a local custom outside of common law has been considered valid if it: - (1) has been practiced peaceably and continuously from time immemorial in practice, as long as living testimony can recall; - (2) is reasonable, certain, and obligatory; and - (3) is confined to a specific locality. With the cultural uniformity of the modern age, custom as a force of law retains its validity, but in practice it has lost ground to common law. As we have seen the basis of Common Law was custom. The itinerant (Traveling from place to place to work) justices sent out by William the Conqueror examined the different local practices of dealing with disputes and crime, filtered out the less practical and reasonable ones, and ended up with a set of laws which were to be applied uniformly throughout the country. As Sir Henry Maine, a nineteenth-century scholar who studied the evolution of the legal systems has pointed out, this did not mean that the custom itself was ever law - the law was created by the decisions of judges in recognizing some customs and not others. Types of custom There are two main types of custom: General custom Historically these are believed to have been very important in that they were, effectively, the basis of our common law. It is thought that following the Norman conquest (as the country was gradually brought under centralized government) the judges appointed by the kings to travel around the land making decisions in the King s name based at least some of their decisions on the common customs. This idea caused Lord Justice Coke in the seventeenth century to describe these customs as being one of the main triangles of the laws of England. However, other commentators dispute this theory. Today, Michael Zander writes that probably a high proportion of the so-called customs were almost certainly invented by the judges. In any event, it is accepted that general customs have long since been absorbed into legislation or case law and are no longer a creative source of law. VLC Publishers Page 2

3 Local custom This is the term used where a person claims that he is entitled to some local right, sued as a right of way or a right to use land in a particular way, because this is what has always happened locally. Such customs are an exception to the general law of the land, and will only operate in that particular area. Since there were (or still are) exceptions to the general common law, the judges, from the earliest times, established a series of rigorous tests or hurdles that had to be passed before they recognised any local custom. These tests still exist today and are used on the rare occasion that a claim to a right comes before the courts because of a local custom. The tests are as follows: - Time immemorial: It must have existed since 'time immemorial'. In practice today claimants usually seek to prove the custom has existed as far back as living memory can go, often as calling the oldest inhabitant as a witness. However, this may not always be sufficient. - Reasonableness: The custom must be reasonable. A legally enforceable custom cannot conflict with fundamental principles of right and wrong, so a customary right to commit a crime, for example, could never be accepted. - Certainty and clarity: It must be certain and clear. The locality in which the custom operates must be defined, along with the people to whom rights are granted and the extent of those rights. In [Wilson v Willes (1806)] the tenants of a manor (The landed estate of a lord) claimed the customary right to take as much turf (Surface layer of ground containing a mat of grass and grass roots) as they needed for their lawns from the manorial commons. This was held to be too vague, since there appeared to be no limit to the amount of turf which could be taken. - Locality: It must be specific to a particular geographical area. When a custom is recognized as granting a right, it grants that right only to those specified. Custom is only ever a source of local law. - Continuity: It must have existed continuously. - Exercised as of right: It must have been exercised peaceably, openly and as of right. Customs cannot create legal rights if they are only exercised by permission of someone else. In [Mills v Corporation of Colchester (1867)] it was held that a customary right to fish had no legal force where the right had always depended on the granting of a license, even though such licenses had traditionally been granted to local people on request. - Consistency: It must be consistent with other local customs. For example, if a custom is alleged to give the inhabitants of one farm the right to fish in a lake it cannot give another farm the right to drain the lake. The usual course where conflict arises is to deny that the custom has any force, though this is not possible if it has already been recognized by a court. - Obligatory: Where a custom imposes a specific duty, that duty must be obligatory - a custom cannot provide that the Lord of the Manor grants villagers a right of way over his land only if he likes them, or happens not to mind people on his land that day. VLC Publishers Page 3

4 - Conformity with a statute: A custom which is in conflict with a statute will not be held to give rise to law. It is very unusual for a new custom to be considered by the courts today and even rarer for the courts to decide that it will be recognised as a valid custom, but there have been some such cases. - [Egerton v Harding (1974)] the court decided that there was a customary duty to fence land against cattle straying from the common. - [New Windsor Corporation v Mellor (1974)] where a local authority was prevented from building on land because the local people proved there was a custom that they had the right to use the land for lawful sports. Although customs may develop, they are not part of the law until recognised by the courts; it is the judges who decide which customs will be recognised as enforceable at law. Introduction Common law The legal system in England and wales could not rely only on customs. Even in Anglo-Saxon (England between the 5th century and the Norman Conquest) times there were local courts which decided disputes, but it was not until after the Norman Conquest in 1066 that a more organized system of courts emerged. This was because the Norman kings realised that control of the country would be easier if they controlled, among other things, the legal system. The first Norman king, William the Conqueror, set up the Curia Regis (the King s court) and appointed his own judges to decide the disputes. It is said that Laws of land created and developed by judges sitting in court deciding case in any matter (civil/criminal). It s the law of land created by judiciary. Generally common law referred as case law. The common law developed by judges following the decisions of other judges who have decided similar cases previously. When judges follow the decision they basically follow the reasoning, legal principles applied by judges in previous cases. What they are doing they are following the doctrine of precedent. When a judge decides a case today looks back how judges decided that case in a similar case in past. What principle did he apply and judge will follow that reasoning today, this is the operation of the doctrine of the precedent. The judicial decisions are ready-made and documents in collection of case law in year books. These decisions are collected in law reports. The precedent applied to new cases that come before the court. VLC Publishers Page 4

5 History and development of common law William Blackstone gave rather good definition of common law as: Common law is to be found in record of several courts of justice, books of reports handed down to us. He gave a lot of phrases as; it is better ten guilty persons escaped, than one innocent people should suffer. How did the common law develop? Reasonable starting point is 1066 William the Conqueror. I am not going to give an impression that there was no law prior to Each kingdom often with their own laws, they are said to be clear sophisticated and remain the highly regarded. Abraham Lincoln when he was studied to be a lawyer read William Blackstone by candle light. Basically William the conqueror first came to give the unified system of law to England and wales. When William invaded from France in 1066, different systems of law and the local justice in the country known as shire. Different parts of England governed by different systems of law often derived from the various people who invaded in England, but there was no uniform national legal system. English legal system existed in massive oral customary rules that varied from region to region. Each county or shire had his own local courts; these local courts dispense justice in their courts with local customs, varied from community to community all around the country. Very different laws enforced in very different ways. You can say the law was arbitrary fashion in London. The local courts existed around the 11 th century would not recognised as courts today. For example courts existed in formal public assemblies. If I could reach the decision might ask from the accused to show their innocence by catching red hot iron or cold to boiling water. The accused is asked to prove their innocence by walking over red hot iron or boiling water. In this ordeal, the accused is thrown into a river with weights attached. The assumption is innocent people will survive due to a miracle performed by God. This is a form of trial by ordeal (A primitive method of determining a person's guilt or innocence by subjecting the accused person to dangerous or painful tests believed to be under divine control; escape was usually taken as a sign of innocence). That was a debate to which trial by ordeal actually were carried out that is quit clean looking through at that time that was recognised way of seeking to establish the truth of person s guilt or innocence. The idea was because the defendant would pick up red hot iron, if burnt that would naturally occur and if wound heal within few days the man will be set free, he would deem to be innocent if didn t heal then executed. That was a bad luck to pick up red hot iron and wound doesn t heal then may hang you. The idea of trial by ordeal that if a person is innocent then God would intervene, the God would perform a miracle and man can go free. Certainly that was brutal way to establish a guilt or innocent as it sounds. The business of trial by ordeal that eventually stopped and condemned by the judges in 13 th century. There was a feature local justice so we call this system of local courts with local courts with local customs as trial by ordeal. William the conqueror was interested in establishing his power and in establishing order in kingdom. He laid the foundation of the legal system. VLC Publishers Page 5

6 He understood that in order to exercise his power over the citizens, he needed a central system of justice over which he as a king had power and he had laws that would be obeyed by the citizens. So how did you do this? He created the Curia Regis (the king s court). This was courts of law like household that comprised the king and somehow his most trusted advisors and the Curia Regis would be advisory body for the king. That would also a place where people bring their disputes to have been decided by the king and his advisors. Now this time England the kingdom was not particularly populated and people could not read & write, travel around the country was difficult and roads have not built. So it was quite difficult to move around the country, for the king to maintain their authority in the entire kingdom, king was happy to travelling around the country taking the court with them so that they process in the different parts of the country and William did this same thing he would travel around with Curia Regis as king s court going around the country in different areas as he travelled around the country and citizens came to him and bring their grievances, complaints accordingly king and his advisors would give judgments on the disputes. The king will literally sit with advisors on a bench and hear cases in his own court this why the court known as the King s Bench, king sits on the bench and advisors around and people would come to him. We can see this activity around of king and his advisors going the country and giving rulings on disputes and grievances around the country. We see this activity as beginning of common law system, and of centralized and unified system of law because you have a consistent approach for the king and his advisors. Another thing the William did was interpret the idea of juries into English Legal System. Under the jury system minister of justices would go out into the country to try to determine the manorial (relating to the landed estate of a lord (including the house on it)) the state and for the purpose of taxation. What ministers do actually establish the value to how court change to tax, the minister would call 12 free men together and ask them to testify under oath about the value of each estate. This is simply free man called the jury. Eventually the jury became a body responsible for finding facts in both civil & criminal cases. So we have the idea and we reach the point that the William trying to establish his powers over the country he travels around the country with his Curia Regis listening to grievances and disputes and giving ruling on it, that s the beginning of Common law system. After William left/thrown out and then rather downhill of social order. This gives you the names of various kings as William the first then there was fighting going and destruction in the country. Things gone badly in King Stephen (he used to be said the time when God & all his angels slept) and such a dreadful (Causing fear, dread or terror) time. VLC Publishers Page 6

7 For the development of common law system after Stephen Henry II came. Henry II came in 1154, he is one of the known as Angevin king (The Angevins ("from Anjou") were a distinct English royal house in the 12th and 13th centuries composed of three English monarchs Henry II, Richard I and John. In the 10 years from 1144, two successive Counts of Anjou won control of a vast assemblage of lands that would last for 80 years and would retrospectively be referred to as the Angevin Empire) having the connection with European Union and France. He was focusing to create a single system of justice for whole country. Henry II took the thrown after the set of period and disapproval of disruption, he wanted to regain stability and he wanted to reform land law. Henry II played a significant role in the development of English Legal System. He likes the William conqueror and wanted to create a single system for whole country. That would be under the control of the king (power & order). It was under the Henry II that was the first time the judges was sent out to circuits. The idea the judges from London from Westminister will travel around the country and that time the Henry II there was only 18 judges in the country. Henry II ordered 5 out of 18 to stay in London and take over the cases he might decide himself and these five judges stayed in London constituted the kings bench of the judges who sit in Westminister. In 1166 henry issued a declaration of assize (a court which formerly sat at intervals in each county of England and Wales to administer the civil and criminal law. In 1972 the civil jurisdiction of assizes was VLC Publishers Page 7

8 transferred to the High Court and the criminal jurisdiction to the Crown Court) that was an early form of king s council. In this declaration of 1166 Henry said that remaining judges would be sent out to travel to different parts of the country. The idea that judges going out in different parts of the country dispensing the justice of Westminister, Dispensing the king s justice that is decided in Westminister. When the judges travelled they have to take the law of Westminster. Henry II divided up the country into circuits of areas for the judges to visit. Initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases, but over a period of time it is believed that the judges on their return to Westminister in London would discuss the laws or customs they had used, and the decisions they had made, with each other. Gradually, the judges selected the best customs and these were then used by all the judges throughout the country. This had the effect that the law became uniform or common through the whole country and it is from here that the phrase common law seems to have developed. In this way gradually local rule, local justice is replaced by new national rules. Law that was common to all is common law. So travelling judges formed a nucleus of judges with national jurisdiction and they didn t have local rules, the advantages of judges travelling around the country because they haven t any particular stake in any local area, so less likely to subject to influence the any possible corruption. The judges going from Westminister and they don t know the people in the local area and that was a very good way to establishing justice in a unified way. That was relatively free from corruption. In time the decision of these judges started to be written down, that was oral gradually the judges written down and as the decisions of these courts to be recorded and publishes, so the practice developed of past precedent being applied in later cases. The judges from Westminister going out to local areas, hearing cases, deciding cases and begin to write down decisions in those cases and applied in later cases. That was the gradual spread of the common law from London from the King s Bench in Westminister to out to the rest of the country. This is how we have a sense that the common law spreads to the whole of the country, you can say development of the unified common law. Law reporting The first system of law reporting: From the 13 th century around 1272 in early years of King Edward I and the earliest law reports known as the years book. Principle source material of development of legal doctrine concepts and method and during the period when the law was being reported in the years books. That was how common law was recognised and we are formal now. These were written in either French or Latin. VLC Publishers Page 8

9 So gradually with the spread of the common law local laws and customs began to fade away. The content of the law at that time was preventing bloodshed by recognizing rights of property and person s freedom and punishing people committed violent acts. So that is the rather basic introduction to the development of the common law system and the common law courts. We are going to look at some of the common law courts gave rise to development of equity. Before arriving on that I want to reflect a little bit as the significance of what I was talking about. First of all it s interesting to know the system of assizes, the judges going around the country and sitting in the different parts of the country established by the Henry II actually lasted the pretty much until That is interesting that something is established in 13 th century and continued until If you think about it that we have a current system now where High Court judges in Queen s Bench Division still travel around the country to hear the most serious criminal offences and to deal with civil matter, judges still who sit in High Court of justice still spent part of their time each year serving in courts outside the London. That is the continuing circuit system which we see is the development from Henry II s idea in 13 th century. Henry II innovation was the further development of the jury, which was established by William the conqueror but actually Henry the II used the jury for dealing with criminal cases. One of the things he did was to use people from certain localities to bring them together. As 12 people from towns and villages bring them together periodically for the purpose of telling the king whether or not the suspected people committed robbery, murder, or forgery. So the idea bringing the people together to identify members of the community those who have committed the crime. The establishment of king s court in the 12 th century didn t just punish the criminals they also provided a peaceful means to resolving disputes over land and other property. So courts even not that but offering a service to the public instead of people solving their disputes but as a result of violence happening that would encourage to bring their disputes and grievances in the public forum to the court to the king to the king s justices to be offered a remedy for decision to be made. So what we see idea of encouraging people not to take the law into their hands and resolving disputes without violence but actually to bring them to the public forum for the peaceful resolution of the disputes and they receive a remedy, so in the resolution of the disputes in the land, contracts, debts and in criminal offences the courts were supporting to social order and the tranquility of the state and that is the justice today and was in the time of the William the conqueror and Henry II. The courts promoting the social order not just about punishing criminals but also about peacefully resolving disputes. They support economic activity. They support social harmony and it was a struggle at that time to bring people their case to these public courts and something we have to be careful protection in time. VLC Publishers Page 9

10 Another reflection: The extent to which the English common law has influenced the development of legal system round the world. This is a system which shows the spread of common law to other jurisdictions in the world. So the English common law tradition transported round the world to places that had been colonized by British in Australia, USA, Canada, and New Zealand, some of having mix system like Africa, Pakistan and India. Meaning of common law 1. The term common law is derived from the French word common ley which means the body of law derived from judicial decisions, rather than from statutes. 2. The law developed by the early judges from a common law for the country. 3. The law which has continued to be developed by the judges through the doctrine of judicial precedent. Definitions of common law Common law is the basis of our law today; it is unwritten law that developed from customs and judicial decisions. The phrase common law is still used to distinguish laws that have been developed by judicial decisions, from laws that have been created by statute or other legislation. Common law also has another meaning, in that it is used to distinguish between rules that were developed by the common law courts (the king s courts) and the rules of Equity which were developed by the Lord Chancellor and the Chancery courts. Common law can be defined as: 1. Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. 2. The system of laws originated and developed in England and based on court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than on codified written laws. 3. According to Salmond: The common law is the entire body of English law, the total corpus juris angliae ("body of English law") with three exceptions, namely (1) statute law (2) equity and (3) special law (special law consists of certain other bodies of legal rules which are so special and exceptional in their nature for example martial law & international law) in its various forms. 4. According to Black Stone: Common law is the municipal law of England or the rule of civil conduct prescribed to the inhabitants of the kingdom. Common Law in England & Wales Common law is in effect legal precedent that is made by judges sitting in court. Unlike statutory provisions, which are laws that are codified as Acts of Parliament, the common law is constantly changing. This is because of the fluid way in which judges interpret the law using their knowledge of legal precedent and common sense and by applying the facts of the case they are hearing to those prior VLC Publishers Page 10

11 decisions. English law works on a common law system, as opposed to a civil law system, which relies on statute and certain texts. - The Common Law in England is a system of law that is common to all parts of a kingdom and consistently applied to all royal judges. - It is sometimes called "judge-made-law" due to that fact that judges would compare facts of the case at hand to earlier cases in an attempt to rule in a consistent manner- earlier rulings become rules to guide future cases. - Common Law was developed when William the Conqueror became the king of England and attempted to provide one standard system of law for the entire country. A "common law system" is a legal system that gives great potential precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts. In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court; but decisions of lower courts are only non-binding persuasive authorities. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However, stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems. Common law is an invention of the English courts: Because common law was built on a case-by-case basis the terms "common law" and "case law" are sometimes used synonymously. The common law ensures that the law remains common throughout the land. There are some situations that are entirely new in relation to the common law, and the English courts do sometimes look abroad at the decisions of other commonwealth courts in order to seek direction or guidance from them. For example, an English court may be asked to consider a case decided in Canada or Australia in the absence of there being any precedent set in an English court. This can also assist in allowing the common law system to have a degree of flexibility but also, because courts look to each other for guidance, a certain level of stability too. VLC Publishers Page 11

12 Common Law and Statute Law - Although the English legal system is founded on common law, that is not to say that statutes are any less binding. In fact, statute law codifies certain rules whereas the common law provides interpretations and clarification when facts of instant cases are applied to the codified law. As a result, the common law and statute law complement each other well. - Common law keeps statute law up to date and in keeping with modern problems and solutions, as well as creating precedent where there is no statutory codification. Using the Common Law - As a lawyer or law student you will often be required to research a point of law to check the current legal position in respect of a particular statutory provision or factual scenario. What this means is that you will have to research whether there is are any relevant statutes that relate to the area you are considering, and then look at recent (and sometimes not so recent) case law decisions of the higher courts to see if there is any other guidance thereon. Once you have identified these, it is also very important that you ensure that any statutes you have found are still in force. - Further, check that any case law decisions have not been subsequently overturned either by more recent case law, or by a judgment of a higher court (e.g. House of Lords overturning a Court of Appeal decision) or because a subsequent Act of Parliament has codified the common law and by virtue of the new statute the law has been amended or changed. VLC Publishers Page 12

13 Introduction Equity Equity is the quality of being fair and impartial. Equity is the means whereby the law and its administration are made to approximate as closely as possible to the ideals of justice. Equity is needed to supplement the shortcomings of the law. Equity fulfils the gaps of law, as no law can provide provisions for all the situations. Equity is the body of rules formulated and administered by the court of chancery to supplement the rules and procedure of the common law. Snell says the whole distinction between equity and law is not so much a matter of substance or principle as of form and history. Historically this was an important source and it still plays a part today with many of our legal concepts having developed from equitable principles. Meaning The term Equity is derived from the Roman term, acquitas, which means equalization or levelling. What is Equity? The term equity is used in three different senses: - In the first sense it means morality, natural justice, honesty and uprightness (vertical position means moral excellence). This is the most general sense in which the term is used. - In the second sense it means the principle of natural justice which would temper the fixed rules of law. Wherever law is inadequate, rigid or technical, it will be supplemented by justice, equity and good conscience. - In the third sense equity consists of, in itself, a set of fixed rules. In this sense it is a system of law parallel to the rules of common law and the statute law. Definition There are many definitions of equity but all agree on the general nature of equity which is synonymous with principles of natural justice, honesty and right. Aristotle s definition: The comprehensive definition is given by Aristotle in whom he has masterly described the general nature and scope of equity. He says: It is equity to pardon human failings, and to look to the law-giver and not the law, to the spirit and not to the letter; to the intention and not to the action; to the whole and not to the part; to the character of the actor in the long run and not to the present moment; to remember good rather than evil, and the good that one has received rather than the good that one has done; to bear being injured, to which to settle a matter by words rather than by deeds; lastly to prefer arbitration to judgments for the arbitrator sees what is equitable, but judges only the law and for this an arbitrator was first appointed in order that equity might flourish. VLC Publishers Page 13

14 Blackstone s definition: the soul and spirit of all laws; positive law is construed and natural law is made by it. In this Equity is synonymous with justice in that, it is the true and sound interpretation of the rule. - The above definition suggests that equity is something distinct from law as he says it, not the law but the soul and spirit of the law. Snell s definition: in its technical sense Equity may be defined as a position of natural justice which although of a nature suitable for judicial enforcement was, for historical reasons not enforced by the common law courts, an omission which was supplied by the court of chancery. Maitland says: we ought not to think of law and equity as two rival systems. No, we ought to think of equity as supplementary law, a sort of appendix added to our code. Equity is now that body of rules administered by English Court of justice which was but for the operation of the Judicature Acts, would be administered by those courts, which would be known as courts of equity. Conclusion: Taking into consideration all the above definitions this becomes quite clear that equity, now is that body of rules administered by English Courts of Justice which before the operation of Judicature Act 1873, were administered only by those courts which were known as courts of Equity, We can further add that: - Equity is founded on natural justice; - It is the body of rules and principles which exist side by side of the original civil law; - It is the soul and spirit of law; and - It does not supersede the existing law, but is a supplementary addition to such law. Equity is a gloss on the common law Equity is merely a gloss (explanation) on the Common Law. Or Equity was nothing more than a gloss on the common law. Equity is not a self-sufficient system. It is a collection of Supplementary material. While some chapters of law have been copiously (In an abundant manner) glossed by it others are quite free from equitable gloss. It is only a supplementary law designed to meet the shortcomings of common law and relieves against its hardship. It provides to administer justice according to the principles of Common law. So it s important that how common law developed; and what were the hardships of the common law to which equity came to remove. Equity basically supplemented the common law through its new remedies; and equity explained the common law well so we can say that the equity is a gloss on the common law. Historical development of Equity How equity developed in competition with common law and how over time equity has emerged with common law principles that merged in 19 th century by judicature Act? The word equity means fair or just in wider sense but its legal meaning is the rules developed to mitigate the severity of the common law. Equity developed in 15 th century, when common law developed throughout the England and wales, through the king s courts. VLC Publishers Page 14

15 By the 15 th century there were some problems with the common law courts. Common law courts become slow rather expensive, and in particular become very technical. It was also true that the juries were used in both criminal and civil cases and there was a concern that the scope of the juries to be either intimidated by defendants or juries could be bribed. There was also a concern that the system of writs had become very rigid. A writ was essentially a permission granted by the king for a party with a complaint to sue another party as king s subjects in the king s court. A writ is simply a document setting out the details of a claim. Writs were issued to create new rights not recognized by the local courts. Over a period of time the writ system became extremely formal and with technicalities and claims would only be allowed if they could fit into an existing writ. The rule was 'no writ, no remedy'. For example, certain writs of trespass would only be issued for those acts done with force and arms against the King's Peace. If the two requirements were not met, a person had no claim. Even if a writ was obtained, the judges would often spend more time examining the validity of the writ than the merits of the claim. So despite the development of common law courts, king himself continued to be source of English law. Even after the law courts developed people still sometime petition the king for justice, this is known as petitioning the king. The king is regarded as a "Fountain of Justice", from whom the redress could be sought; if a subject felt that he couldn t get the justice in the ordinary court, people petition the king to redress their grievances. They would plead directly, to hear that complaints and to provide them with a remedy. The procedure of petitioning the king at that time is petition or bill asking him to do justice in respect of some complaints. This was going on at the same time as the common law courts dealing with the cases. So people sometime throw themselves on the king s mercy or the king s conscience. When I felt some reasons that they wouldn t able to get remedy through the ordinary system through the common law courts or common law justices, they would petition the king directly and appeal to the king s conscience for some kind of remedy. Now for a time the king or king s advisors dealt with these petitions himself, gradually the number of petitions coming directly to the king began to grow and king developed a practice of passing these petitions on to his chancellors. The chancellor was known as the keeper of king s conscience. Chancellor was usually clergymen, bishop or somebody who would be learned in civil and canon law. So the chancellor are trusted advisors those who knew about the law. The king overtime threw his chancellors eventually set up a special court known as a court of chancery. The idea of court of chancery to deal with these petitions that were not going to the common law courts and coming directly to the king or appealing to the king to decide the case on the basis of his conscience. VLC Publishers Page 15

16 The chancellors drive the chancery and issue the writs of permission and other legal documents. The chancellor dealt with these petitions in different way from the common law justices rather than looking at the common law precedents. What the chancellor would do was to deal with the petitions on the basis of what was morally right or what seems fair in the circumstances. So the chancellor would give whole relief not according to the some strict precedents but according to the effect produced on his own individual sense of right and wrong by the merits of a particular case before him. Now one has to be careful about this because chancellors would not doing in a completely arbitrary fashion they were drawing on legal principles known as equitable maxims applying in reaching a decision when doing in an arbitrary way but they are not doing it using the strict common law approach adopted by king s justices in the common law courts. So if we think about equity as more fluid and flexible approach to dealing with disputes and grievances. In 1474 the chancellor issued first decree in his own name which began the independence of the court of chancery from the king s council. So what we see in 15 th century is the court of chancery establishing itself separately from the king s court. So we have initially the petition coming directly to the court you have chancellor dealing with those petitions in a delegated way. But actually in the 15 th century you have the chancellor establishing a separate court of chancery and the court of chancery had new procedures new rights and new remedies, so what we saying is the development of alternative system of law. The equity created new rights by recognizing trusts, chancellor would recognize the idea that the individual could hold legal title of something but on behalf of other persons so that s the concept of a trust. So you may have the title of the land but person entitled to have the land or to have the benefit to the land the beneficiary is actually somebody else so you hold the legal title of the land somebody else is the beneficiary. That is the idea of the trust that was a form unknown and unrecognized in common law but actually chancellor would prepared to recognize the concept of a trust and to give beneficiaries rights against trustees. The person holding the legal title common law didn t recognize this device and regarded the trustees as an owner. So we see a difference in approach in the equity also developed the idea of equity of redemption. So common law under mortgage if mortgagor hasn t paid the loan once the legal redemption deed has passed he would lose the property but remain liable to pay loan. The equity took the different approach the equity allowed the mortgagor to keep the property if you paid the loan with the interest right to redeem the property is known as equity of redemption. So it s offering something more offering some remedy that the common law courts couldn t offer. There was a condition that a person seeking equitable relief on the basis of equitable principles, so they have to show first of all that they wouldn t obtain the justice in the common law courts, they wouldn t have an opportunity to get remedy in the common law courts. They also have to show the person bringing the claim a claimant or plaintiff is himself without blame, the claimant must come to the court with the clean hands. VLC Publishers Page 16

17 They would also have to show that they have not been any delay in bringing the case. So the idea is if chancellor is dispensing justice based on fairness and equity, then the person seeking that remedy that relief have to show they himself are blameless and the justice is being done to them they didn t have any blame in the case. If the chancellors were convinced that a person had suffered a wrong, then the court will grant a remedy. The court will devise a way to ensure that something was done to prove right, the wrong have been done with the person making the claim. Now the common law courts have very limited range of remedies, and centrally the main remedy provided by the common law was compensation as somebody who is complaining about the breach of contract of some wrong done to them the common law courts would provide the remedy of compensation. Somebody had suffered a wrong the main remedy provided that was money by way of compensation to put back in the position if wrong wouldn t have happen to them. But there are circumstances that you are actually in a dispute or in some difficulty where having compensation or being given money is not actually what you want is not much help. Then the court of chancery developed new remedies as remedy of specific performance, injunction rectification and rescission. I am going to say more about specific performance and injunction; I will try and give you a sense of how they developed, why they developed. These remedies were preferable to the circumstances, and the remedies offered by common law courts. Specific performance: Let s start with the remedy of specific performance. Suppose you have found your dream house you want to buy the house, the owner is selling the house, you offered to buy and seller agrees to sell it. You have a contract you are very happy about your dream house. Just the point you are going to complete the sale moving into it, the owner said he changes his mind he doesn t want to sell the property, what you have there is a breach of contract. If you go to the common law courts for a remedy, the common law courts say absolutely you have a legally binding agreement and you are entitled to a remedy. What we will give you compensation we will give you money, but you say I don t want money; I want my dream house that is the only place I want. Common law can offer you nothing but if you go to the court of equity you can say we had an agreement he agreed to sell his house now he refuses to sell the house give me a remedy. The chancellor would say in fairness you must do what you agreed he will grant an order of specific performance that means the person must do the thing that they have agreed to do. In this particular instance what would happen, the person who owes the house will be compelled to sell it to you. That is the much more valuable remedy having the compensation you want. Injunction: Now another example is the example of injunction. You moved into your dream house, you love it, but the problem is your next door neighbor decides to keep animals in their house, you are living in your house but your next door neighbor having animals, can snore can smell and mud etc. what do you do you go to the common law courts and what could I VLC Publishers Page 17

18 do about this. The court say it is a kind of a nuisance and give you compensation but you don t want compensation, you want to the neighbor to get rid the animals. In equity you would be entitled, you might able to get injunction. An injunction is centrally an order from the court prohibiting somebody from doing something. So the injunction is to stop your neighbor from keeping animals next door to you. Now you are much happier than having the money. [Kennaway v. Thompson 1980] Rectification: the other one is the rectification which allowed a written document to be changed if it did not represent the actual agreement made by the parties. Rescission: the one more remedy is rescission which allowed parties to a contract to be put back in their original position in the case of a contract induced by a misrepresentation. These are the some of the ways in which equity provided something more, something more flexible and offering something more valuable that would not available under common law system or in the common law courts. The system of equity the court of chancery developed and grows over the years, in the 19 th century however the court of chancery had begun to develops some of the problems, that had been visible in common law courts in the 15 th century. There was a problem that some of the decisions of equity are arbitrary, some of the cases became very expensive and lengthy. During the 19 th century particularly under the Lord chancellor Eldon cases in the chancery begun to come very expensive and positively became very dramatic for people seeking remedy through chancery. In fact there was around a time the Charles Dickens wrote his novel Bleak House. I recommend this to anybody who wants to have any understanding how the legal system was operating in 19 th century. The story of bleak house the central issue in the novel of bleak house is the case of Jarndyce and Jarndyce is a theme running throughout the novel Bleak House by Charles Dickens concerning a fictional court case in the English Court of Chancery. It s a case over disputed will, that have been decided in chancery and this case run throughout the entire the book and the punch line is the case goes on so many years, so many generations endlessly coming back to the court, endlessly being debated by lawyers. It takes so long and cost so much money that by the time the decision is given by the judge in the chancery court at the end and there is nothing left actually no money left and been spent of lawyers fee. Charles Dickens spent some time as a lawyer and he knows some of the process and system of English civil justice. I recommend you the bleak house in which Ch # 1. He described the court of chancery This is the court of chancery which has its decaying houses and its blighted (anything that prevents growth or prosperity) lands in every shire, which has its worn-out lunatic in every madhouse and its deed in every churchyard, which has its ruined suitor with his slipshod (Marked by great carelessness) heels and threadbare dress borrowing and begging through the round of every man s acquaintance which gives VLC Publishers Page 18