Distinction between Common law and equity:
The second meaning of the Common Law can be understood with the one of equity. The heart of Common Law was originally what records the writ system (assignation). Writs were documents issued in order to start an action of course. The writ isn’t an invention; it was a technic use before the Normand invasion.
For some facts no writ existed and this created some problems. But the function of the writ also changed with the time. In the beginning the writ was a remedy in itself that is to say that were the claimant obtained there writ, the writ was enough for him to have justice. No trial (procès) was needed; a trial was needed just if the other party contested. A writ was a way to avoid judicial procedure. The justice becomes less hasty, .
Each writ was founded on a particular form of action (writ of dept.).
The first was the . Another form of action is a For each specific actions different writ existed.
Writ is a document, a piece of paper that has the royal sign, power on it. Each writ corresponded to a certain procedure. For instance,. They could be also . How the writ is given to the defended. The Sheriff attached the wrong door to answer the plaintive. The service of the writ was different according to the writ. Another particularity is the bottom of proof who admitted most of proof also depended on the writ. Then the mode of complaint could be different and also . The remedies also differed from one writ to another. Therefore, the differences between the forms of actions chosen by the plaintive were a high importance. (droitpositif). . And more importantly if the plaintive have to choose one form of action he was bound to fail. . This system was similar to the Roman law. In Roman law only a limited causes of action can difference from remedy.
The problem is that this system is really rigid. It was thought that no writ could be issued then no writ can be existing. But even when cases can be issued because facts could be proven, another problem could raise. . And this causes injustice.
Example: the case where there is a written evidence of a dept. The dept has paid money, the claimant. But the claimant didn’t destroy the document, he copied for the court. . We can see that evidence is really the essence of this system.
This rigidity of this system prorogued the need of the different justices, a need for more equity. The first solution to have more justice is just to create new writs, new forms of actions. And this is how the problem was held at the beginning. . But the problem with this approach was that the ability to create new writs amounted to the ability to create new form of actions.
If the chancellor can create a new writ, then he can create a new writ for this plaintive.
Other time there was an opposition to create new writs by the chancellor. The system was remained rigid. The judges tried to bring some flexibility and the sanctions that was needed giving by the king council, then the parliament was flexible to create new writs. It was not useless but a lot of time was spending of creation of new writs.
In the 18th century this system has been given up. The writ has been abolished through a 4 steps process.
First the uniformity of process act in 1832. In this act a single uniform procedure for personal actions was created but the plaintive still had to state in the writ the form of actions on which was relying. The abolition of this system begins with the uniformity of formal actions.
And then the real property limitation act in 1833, this act abolished the forms of actions privately requite for all kinds of real or mixed actions.
Then in 1852 the Common Law procedure act dropped the requirement that any particular form of action should be mentioned on a writ.
And finally, . It interesting to note that in the USA the traditional writ system also applied. United States Federal court to issue all writs necessary or appropriate in age of their respective jurisdiction and agree about of the principles of law today all kinds of writs have disappeared from the US legal system.
A writ now in England is only the act to initiate a procedure (assignation). But there’s also an importance of the service of the writ today in England. If the writ can be served in the English territory then this is a justification to the English courts to have jurisdictions.
Before the abolition of the form of actions, one could say a remedy comes before right. . The cause of action (legal basis) comes for the form of action which is a way… the abolition of the form of action in itself wasn’t enough to allow English law to welcome immediately new causes actions. The doctrine of precedent wasn’t abolished. The judges still had to find a private case on which to rely the remedy to the victim of a wrong. Something else was needed in order to free the court from this rigidity. This is how equity emerged from this rigid system of the writ system. . But before deciding what to do with this case the kingwould take advice, the Lord Chancellor the same that could issue new writs. The Lord Chancellor hadn’t only legal; it was also a conscience man. Concept of natural, universal justice.
At the beginning, the Lord Chancellor issued decreases the decisions in the king’s name.Then, he gives justice in his own name. This is a way of creating a new kind of court, the office of chancellery become the chancellery court. The bases were only equity. The decisions were founded on equity and this is how equity should be distinguished from Common Law.
At the beginning 2 kinds of court:
More over this dual judicial system was border some from the litigants. They have to pay to fees (honoraires) to lawyers. It’s very expensive to have these parallel courts. This is the reason why at the end of the 19th century with the judicator act, the JA merged the administration of the system of law and equity. A court of Common Law could apply equity principal and the litigants could be in one court.
Nowadays, both systems are applied by the same court.
- English legal system and difference with the civil law
- Distinction between Common law and equity
- Distinction between Common Law and statute law (written law)
- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
- Statutory interpretation
- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
- Judge-Made Law
- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
- Treaties : Ratification and Provisional Application
- Application of european law by English courts
- How does the European court of Human Rights affect the UK?
- Foreign Law in the English Courts : conflict of laws rule
- Lower courts : Magistrate’s courts, Crown court, county court
- High Court : Chancery and Queen’s Bench Division
- Supreme court and Court of appeal
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- The independence of the judiciary in England and Wales
- Lawyers in the english legal system : Solicitors and Barristers
- English Law – English legal system