Distinction between Common law and equity

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. Someone has to issue this writ and this is the court office, the chancellery. At this head of the office, the lord chancellor. The writs were limited in number that is to say that the complained of the litigants had to fit within one of the existing writ which embodied a form of action. 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, the writ itself becomes a document initiating judicial proceedings (poursuitesjudiciaires) rather than avoiding them.The function of the writ was just to instruct the defendant to appear in court.

Each writ was founded on a particular form of action (writ of dept.). These causes of action were classified, divided into 3 categories.

The first was the real action, action which concerned real property. There were actions which concern only personal actions. Another form of action is a mixed action: when the plaintive were both ask for real property and for damages. For each specific actions different writ existed. One of the most famous writs was the writ of trespass meaning that it was a writ that defends to trespass (défensed’entrée) the property.

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,writ could be determined the competence of the court. They could be also special requirements for the service of the writ. How the writ is given to the defended. The writ was adept to the Sheriff and then the Sheriff asks the defendant to pay to the plaintive the money view to the plaintive. And then the defendant has the choice: order to pay or to appear in court to explain why he was refusing to pay. The Sheriff attached the wrong door to answer the plaintive. The service of the writ was different according to the writ. Limitation period (délai de prescription) could usually from one writ to another. Another particularity is the bottom of proof who admitted most of proof also depended on the writ. For that kind of writ we are allowed just to have testimony, we need write proof. Then the mode of complaint could be different and also some forms of actions founded a specific writ were related to a very speedy and official procedure but others to a dilatory (lente) procedure. 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. The difference is also on substantive law (droitpositif). The substantive law applied in a given form of action was also depended on the form of action chosen. And more importantly if the plaintive have to choose one form of action he was bound to fail. And if the plaintive complained could not fit within one of the already existing fits it could have no hope of redress of all. 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. If no writ exists, no right exists and so the problem is that the writ system couldn’t answer of all the demands of justice. A number of cases were left without a remedy. The evidence is important in this kind of system. The litigants have to remove the right to ask other writ. If the act couldn’t be proven then no writ could be issued. 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. If there was case, the courts would consider themselves as being bound to make the order for which the proceedings havebeen brought. 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. If the evidence exists then the court felt bound to condemn a double payment just because there was the proof that the claim exists. 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. A new writ was created when there is no writ for the case. The chancellor could create new writs. At first, new writs could be drifted to adapt the system to new situations. But the problem with this approach was that the ability to create new writs amounted to the ability to create new form of actions. The ability to create new writs was really close to the power to create new rights.

If the chancellor can create a new writ, then he can create a new writ for this plaintive. It means that the judges had the power to create out of nothing new right.

Other time there was an opposition to create new writs by the chancellor. In 1258 the king was forced to accept the provisions of Oxford which prohibited the creation of new forms of writ. New writs can be created but not without authorizations of the king council. 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 18^th 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, the judicator act in 1873 is the complete abolition of the forms of action. It interesting to note that in the USA the traditional writ system also applied. But they abolished the all writs act in 1789. 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. Only a few writs have escaped abolition.

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. 19^th century: the forms of action were given and the causes of action have to be deduced there from. 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. Because parties plaintive couldn’t obtain satisfaction if they didn’t have the writ, then litigants develop the practice to go directly to the king. They develop petitioning. 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.The king originally made these decisions with the advice of the chancellor, but soon he has delegated this power to the Lord Chancellor. The task of individual decisions, petitioning decisions was left to the Lord Chancellor. And then, litigants present directly to the Lord Chancellor by passing the king.

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: chancellery court equity and royal court decide with the precedent with the case law. It also gave rights to the possibility of having a conflict between equity judgment and Common Law judgment.

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 19^th 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.