What is Equity in English Common Law Tradition ?

Equity: Historical developments:

In ordinary language, equity simply means fairness but in English law it applies also to a specific set of legal principles. Nowadays, equity has also a particular meaning in the financial world; it means the value of a company.

Businessman spoke about private equity meaning the money of a corporation which isn’t public (capital d’investissement). But the meaning that we will interest today it’s the meaning of a specific set of laws. Set of legal principles was developed in opposition to the edification of Common Law.

It’s a particular branch of English law. It’s not outside the law as we could consider with our French as. But this particular concept must be understood in the light of these historical developments.

The beginning gets back to 1066 with the invasion of the Normans. The Normans introduced the itinerant justice to travel around the country to give justice. They gaveled together and spoke about the solutions;they built the itinerant justices which construct the Common Law.

• Common Law => writ = set out the cause of the action = the grounds upon which the claim was made. We need writ to go before the court. If there is no writ available there is no claim possible.

When a writ didn’t exist until the 13^th century the judges agreed to issue new kind of writ but from the 13^th century on, they stopped to use new kind of writ.

• Common Law : only one remedy: damages. When someone has a claim, the only way to repair is to allow him or her damages. But damages aren’t always the appropriate solution.

=>Inadequate. For example: a party has been promised the chance to buy a piece of land but then the seller didn’t want.

They petition the king who was considered to be the “fountain of justice”. Only the king could bring to these people the good solution. They try to get some redress for their wrong.

He passed his claims to the Lord Chancellor => court of chancellery. He was usually a church man, a man who was considered to be the king conscience. Litigants’ parties began to petition the chancellor directly and by 1474 the chancellor began to make decision of the cases on his authority. The decisions were rendered in the name of the Lord Chancellor.

How did the court of chancery work?

Litigants appeared to the chancellor, he questions them and he would render a decision based on his moral view. The decisions rendered by the Lord Chancellor were made on his conscience, what he found was best.

• No strict rules of procedure:The chancellery court can also make oral witnesses. The procedure was easier than a procedure before Common Law courts. The procedure was established by oral witnesses could be heard, the parties could be directly questioned.
• Decision made upon conscience: they didn’t need to apply the Common Law.
• He decided to offer some remedies. He could enforce rights not recognized by the Common Law. He could order a decree of specific performances (execution forcée) which is something wasn’t still possible in Common Law.
• Critics :

– Arbitrary: risk that decisions will be arbitrary because case is just considered on a view.

– Solutions unpredictable: the solutions were quite unpredictable.

The court of chancellery were still popular, the Common Law courts made all these critics to words the chancellery courts.

A conflict could also appear between the solution between the chancellery courts and Common Law courts.

– Risk of conflicts with Common Law law rules:

=>The Earl of Oxford’s case (1615): equity prevails. The king decided that equity should prevail when there is a conflict between the 2 courts. The revelry between both systems continued and the chancellery court in the 16^th century begin to be more criticized. To the contrary of how it’s begun, equity courts began to follow their precedent and they began to follow the system of the binding precedent. The system began to be less flexible than it was before. Moreover the court was overwhelmed with cases and the absence of strict procedural rules made the litigations ends. The procedure becomes more and more slow and expensive.

These critics grew until to attempt a reform which was proposed in the beginning of the 19^th century but until the end of the 19^th century nothing was really done.

Common law courts and chancellery court could merge: it’s the fusion troughthe Judicature Acts of 1873 and 1875. It provided that equity and common law was applicator to the 2 courts. Common Law courts could also apply equity and the chancellery courts apply the Common Law.

Wewsill have 2 bodies of principle but only one system of court.

They are some several principles in equity but by all courts may apply. Equity remains a specific branch of law but which is administered by all courts.