Equity: Historical developments:
In ordinary language, . 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 .
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. . They gaveled together and spoke about the solutions;
- Common Law => writ = set out the cause of the action = the grounds upon which the claim was made.
When a writ didn’t exist until the 13th century the judges agreed to issue new kind of writ but from the 13th century on, they stopped to use new kind of writ.
- Common Law : . When someone has a claim, the only way to repair is to allow him or her damages.
=>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.
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 . The procedure was easier than a procedure before Common Law courts. The procedure was established by oral witnesses could be heard,
- Decision made upon conscience:
- He decided to offer some remedies. He could enforce rights not recognized by the 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 revelry between both systems continued and the chancellery court in the 16th century begin to be more criticized. To the contrary of how it’s begun, 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 19th century but until the end of the 19th 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
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.
- 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