What is Equity in English law ?
Definition of equity : Equity is a body of rules that evolved mainly in the 15th and 16th centuries to complete the common law system which had become insufficient and defective. When the royal courts applying the common law could not be seized of a case or could not provide an adequate remedy, it was possible to request the king, by appealing to his conscience, to intervene as sovereign justiciar. The King would delegate his powers to a Chancellor but neither of them intervened to create new rules of law, they only intervened in the name of morality.
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- How to explain the concept of equity in English law?
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- Law course : introduction to english law
The office of Chancellor (more recently Lord Chancellor) has an ancient history. Initially, the “cancellarius” (from Latin “cancellus” which meant a bar) was an usher who served at the bar of a Roman court. Later an, a more illustrious form of this was to be found in the court of Charlemagne and was transported to England by the time of Edward the Confessor, where he became the King’s right-hand man and the most powerful official in the realm. The Lord Chancellor headed the royal secretariat (called the Chancery) and was responsible for the used and custody of the Great Seal of the Realm. He was also closely associated with the administration of justice, being an important member of the King’s Council whose duty was to consider and adjudicate upon petitions addressed to the Council by subjects who sought justice from it as the body most close to the king. Petitions might be presented for a variety of reasons, but mostly by people who had failed to obtain justice in the common law courts.
In every day language, equity means natural justice, but this definition does not cover the meaning acquired by this concept. As already stated, equity was inspired by ideas of natural justice, but nowadays it is a particular branch of English law, it is part of the law of England. The word equity is derived from the Latin aequitas meaning leveling.
What about the origins of equity? As stated above, in the Middle Ages the courts of common law failed to give redress in certain types of cases where redress was necessary, so the disappointed parties (litigants) petitioned the King, as the King was the ‘fountain of justice’ for extraordinary relief. Through his Chancellor, the King set up a special court, the Court of Chancery, to deal with these petitions. The rules applied by the Court of Chancery turned into law and became part of the law of the land. Failure to obtain justice was mainly due to three causes: (i) the common law court was in some way defective, that is lacked the necessary legal solution to a case, (ii) the only remedy that common law courts could usually supply was the award of damages, (iii) even if the law was adequate to solve a case, it was not always possible to obtain justice in a common law court due to the greatness of one of the parties. Therefore, only the Chancellor, who was one of the chief royal officials, could remedy these defects. As he was closely associated with the King, the Chancellor was bound by neither the rules nor the procedures of the common law courts.
- Main applications of EQUITY
The most important branches of equity are the law of trusts and the law of contracts. For instance, in the case of trespass, common law offered damages, but did not provide a means to have the trespasser stop. The chancellor intervened in equity and granted an injunction ordering the defendant to stop infringing on another’s property. If the defendant did not obey, he was sent to prison for “contempt of court”. In the case of a breach of contract, the only remedy at common law was damages, but the aggrieved party was much more interested in obtaining the actual performance of the contract. Therefore, the Chancellor issued a “decree of specific performance” urging the execution of the contract. The common law theory of consent covered only physical violence and not moral coercion, so the Chancellor intervened against those who took unfair advantage of their dominant position (guardians, confessors, etc) to obtain a contract. And, as far as property matters were concerned, equity obliged trustees to respect their agreement.
A plaintiff who anted to obtain all the remedies he was entitled to, he had to bring two successive actions – one in damages before a common law court and another one in chancery to obtain an equitable injunction or a decree of specific performance. In such a case, if there was ‘conflict’ between the rules of common law and the rules of equity, equity came to prevail.
Equity and common law went on in parallel, the former complementing the latter, until 1875, when the Act of Judicature of 1873 was applied. That application resulted in the abolition of the old courts of common law and the Court of Chancery. They were replaced by one Supreme Court of Judicature, each branch of which had the power to administer both common law and equity. What happened was a fusion of the administration of common law and equity. The two systems themselves did not fuse, the rules of common law are still distinct from the rules of equity, but both are now open to a plaintiff in one action before the same court.