Law course : introduction to english law

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-Scottish law.

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-Irish law.

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-The law of the USA.

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-Australian law.

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-New Zealand law.

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And more generally over the laws of England’s former colonies.

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Although all these countries have laws which have developped in different ways, they all have in common the bases of the Common Law and they are called  Common Law Countries.

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The term «British Institutions» covers the institutions common to the whole United Kingdom, that is to say :England,Wales, Northern Ireland and Scottland. For instance,the British Parliament is an institution (which includes representatives from England,Wales, N.Ireland and Scotland) common to the whole UK.

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The principles of the law was recognized in England at a very early period. It has been accepted since the time of Magna Carta in 1215. Magna Carta has been the symbol of public liberties for English men but also for the rest of Europe. Its scope (sa portée) was greatly exagerated at the beginning: it guaranteed a number of liberties to all free men at a time

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when all men were not free. And it was only in the 15th century when bondage was abolished and all men were free that it could be applied to all. Although it was a symbol, Magna Carta marked the beginning of the law applicable to all including the King.

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Magna Carta was followed by a number of other laws and statutes passed by Parliament which gradualy limited the King ‘s power and prerogatives, so that today Parliament has the sovereignty and the King, like anybody else, is limited in his actions by the legislation adopted by Parliament.  Thus, since the Crown Proceedings Act of 1947, the Crown is liable for any prejudice occasionned to third parties by itself, its agents or employees, so that the motto (formule) «the King can do no wrong» is no longer true today. In the same manner, any state department, any branch of the administration can be brought before the courts by any citizen who thinks he has been wronged in his rights .

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In England , but also in the whole UK, the source of all legislation is Parliament. Its Acts are applied to all and prevail over all the sources of law (Common Law and Equity).

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The House of Commons is free to legislate as it pleases. It is bound (to bind, bound, bound, lier) by no precedent and by no previous legislation. Contrary to the French situation, there is no control of the constitutionnality of the laws. Last,the laws passed by Parliament are binding upon the courts (must be applied by the courts), although English courts have an important power of interpretation of the laws.

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CHAPTER 1 :The British Parliament

•  It is composed of two chambers (Houses):
•  – a lower chamber, the House of Commons
•  – an upper chamber :the House of Lords

•  The history of Parliament can be summed up to the gradual but sure growth of the House of Commons at the expense of (aux dépends de) the House of Lords

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SECTION 1 :Parliament before.

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SECTION 2 :Parliament today

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1.Composition of the House of Commons

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It is composed of 659 MP’s as a result of general election of May 1997.At the 1997 general election the Labour party won a large majority of seats so that the House of Commons is dominated by a Labour majority; the Government has a Labour majority with Tony Blair as Prime Minister.

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MP’s are necessarily UK citizens over 21 who are not disqualified to stand for Parliament. MP’s are elected at most every 5 years at universal suffrage by all UK citizens over 18 (under the 1969 Representation of People Act) . They sit mainly to answer questions raised by other MP’s on their policy.

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Government members (or ministers) belong to the House of Commons and they sit at least 2 days a week.

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The House of Commons is presided over by the Speaker normaly elected by all the MP’s at the beginning of each new Parliament. But in practice, once a speaker is elected, he remains speaker until his retirement or death.

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A change in the majority in the House of Commons does not mean a change of speaker (he is above party politics). For these reasons, the speaker does not profess any political opinion during the debates. During the debates, he does not vote but has a casting vote (une voix prépondérante) in case the ‘yes’ and the ‘no’ are in equal numbers. At a general election,the speaker is a candidate without affiliation to a party. He simply stands for Parliament as

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the speaker seeking reelection.

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2.The House of Commons at work

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a. Parliamentary sessions.

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The life of a Parliament is fixed by law at a maximum of 5 years. In practice, Parliament lasts on average 4 years : the goverment usualy dissolves the Parliament when the circumstances are favourable and when it thinks it will renew or even strengthen (reinforce) its majority.

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The life of Parliament is subdivided into 5 Parliamentary sessions, each Parliamentary session lasts about a year : from October to October. Nowadays, the ceremonies of prorogation and opening of the Parliament takes place on the same day. In practice, a session is composed of some 160 to 180 sitting days. Each session is opened by the Queen in solemnity . Only the Queen can summon Parliament and dissolve it.On the opening of the session the Queen delivers the speech from the Throne, in this speech she sums up the work accomplished by the Government during the past session, then she announces the

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Government’s intentions for the new parliamentary session, in particular the Bills which the Government plans to introduce (the speech is not written by the Queen but by the Prime Minister or the cabinet).

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The speech from the Throne is followed by a general debate of both houses of the Parliament on questions of home and foreign policy called :’the Grand Inquest of the Nation’.

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After this debate,the Commons can start its day to day work, 3 main activities :

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– law making (50%)

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– control of Government expenses (30%)

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– control of Government work (20%)

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The control of the Government work which consists in questions asked by MP’s to Government members ,although it takes less time, is very important for it gives rise to violent debates and can result in a vote of no confidence /censure and in the fall of the Government.

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b. Daily work in the House of Commons

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Sitting days take place from Mondays to Fridays mostly in the afternoons and evenings. Sometimes there are full night sittings. The mornings are devoted for each MP, to the reception of his constituency (circonscription).

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– Question time : each sitting day begins with a 45 minute period devoted

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to the questions which MPs ask to Government members. These 45 minutes are the means for the electors to voice their grievances and questions through their representatives (MPs) and also to obtain information of some aspect of the Government’s policy. Those questions bear on the way in which the Government applies the laws and fulfills its electoral promises. Ministers must answer the questions (ministers do not sit everyday but they must take turns to answer questions. The Prime Minister, for his part, must be present on Tuesdays and Thursdays to answer questions.  If a question raised by an MP is a national or urgent issue, the Speaker will adjourn the sitting day and the Commons will devote the sitting day to the discussion of that question.

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Question time might be thought to be the occasion for the opposition to embarrass the Government and possibly to defeat it. But it is also the occasion for MPs belonging to the majority to ask questions which will enable the Government to expose its policy in details.

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– Motions : most of the work of the House of Commons is done by way of motions which are proposals proposed to the House of Commons by one of its  members. In case of approval of a motion, the House of Commons votes either an order by whitch it commands a Civil Servant to do something, or a resolution by whitch it expresses its opinion as a corporate body. Any MP, wether or not he belongs to the majority, can propose a motion. Each motion involves a debate during which only the official Speakers (or Front Benchers) of the majority and of the opposition (the Back Benchers very seldom (rarement) take part in the debate). After the debate on a motion, usually the House of Commons proceeds to a division to vote. All MPs leave the House those who are in favour of the motion enter through the Government lobby or Ay lobby and those who are against the motion enter through the opposition lobby or No lobby. Motions are used by the Government to have the Commons approve its policy, in so far as normally the Government holds the majority in the Commons. Sometimes, even members of the majority disagree with a motion and the motion obtains a vote of no-confidence by which the Government is put in a minority, it is then obliged to modify its policy or to resign.

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c. The Law-making process

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The process of legislation constitutes the major part of the work of the Commons. If the process of legislation is done at 90% by the House of Commons, the Commons are not the legislative body.The legislative is composed of the Commons + the Lords + the Monarch.

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The first step of the legislation process is the bill. There are 4 categories of bills :

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1-public bills.

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2-private members bills.

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3-private bills.

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4-hybrid bills.

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Public bills are bills at the initiative of a member of the government, aiming at modifying existing legislation in the UK. Most of the time such bills are the implantation of the policies of the party which won the elections and which is now in office. Very often they are the implantation of the electoral promises made by the party in power.

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For example : In 1945 the Labour Party had been elected on a program of social services in 1946 it introduced a bill which became the National Health Service Act.

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Private members bills are bills at the initiative of any member of the Parliament (Commons or Lords). They too aim at changing the legislation in force in the UK, but most private bills do not go any further than their first reading because they are not ensured by the support of the majority in the House of Commons. Although many private members bills fail, some very

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important acts were originally introduced by private members. This was the case for the Murder (abolition of death penalty)1965 or for the Abortion Act.

Private bills differ from public bills and private members bills in their scope.They concern either the status of an individual (personal bills) or the status of a place or region (local bills). Personal bills are rare nowadays and must be initialized by the House of Lords.

Hybrid bills combine characteristics of both public and private bills. They aim at changing the legislation for the whole UK, but they affect only individuals or specific groups. For example : the British Museum Act 1964 and the Seven Bridge Toll Act 1965 are hybrid bills.

We shall concentrate on the law-making process concerning public bills which when voted, become statutes (=laws).

The first stage for a public bill is its introduction in the House of Commons :

– The first reading : that occasion is a mere (simple) formality, only the title and the name of its author are mentionned before the Parliament (no debate and no vote). A public bill is introduced only after approval by the cabinet. If there is no opposition on the part of the House of Commons, the text of the bill is printed and distributed to all MPs.

– The second reading: (the MPs have read the text) the minister who drafted the bill presents it before the House of Commons. He explains it and justifies it. A debate follows, it is limited to the aim of the law, to its risefulness and to the means necessary to implement it (mettre en œuvre).The debate is followed by a vote (by division). Many bills don’t go beyond the second reading.

If the Commons approve of the bill, it is sent to the Committee.

– The Committee stage: the bill is handed over to a committee which checks that the bill doesn’t contravene existing laws and which proposes amendments to improve the project. Standing committees can examine any sort of laws but only the Committee of the whole House can examine financial bills.

– The report stage: the President of the Committee presents a report before the House of Commons. A debate follows both on the contents of the bill and also on the amendments suggested by the Committee.

– The third reading: the House of Commons proceeds to the final examination of the project, then votes by division.

If the ‘NO’ prevails, the bill will not become a law.

If the ‘YES’ prevails, the law-making process continues and the bill is sent to the House of Lords.

– The approval by the House of Lords: it is a mere formality because since the Parliament Act of 1911&1949, the House of Lords can only delay the passing of a law by a year (and it cannot delay at all the passing of a financial bill).The House of Lords can propose amendments which must receive approval of the Commons. After a year, even though the House of Lords still oppose it, the bill is sent to the Monarch for the Royal Assent.

– The Royal Assent: before a law can be promulgated the Monarch must give his assent. The Royal Assent is nowadays a mere formality: since 1707 no King or Qeen has refused his or her assent to a legal text voted by both Houses.

Once promulgated the legal text becomes an act of Parliament or a statute. A statute can come in force either immediatly on its promulgation or at a later date indicated in the text. According to the Community, a statute is applicable either to the whole UK or to England and Wales with slightly different versions for Scotland and N.Ireland.

As a conclusion, the House of Commons is the most important element in the law-making process.The House of Lords being relegated to a symbolic role nowadays.

3. The composition of the House of Lords.

The House of Lords is composed of some 1300 members or Lords, divided into

2 categories :

– the Lords spiritual: they are a survival of the past (of the times when the Church was all-powerful and the Kings main advisers and ministers were high-ecclesiastics). There are 26 Lords spiritual: 2 Archbishops (York and Canterbury) and 24 Senior Bishops (Church of England).

– the Lords temporal: they are over 1200 and they are of 3 sorts: the hereditary peers (dukes, barons, earls, viscounts…) they are 788, about 2/3 of them sit in the House of Lords; the life peers of more recent creation have existed since the Life Peerage Act 1958, they are 365, they are people who were rewarded for services offered to the Crown, their title doesn’t survive them, all former Prime Ministers become automatically life peers.

– the Law Lords are appointed for life by the Monarch upon a recommandation of the Lord Chancellor. There are only 11 law Lords plus 11 retired law Lords who cannot sit as judges, but who still continue to sit at the House of Lords. The law Lords are former judges of the Court of Appeal or former famous baristers.

In theory, any Lord can sit in the House of Lords, but in practice, only the life peers and the law Lords take an active part in the proceedings of the House of Lords.

In 1963, the Peerage Act was voted to allow hereditary peers to renounce to their titles in order to stand as candidates for the House of Commons and to take an active part in the political life.Thus in 1963, Lord Home renounced his title to become Sir Douglas Home, he became MP and could then be appointed Prime Minister of the Conservative Government formed in 1964.

4. Daily work of the House of Lords

a. Sitting days :

The Lords sit about 120 days each year.

The main characteristic of the House of Lords is the absenteism of its members. On important debates or on voting days, there are rarely over 300 members in the House. On normal days, the average is 30, and the quorum is only 3 (3for a debate and 30 for a vote). Some Lords, especially among hereditary peers, never attend and only turn up (apparaître) for the opening of the Parliament by the Queen.

Although the majority of ministers are issued from the majority in the Commons, the Lords are also represented in the Government by the Speaker of the House of Lords who is automatically responsible for justice and a member of a cabinet, he is the Lord High Chancellor (minister of justice).

Contrary to the Speaker of the House of Commons, the Speaker of the House of Lords takes part in the debates and votes, and defends the policies of the party to which he belongs. It is to be noted that the party system exists in the Commons, although many hereditary peers insist on belonging to no party.

b. The functions of the House of Lords :

– Legislative functions are very limited.

Although most public bills are initiated by Government in the House of Commons, in theory the House of Lords can introduce bills except financial bills.

In practice, it initiates mainly private bills and occasionnally private members bills and hybrid bills.

Most of the time the House of Lords contents itself with examining and voting on bills already examined and passed by the Commons or proposing amendments.

– Judicial functions.

Although in the past the ultimate Court of Appeal of the Kingdom was the whole/plenary House of Lords, today it is composed of the eleven law Lords.

The main function of the House of Lords, as a judicial body, is to be the ultimate Court of Appeal for the UK.

CHAPTER 2: English law

SECTION 1: Statute law or the law elaborated by Parliament

English law has suffered an important evolution.

Traditionaly statute law represented only a limited part of the law and statute law consisted mainly in case law (both Common Law and Equity). Nowadays the situation has changed radically, in the 20th century and especially since World War 2, statute law has played a more and more important role /part.

Statute law has developped in an unprecedented way, first the economic development of Britain resulted in a proliferation of legislation in the fields of commerce and contracts, secondly on the accession to power of the Labour party in 1945 the Government enacted a number of laws aimed at regulating the economy and creating a welfare state. It thus passed the National Health Service Act and a number of other acts regulating the relationships between the individuals and the state.

Today, statute law plays a preeminent part and in case of conflict of law, statute law prevails.

The only difference between statute law and written law in continental countries like France or Germany is to be found in the application of the law: English judges having an important power of interpretation of the law.

The word law covers :

1.Acts of Parliament properly speaking.

2.Delegated legislation which consists in the application of statutes

The UK does not have a written constitution, the only one in Britain history was the one drafted by Cromwell in 1653 called the Instrument of Government. That constitution which was in force during Cromwell’s Republic or Common Wealth was abolished in 1660 on the restauration of the English Monarchy.

What the English call their constitution is a body of rules (some written, some non written) and traditions which guarantee the fundamental liberties of the Brittish citizens and which limit the power of the Government.

Parliament is the only body to enjoy unlimited power.

Britain has no constitutional body which can check the validity of the laws (statutes) adopted by Parliament. The only check on Parliament is the control exercised by public opinion and by pressure groups.

1. Classical theory in English law.

The traditional approach of statute law was that statutes were a secondary source of law.

Statutes were regarded as complements wich filled the gaps of the main body of law, namely caselaw, or which corrected the errors of caselaw or which updated rules of law which have become obsolete.

From the 13th to the 19th century, statute law was regarded as an appendix to the law.

In the 17th century, English judges still refused to apply the laws adopted by Parliament and prefered to apply the rules of law established by previous judges in previous decisions.

The traditional approach was strictly a caselaw approach.

2. Nowadays theory.

A number of statutes simply modified, simplified and updated existing rules of law as produced by common law and equity.

With the change of regime and the instauration of socialism after 1945, a number of statutes were passed reflecting the new relation between individuals and the State and also creating new sectors of the public and social life in the UK.

  The second type of statutes aimed at building a new type of society at the economic and at the social level.

  Thus, in 1946 the National Health Service Act instituted free medical care for all citizens.

 The first type of law aiming at simplifying existing rules of law established by common law or equity decisions were reinforced by an act of 1965 entitled Law Commission Act .

  This act instituted two law commissions:

One for England and Wales and one for Scotland.

  The object as defined by article 3 was the codification and simplification and modernization of the law for each system of law.

CHAPTER 3 : The common law.

The term common law has a variety of meanings depending on the context.

Taken in its broadest ( le plus large)meaning, it means unwritten law as opposed to statute law or written law.

Historically too, for a long time, it meant secular law as opposed to canon law or ecclesiastical law.

Historically again, it meant the law of Anglo-Saxon origin or Norman origin, as opposed to the civil law derived from (the) Roman law.

Last, more technically, it is the category of law which is neither statute law, nor equity.

The term common law appeared for the first time in the thirteenh century.

1-Originally, the components (composants) of the common law were first the rules of law based upon (basé sur) the Anglo-Saxon concept of folgright as defined in the laws of Edward 1st.

2-Customary law based upon rights established by immemorial usage.

3-The day to day decisions of the court or caselaw.

Given those components, the usual definition of common law is the body of law, judicially evolved from the general custom of the realm (royaume).

Chronology :

The Anglo-Saxon period : until1066.

Formation of the common law: 1066-1485.

Expansion of the common law and rivalty with equity :1485-1832.

Modern period, preeminence of statute law : from then to nowadays.

History of English law can be devided into four main periods.

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Until 1066, Norman conquest.

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1066-1485, accession of Tudor dynasty.

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1485-1832, beginning of Tudor absolutism to first electoral reform.

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1832-today. Common law has to face the preeminence of statute law.

I From the beginning to the Norman conquest.

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The history of Anglo-Saxon law is not well known.

The only thing  we know for sure is that in spite of four centuries of Roman domination, nothing remains of the Roman law in English law.

We know that in the days of Anglo-Saxon rule (domination), a number of laws were drafted in the VIth andVIIth centuries.

In those days, different tribes (tribus) ruled over England, all of German origins.

Contrary to the other laws of the time, Anglo-Saxon laws which varied from one hand of the country to the other hand were not written in Latin but in Vernacular (i.e. in Anglo-Saxon dialects).

Like the other laws of the time, Anglo-Saxon laws governed very limited aspects of social life.

On the eve of the Norman conquest, Anglo-Saxon law continues to be different in the different parts of the country.

Just before the Norman conquest, three sorts of Anglo-Saxon law existed.

Dane law was applied in the coastal areas of the North and North-East of England.

Mercian law influenced by german law was applied in the central region of the Midlands.

Wersen law was applied in South and West of England.

The law on the eve of the conquest was administered in three types of courts.

County courts or shire courts were presided over by the sheriff representing the King, the bishop and the oldest free man. They only sat twice a year.

The hundred courts were smaller courts : A hundred was an administrative division including some 100 inhabitants ; each county was divided into several hundreds.

The franchise courts were courts of exeption, constituted  by persons authorized by the King to administer justice.

All these jurisdictions were competent both for civil cases or for criminal cases.

II Formation of the common law 1066-1485.

The Norman conquest did not immediately put an end to the Anglo-Saxon legal system.

The Normans took over Anglo-Saxon law and transformed it.

The Norman power was a military type of administration. The Normans felt the necessity of controling the whole country and unifying the country.

The birth of the common law came from this necessity to unify England and to submit it to one rule.

Justice was still rendered in the three types of courts which existed before.

But gradually, the Lords obtained from the King permission to set up their own courts of justice. So that, in parallel to the old Anglo-Saxon courts, new courts (baronial courts or manorial courts) were created.

This new jurisdiction continues to apply the customary law which existed in Anglo-Saxon law.

In parallel to the other courts, ecclesiastical courts were set up, applying canon law.

The ecclesiastical courts were competent for cases involving the clergy and for matrimonial and family cases.

After the conquest, ordinary disputes are brought before the old courts (county and hundreds) or before the new baronial or matrimonial courts, or before the ecclesiastical courts.

The king only renders « high justice » i.e. he only judges exceptional cases.

When the peace of the Kingdom is threatened, when important personalities are involved, when the ordinary courts cannot hear the case.

He judges with the help of his main barons, in his council or Curia Regis.

The King’s justice is not opened to everyone.

It is limited to important men and disputes.

For ordinary cases, the King sends representatives of his council who attend to the hearing (audience) of the various courts throughout the country.

Three commissions :

Commission of gaol delivery (jail).

Commission of oyer and terminer.

Commission of Assizes.

The King’s representatives or royal judges gradually formed three commissions.

The commission of jail delivery whose task was to set free all untrialed prisonners.

The commission of oyer and terminer whose judges must hear and decide cases involving the most serious offenders like traitors and felons.

The commission of assizes whose judges are competent for civil cases and serious criminal matters.

Those royal judges who go from court to court throughout the country were called « itinerant judges » and later « circuit judges ».

They are appreciated by the population because they are above local quarrels and interests they make sure that justice is rended in a fair, non corrupt and unprejudiced way.

At the same time, as  he sends representatives to those various parts of the country, the King appoints some of his advisers from the Curia Regis to form a commission which sits at Westminster.

At that commission, the itinerant judges also meet on their return from the country. There they discuss the various customs and decisions which they met for similar cases in the different parts of the country.

They reject those customs and decisions which are absurd, obsolete or unfair and they keep those which seem reasonable and grounded (fondées, grounds=motifs).

This made a first unification of customary law into a body of law which was uniform for the whole kingdom.

The growth of the common law  met the opposition of the Lords, of the barons and knights who resented the intervention of the royal judges in the local courts because it meant a loss of power for them.

The Lords imposed on the king that royal judges should limit their interventions to three types of cases.

Cases of royal finances.

Real estate property cases.

Offenses against the state.

To hear these three types of cases, three courts were instituted at Westminster.

The court of the Exchequer which was to decide disputes relative to royal finances.

The court of common please was competent for real estate property cases.

The court of the king’s bench was to judge offenses against the state.

In the compromise between the king and the barons, it was accepted that all other cases would remain under the jurisdiction of the old courts and especially of the baronial and ecclesiastical courts.

At the end of the Middle-Ages, in the fourteenth and fifteenth centuries the King’s power was strengthened.

Royal justice  grew as the King’s power grew.

At the end of the fifteenth century, the royal courts of justice have almost the monopoly of justice.

The ecclesiastical courts only judge disputes relative to the clergy or to the sacrament of marriage.

The royal courts now judge all types of cases.

In spite of this extension of their jurisdiction the royal courts of justice were checked in their development by the rigidity of the common law procedure.

In particular the development of the common law was limited by the «writ» system.

The writ was an official document signed by the Lord Chancellor ordering the sheriff to summon the defendant to court at the request of the plaintiff.

Writs were delivered only for a limited number of cases or actions.

It was delivered for :

Writ for trespass (atteinte à autrui).

Writ for debt.

Writ for detenue.

The most frequent writs were writs for trespass, when the defendant had enclosed part your estate in an abusive way.

The writs for detenue, i.e. illegally holding somebody else’s property.

In fact, it was very difficult to obtain one from the chancellery.

New type of writs.

In the beginning it was the Lords who obliged the king to limit the list of writs.

Gradually, the list of writs increased. New writs were created.

But in spite of the extension of the number of writs, the list of writs remained limited until the niniteenth century, so that plaintiffs could not bring an action for any dispute ; so that many plaintiffs were left without any remedy.

A second reason why plaintiffs were left without a remedy was the rigidity of the procedure.

«Remedies preceed rights» is often said in English law. It means that people have no strict legal rights, but only the rights existing through the procedural formes.

Each writ was accompanied by a strict procedural form and the plaintiff who did not follow the appropriate procedure lost his case.

The slightest mistake in the spelling of a name or in the small details of the facts resulted in the dismissal of the case, so that again many plaintiffs were left without remedies.

It was only in the nineteenth century with the Judicature Acts (1873 and 1875) that it became possible to obtain a writ for any type of case and that the procedure became less rigid.

The Judicature Acts put an end to the limitation on the common law.

The royal courts became ordinary jurisdictions which could hear and judge any sort of case.

Also, the royal courts could now apply not only the rules of common law but also the rules of equity.

CHAPTER 3′ : Equity.

It covers a number of meanings.
In its broad and popular meaning, it means natural justice and moral justice and is a synonym for the French  «équité».
In its narrow (étroit) and technical meaning, for Englih lawyers, it means a number of rules and legal principles which are a complement to the main body of legal rules of the common law.
Equity was born as a complement of the common law and not as a rival body of law.
Decision Lord Dudley versus Lady Dudley (1705)
Def. Equity is no part of the law but a moral vertue which qualifies moderate and reforms the rigour and hardness of the law.
It also assists the law where it is defective and weak and defends the law from crafty evasions, delusions and subtleties invented to evade and delude the common law.

I Origins.

II Development.

III Problems created by the growth of equity.

IV. The contribution of equity to English law.

A. Creation of new rights.

Equity created new rights by giving legal force to some rights which the common law refused to acknowledge.

The most important rights were uses and trusts, which were ignored by the common law and which equity acknowledges as early as fourteenth century.

The system of the trust was developped for historical reasons.

In the feudal system, when a lord went on war or on crusade, the risks were such that he entrusted his property to a trustworthy person who was to administer his property in the interest of his wife or his minor children who were all incapable act law.

But the common law did not consider that the promise of the trusty had legal force.

If the trusty was dishonest, the original owner of the property on his return or the beneficiaries of the trust were remedyless.

At common law, the trusty has become the new owner of the property.

Equity intervened and acknowledged of such promises and created remedies in case of non-execution of the trust.

The system of the trust still exists and is very much used today.

It still implies three persons :

The original owner, the trusty and the beneficiary.

Sometimes, the original owner and beneficiary are the same person.

Many charitable foundations also called charities or public trusts are administered according to the system of the trust by a group of trusties whose task consists in investing the properties and using the revenue to help a category of people like the elderly.

Apart from public trusts, there are private trusts which are used by families to administer their property.

B. Creation of new remedies.

Equity elaborated new remedies to enforce rights which were acknowledged by the common law, but for which the common law has inadequate remedies.

The most important remedies were the decree of specific performance in case of inexecution of the contract when damages were insufficient.

-The rescission or annulation of the contract.

If it created a prejudice for the other party or third parties.

-The rectification of the contract.

If the contract did not express the intentions of the parties.

-Injunction to put an inspector (or official receiver).

In case of bankruptcy to prevent the defendant from destroying or selling the property in liquidation.

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It is to be remembered that all these remedies have discretionary characters.

They are used only in certain circumstances and are not obtained if the plaintiff has misbehaved.

C. Creation of new procedural forms.

In some cases, the common law procedure was not only too rigid but also deficient.

For instance, in some actions at common law the defendant did not have to (and sometimes was forbidden to) bring proof for his defense.

Besides, the royal judges limited their investigation to the parties without taking into account (prendre en compte) the interests of third parties.

Last, the common law did not oblige the parties to bring written proofs, which in some cases , like contracts, were necessary.

Equity introduced a written procedure that took into account the interests of third parties and obliged the parties to bring written proofs when necessary.

D. In case of conflicts.

In case of conflicts between the common law and equity, equity prevails under the Judicature Act of 1873, still in force (en vigueur) today.

V The maxims of equity.

Judges have a discretionary power to grant (accorder) or refuse equity remedies.

  To obtain a equity decision, the plaintiff must not contravene (contredire) the principles or maxims of equity.

Equity follows the law.

Normally, equity does not go against the rules of the common law, or against statutes.

 In practice, under the Judicature Act  (1873), in case of conflict, equity prevails over the common law.

Yet, statutes prevail over equity.

«Equity acts in personam rather than in rem».

Equity acts on the conscience.

 Equity does not care so much for the strict legal rights of the parties as for their conscience.
And it is in the name of moral conscience that equity intervenes, to oblige a party that misbehaved to respect this moral promise.

In the same way, it is in the name of moral conscience that the concept of contempt of court (mepris de la court) was invented.

In case of disobedience to an order given by the court of chancery, the defendant was guilty  of contempt of court, and was obliged to obey by force.

For instance, he was kept in prison as long as he did not obey.

Equity looks to the intempt rather than the forms.

It means that contrary to the common law, equity does not refuse to grant a remedy because the procedural forms have not been followed.

Also, if the terms of the contract are not well formated, the parties will not be bound by them.

Who comes to equity must have clean hands.

A plaintiff who seeks an equity remedy must have acted in good faith in the case.

A plaintiff who wants to obtain a decree of specific performance of a contract will have to proof that for his part he has performed all his obligations.

Who seeks equity must do equity.

The «E» principle is about past actions of the person who seeks equity.

  To obtain a decree of specific performance, the plaintiff must promise that he will fulfill all his obligations.

Equity will not suffer a wrong to be without a remedy.

The Judicature Acts (1873-1875).

Probate matters.

Liquidation of partnerships.

Redemption and forclosure of mortgages.

Exemption of trusts.

Rectification and rescision of contracts. 

Specific performances of contracts.

Partition and sale of real estate property.

The rules of the Supreme Court.

A number of more recent statutes.

The technique of distinction.

The publication of precedence.

a) The magistrate’s courts.
The magistrate’s courts are for the most part composed of laymen, i.e. non professional judges who volontary accept to sit as part time judges for minor cases.
The civil jurisdiction of a magistrate’s court is limited. They decide in actions in recovery, epecially for such debts to official or quasi-official bodies as income tax, national insurance contribution, water, gas or electrical charges.

They also decide domestic cases such as separation, maintenance (pension alimentaire), affiliation, gardianship of infants (tutelle) and adoptions.
Decisions of the magistrate’s courts in such dispute can be appealed against before the family division of the High Court of Justice.

The magistrate’s court also have jurisdiction over liquor licences, over betting licences and over theatre licences.
For licences, appeals against the decision of the magistrate’s court must be brought before the Crown Court.

b) The county courts.

Most disputes when the amount at state does not exceed £5000.

Action in recovery of land when the net taxable value of the land does not exceed £10 000

Disputes to which equity applies such as dispute about trust, mortgages or partnership. The amount at state does not exceed £30 000.

Litigious probate matters when the amount at state (property of the deceased) does not exceed £30 000.

Undefended divorces and related problems of maintenance and custody (garde) and also under the 1984 Matrimonial and Family Proceeding Act, some defended divorces.

Disputes relating to company winding-ups when the paid up capital does not exceed £ 15 000

Disputes about prizes when the amount claimed does not exceed £5 000 and about salvage when the amount does not exceed £15 000.

Disputes relative to consumer credits when the amount does not exceed £15 000.

All cases normally under the jurisdiction of the High Court (i.e. when the amount at state exceeds the above-mentioned sums). Also when, the parties to limit the costs and delays agree to have the case judged by a county court.

Cases of bankruptcy without any limitation.

Disputes relating to fair trading regulation.

Cases of hand registration.

Dispute with local government authorities.

Race relations cases.

Cases of river pollution. 

All cases relating to rents (bill) and to hire-purchases (location-ventes) for which the county courts have exclusive jurisdiction.

b) The High Court of Justice (HCJ).

The Queen’s bench division.

The Chancery division.

The family division.

1)

The Queen’s bench division.

The sail and partition of land as well as charges on lander property.

Administration of the estate of deceased persons and litigeous probate matters.

Execution of trusts.

The redemption and forclosure of mortgages.

Bankruptcy.

Dissolution of partnerships.

The specific performance, rectification, setting aside and rescission of contracts.

Patents, trade marks, registered designs and copyrights.

Appointment of gardians.

Under the Supreme Court Act of 1981 :The family division has jurisdiction over :

  All matrimonial cases for which it is empowered to grant decrees of divorce, decrees of nullity (annulation de mariage) or decrees of judicial separation.

All cases related to children such as cases of legitimacy, cases of custody or guardianship (tutelle), of maintenance and right of access (droit de visite), of affiliation and cases of adoption.

It is also competent for non litigious probate matters

Applications (demandes) for marriage of a minor.