Introduction
Equity was developed more than hundred years ago to settle the claim of the dissatisfied litigants which arised from the harsh inflexible rules of law, which made the justice not prevailing. Equity is a set of legal principle of English law, which evolved from the English common law. The rule of equity is historically traced to the application of English monarch who dispensed what was termed as natural justice. (Duhaime, 2009, Hudson, 2005).
As being pointed out by Suryanarayana (2007), “Equity is the name given to the set of legal principles, in countries following the English common law tradition. Equity supplements strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as “natural justice.” It is neither statutory law i.e the laws enacted by a legislature, such as Parliament, nor “common law” i.e the principles established by judges when they decide cases”.
However, common law is a body of law that was evolved from custom and general principles, which serves as precedent or can be applied to the situations that are covered by statute. Common law is also based on embodied report and judicial decision on which to determine cases. (Encyclopædia Britannica,2009).
Equity as it exists today provides form of justice, which tries to rectify errors that were evolved from common law. Typically, equity in law is purposely to ensure that the victim achieve some underlying right. (Hudson, 2005).
The major objective of the paper is to examine the reasons that led to the creation of equity.
The rest of the paper is structured as follows:
- First, the paper provides the differences between equity and common law.
- Finally, the paper provides the relationship between equity and common law.
Reason for the creation of equity
The creation of Equity can be traced from historically more than hundred years ago when English common laws had limited jurisdiction to provide relief on civil cases such as payment of damages. (Encyclopædia Britannica. 2009).
Typically, the excessive rigidity of common law, which refused to look into the issues of legal titles that could determine the obligations and the rights on the issues concerning land led to the creation of equity. (Kreling, nd, Encyclopædia Britannica, 2009). It should be noted that the English common law had limited or no relief to the payment of damages when the cases involve damages of property as well as recovery of property were referred to court.
Meanwhile, many litigants were disappointed from the ruling common-law courts, and for better justice and fair ruling, many dissatisfied litigants turned to the King for fair justice because of ineffective power of court of common-law to offer fair justice on the property owners. In the 14th century, the Court of Chancery was created to offer new remedies on property disputes. Thus, this new court offered remedies to the issues of equity compared to rigid remedies offered by the common-law.
However, the middle 17th century saw the full recognition of Court of Chancery as part of law that can determine land dispute. By the late 19th century and 20th century, modern equity was evolved, and its development has been assisted by legislation. (Encyclopædia Britannica. 2009). Thus, the creation of equity was as a result of the principle that common law failed to redress. (belcherfoundation, nd). For example, the case of A-G v Blake. The house of lord ordered for equitable remedy for violation which the common law was insufficient to offer. It should be noted that the common law failed to offer remedies to damages, and the courts operating under common law failed to offer compensation in order deter people from illegal conduct. For example, selling piece of land illegally.
Thus, many dissatisfied litigants preferred to seek for justice from the King for mediation, where the King determined cases from his own discretion. Thus, for many years the ruling of the Lord Chancellor was popularly known as the rules of equity. Thus, the rules of equity led to the creation of equity because equity began to evolve as apparent form of principles, and this evolved from the reign of Lord Nottingham in 1673. Thus, before the end of 1827, equity was recognized as a form of jurisdiction under the rule of Chancellorship of Lord Nottingham. Since that time individual who was dissatisfied from the ruling of court of common law would seek for redress at the court of equity. (UK essay, 2009).
Thus, Equity evolved as the body of cases, rules, principles, maxims, and doctrine that was derived from original court of Chancery of English high court. (Legabanter, 2006). Hudson pointed out “equity provides better form of justice because it provides for a more specific judgment as to right and wrong in individual cases which rectifies any errors fairness which common law would otherwise have made”. (Hudson, 2005, p8)
From the explanation of Hudson, it is revealed that the creation of equity was as a result of the weakness of the common law with related to compensation on damages. Thus, to provide detail insight on the equity, the paper provides differences between equity and common law.
Difference between equity and common law
Suryanarayana, (2007) asserted that the major difference between equity and common law can be seen from the remedies that each offers. The decision of the common law court s made with reference to the statues or legal doctrine. However, in equity, there is emphasizing on fairness, equitable, and flexibility. In addition, under equity, the court can award money in form of damages to punish a person from acting contrary to equity law.
Essentially, the equity represents form of justice that can be termed as collective justice because the justice offered by equity represents universal law where every individual can seek redress for legal justice. Hebrum (2001) argued that equity is superior to common law because equity provides individual legal justice unlike common law which addresses collective justice. The author further argued that the major difference between equity and common law is the implementation method. The court of equity administers the principle of equitable, which involve remedies and equitable maxims.
Under the right of land ownership, the equitable right is a type of right that can be used to possess estate in common law. Typically, common law provides limited remedies to the payment of money to classes of person. However, under the system of equity, it provides more and different type of remedies which involve rescission, injunctions, and rectifications for wrongs under the common law. The remedies under equity also involve particular importance in the possession of common law. ( Wonnacott, 2006).
However, some group of author has argued against the distinction between equity and common law because of the relationship between the two bodies of law.
Relationship between equity and common law
Some scholar’s belief that “Equity has become a source of legal principles in much the same way as the common law “(Hebrum, 2001, p6). Typically, to examine the relationship on the jurisdiction between the equity and common law. The dynamic operation of equitable jurisdiction and common law is that the equitable jurisdiction is meant to deal with inadequacies of common law. Hepbrum argued that the relationship between the equity and common ought to be mutual however it is not always the case. (Hebrum, 2001).
However, Legalbanter (2006) argued the difference between equity and common law have become thin because both type of legal system work in different way to achieve the same objective. The author argued that it is wrong to assert independence between equity and common law. To support the argument of the author, it should be noted that the foundation of equity is to prevent the exploitation and unsatisfactory result that common law produced. Thus, the historical foundation of equity can be linked to the common law, which is related to the equitable remedies not available in the application of common law in order to implement justice.
Conclusion
The paper examines the creation of equity and the differences between equity and common law. The paper also examines the relationship between equity and common law. Essentially, the paper argued that the equity has evolved from the inadequacies the common law seeks to redress. The creation equity evolved from the determination of Chancellor over a case which the common law had failed to redress.
The paper also pointed out that the difference between the equity and common law can be linked from their implementation and remedies that each has offered. However, both equity and common law work interdependently because both body of legal systems work in different ways to achieve the same objectives.
List of References
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Duhaime, L. (2009). Equity. Web.
Encyclopædia Britannica, (2009). common law. Web.
Encyclopædia Britannica, (2009). Equity. Web.
Hebrum, S.J. (2001). Principles of equity and trusts, Routledge, UK.
Hudson, A. (2005). Equity and Trust, 4th ed, Routledge Cavendish, United Kingdom.
Kreling, P. (n.d.). IN PRAISE OF COMMON LAW AND EQUITY AND AGAINST STATUTE LAW, Libertatarian Alliance, UK.
Legabanter, (2006). THE COMMON LAW AND EQUITY, only intelligent comment pls, Jelsoft Enterprises Ltd, UK.
Suryanarayana, V. (2007). What is equity?, SCR Link Journal, South Central Railway, Rail Nilayam.
UK essay, (2009). Equity fulfilled the common law although it does not endeavour to dispalace with moral code. Web.
Wonnacott, M. (2006). Possession of Land, Cambridge University Press, UK.