Common law and Equity - Essay Example

Equity is no part of the law, but a moral virtue which qualifies, moderates and reforms the rigour, hardness and edge of the law and is a universal truth. It also assists the law where it is defective and weak in the constitution. It refers to a particular set of remedies and related procedures. The role of the office of equity is to support and protect the common law from shifts and crafty devices against the justice of the law. Equity neither destroys nor creates the law but assist it. Equity is a means of preventing any unfairness which might otherwise result from rigid application of formal legal rules (Hudson, 2005, p.14,). Equity supplemented and remedied the deficiencies in the common law.

The main remedy at common law is damages. Equity offers remedies other than damages such as the injunction and specific performance (Gubby, 2004, p.37). Equity will not suffer a wrong to be without a remedy, and thus equity establishes its core jurisdiction to ensure that a claimant will be entitled to acquire some redress for a wrong done to him or her or to protect some right in property (Hudson, 2004, p.9). The fundamental similarity between common law and equity is that. s a moral character to the common law and may be used synonymously with common law for the simple reason that what is legal is necessarily moral (Hamilton, Jaren, Pound, 1999, p.91). Except for different mode of administering justice in each court, it is law and reason which governs both equity and common court.

Both equity and common law are 'damages'. 'Damages' at common law means a monetary response to a breach of duty. That breach of duty might be a breach of contract or it might be tort. This approach nullifies a prevalent view that 'damages' are synonymous to compensation. In common law, non compensatory monetary awards for wrongs that are acknowledged to be forms of damages namely exemplary damages, restitutionary damages and disgorgement damages. All these forms of damages have counterparts in equity.

Awards of equitable compensation or 'accounts of profits', which responds to wrongs in equity, are actually different forms of damages. With the recognition that the former are simply equity's 'compensatory damages' and the later are equity's 'disgorgement damages', an understanding of rules of causation and remoteness in equity can be developed in comparison to common law counterparts. Although different sets of rules apply for different wrongs and different conducts, the nature of law is always relevant for both common law and equity.

For example, the wrong of fraudulent representation in equity is identical to the tort of deceit and for that matter the same test of remoteness should apply and comparison is helpful (Robertson, 2004, p.32).Differences In case of common law, remedy is granted to a claimant who could establish a case at law, usually in proof of certain formalities and pleading a specified form of action. A common law is fairly inflexible in