The Present Relationship between Common Law and Equity - Term Paper Example

Topic: The Present Relationship between Common Law and Equity. Insert Undergraduate Insert Your Language Style: EnglishUK Date: 22 October 2008 Answer: Equity to the layman means fairness and justice, but in the legal context its meaning is much more strictly defined. There are rules of equity; it must obey the rules of precedent as does the common law1. Though the foundation of the equity can be trace back to the Norman Conquest (1066), its impact today remains as strong as ever. Its rights are the basis for many areas of modern law and its remedies are used daily by the legal practitioner of the 1990s. Its role in the English legal system is, therefore, one of the both historical creation and modern development and usage. Equity developed as a result of the inflexibility of the common law2. When the common law developed the strictures of the writ system through the twelfth and thirteen centuries and failed to develop further remedies. By thirteen century aggrieved litigants to petition to the chancellor to find a more just solution to their problem. Chancellor was trying to give relief in hard cases, and the medieval chancellor was peculiarly well fitted for this work. Chancellor was usually an ecclesiastic. If the petition was successful, the chancellor's conclusion would usually be different from that which the common law court would have reached; otherwise the matter would have been litigant at common law. As a consequence of growth of these petitions, the Court of Chancery had developed, where the decisions were made on the basis of fairness and reason. Thus the notion of 'equity' was established as a precise jurisdiction. The common law tradition grew in to the ELS3 through a long process of rationalization of traditions, customs and local practices among other different elements most occurring in the medieval time. The Anglo-Saxon customs were there before the Norman Conquest, but afterwards were joined with Royal Justice in a consolidation of 'local laws' and a vast body of judicial decisions have been built up which forms much of the present law. The common law has developed by the judges during the centuries immediately after the Norman Conquest. Customs have long influence since ceased to be any major significance in forming new laws. Slapper, G. and D. Kelly (2006) said that the common law system develops whereby a civil dispute had to be brought before the appropriate Royal Court by a writ. A claimant could only sue at common law if his complaint came within the scope of an existing writ. In the thirteen century available writs covered very narrow ground. Even if the claim came within the scope of an existing writ, it may have been that for some reason, such as the power and influence of the defendant, his opponent could not get justice before a common law court. Latter the petition was used to obtain relief in cases where the common law was inflexible and incapable of providing a remedy. Hanbury & Martin (2005) argued that the common law developed into a comprehensive system, but a litigant could only sue at common law if his complaint came within the scope of an existing writ. However, the systems quickly become rigid because judges, fearing a flood at actions as a result of the popularity of the royal justice, stopped issuing new forms of action. As a result, this attitude proved to be a majored obstacle to the development of new rules and principles. Initially this overlapping of the two systems led to conflict. The common law courts would make an order in favour of one party and the Court of Chancery would make an order in favour of other party. This conflict was finally resolved in the Earl of Oxford's case4 when the King ruled that equity should prevail. In this case the court of common law ordered the payment of a debt. The debt had already been paid, but the deed giving rise to the obligation had not been cancelled. The court of equity was prepared to grant an order prevent in this and rectifying the deed. Some limited steps were taken towards this fusion in the middle of the nineteenth century. The CPA5 1854 gave to the common law courts a certain power to give equitable remedies. This rule was subsequently enacted in the Judicature Act 1873. If a defendant to a common law action had an equitable defence to it, he had to go to Chancery to obtain an injunction to stay the proceedings in the common law court and then start a new action in Chancery to establish his equitable rights. This complicated system led to a number of difficulties. The Judicature Acts of 1873 and 1875 created The Supreme Court of Judicature; all of those branches exercise common law and equity jurisdiction. Hanbury & Martin (2005) mentioned that the division between the common law and equity continued until they were combined by this Acts. This legislation provided for procedural fusion of the two systems into one court hierarchy, which is the basis of the modern divisions of today's High Court. Rather than eliminating equity, the Acts, it is submitted, strengthened and confirmed its place in the future. A litigant could now bring his proceedings is one court which could apply both the rules of common law and equity as well as this Act confirmed that in the case of conflict, equity would prevail6. Section 49 of the Supreme Court Act 1981 confers the right to administer equitable remedies on all courts exercising jurisdiction in civil cases. Equitable remedies in equity are discretionary whereas at common law are available as right. Slapper and Kelly mentioned remedies in equity are awarded at the will of the Court and depend on Principles of justice and conscience and situation of the party claiming such remedies7. In equity the courts may exercise their discretion and refuse a remedy if, for an example, the behavior of plaintiff is questionable. The equitable maxim will be effective and an equitable remedy will not be granted to a plaintiff who has not acted fairly8. As the equitable remedies are discretionary, the court does not have to grant them even if the plaintiff wins the case. The most important remedies are injunction, specific performance, recession and rectification. Injunctions are court order to do or not to do something. Specific performance is a courts order that a contract should be carried out as agreed. Recession will be applied by returning the party to his pre-contractual state rectification means where the Court will order that a document be altered to reflect the parties' intention. For example The Anton Piller order allows inspection of goods and prevent disposal of goods. That may be needed in evidence at train9. However, the stage has not yet been reached at which it is immaterial whether a breach is of a legal or equitable duty. The Mareva injunction prevents disposal of assets abroad. It has the dramatic effect of freezing assets. In ELS10 much of the modern development of the law of estoppel, especially promissory estoppel and proprietary estoppel has been achieved without enquiring whether the doctrines are doctrines of equity, or of law or of both. The principle of promissory estoppel in contract owes its existence to the judgment of Lord Denning in the High Trees Case (Central London Property Trust Ltd v High trees House11). By this doctrine of promissory estoppel, if one person makes to another a clear and unambiguous representation of fact intending that other to act on it, if the representation turns out to be untrue, and if that other does act upon it to his prejudice, the representor is prevented or 'estopped' from denying its truth. He cannot, as it were, give himself the lie and leave the other party to take the consequences12. However, proprietary estoppel operates positively and is capable of creating new rights. Such rights are recognized in equity only, and in unregistered land, cannot bind a bona fide purchaser of a legal estate for value without notice. It must be regarded as a development in equity. Along sides these developments, equity also created its own set of rules, the 'maxims of equity' guide the judge in the use of his discretion in matters of equity. Generally, the breach of an equitable right will provide an equitable remedy only. Thus a breach of restrict covenant by a non-contracting party is remedied by an injunction, not damages; innocent misrepresentation, apart from the Misrepresentation Act 1967, by rescission and not damages; and breach of trust13 or other fiduciary duty by various equitable remedies. The stage has not yet been reached at which it is immaterial whether a breach is of a legal or equitable duty. In Seager v Copydex Ltd14 defendant had used a technical idea communicated to them in confidence by the claimant in marketing a carpet grip. In this case equity's remedies are an injunction and account of profits. But the circumstances of this case suggested that the most just solution was an assessment of damages. The CA held that the appropriate remedy must be granted; fictions of implied contracts or notional injunctions were not necessary; damages were thus ordered to be assessed. The development of new and more complex remedies has been as active as that of rights. The order of specific performance is still vital. The Present Relationship between Common Law and Equity are not fused. What can be said is that more than a century of fused jurisdiction has seen the two systems working more closely together; is changing and developing and improving from contact with the other; and each willing to accept new ideas and developments, regardless of their origin. They are coming closer together. But they are not yet fused. Therefore, equity as a source of law remains as current and as vital part of the English legal system. Bibliography: Cheshire, Fifoot and Furmston, (2006), Law of Contract, 15th Edition, London: LexisNexis, ISBN: 978-0199287567, Hanbury & Martin, (2005), Modern Equity, 17th Edition, London: Sweet & Maxwell, Pp 1-19 Penner, J. E. (2004), The Law of Trusts, 4th Edition, London: Butterworth's, Pp 13- 28 Slapper, G. and D. Kelly, (2006), The English Legal System, London: Routledge-Cavendish, 8th edition, [ISBN 978-1845680343]. Wilkie M. & Rosalind, (2006), Equity & Trusts: Equity and Trusts, Oxford University Press, pp 1-16 Zander, M. (2007), Cases and Materials on the English Legal System, (Cambridge: Cambridge University Press, 10th edition [ISBN 978-0521675406]. Read More