The Legal Terms Equity and Common Law - Essay Example

Theodore Greenberg Order October 22, 2008 Equity and Common Law This paper will review the legal terms Equity and Common law, their historical development in the courts of England and the United States and how they are relevant to judicial proceedings in modern times. What is Equity Equity is an English system of justice developed during the 17th and 19th centuries separate and distinct from common law. Not bound by precedents, it tempered the harshness and inflexibility of common law especially when dealing with families and children. Although both systems merged in 1875, the rules of equity prevail in a case of a conflict with the rules of common law.1 The courts of law in medieval times enforced the law of the king. The range of claims that these courts agreed to hear gradually became more restricted and painfully technical, and many deserving plaintiffs were denied a hearing. A plaintiff's alternative was to send a petition directly to the king, asking for mercy and conscience to decide the matter. The king regularly delegated these petitions to his chancellor who was the king's clergy and confessor. Soon the Chancery, the king's secretarial department, began to resemble a judicial body and became known as the "Court of the Chancery." By the 15th century, the judicial power of the "Chancery" was recognized. Equity as a body of rules varied from Chancellor to Chancellor until the end of the 16th century. After the end of the 17th century only lawyers were appointed to the Chancery. Equity acts as a system of decrees forcing an individual to act or forbidding an individual from acting by issuing injunctions or decrees. However in modern times a court will be reluctant to this if another solution namely monetary compensation is available. Thus the most common solution found in court system today is for a litigant to request damages in the form of monetary payment. This is the basic distinction between using equity determinations to administer the law and the law system as it exists today. Another distinction is that in the system of equity the judge is the "trier of fact"2 and a jury is not available. Here the forefathers of the United States took exception to equity courts: they wrote the VII amendment to the Constitution to ensure all citizens have the right to a jury in civil cases. A final distinction between equity and law is the source of rules of rules on which decisions are based. In law, common law is established by judges using previous decisions and precedents. Statutory law is determined by the legislature and a statute it makes by this governing body for a judge or enforcement agency to mandate and satisfy the will of the legislators. In contrast, equity, which concentrates on fairness and flexibility, has only general guides known as the maxims of equity.A chart showing these traditional maxims has been inserted here: Among the traditional maxims are: 1 Equity regards as done that which ought to be done. 2 Equity will not suffer a wrong to be without a remedy 3 Equity delights in equality 4 One who seeks equity must do equity 5 Equity aids the vigilant, not those who slumber on their rights 6 Equity imputes an intent to fulfill an obligation 7 Equity acts in personam. 8 Equity abhors a forfeiture 9 Equity does not require an idle gesture 10 One who comes into equity must come with clean hands 11 Equity delights to do justice and not by halves 12 Equity will take jurisdiction to avoid a multiplicity of suits 13 Equity follows the law 14 Equity will not aid a volunteer 15 Between equal equities the law will prevail 16 Between equal equities the first in order of time shall prevail 17 Equity will not complete an imperfect gift 18 Equity will not allow a statute to be used as a cloak for fraud 19 Equity will not allow a trust to fail for want of a trustee Richard Edwards, Nigel Stockwell (2005). Trusts and Equity The historic objection to equity was that it had no fixed rules of origin. From time to time a Lord Chancellor would decide a case according to his conscience and from the seventeenth century onwards equity was consolidated into the system of precedents that came to be known as the system of common law. One function of the Court of Chancery was dealing with the enforcement of uses. Use in law meant the handling of real property. Uses were beneficial interest in land. In early law a man could not dispose of his land by will nor could a religious house acquire it. A method of avoiding this common law was the establishment of feoffments to the use of or trusts for, persons other than the legal owner of the property. The Statue of Uses of 1535 was enacted to stop the misappropriations of property and evasion of tax payments to the king. However this law failed to accomplish its purpose and the modern law of trust arose2. The rigid framework of land law could not accommodate the principles of equity, and gave rise to the distinction between legal and equitable interests.3 Common law refers to law and the corresponding legal system as determined by the courts and similar tribunals, rather than by statutes made by a legislative body or executive action. The common law is defined and refined by judges: a decision is currently pending depends on decisions made in previous cases and will affects the law on decisions to be made in the future. When there is no authoritative statement of the law; judges have the authority and the duty to make a precedent. The body of the precedent is called the "common law" and it binds future decisions. In future court cases when parties disagree on what the law is, an idealized common law court looks at precedential decisions from relevant cases to determine the law in this particular case (this principle is called stare decisis).5 Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere - "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi - "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides - for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts. If a court finds a matter to be fundamentally unique without precedent it will decide as a "matter of first impression".6 Thereafter the new decision becomes precedent. In practice the decisions from common law become considerably more complicated than the idealized system described. Decisions by courts are only binding in a particular jurisdiction and even within a jurisdiction some courts may have more power than others.7 . Common law decision of a case is determined how a similar problem was solved in the past and a judge is not free to interpret the law according to his wishes. Here a system of precedents and case law took the form of not leaving a judge capable of deciding a case from his own conscience. Early on in the establishment of the United States of America Thomas Jefferson was quick to recognize the inherent contradiction in equity courts. In 1785 he explained his reasons for abolishing such courts in the new forming nation: 1. It cannot take cognizance wherever common law can provide a full remedy. 2. That it cannot interpose in any case against the letter and intention of the legislature. 3. That it does not interpose in any case that which does not come in the description and admit of redress to a general and practicable rule. In the United States today federal law has merged equity and law into general jurisdictions, such as the county courts. Equity courts were widely distrusted in the Northeastern states and abolished by the end of the 1700's. Mid-Atlantic and Southern states were slower to abolish their equity systems. The federal courts did not end the common law/equity separation until the passage of The Federal Rules of Civil Procedure in 1938.8 After the U.S. Courts merged the principles of common law and equity, it found many of the equity system's procedurese more flexible than those of common law. Certain devices such as joinder, counterclaims and cross claims originated in the courts of equity. There still exist separate courts of equity: an example is Delaware's Court of Chancery which handles matters of corporate law which developed out of the law of trusts. Other states such as Illinois and New Jersey have separates divisions for deciding equitable and legal matters. Areas traditionally handled by Chancery courts included wills, probate, marriage, divorce and guardianship. This paper has attempted to contrast the legal systems of Equity and Common law and their evolution from medieval times when the word of a King was law. It tried to explain why judges now do not depend on individual conscience to make decisions in legal matters. However the need for equity still exists for decisions requiring conscience. It tried to explain why judges today are not allowed to depend on individual conscience in legal decisions. The system of legal equity provided the courts flexibility and legal to uphold the law in a fair and humane manner. The use of common law and case law precedents guides court in a straight path to correctly use of the law. References 1. Web site "equity" BusinessDictionary.com. WebFinance, Inc. October 22, 2008 . 2. Web Site "Trier of fact" Wikipedia.org Wikipedia The free encyclopedia October 22, 2008 > http://en.wikipedia.org/wiki/Trier_of_fact> . 3.Web site "Statute of Uses" ibid October22, 2008 4. Web site "Equity Law" ibid October22, 2008 5. Web site "Equity law" ibid October22, 2008 . http://en.wikipedia.org/wiki/Stare_decisis>> 6. Web site "Case of first impression" ibid October 22, 2008 http://en.wikipedia.org/wiki/Case_of_first_impression>> 7. Web site "Common Law" ibid October 22, 2008 http://en.wikipedia.org/wiki/Case_of_first_impression> > 8. Web site "Federal Rules of Civil procedure" ibid October 22, 2008 http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure Read More