The Creation of Equity and Its Difference From Common Law - Essay Example

Equity and Common Law I. Definition of Equity and the Reasons for its Creation The term equity was derived from the Latin word aequitas or aequus meaning equal. It is a branch or system of law which developed together with common law as a means to resolve or correct its faults in justice and fairness (equity). Generally, Equity refers to natural justice which identifies and defines what is moral or what is ethical, and what is just or fair. More Specifically, equity is a set of legal principles adhered to by countries that follow the English common law tradition, which provides remedies for defects in common law due to its strict, harsh or unjust implementations. It is a supplement to strict laws which do not really provide adequate remedy to mistakes or erring actions done. Common law is the set of principles established by the judges based on the cases that have been decided on already. These common laws however cannot be absolute in its application or implementations. There are some cases where it is impossible to apply the general statements established under common law. Application of common law principles at times leans towards injustice, so equity comes in as a rectification or a modification of the law in instances when the law is deemed ineffective or defective. Equity was created in England when the policies and restrictions of common law failed or were not able to solve all the problems. It developed when laws comprising common law became too rigid and technical that it led to inadequacy in upholding justice. Those who felt that the common law system was inadequate in solving their problems were allowed to air their grievances to the King. A King’s council was established to look into the grievances. The duty later was delegated to one individual who was called the Lord Chancellor and was known to be the “King’s conscience”. The Lord Chancellor presided over the Court of Chancery which only dealt with civil cases such as contract and property disputes or issues. The Court of Chancery soon became an adversary or a challenger of the common law courts and lawyers found it nearly impossible to correctly advise their clients because the Lord Chancellor was unbound by the law and can give any ruling he deemed correct (History of the Judiciary). A clearer distinction between the Court of Chancery and the English common law courts is that although the English common law courts employed their duties under the general authority of the King, their function is still mainly judicial in nature. This function is limited to the non-discretionary judgment of laws. On the other hand, the function of the Court of Chancery was executive in nature. Since the Lord Chancellor was considered the King’s conscience, he had the authority of executive discretion. A law may be considered erroneous or defective based on certain conditions which include universality, refusal of the judge to grant relief to a complainant, and strict application of law leading to hardships. One reason for making an exception to the law is its universality where not one general law can be applied to several different cases. Some laws are too broad that it becomes inaccurate and at times becomes inapplicable to certain cases. The diversity of the behaviors and actions of individuals make it impossible to apply one general law to different actions and circumstances. Another reason why people go somewhere else to attain the justice they deserve is when judges, owing to their personal reasons, refused to grant the complainant relief. Historically, this was the purpose of the Court of Chancery. It provided a place where grievances may be lodged to be analyzed and judged again. Equity can also be justified when the result of a strict application of the rule of law was hardship. In this case, the harsh verdict or ruling was considered as being opposed to justice. II. Differences between Equity and Common Law Common law is considered as the basis of fundamental legal principles. Its principles were stated by judges in the proceedings where legal disputes are presented to them. It is the part of English law that is not embodied in legislation but is comprised of rules of law which are based on general customs and court decisions. It was developed as the law common to England as a whole instead of applying local laws. Common law consists of laws that are drawn from the precedents set by judges in their previous cases. This is referred to as the doctrine of judicial precedent. In deciding cases, judges should refer to principles of law stated in previous cases involving similar points, though the law may be modified or extended if the particular case contains different facts (Common Law). It was then very important to keep records of judicial decisions. Common law functions to keep the law in accord with the needs of the people or the society when there is no legislation applicable. Common law is characterized by its representation of the law of the courts through the judicial decisions. Rather than basing court decisions on the Acts of Parliament, common law uses past court decisions as the ground for deciding cases. Aside from using the system of judicial precedents, common law employ trial by jury and abides by the doctrine of the supremacy of the law (The history of the common law). There are several differences between equity and common law. Common law is bound by bureaucracy rules and is rigid, while equity is flexible and is based on justice and a moral code. The principles in common law are all encompassing meaning it shall be applied to cases classified under a specific category or type. Equity considers the diversity of actions and situations which render the need to adjust laws to best fit the specific situation. This flexibility results to just decisions and remedies that are fairly commensurate to the fault or error committed. Another distinction lies in Equity acting only as a supplement to common law as opposed to the complete system of common law. Still another distinction is the affording of time limits. There are certain time periods or limits required for actions to be presented under the common law. On the other hand, no time restrictions are set for complaints to be lodged or actions to be forwarded in equity, although it stands by the principle that delay defeats equity (The Sources of Law). The most significant difference between common law and equity is the remedy available. The only remedy offered in common law is damages which is usually monetary. Equity on the other hand has different remedies depending on the situation. Equity may enter injunctions or decrees ordering a person to either act in a certain way or prohibit from certain actions. These are oftentimes more valuable to the litigant than money. In Common law, damages are rewarded as a right or as a consequence of winning the case. In equity, there is a complex analysis in determining if a particular remedy is appropriate to the fault or crime committed. This remedy is more often than not non-monetary. Another major distinction is the absence of a jury in equity. Instead, the judge serves as the trier of fact. The source of rules which govern the decisions is also different for common law and equity. Decisions are made with reference to legal principles of statutes in common law. Decisions based on equity, on the other hand involves general guides which are known as maxims of equity. These guides emphasize flexibility and fairness. Confusion at times arose when equity was used because of the lack of fixed rules. As time progressed rules were also established for equity and its flexibility lessened. III. The Present Relationship between Equity and Common Law Common law is a complete system in itself. Although, justice may seem vague or overly stringent in the absence of equity, still, common law can exist without it. Equity on the other hand needs common law as the initial process in its complex system. It acts as a supplement to the common law. In cases where the common law is not sufficient to meet the actual needs of the case or to meet the specific demands of the situations involved, equity comes in the picture to provide a hand in determining the most reasonable or evenhanded decision and remedy. Equity cannot exist by itself. Cases should be first determined as to its simplicity or complexity through the common law courts. Those which fit the circumstances stated in the common laws will have to abide by the common law principles. Those cases which are too complex for the general laws provided by common law are forwarded to equity for a more thorough and flexible scrutiny. The relationship between common law and equity is one of coordination and complement where one needs the other in order to provide the best possible practice of the rule of law. The premises or the goals of both systems of law may be different, but both aim to settle disputes, to solve problems, to uphold the legality of laws, and ultimately to maintain peace and order. The maintenance and sustenance of the relationship between common law and equity is to provide the accurate justice and the appropriate remedy to the aggrieved people. In the earlier days, equity was seen as the automatic alternative where intervention is always inevitable if grievances were filed by individuals. It was also viewed unpredictable because of its lack of consistency owing to the variations in the decisions of the Lord Chancellor (Fusion of common law and equity). In present time, equity will not intervene all the time. It is not always the first and immediate alternative in cases where a decision seems to be unfair. Equity will come in the picture if there are sufficient grounds which can be used in making a decision. Otherwise if there are not enough bases for trying to override decisions in common law courts, then equity will not be spun into action. There always exists and interplay between common law and equity. The dynamic relationship between the two revolves around the complexity of cases presented before them. To explain this dynamic relationship further, it is important to again distinguish equity from common law. Common law rights and remedies are given as due rights, while equitable rights and remedies are afforded only at the court’s discretion. This means that the discretionary nature of equity rights and remedies establishes the scenario that not all similar cases will receive the same decisions and remedies. It is always a case to case basis. In contrast, decisions and remedies involved in common law, are consistent and are applicable to cases which fall under the same type or category. There always exists a possible development of common law into equity or an integration of the two. A change from common law to equity usually benefits the people concerned as it offers more flexibility due its discretionary nature to come up with better damages or compensation. Although both systems appear to be rivals because of their different goals and because of the use of another after a failure of one, both still co-exist within the state or nation. They value each other’s role but at the same time oppose each other in varying situations and degrees (Franklin). The balancing of the support and opposition makes the relationship of common law and equity dynamic and co-existent. Both systems need each other to fulfill their ideal and ultimate responsibility to the people which is the provision of justice. Works Cited "Common Law." Tiscali. 19 Oct 2007 . "equity." Compact Oxford English Dictionary of Current English . 19 Oct 2007 . Franklin, Mitchell. "A New Conception of the Relation Between Law and Equity ." Philosophy and Phenomenological Research, Vol. 11, No. 4 (1951): pp. 474-488. "Fusion of common law and equity." E-learning Development Network. 19 Oct 2007 . "History of the Judiciary." Judiciary of England and Wales. 19 Oct 2007 . "The history of the common law." 28 Sep 2007. The Open University. 19 Oct 2007 . "The Sources of Law." Porfex. 19 Oct 2007 . Read More