Present Relationship between Common Law and Equity - Coursework Example

Introduction The law is inherent part of social structure. It can be broadly defined as a set of rules promulgated by the sovereign body to maintainlaw and order and to disperse justice as per the interpretation of the law for the concerned party or parties for the wrong committed. But in rare cases, the strict adherence to rules leads to injustice and need for more flexible approach becomes necessary for greater fairness and equity for larger segment of the masses (Greenberg & Cohen, 1982). It is for these reasons the concept of equity rules and equity court of law came into existence. The larger ramifications of equity laws and common laws closely resemble and therefore differentiation becomes the critical factor in the legal system. The paper discusses the paradigms of equity and common laws and their importance in the contemporary times. Common laws The legal rules, which are made by judges on the basis of doctrines that have been in existence for more than 700 years, come under the precincts of ‘Common Laws’ (LLS1). These laws are neither enacted in the parliament nor were made by the delegated legislation of the local authorities but primarily developed over a period of time and adopted by the judges as such from the statements of principles from the earlier court cases. These common laws have justified their existence by successfully facilitating resolution of disputes in the areas that have seen maximum conflicts of interests in the life of the general public. Legal paradigms and reasons for creation of equity The basic concept of law is to respond to human needs and problems and evolve solutions that are broadly based of social justice. While fundamental of common laws necessitate rigid adherence to the judgement of preceding cases, equity rules become necessary appendages to the wider ramifications of the jurisprudence of the goals of social justice. They provide relief to the victims on the basis of applying a flexible approach to common laws, using moral and ethical considerations. Indeed, application of general rules and principles (as in common law) to particular cases is based on the assumption that it would result in just outcome which are generally fair. But sometimes, due to the complexities within the cases, the outcome is not fair. It is especially true in the property and contractual cases where the written contract becomes the key to the outcome of dispute. The unfair justice and need for equity is highlighted when there is scope of dishonest declaration in the written document or contains highly discriminatory modules in favour of one party (McDowell, 1982). Thus, to provide people with more leeway to get justice, the court of equity, also known as court of Chancery, was established by the King of England in thirteen century. The equitable justice was disbursed by the Chancellor and its outcome heavily relied on his conscience. The discretionary power of the chancellor in ensuring equitable remedial justice was significant in its application. The injunction order aims at restraining the rights of party who was unfairly awarded while the use of constructive trust was important issue within the moral application of the law of equity that favoured the party who had not got fair hearing in the common court of law. These two clauses thus, became the mainstay of the law of equity. Relationship between equity and common law The court of equity was mainly established to mitigate the effects of the rigidity of common law outcomes. Common law derives its strength from the fact that it has passed its test to provide justice over a long period of time and cited with respect to various previous court cases. Equity laws, on the other hand, were used to provide flexibility to the common law and make them fair and justice oriented while taking into considerations the wider aspect of social and moral aspect of the case (Snell, 2000; Maitland, 1936). Hence, they were considered as complementary to each other and merged under the Judicature Acts (1873-75) and were brought under one unified court where judge is free to use common law remedy or equity based remedy. Lord Denning has used landmark court cases to corroborate the merging of two laws and shown that the new acceptable format of justice is fairer and promotes equality (1984). Tinsley v Milligan [1994] 1 AC 340, the court had ruled that common law and equity are one and therefore, under English Law, the equitable interests and the ownership to property needs must be taken as a right in rem and not as a right in personam. Indeed, Lord Goff in Napier and Ettrick (Lord) v Hunter [1993] AC 713 has asserted that ‘No doubt our task nowadays is to see the two strands of authority, at law and in equity, moulded into a coherent whole’. Thus, congruency in the two laws has become more visible in the court rulings. It is also important to remember that the cases under equity law can only be taken when one of the parties feels that justice has not been done under the common law. The most significant difference between common law remedy and equitable remedy is that one is available by right as per the written contract. The other (equitable remedy) is gained through discretion granted under equitable jurisdiction. Hence, it can be said that though a person may have the title of ownership for a land under common law but he can be prevented to use the same through the clause of injunction under equitable justice. The equity can allow another person to use the said land under constructive trust. Significance of equity in legal system The law of equity is still significant because it was primarily evolved to fill in the shortcomings of common laws when they were found to be unfair. The laws of the land need to look at the wider aspect of human interactions and respond the complexities of situation so as to deliver justice based on equity. Common law is developed through time while equity is neither written nor is time tested. But equity becomes highly relevant because it looks at the intricacies of the developing situations and applies ethically delivered logical solutions. Hence, the importance of equity is realized when the reasonable expectations of the general outcome of common law are not satisfactory to the parties and tend to favour one against the other on the basis of written contract whose validity can be questioned. Indeed, the wide ranging consequences of the equitable remedy are highly relevant issues within the fair judicial system. Hence, it had become important that equity was also brought within the ambit of principle of maxims and minims so that court of equity was able to use broader framework of principles along with chancellor’s discretions in granting equity. The various maxims vis-à-vis irreparable harm, unconscionable, balance of convenience etc are important ingredients is granting equity based remedies to the aggrieved parties. Role of equity in contemporary times In the contemporary times, the role of equity has become essential facilitating tool for widening the ambit of common laws. Hence, the inter-dependence of the two in granting fair and just hearing has become critical element of the modern legal system across the globe. Legal experts assert that ‘the fundamental notions of equity are universal applications of principle to continually recurring problems; they may develop but cannot age or wither’ (Meagher, Heydon & Leeming, 2002). Conclusion One can therefore, conclude justifiably that common law and equity are intricately linked to provide justice. They are complementary rather than contrary to each other’s interests and promote equity amongst the various segment of the population. They meet the needs of the fast transforming equations of the society in the rapidly changing environment of globalization which were increasingly becoming multi-cultural. (words: 1299) Reference Greenberg, J., & Cohen, R. L. (Eds.). (1982). Equity and justice in social behavior. New York: Academic Press. Lord Denning. (1984). Landmarks in the Law. Butterworths. Maitland, F. W. (1936) Equity. 2nd ed. Cambridge University Press. McDowell, G. L. (1982). Equity and the constitution: The Supreme Court, equitable relief, and public policy. Chicago: University of Chicago Press. Meagher, R P., Heydon, J D., and M J Leeming. (2002) Meagher, Gummow and Lehane’s Equity, Doctrines and Remedies.4th ed. Butterworths LexisNexis. Snell, E. (2000) Principles of Equity. 30th ed. Sweet & Maxwell. Read More