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The common law and equity - Case Study Example

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It is necessary to discuss common law development, creation and maxim of equity along with Judicature Act 1873.to answer this question. The significance of this Act, s.49 of Supreme Court Act 1981, equitable principle and relevant case law is also very discretionary regime crucial…
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The common law and equity
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Download file to see previous pages Equity's impact remains as strong as ever and traces down its foundation to Norman Conquest. 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 which must be obeyed. Like any common law, its development may appear equally inflexible and rigid1. Its rights gave foundation to many modern laws and the remedies are daily used by the legal practitioner of the 1990s.
Therefore, it plays a substantial role in (British) English legal system. It is a historical creation with modern usage. It is not a pre-conceived theory rather equity is delineated by a series of historical events.2.
In the medieval period the chancellor was the most important person in the country next to the king himself. By varying existing writs or inventing new ones, the chancellor could have some influence on the development of the law. 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 only 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, but only due to some reason, such as the power and influence of the defendant, the opponent could not get justice before a common law court. Latter the petition was used to obtain relief 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 became rigid because judges, feared a flood of actions as a result of the popularity of the royal justice, which stopped issuing new forms of action. As a result, this attitude proved to be a major obstacle to the development of new rules and principles.
By thirteen century, hurt litigants filed a petition to the chancellor, to find a more justified solution to their problem. Chancellor was trying to give relief in tough cases, and the medieval chancellor was peculiarly well fitted for this work. If the petition was successful, the chancellor's conclusion would usually be different from that of common law court. Otherwise the matter would have been litigant at common law court. As a consequence, the growth of these petitions rose. The decisions were made on the basis of fairness and reason and so the notion of 'equity' was founded.
The common law tradition grew in to the ELS3 through a long process of rationalization of traditions, customs and local practices, during 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 resulted in the forms of the present laws. The common law has developed by the judges during and after this century. Customs have a strong influence, which seemed ceased, in forming the new laws. When equity originally developed, gave a gloss to the common ...Download file to see next pagesRead More
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