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Equity - Essay Example

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The concept of Equity shaped out of royal concern for common subjects. One of the most important historical sources of English law, Equity has a long-rooted history in the legal body of knowledge. In the days when the range of law was highly limited and constricted, when legal judgements sounded unusually harsh far removed from social reality, ordinary people either refrained from going to Court of Justice, or stunned by the cruel judgements, started appealing directly to the King in the hope of overturning just judgements…
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Download file to see previous pages Chancellor being unbound by Common Law, this gave rise to direct petitions to him by people who were disillusioned by unbending legal rulings and needed immediate remedy and this urgency and huge requirement led to appointment of Chancery Masters. Equity flourished for centuries, and gave relief to ordinary people with sensitivity and awareness of social difficulties.
Equity deals with Inquisitorial procedure (based on questioning and examination by the judge) and judge can sub poena the suspects and witnesses to compel them to attend proceedings. We come across historical evidence that Common law courts resented the wide popularity of Court of Chancery. Contradictions and opposition went on for some time and reached the peak in 17th century dispute, The Earl of Oxford's Case (1615) and King James I had to order for Attorney General's intervention to stop Lord Chief Justice and Lord Chancellor from bickering and according to King's dictum where there is a conflict between equity and common law, equity prevails and it holds good even today.
Equity remains the name given to a set of legal principles practiced where English law is in vogue. Sometimes referred to as Natural Law, it is part of English legal tradition. Sources of Equity are far removed from sources of Common Law. The set of remedies that law and equity offer differ and uphold the difference between common law and equity. Equity bends more towards injunctions or degrees with directives for acting or refrain from acting and this relief is considered more practical and based on sound common sense and social knowledge.

Equity with its emphasis on fairness and flexibility has only general guides known as the maxims of equity. Criticism prevails that it has no set of rules of its own and is baseless. At times, it is called a set of fluctuating rules that the Lord Chancellor, depending on his common sense and conscience has collected. Today it is not as flexible as it used to be and got consolidated by systems and precedents and has attained certain rigidity in its approach. Earlier Chancellors were not legally trained and this was remedied when Sir Thomas Moore became Lord Chancellors in 1529 and only lawyers succeeded him. Today's Equity has equitable doctrines and impressive precedents and has grown into an independent branch of law. It is also referred to as Supplementary Law which is part of law of the land.

"In my view equity has added to our legal system, together with a number of detached doctrines, one novel and fertile institution, namely the trust; and three novel and fertile remedies, namely the decree for specific performance, the injunction, and the judicial administration of estates," Maitland (1949, p.22).

Equity has made substantial contributions to the body of law in the form of trusts, mortgage and equitable jurisdiction through Natural Justice. It adopted a more metaphysical approach than common law, whose approach is materialistic, while give preference for substance over form, and preventing use of statutes as instruments of fraud. No doubt, ...Download file to see next pagesRead More
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