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Common Law and Equity

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Introduction

AS Level Law Sources of Law Common Law and Equity Q: Equity still has a role to play in English Law. Critically discuss this statement. Equity was not always part of the common law. In pre 1066, there were no official set of laws, and people followed 'customs'. Customs were things that people were used to doing. The common law was made when the Norman Judges went around travelling and collecting customs, and after putting the customs through a certain criteria, the customs became a law common to all i.e. common law. However, the common law was rigid and formal, and had very slow development so equity came in to make things fair and aided and it supplemented the common law when it was restricted. Equity is still needed to aid the English Law today and make the laws fair. In Pre 1066, England was only loosely united. There were no official set of common laws. The central government was seen as weak, and local areas of England governed themselves. Instead of official laws, people followed 'customs' or practised customary behaviour, meaning people followed tradition and did what they were used to doing. ...read more.

Middle

Equity was initially separate from the common law so it was not bound to the formal rigid rules, and was very flexible. Equity was not an independent system, and the appeals were passed on to the Principal Royal Officer- the Lord Chancellor. Lord Chancellor was the King's Chaplain, and as a chaplain he could apply laws of morality, on the basis of natural justice and people would follow it because he was a priest and was seen to have good judgment. Equity basically means fairness, and was made to aid and supplement the common law where it was restricted, "Equity is a glass on the common law" Frederick W. Maitland. Equity has two jurisdictions: recognition of rights where common law was restricted i.e. trust. A trust means that one person (a trustee) can hold legal title to property, not for their own benefit but on behalf of another person (beneficiary). The common law only recognizes rights for the person who owns legal title, the trustee. So if the trustee refused to give property to the beneficiary, the beneficiary could not sue. But equity recognizes the rights of the beneficiary, even though they did not have legal rights to the property. ...read more.

Conclusion

If there was a case where common law and equity clashed, the judicature acts confirmed the decision of the Earl of Oxford's case that equity always prevailed over common law. It had to be equity that prevailed because if it didn't there would be no point of it. Equity still plays a role in common law. The Distinction between equity and common law still remains. "The two streams have met and now run in the same channel, but their waters do not mix" Lord Denning. The rules pre 1873 still exist in present day. Equity still aids and supplements the common law where it is restricted. Equity is still able to develop principles even with the mixed court system. Bagnall J "Equity is not beyond the age of child bearing." There is a distinct approach to applying the rules of equity through the maxims of law. "He who seeks equity must do equity", meaning if you are expected to be treated fairly, you must treat others fairly, so anyone seeking fairness in court must treat their opponent fairly (Chappel vs. Times Newspapers 1975). "He who comes to equity must come with clean hands" meaning you cannot seek a remedy if you have done something unlawful or unfair in terms of that case (Overton vs. Banister 1844). ?? ?? ?? ?? Kiah Estwick ...read more.

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