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Equity serves to fill in the gaps of Common Law. Discuss

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Introduction

Equity Zhiling. Equity serves to fill in the gaps of common law. The word equity itself means fairness. In the 12th century, litigants could bring a case to court based on the cause of action and the grounds of the claim. New writs were created to fit new circumstances. However in the 13th century, common law began to be rigid and litigants had to fit the circumstances into the existing writs. This is did not uphold morality as it meant that people were unable to bring an action to court (cannot seek justice) if it did not fit into any of the existing writs. Common law had to follow precedent and offered only damages which were inadequate. Dissatisfied parties petitioned the king who passed the cases to Lord Chancellor. Slowly the people started to petition the Lord Chancellor himself and he started to judge cases based on his own moral view (idea of fairness), thus created the Court of Chancery. ...read more.

Middle

Mareva Injunction is an injunction that relates to the freezing of the assets of the defendant in the jurisdiction of the courts. This is to prevent the defendant disposing or destroying assets to avoid payment. This promotes flexibility as it has become easier for people to transfer assets in the modern society such as via internet. The Promissory Estoppel is an order preventing the person from denying a promise that he had made. Several conditions have to be fulfilled such as: 1. An existing relationship between the promisor and the promise. 2. Detrimental reliance on the promisor by the promisee. 3. Doctrine to be used as a shield and not as a sword. 4. Inequitable for the promisor to go back on his word. This is illustrated in the case of Central London Property Trust v High Tree House case. ...read more.

Conclusion

Equity must follow law. In the case of Rhone v Stephens, equity did not depart from common law rule that a 3rd party cannot be made to perform a contract. He who seeks equity must do equity. In Chappell v Times Newspapers case, the litigant failed to obtain an injunction as he refused to carry out his own future obligation. He who comes to equity must come with clean hands. In D&C Builders v Rees, Mr and Mrs Rees had taken advantage of the Builders financial situation and did not come to court with clean hands hence they were could not claim Promissory Estoppel. Equity looks to the intent rather than form. Delay defeats equity. In the case of Leaf v International Galleries, both parties unknowingly gone through a transaction thinking that they had a genuine Constable. However, the litigant tried to bring the case to court a few years later but was refused as it was over the limitation period. ...read more.

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