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"Equity was no more than just a gloss on common law." Critically evaluate this statement and assess the past and present constitutions of equity to the growth of common law.

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Introduction

"Equity was no more than just a gloss on common law." Critically evaluate this statement and assess the past and present constitutions of equity to the growth of common law. The word equity has a meaning of fairness and this is the basis on which our law operates, when adding to our law. Historically this was an important source and it still plays a part today with many of our legal concepts having developed from equitable principles. The notion of equity played an important role in the law of Roman Empire. It was used to minimise the harsh results followed sometimes from the logical but strict rules of Roman Civil law. Equity basically developed because of the problems in common law. ...read more.

Middle

People were unable to get justice and as a result of the limitations of common law many citizens directly applied to the king who referred their petitions to the Chancellor who based decisions on justice and fairness instead of precedent. This resulted in the development if an alternate legal source equity, comprising a body of discretionary rules and remedies devised by the Chancellor on the basis of fairness and good conscience to remedy the defects of the common law. Conflict between the Court of Chancery and the court of Common law was inevitable since the Chancellor was recognising rights and granting remedies not accorded at common law. Moreover, the Chancellor claimed that he was dispensing a superior justice, and this was very offensive to common lawyers. ...read more.

Conclusion

Chancellors had always claimed that equity was there to supplement, not supplant the common law. Having begun to remedy the wrongs brought about the rigidity and technicality of the common law system, equity had found itself establishing a jurisdiction over matters where the common law had failed, continued to fail to recognise legal rights and duties. The law relating to trust, for example, was entirely based on the decisions of the Court of chancery. Nonetheless, equity was always a 'gloss' on common law; it always presumed the existence of the common law and simply supplemented it where necessary. That is continued to exist for some five centuries is an indication of the unchanging nature of English Legal Institutions, as well as of the important contribution which equity made to the development of English law. ...read more.

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