"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.

Authors Avatar

"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. Only certain types of cases were recognised. The law was also very technical ; if there was an error in the formalities the person making the claim would lose the case. Another major problem was the fact that the only remedy that the common law courts could give was ' damages' – that is an order that the defendant pay a sum of money to the plaintiff ( now claimant) by way of compensation. In some cases this would not be the best method of putting matters right. For example in the trespass of land, where perhaps the defendant has built on his neighburs land, the building would still be there and the plaintiff would have lost the use of his part of land. In such a situation the plaintiff would prefer to have the building remove, rather than be given money in compensation.

Join now!

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 ...

This is a preview of the whole essay