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"Equity gave new rights and new remedies"

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Introduction

"Equity gave new rights and new remedies". Explain and illustrate this statement as fully as possible, showing how equitable remedies contributed to the development of new interests in land. The common law has been romantically and mistakenly described as the law of the common people of England. In fact, it could be argued that the common law was a product of a particular struggle for political power. Before the Norman Conquest of England in 1066, a unitary, national legal system did not actually exist. The common law was developed after the Norman Conquest through the "itinerant justices" travelling around the country in order to sort out disputes by selecting the best local customs and making them the basis of the law of England. Civil actions in these courts had to be started by a writ, which set out the cause of the action or the grounds for the claim made, and there grew up different types of writ. Litigants had to fit their circumstances to one of the available types of writ: if the case did not fall within one of those types, there was no way of bringing the case to the common law court. At the same time, the common law was itself becoming increasingly rigid and offered only one remedy; damages, which was not always an adequate solution to every problem; for example, the plaintiff may have contracted to purchase a particular plot of land from the defendant for which compensation cannot provide a satisfactory equivalent in the event of the defendant's breach. ...read more.

Middle

Although both the common law and equity lay down rules developed from precedents, equity also created maxims which had to satisfied before equitable rules could be applied. These maxims were designed to ensure that decisions were morally fair. The most important of these are the following: "He who comes to equity must come with clean hands". This means that plaintiffs who have themselves been in the wrong in some way will not be granted an equitable remedy1. "He who seeks equity must do equity". Anyone who seeks equitable relief must be prepared to act fairly towards his opponent2 . "Delay defeats equity". Where a plaintiff takes an unreasonably long time to bring an action, equitable remedies will not be available to him3. "Equity regards as done that which ought to be done". This maxim regards parties to specifically enforceable contract as being in position they would be in if the contract was performed. Section 1 (3) of the Law of Property Act 1925 provides that any interest in land which does not qualify as a legal interest takes effect as an equitable interest. Equitable interests may be divided in two categories. The "traditional" ones are equitable because historically equity provided a remedy when the common law could not help. One of the traditional equitable interests is the interest of a beneficiary under a trust. A trust arises when property is held by a person or persons "upon trusts" for another person or persons. ...read more.

Conclusion

The two best-known contributions come from property law and are developments of the law of trusts, and the basis of the rules which today govern mortgages. Equity has shown itself capable of adapting and expanding to meet new needs, and so creating law reform. During the 1950s and 1960s it responded to increasing marital breakdown by stating that a deserted wife could acquire an equitable interest in the family home, providing a temporary solution until legislation could be passed in the form of the Matrimonial Homes Act 1967. In the 1970s two important new remedies were created extending the scope of injunctions: the freezing order (Anton Piller order), by which the court can order defendants to allow their premises to be searched and relevant documents to be removed, and the search and seize order (Mareva injunction), a court order to a third party, such as a bank, to freeze the assets of a party to a dispute where there is a danger that they could be removed from the court's jurisdiction. Some would say that, as equity was never anything other than a gloss on common law, it is perhaps appropriate, if not ironic, that now both systems have been effectively subsumed under the one term: common law. No one, on the other hand, however, can doubt the importance and great contribution of equity to the common law and the assistance it provides and will continue to provide, with the equitable interests and remedies acting as a perfect addition to the common law, helping in the creation of a more efficient and effective judicial system. ...read more.

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