"Equity gave new rights and new remedies"

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“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.

Plaintiffs unable to gain access to the three common law courts (the Courts of Exchequer, Common Pleas and King’s Bench) might directly appeal to the sovereign, and such pleas would be passed for consideration and decision to the Lord Chancellor, who acted as the king’s conscience. As the common law courts became more formalistic and more inaccessible, pleas to the Chancellor correspondingly increased and eventually this resulted in the emergence of a specific court constituted to deliver “equitable” or “fair” decisions in cases which the common law courts declined to deal with. This was the beginning of the court of Chancery.

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Litigants appeared before the Chancellor, who would question them, and then deliver a verdict based on his own moral view of the question. Because the court followed no binding rules, relying entirely on the Chancellor’s view of right and wrong, it could enforce rights not recognised by the common law, which, hide-bound by precedent, was failing to adapt to new circumstances. The Court of Chancery could provide whatever remedy best suited the case, the decree of specific performance for example, would have meant that the seller of the land referred to previously would be forced to honour the promise. ...

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