• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  12. 12
    12
  13. 13
    13
  14. 14
    14
  15. 15
    15
  16. 16
    16

The nature of the equitable is a correction of the law where it is defective owing to its universality"

Extracts from this document...

Introduction

"The nature of the equitable is a correction of the law where it is defective owing to its universality" Discuss this statement in relation to: 1. The history of Equity and 2. Do you consider this statement to be relevant today and explain how Equity has adapted and expanded so as to ensure its vibrancy in todays ever changing world. Name: Vivienne Matthews O' Neill Student Number: 00394556 Subject: Equity Date Due: 16th January 2004 Word Count: 7090 15 CONTENTS 1. Introduction 2. History of Equity in England 3. History of Equity in Ireland 4. The development of modern Equity 5. The Judicature Acts of 1873 and 1875 6. How Equity has adapted and expanded 7. Conclusion 8. Bibliography 15 INTRODUCTION "The nature of the equitable is a correction of the law where it is defective owing to its universality", this is a statement made by the infamous philosopher Aristotle which in broad terms means that the general rule will not suit every case and that something is needed to allow exceptions. Equity was developed to solve this problem. Equity is a word of many meanings. It has come to have a narrow and technical meaning in addition to its broad and popular sense. The narrow legal meaning is that t is part of the law which was formed by the Court of Chancery before 18771.In a wide sense it means that which is fair and just , moral and ethical. Aristotle has been quoted saying that "Justice is a kind of equality" which sums up the broader meaning of equity. It is based on the idea of a higher justice exercised as a matter of grace by the king who was the fountain of justice.2 Equity is essentially as supplementary and fragmentary jurisdiction and as Maitland has suggested it should be regarded as a gloss added to the common law and statute law, rather than as an independent system3. ...read more.

Middle

The power of granting injunctions and appointing receivers. 8. The rules relating to the custody and education of infants. 9. The indulgence with which equity regarded the unpunctual compliance with stipulations not of the essence of contracts. The emergence of equity as an independent, systemised body of law meant that for the time it could actually challenge the operation of the common law. Nevertheless, despite fears expressed by many common law judges, it was very unlikely that equity would ever threaten the operation of the common law; the whole purpose of equity was to work with the common law in order to achieve a more universalised justice. Equity was dependent upon common law and was not set up to overwhelm it. As Maitland notes, equity was never self-sufficient; at every point it 'presumed the existence of the common law'.38 If the common law was abolished or destroyed, equity could no longer operate as a correction of the existing law; it would have no foundation. Considered in this light, the possibility of a conflict was improbable. This did not prevent the development of widespread fear and uncertainty about the exact character of the relationship between the common law and equity. This was one of the primary incentives for the introduction of the Judicature system in 1873. THE JUDICATURE ACTS 1873 AND 1875 The two courts had become " not rivals but partners in the work of administering justice"39 the time had come for the fusion of these jurisdictions into a single Supreme Court. Some limited steps were taken towards this fusion in the middle of the nineteenth century. The Common Law Procedure Act 1854 gave to the common law courts a certain power to give equitable remedies, and the Chancery Amendment Act 1858, commonly known as the Lord Cairns' Act, gave to the Court of Chancery power to award damages in addition to, or in substitution for, an injunction or a decree of specific performance. ...read more.

Conclusion

' It would be plainly inequitable for the ward now to deny that she has a right to live in this house and it seems to me that she has an equity which entitles her to stay in this house rent free for as long as she wishes to which the court must give effect.'73 While the result achieved was clearly an equitable and fair one in the circumstances, there are a number of difficulties with the reasoning employed by Costello J such as that he appears to hold that promissory estoppel is capable of creating proprietary rights. Also Costelloj's treatment of the concept of detriment in that he appeared to treat it as one of the requirements of promissory estoppel. While detriment is undoubtedly a requirement in establishing proprietary estoppel, there is a conflicting authority on the question of the need to establish it in cases of promissory estoppel. On the facts in front of the case in front of him. Costello J appears to accept that the respondent had acted to her detriment although it could be said that he was prepared to assume its existence as no reference was made to the respondent's circumstances before she moved in with the ward.74 This case is a prime example of how the judges have the power to expand the standing of the current law to provide an equitable relief. CONCLUSION "The nature of the equitable is a correction of the law where it is defective owing to its universality". As has been shown through the history of equity, this branch of law was established to provide relief when the common law failed in doing so. Equity has had a long and ever changing history but the main theme running through all the developments is to provide fairness. Even in todays busy society the theme is still the same. It would appear that Aristotle's statement is still extremley relevant today. Equity appears to easily adapt and expand in response to the changing demands of todays world and seems it shall continue to follow this path. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. What is the relevance of equity today?

    in which both the courts came to a deadlock. The matter was referred to the Attorney General, Sir Francis Bacon, who upheld that whenever there was conflict between the common law and equity, equity would prevail. This was codified in the Judicature Act 1873/75.

  2. Explain the development of equity. Describe and comment on the role of equity today.

    In some cases this would not be the best method of putting matters right between the parties. For example in a case of trespass to land, where perhaps the defendant had built onto his neighbour's land, the building would still be there and the claimant would have lost part of his land.

  1. H.L.A. Hart's Correction of John Austin

    For if, Austin's notion of obligation was applied to the example it would imply that nobody had the duty to help the elderly lady. As if they chose not to, they had not threat of sanction or punishment pending upon them.

  2. the law is never static; it is always changing, being interpreted or redefined

    This means that a powerful government can push a law through despite having the support of a minority of the country. Occasionally the government tries to keep its manifestos promises but the lengthy procedures make it impossible. The system does allow for a speedier procedure if necessary in response to

  1. Did the conciliar courts pose a threat to the existence of the common law ...

    The work of the Exchequer consisted of two parts: business of the Crown regarding monies owed to it, and actions of private individuals who had a right to sue in the Exchequer.18 The judicial business of the Exchequer increased, and by 1290, it became a regular common law court.

  2. Consumer Law Assignment.

    This makes it a criminal offence to falsely describe something on sale. It applies to any description a trader might make. The act also applies to services, but here an offence is only committed if a description is 'reckless' as well as false.

  1. Discuss advantages and disadvantages of using the literal rule. Question . ...

    - Lord Wilberforce in Royal College of Nursing of the United Kingdom v. Department of Health and Social Security 1981, in ruling that a method of abortion which was clearly not permitted under the Abortion Act 1967 was legal because the method was not in existence when Parliament had passed

  2. What are the historical reasons for the development of equity?

    The King decided he would look into several of the claims and sometimes he decided that the rulings given by the common law courts should be changed. The King had more and more people approaching him for his intervention in certain civil matters.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work