The origin of Equity & how it came to prevail over Common Law
The word ‘equity’ means to do something fairly. It is on this basis that the law of Equity operates.
Equity developed because of problems in Common Law, of which there were several. Because people could plead as many defences as they liked, the case could be delayed for up to one year and a day. This meant that every case took longer that it should have and consequently, the system of Common Law became very slow. Another difficulty of Common Law was when the hearing was finally given; it was often in Latin so many people didn’t understand what was going on in the courts.
A further problem and possibly the most significant was the method by which cases had to be started in the Common Law Courts. This was done by obtaining a document known as a ‘writ.’ This was a statement of the case including all the relevant details needed for the case to proceed. However, this ‘writ system’ was very rigid after the passing of the Provision of Oxford in 1258, which declared no new writs, could be made. To get round this technical difficulty, the judges did develop ‘fictions’ which allowed some cases to proceed. These ‘fictions’ mean that they assumed certain facts for the case, even though those facts were not true. However, even with these ‘fictions’ the law was restricted to provide justice. Also, once a writ was on paper, it could not be changed so if a mistake was made the case would become void and the person making the claim would lose the case. People were often not content with the decision made by the Common Law Court, as the only remedy they could give was ‘damages.’ This was compensation money paid by the defendant to the plaintiff. This was more often than not insufficient and inappropriate, as money cannot solve everything.
