What is the relevance of equity today?

'''Equity''' is the name given to the whole area of the English legal system that resolves disputes between persons by resorting to principles of fairness and justness. Equity comes into play typically when none of the parties to the dispute has done anything against the law, but their rights or claims are in conflict. Before equity came into existence, common law prevailed with Norman's conquest of England in 1066 A.D. He devised a legal system that was 'common to all' and established itinerant judges who traveled the country and set up court in various places. Whatever conclusion the judges came to was set down in a book of writs, and it was to this book litigants had to refer to. This writ system was inflexible and if the problem of a plaintiff was not in the book, he could not lodge a complaint. Common law used juries and corruption started seeping in, moreover it had only one remedy, compensation for damages, which were often not what the plaintiff wanted.

As a result of the inadequacies of common law people petitioned the King through his right-hand man, the Lord Chancellor, who was both a lawyer and priest. As the number of litigants increased a special court, the Court of Chancery was set up to accommodate people who were not satisfied with the procedure of common law. The Chancellor dealt with the petitions in accordance to what he thought was right and wrong. Equity was important in the development of English law because it resolved some of the defects of the common law, which might otherwise have led to a loss of public confidence in the legal system - since the hallmark of a civilised society is a proper legal system. It operated on set principles and was always under a process of evolution and did not stagnate. It stated that anyone who was seeking equity must practice fairness in his doings, and that an equitable principle would not be granted to a plaintiff who has not acted justly.

However, it was hard if not virtually impossible, for two legal systems to run in a parallel fashion, and a conflict started brewing in the 16th century. The growing tension between the two bodies of law culminated in the Earl of Oxford's case (1615) 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. This act also merged the two courts. Even though there was a ...

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Equity created new remedies such as injunctions, specific performance, rescission and rectification. Injunctions are either prohibitory or mandatory and are often granted in contract cases to stop the contract-breaker from contracting with a third party. Specific performance is an order that a contract should be carried out as agreed. Rescission is a restorative remedy, and is a substitute for damages, not an addition to it. Rectification is the correction of an incorrectly stated contract.

Today equity is as vital and fruitful a source of principle as it ever was, because the fundamental notions of equity are universal applications of principles to continually recurring problems. Equitable rights, interests and remedies remain in the law today. Concepts such as mortgages state that building societies have an equitable interest in such properties as they tend the money to the person with a legal interest. They can repossess the property if the mortgage is not paid fairly. Trusts are used to set up accounts for minors until they become legal adults or for elderly people.

A major development was the idea of Promissory Estoppel. Lord Denning first suggested this in the Central London Vs High Trees House Ltd (1947) case. London property leased a block of flats for 99 years to High Trees, who rented them out to individuals as homes. During World War II, due to inflation many people started leaving the apartments so the landlord agreed to slash the prices to a half during the course of the war. After the war the landlord claimed the full rent again and also tried to recompense for what he lost in the war. The residents complained to court about it, but were denied compensation as it was stated in the contract that the property was leased for 99 years and in which the landlord chooses the rental. Equity also gives security to a wife when her spouse leaves her for any reason. This deserted wife's equity was incorporated in the Matrimonial Homes Act 1967, and stated that the wife still had an equitable interest in the matrimonial home, even if it was not owned jointly. This was successful in the fact that the wife and children could remain in the home while the children are still young.

The Mareva injunction came from the case of Mareva vs International Bulk carriers (1975) and is used to freeze the assets of a person before the case comes to trial, so that the court fees and damages can be paid from those assets. In Anton Piller v Manufacturing Processes Ltd (1976) the plaintiffs made electrical equipment and employed the defendants as their agent in the UK. They suspected that he was selling their technical drawings to competitors and so applied for an order. This led to the passing of the Anton Piller order that allowed a plaintiff onto the defendant’s premises to inspect and remove any evidence or documents, which might be useful during the proceeding of the case. Injunctions are also used to prevent trespass to land or to prevent excessive noise, or smoke or other nuisances. They are used in employment law in various situations. Injunctions are also ordered in cases of domestic violence as a protection for the abused partner, and sometimes the abuser is not allowed to enter the street or place where his/her partner is.

Equity steps in to fill the gaps missing in law. Equity and law are two separate things but they have been incorporated into one legal system, which works efficiently to uphold the rights of people. The most important distinction between law and equity is the remedies each offers. The most common remedy a court of law can award is monetray compensation. Equity however, orders injunctions or decrees directing someone either to act or to forebear from acting. Often this form of relief is in practical terms more valuable to a litigant. Equity still has a role to play in the modern legal system and it can still create new concepts and remedies to fit the justice of particular cases.

Amna Qayyum

AI.