Common Law and Equity

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Common law is the basis of our law today: it is unwritten law that developed from customs and judicial decisions. Some countries like French or Germany use civil law system. But the common law has been used since the ancient times in England. Coke CJ (17th century) described general customs are “one of the main triangles” of law in England. Common law is based on principle of “stare decicis”. William Black Stone wrote: “Common law was found in the records of courts of courts of justices in book of reports in judicial decisions and handed down to from the ancient time. Common law met the needs of people once, but found inefficient because it did not change along with the progress of the society.”

Different meanings of the term ‘common law’

The Origins of Common Law:

A brief introduction of how the Norman Conquest and the formation of common law is linked:

1. William the Conqueror, also known as William the Bastard from Normandy (France), fought with King Harold (the last pure English king) and won the Battle of Hastings.

2. William claimed all land of England as his – he applied feudalism by distributing land to nobles.

3. The Norman kings realized that control of the country would be easier if they controlled, among other things, the legal system.

4. The first Norman king, William the Conqueror, set up the Curia Regis (the King’s Court) and appointed his own judges.

5. The nobles who had a dispute were encouraged to apply to have the king (or his judges) decide the matter.

6. The king sent his itinerant justices to go around the country to collect taxes and adjudicate (to judge) disputes.

7. In the time of Henry II (1154-89), these tours became more regular and Henry divided up the country into ‘circuits’ or areas for the judges to visit.

8. Then, the itinerant judges chose the best customs among the other differing customs of different towns to.

Customs are rules of behavior, which develop in a community without being deliberately invented. Custom is a habitual course of conduct observed uniformly and voluntarily by the people. Custom occupies an important place in regulation of human conduct in almost all the societies. In fact, it is one of the oldest sources of law-making. But with progress of the society custom gradually diminish and legislation and judicial precedents become the main source. Custom is created by the people, by their unconscious adoption of a certain rule of conduct whenever the same problem arises for solution and its authority is based on nothing but its long continued use and recognition by the people. Custom is some kind of special rule which is followed from time immemorial. Law based on custom is known as customary law. Custom, as a source of law, involves the study of a number of its aspects: its origin and nature, its importance, reasons for its recognition, its classification, its various theories, its distinction with prescription and usage, and the essentials of a valid custom. And of two main types: general customs and local customs

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Defects in Common Law:

  1. Writ system

       The Lord Chancellor – known as the chancery, started all actions in the common law via the issuing of writs.

      ♣ Each wrong was assigned a writ.

      ♣ The wrong must fit the writ available in order to have a successful application.

 If the wrong did not fit the writ, an action will not be started.

  1. Provisions of Oxford 1258

 Common law court judges are inhibited from creating a new writ according to this statutory law. So many ...

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