Common Law and Equity Essay

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Law and Equity Essay

(a) Outline the development of common law and equity.

There was no system of law in England and Wales before 1066, as it was mainly based on customs which were just rules of behaviour and the other used to be the decisions of judges. The law in England and Wales built over the centuries. There were various methods of creating laws which were called “sources of law”. However, in the 18th Century Parliament became more powerful which lead the Acts of Parliament (statues) to be the main sources of law today. Decisions made by the judges are also essential today as they interpreted Parliamentary law where there was no statue law. During the twentieth century statue law and judicial decisions continued to be the major sources of law but, in addition there were two new sources became increasingly important these were delegated legislation and European law. Delegated legislation is law made by a body other than Parliament. Parliament gives others the power to pass delegated legislation in a parent or enabling Act.

Customs are rules of behaviour that develop in a community without being deliberately invented. There are two main types of Customs: Local Customs and General Customs.

Local customs is when a person claims to have some sort of a local right as they believe that right has always been accepted locally and they are claiming the right is local custom. Judges developed tests to decide whether to uphold such customs. One of the tests were that `the custom must have existed since time immemorial`. It was very unusual for a new custom to be considered by the judges, but there have been some case such as Egerton v Harding (1974) the court decided that there was a customary duty to fence land against cattle staying from the common. It is believed that the General custom was effectively the basis of the common law. When the country was brought under the centralised

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As it was largely based on customs before 1066, Customs varied from place to place in the North the Dane Law was being put into operation, in the Midlands it was the Mercian Law and in the South/West part of the country Wessex law was being implemented.

However, in 1066 William of Normandy took over the England throne and set up the Curia Regis (King’s Court). This court consisted of nobleman who acted as judges. A practice was started of sending judges around the country to hold assizes (or sittings) to hear cases locally.

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