Equity serves to fill in the gaps of Common Law. Discuss

Authors Avatar by zhilinglim27gmailcom (student)


Zhiling. Equity serves to fill in the gaps of common law. The word equity itself means fairness.

In the 12th century, litigants could bring a case to court based on the cause of action and the grounds of the claim. New writs were created to fit new circumstances. However in the 13th century, common law began to be rigid and litigants had to fit the circumstances into the existing writs. This is did not uphold morality as it meant that people were unable to bring an action to court (cannot seek justice) if it did not fit into any of the existing writs. Common law had to follow precedent and offered only damages which were inadequate. Dissatisfied parties petitioned the king who passed the cases to Lord Chancellor. Slowly the people started to petition the Lord Chancellor himself and he started to judge cases based on his own moral view (idea of fairness), thus created the Court of Chancery. The court allowed admittance of the oral evidence that promotes flexibility, justice and fairness. This is more flexible than common courts which only allowed the admittance of oral evidence in the 16th century.

Join now!

Equity soon began to develop case laws and precedent had to be followed which made equity no less rigid than common law. The Judicature Act of 1873-1875 established that both common law and equity could be administered in the same courts. Hence equity became rigid and may be immoral when the courts could not depart from binding decisions that are bad laws.

For example, the Anton Pillar Order is an order that allows the Claimant to enter the defendant’s premises to search and seize documents. It is used where there is a risk of the defendant disposing of the documents ...

This is a preview of the whole essay