Common Law and Equity

There are three types of historical law, these are: Common, Custom, and Equity.

The term ‘common law’ developed from the use of customs. Judges would select the best ‘customs’, then these were used by all judges throughout the country. Thus this is how the term came to be developed. Common law is the foundation of our law today: it is fundamentally unwritten law that developed from the customs and judicial decisions.

‘Equity’ developed because of the problems in common law. Only certain types of cases were recognised. The law was also very technical; if there was an error in formalities the person would lose the case.

Customs are rules of behaviours which develop in society without being consciously created for a specific purpose. There are two main types of custom: general and local customs.

General customs are believed to have been very important in that there were, effectively, the basis of common law. They are also accepted in that they have long since been absorbed into legalisation or case law and are no longer a creative source of law.

Local customs is when a person claims that he/she is entitled to some local right, such as a right of way or a right to use land in a particular way; because this is what has always happened locally. Such customs are an exception to the general law of the land, and will only operate in that particular area.

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Common law is the system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courts—King's Bench, Exchequer, and the Court of Common Pleas—which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term “common law” is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to its statutory law or legislation, and also to connote that part of the legal system that did not develop out of , maritime law, or other special branches of practice.

Common law is the origin of our law today: it is essentially unwritten law that developed from the customs and judicial decisions.

The dilemma with common law was that only certain types of cases were recognised; meaning that many people making a claim would lose. The law in general was very technical; if there was an error in the formalities the person making the claim would lose. Another problem was the fact that the only remedy the common law courts could give was ‘damages’ – that is an order that the defendant pay a sum of money to the plaintiff by way of compensation. In some cases this would not be the best method of putting matters right between parties. An example being in a case to trespass to land, where perhaps the defendant had built on his neighbours land, plaintiff would have lost the use of that piece of land. In such a situation the plaintiff would probably prefer to have the building removed, than be given compensation

These problems and other problems alike, led to ‘equity’.

Equity is the name given to the set of principles, in countries following the tradition, which supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as "natural justice." It is often confusingly contrasted with "law," which in this context refers to "" (the laws enacted by Parliament), and "" (the principles established by judges when they decide cases). ‘Equity’ developed because of the problems in common law. Only certain types of cases were recognised. The law was also very technical; if there was an error in formalities the person would lose the case.

“Equity” created remedies for the problems with common law. Remedies could be obtained by filing a petition to the King, who held residual judicial power; these filings were usually phrased in terms of throwing oneself upon the king's mercy or conscience. Eventually, the king began to regularly delegate the function of resolving such petitions to the , an important member of the King's Council. At the time, the Chancellor was usually a clergyman and the King's confessor, so he was literally the keeper of the King's conscience. To ensure that these decisions were ‘fair’ the Chanecellor used new producers such as subpoenas, which ordered a witness to attent the court or risk imprisiment for refusing to ovey the Chancellors order. Said Chanecellor also created new remedies which were used to compensate plaintiffs more than the common law remedy of damages.

Eventually a Court of Chancery under the control of Chancellor came into being which operated the rules of fairness of equity. Equity was not a complete systen of law; it merely filled the gaps in the common law and softened the strict rules of the common law.

If there were a conflict between common law and equity; “equity” would always prevail. As is naturally provides a more througher methods and remedies to compensate plaintiffs more fully than the common law remedy of damages.

The conflicts between common law and equity was resolved between in the Earl of Oxford’s case (1615) when the king rules that equity should prevail; in other words the decision made in the Chancery couty was the one which must be followed by all parties. The ruling made the postion of wquity stronger and the same rule was subsequently in the section 25 of the Judicture Act 1873.

Common Law and Equity both now work alongside eachother in our legal system.