Common Law

1.2 The Defects of Common Law

The common law system have a few defects which are the writ system was complicated, thus making it slow in responding to new types of action .The remedy of common law courts was only damages. This did not provide a satisfactory relief for the plaintiff. Besides that, men of wealth and power could overawe a court by intimidate jurors and manipulate judges.

2.0 Equity

The respond to the deficiencies of the common law was the development of equity. In general, equity means fairness.

Those unable to obtain a remedy through common law courts would petition the King, as the head of justice, for relief. The increase of petitions led to them being dealt with by the Lord Chancellor who was also known as the “keeper of the King’s conscience”. By the end of the 14th century, petitions were addressed direct to the Chancellor rather than to the king. By the 15th century, a Court of Chancery emerged to hear petitions and grant remedies. The rules administered by this court became known as rules of equity.

The decisions of the Court of Chancery were often in opposition of those made in common law. According to James I, in cases of conflict, equity was to prevail. The chancellors give the equitable remedies based on their discretion and conscience, therefore, one of it is “Equity varies with the length of the Chancellor’s foot”. Which means, it is possible to estimate an amount of demerit marks by considering similar cases already enforced.

Equity is not a rival system to common law but has been described as “a gloss meaning a supplement on the common law”, filling in gaps and making the legal system more complete. A maxim of equity states that “who that comes to equity must come with clean hands”.

Under the Judicature Act 1873, the common law courts and the Court of Chancery were replaced by on e Supreme Court of Judicature. Both common law and equity rules were applied in this court.

2.1 Equity Remedies

        Equity has developed 4 remedies: Injunction, specific performance, rescission and rectification.

2.1.1 Injunction

Injunction is an order of the court requiring someone to do something or to stop doing something. A case example is Lumley v. Wagner (1852). Wagner agreed to sing at Lumley’s theatre for a certain period and during that time not to sing elsewhere. Later Wagner contracted to sing at another theatre and refused to perform her contract with Lumley. The court granted an order of injunction to prevent Wagner from singing elsewhere than in the plaintiff’s theatre. 

2.1.2 Specific Performance

Specific Performance is a court order directing a party to perform or to continue to perform a particular act. 

A case example is Beswick v. Beswick (1967). The loss to the estate caused by the nephew’s (the defendant) failure to pay the widow (the plaintiff) the annuity was nominal since it was the widow who suffered the loss. The House of Lords entitled the plaintiff to enforce the agreement by an order of specific performance. 

2.1.3 Rescission

Rescission is an order returns parties to a contractual agreement to the position they were in before agreement was entered into. 

A case example is Grist v. Bailey (1967). The defendant sold a freehold house to the plaintiff for £850. Both parties believed that the house was subjected to a protected tenancy. However, no protected tenancy existed in reality as the fair price would then be £2500. The plaintiff refused to continue with the purchase he was misled into. He successfully obtained a rescission of the contract of sale.

2.1.4 Rectification

 Equity has the power to rectify a written document which does not accurately express the agreement between parties. 

A case example is Craddock Bros. v. Hunt (1923). The defendant orally agreed to sell a house, exclusive of an adjoining yard , to the plaintiff. Owing to a mistake the later formal and written conveyance included the house and the yard. The court entitled to have both documents rectified to exclude the yard.

3.0 Conclusion

As a conclusion, I agree that the law of equity came about to remedy the defects of the common law system. With the law of equity supplementing the common law, the Australia legal system has become more efficient in providing justice to the people.

Word Count: 1035 words

        

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