Continued: CREATION OF EQUITY
Historically and till today, equity is an important source that plays a part with many of our legal concepts.
The word ‘equity’ has a meaning of ‘fairness’, and this is the basis on which it operates, when adding to our law. The word “equity” means rules developed to solve the defects of common law.
Equity developed because of the flaws in the common law. Only certain types of cases were recognised. People who could not obtain justice in the common law courts appealed directly to the king. Most of these cases were referred to the King’s Chancellor, who was both a lawyer and a priest, and who became known as the “keeper of the king’s conscience”. This was because the Lord Chancellor’s duty is to “establish the truth and to ensure justice without undue adherence to technicalities and procedures.
To ensure that the decisions were ‘fair’ the Chancellor used new procedures such as subpoenas, which ordered a witness to attend court or risk imprisonment for refusing to obey the Chancellor’s order. He also developed new remedies, which were able to compensate plaintiffs more fully than the common law remedy of damages. These were called equitable remedies.
Eventually a Court of Chancery under the control of the Chancellor came into being which operated these rules of fairness or equity.
Equity was not a complete system of law; it merely filled the gaps in the common law and softened the strict rules of the common law.
Conflict between common law and equity
The two systems of common law and equity operated quite separately, so it was not surprising that this overlapping of the two systems led to conflict between them.
One of the main problems was that the common law courts would make an order in favour of one party and the Court of Chancery an order in favour of the other party.
The conflict was finally resolved in the Earl of Oxford’s case (1615) when the king ruled that equity should prevail; in other words, the decision made in the Chancery court was the one which must be followed by the parties.
🔨 Earl of Oxford case
Merton College, Oxford has been granted a lease of Covent Garden for 72 years at £9 per year. 50 years later the college sold the lease to the Earl of Oxford at a rent of £15 per year. The college later tried to retake possession of it. It said that, an Elizabethan Statute prevented the sale of church or college lands. The Earl brought an action to eject the college from the land but failed due to common law. The Earl filled a bill of Equity. Lord Elesmere (Lord Chancellor) set aside the common law judgment ‘not for any error or defect in judgment, but for the hard conscience of the parties’. When consulted, King James I decided that where there is a conflict between common law and equity, equity shall prevail.
This ruling made the position of equity stronger and the same rule was subsequently included in section 25 of the Judicature Act 1873.
The conflict was finally resolved by the Judicature Acts 1873-75:
▪️The Lord Chancellor must be legally qualified.
▪️All courts are now courts of common law and equity. Judges shall apply common law and if it is found to be insufficient, they may then apply equity.
▪️There is now a well-established appellate system applying both common law and equity.
▪️The role of the judiciary is not only limited to interpreting statues and applying them, but is also to find, extend, or create law.
▪️When there is a conflict between common law and equity, equity shall prevail.
▪️Remedies are still separate in nature.
Page 2 of 5🔗Go-to Page 1 | Cont below
Historically and till today, equity is an important source that plays a part with many of our legal concepts.
The word ‘equity’ has a meaning of ‘fairness’, and this is the basis on which it operates, when adding to our law. The word “equity” means rules developed to solve the defects of common law.
Equity developed because of the flaws in the common law. Only certain types of cases were recognised. People who could not obtain justice in the common law courts appealed directly to the king. Most of these cases were referred to the King’s Chancellor, who was both a lawyer and a priest, and who became known as the “keeper of the king’s conscience”. This was because the Lord Chancellor’s duty is to “establish the truth and to ensure justice without undue adherence to technicalities and procedures.
To ensure that the decisions were ‘fair’ the Chancellor used new procedures such as subpoenas, which ordered a witness to attend court or risk imprisonment for refusing to obey the Chancellor’s order. He also developed new remedies, which were able to compensate plaintiffs more fully than the common law remedy of damages. These were called equitable remedies.
Eventually a Court of Chancery under the control of the Chancellor came into being which operated these rules of fairness or equity.
Equity was not a complete system of law; it merely filled the gaps in the common law and softened the strict rules of the common law.
Conflict between common law and equity
The two systems of common law and equity operated quite separately, so it was not surprising that this overlapping of the two systems led to conflict between them.
One of the main problems was that the common law courts would make an order in favour of one party and the Court of Chancery an order in favour of the other party.
The conflict was finally resolved in the Earl of Oxford’s case (1615) when the king ruled that equity should prevail; in other words, the decision made in the Chancery court was the one which must be followed by the parties.
🔨 Earl of Oxford case
Merton College, Oxford has been granted a lease of Covent Garden for 72 years at £9 per year. 50 years later the college sold the lease to the Earl of Oxford at a rent of £15 per year. The college later tried to retake possession of it. It said that, an Elizabethan Statute prevented the sale of church or college lands. The Earl brought an action to eject the college from the land but failed due to common law. The Earl filled a bill of Equity. Lord Elesmere (Lord Chancellor) set aside the common law judgment ‘not for any error or defect in judgment, but for the hard conscience of the parties’. When consulted, King James I decided that where there is a conflict between common law and equity, equity shall prevail.
This ruling made the position of equity stronger and the same rule was subsequently included in section 25 of the Judicature Act 1873.
The conflict was finally resolved by the Judicature Acts 1873-75:
▪️The Lord Chancellor must be legally qualified.
▪️All courts are now courts of common law and equity. Judges shall apply common law and if it is found to be insufficient, they may then apply equity.
▪️There is now a well-established appellate system applying both common law and equity.
▪️The role of the judiciary is not only limited to interpreting statues and applying them, but is also to find, extend, or create law.
▪️When there is a conflict between common law and equity, equity shall prevail.
▪️Remedies are still separate in nature.
Page 2 of 5🔗Go-to Page 1 | Cont below