{"id":274,"date":"2019-08-06T08:23:32","date_gmt":"2019-08-06T08:23:32","guid":{"rendered":""},"modified":"2019-08-07T11:06:15","modified_gmt":"2019-08-07T11:06:15","slug":"equity-modern-source-of-law-0833","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/equity-law\/equity-modern-source-of-law-0833.php","title":{"rendered":"Equity as a Modern Source of Law"},"content":{"rendered":"

With reference to relevant case law and
\nlegislation, examine the importance of equity as a modern source of law in
\nlight of its historical development<\/strong><\/p>\n

This essay examines the
\nimportance of equity as a modern source of law in light of its historical
\ndevelopment, with reference to relevant case law and legislation. Equity, according to Alastair Hudson is the means by
\nwhich a system of law balances out the need for certainty in rule making on the
\none hand, with the need for sufficient judicial discretion to achieve fairness
\nin individual factual circumstances on the other[1]<\/a>.
\nIn the biblical genesis, God created Adam and Eve. In the genesis of common
\nlaw, history created common law and equity. Until 1875, two legal systems
\nco-existed in England and Wales: the common law system that appeared in the
\n11th-12th century, and the equity system in the 14th century. Both derived from
\nthe same source of law, the King-in-Council. They evolved in parallel until the
\nend of the 19th century. In 1876, the common law and equity jurisdictions
\nmerged. <\/p>\n

After the Battle of Hastings in 1066, the new King of
\nEngland, William the Conqueror (reign 1066-1087), crowned at Westminster Abbey
\nin London, left local customary law in force while initiating a process of
\ncentralization. In order to govern, he relied on a royal council
\n(King’s Council) called Curia Regis (King’s Court in Latin) composed of nobles
\nand clergymen. Curia Regis was also a traveling court presided over by the
\nKing, who would sit in judgment of civil or criminal cases during his travels.
\nThe Kings of England delegated part of their judicial power to judges. In doing
\nso, the King controlled the conditions under which royal justice was rendered,
\nnot only by appointing the judges, but also by determining the applications
\nthat may be submitted for dispensation of royal justice. The Chancellor of the
\nKing would use writs to resolve the civil disputes. The writs were sent to the
\ndefendant’s county sheriff, with an order to summon the defendant to appear in
\ncourt before the Chancellor who would either grant the claim or refuse it with
\njustification.  In the course of the
\ntrial, judges must check whether the case falls within the limits set by the writ.
\nVery early on, the procedure became an important part of the nascent common-law
\nsystem. <\/p>\n

The common
\nlaw system was found to be too rigid, too technical and too slow. The system
\nwas also found to not be suitable for settlement of all disputes. Some disputes
\ndo not fall within the scope of a writ and cannot be settled by a common law
\njurisdiction. Thus, the legal system of equity was born out of a desire to
\ncorrect the defects of the common law. In the 1350s, a new writ was endorsed by
\nthe King’s Council: The Writ of Trespass on the Case. It broadened the scope
\nand possibility of taking legal action. Under this writ, it suffices for the
\nplaintiff to present a claim establishing the existence of damage, and to show
\nthat it was caused by the act or fault of the defendant. However, this writ
\narrived too late: the equity system, in 1350, was emerging. <\/p>\n

From the
\n14th century, disappointed litigants began to take their cases before the King,
\nthe “fountain of justice”. Requests for royal audience were handled
\nby the Chancellor, the King\u2019s counsellor for justice, also known as \u2018the keeper
\nof the King\u2019s conscience\u2019. This practice progressively created The Chancellor’s
\nCourt (Court of Chancery). Chancellors
\nwere prominent clergy who dispensed justice according to their conscience and
\nthe moral principles of equity.  To quote
\nan aphorism of a 17th century English jurist, John Selden in his book
\nTable-Talk, in relation to the King\u2019s Chancellor \u201cequity varies according to
\nthe length of the Chancellor’s foot\u201d[2]<\/a>. <\/p>\n

In
\nessence, Equity can be described as a full-fledged right developed by the
\nChancery Court from the 15th century. These new rules of law made it possible
\nto provide more flexible answers, sometimes more adapted to particular
\nsituations. These flexible answers were based on the equitable remedies which
\nconsisted of: injunctions, specific
\nperformance, promissory estoppel, rescission, and, last but not least,
\nrectification. The injunction procedure, in particular, allows the judge to order
\na party to do a specific act or transaction or, on the contrary, not to do so.
\nThis remedy was seen in the case of Warner
\nBros. V Nelson <\/em>[1937][3]<\/a>.
\nThis case was about a film star, Bette Davis, who breached her contract with
\nthe Warner Brothers Pictures film company to work with another company. Warner
\nBros was awarded a negative injunction to prevent her from working with another
\ncompany. The injunction procedure has the advantage of also acting on the
\nfuture rather than simply sanctioning past behaviour. In 1615, tensions started
\nemerging between common law and equity. These tensions were referred to the
\nKing for a decision, and that was when the Earl of Oxford Case came about. The
\nEarl of Oxford Case[4]<\/a>
\nruled that where there was conflict between common law and equity, the latter,
\nequity, should prevail. [5]<\/a><\/p>\n

Gradually, towards the beginning of the 18th<\/sup>
\ncentury, the general principles of maxims emerged. The maxims summarize the
\ngeneral principles established by the jurisprudence of the courts of equity.
\nThey are expressed in Latin and translated into English. Maxims do not
\nconstitute strict and intangible rules. They are simply principles to which the
\njudge\u2019s ruling in equity are conventionally referred, and which are used to
\nbring moral fairness. There are nearly 20 equitable maxims. The 3 main maxims
\nare: first, \u201cHe who comes
\nto equity must come with clean hands\u201d, meaning that where the claimant has
\nacted in a manner that is inequitable towards himself, the court will decline
\nto award an equitable remedy, such as an injunction, in situations where the
\ndefendant\u2019s conduct would otherwise justify it[6]<\/a>. This maxim is seen in
\nthe case of D & C Builders v Rees <\/em>[1966][7]<\/a>. \u201cDelay defeats equity\u201d
\nis when equity takes into account the claimant\u2019s conduct, as well as that of
\nthe defendant. Therefore, in the same way as equity looks at the claimant\u2019s
\n\u2018clean hands\u2019 and the claimant\u2019s future conduct, equity will also be alert to
\nthe possibility that the claimant has delayed before bringing a claim[8]<\/a>. This second maxim is
\nseen in the case of Leaf v International Galleries<\/em> [1950][9]<\/a>. Last but not least, the
\nthird maxim: \u201cHe who seeks equity must do equity\u201d refers to the future conduct
\nof the claimant, in that the process of the litigation should be conducted in a
\nmanner that is fair towards the defendant[10]<\/a>. This maxim is seen in
\nthe case of Chappell v Times Newspapers Ltd<\/em> [1975][11]<\/a>. <\/p>\n

The duality of jurisdiction, common law and equity,
\nwas abolished in England by the Judicature Acts of 1873-1875. These Acts merged
\nthe common law and equity and allowed all superior courts to rule at once
\naccording to the common law and according to equity. This new jurisdiction is
\nwhat then created the High Court of Justice, which comprised three Divisions:
\nQueen’s Bench (common law), Chancery (Equity) and Probate (formerly Probate,
\nDivorce and Admiralty). The same law provided that, in the event of a conflict
\nbetween the rules of the common law and those of equity, the latter should
\nprevail. The rules of equity continue to be distinct from those of the common
\nlaw, but now the plaintiff can invoke one and the other in a single action in
\none jurisdiction. Equity completes and corrects the common law in some
\nrespects: thus, cases of nullity of common law contracts are supplemented by
\nequity-sanctioned vices of consent. This points to the importance of equity as
\na modern source of law. <\/p>\n

Equity continues to evolve. In modern times, the
\nrelevance of Equity is evident in new equitable remedies, such as the Anton
\nPiller Orders, Mareva Injuctions and Super Injunctions. The Anton Piller Orders
\ngave the court authority to search the defendant\u2019s premises, which is seen in
\nthe case of Anton
\nPiller KG v Manufacturing Processes Ltd.<\/em> [1976][12]<\/a>.
\nThe Mareva injunctions, on the other hand, gave the court power to freeze the
\nassets of a party, mainly known as the \u2018freezing injunction\u2019. This injunction
\nis seen in the case of Mareva Compania
\nNaviera SA v International Bulkcarriers SA<\/em> [1980] [13]<\/a>.
\nLast but not least, the Super Injunctions allowed celebrities to preserve
\nprivacy and prevented the press from getting much information about them. This
\ninjunction is seen in the case of Ferdinand
\nv Mirror Group Newspapers<\/em> [2010][14]<\/a>.
\nThe importance of Equity in modern times is evident in different disciplines or
\nsubjects of the English Legal System, such as Contract law, Land Law, Tort Law,
\nand Mortgages. In Contract law, Lord Denning sought to use equity to find
\nsolutions when dealing with contractual disputes, some of which included
\nestoppel, undue influence, mistake, and the equitable remedies[15]<\/a>.
\nEquity occupies a big place when it comes to Land Law and Mortgages. These two
\nsubjects cannot be discussed without the input of Equity. Perhaps the biggest
\nexample of Equity in both Land Law and Mortgages is Trust, and the context of
\nundue influence[16]<\/a>.
\nLast but not least, in Tort Law equity is seen through the use of injunctions
\nto find equitable remedies to prevent tortious behaviour[17]<\/a>.  <\/p>\n

In
\nconclusion, today, Equity\u2019s importance as a modern source of law can be
\nunderstood from its key attributes of: preventing strict legal rules being applied unjustly; creating
\nsubstantive rules itself, especially in the law of trusts; and lastly, creating
\nprocedural rules and remedies[18]<\/a>.<\/p>\n

References:<\/h3>\n
    \n
  1. Elliott and Quinn, English Legal System<\/em>, 16th<\/sup> edn (Pearson, 2015)<\/li>\n
  2. Hudson, Alastair,  Principles of Equity and Trusts<\/em> , 2nd<\/sup> edn (London: Cavendish Publishing, 2001).<\/li>\n
  3. Selden, John, Table-talk, being discourses of John Seldon, Esq or his sense of various matters of weight and high consequence, relating especially to religion and state. (1696), <\/em>(London: EEBO Editions, ProQuest, 2011)<\/li>\n
  4. Huws, Catrin Fflur, Text, cases and materials on equity and trusts<\/em>, (London: Pearson, 2015).<\/li>\n
  5. Virgo, Graham, The Principles of Equity and Trusts<\/em>, 3rd<\/sup> edn (Oxford, 2016)<\/li>\n
  6. Levenstein, Michael, Maxims of Equity: A Juridical Critique of the Ethics of Chancery Law<\/em>, (Algora, 2014)<\/li>\n
  7. Hayton and Mitchell, Commentary and Cases on the Law of Trusts and Equitable Remedies<\/em>, 13th<\/sup> edn, (Sweet & Maxwell, 2010)<\/li>\n
  8. Martin and Hanbury, Modern Equity<\/em>, 19th<\/sup> edn (Sweet & Maxwell, 2012)<\/li>\n
  9. Hudson, Alastair, Understanding Equity & Trusts, 6th<\/sup> edn (Routledge, 2017)<\/li>\n
  10. Hutchinson, C. Allan, Evolution and the Common Law<\/em>, (Cambridge University Press, 2005)<\/li>\n
  11. Milsom, S.F.C, Studies in the History of Common Law, (The Hambledon Press, 1985)<\/li>\n
  12. Warner Bros v Nelson<\/em><\/strong> [1937] 1 KB 209<\/li>\n
  13. Earl of Oxford’s case (1615) 21 ER 485 <\/li>\n
  14. Anton Piller KG v Manufacturing Process Ltd<\/em> [1976<\/em>] 1 ALL ER 779<\/li>\n
  15. Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213<\/li>\n
  16. Ferdinand v MGN<\/em> [2011] EWHC 2454<\/li>\n
  17. D&C Builders<\/em> Ltd v Rees<\/em> [1966] 2 QB 617<\/li>\n
  18. Leaf v International Galleries<\/em> [1950<\/em>] 2 KB 86<\/li>\n
  19. Chappell v Times Newspapers Ltd<\/em> [1975<\/em>] 1 WLR 482 <\/li>\n<\/ol>\n
    \n

    [1]<\/a> Alastair
    \nHudson, Principles of Equity and Trusts 
    \n2nd<\/sup> edn (London: Cavendish Publishing, 2001<\/p>\n

    [2]<\/a> John, Selden, Table-talk, being discourses of
    \nJohn Seldon, Esq or his sense of various matters of weight and high
    \nconsequence, relating especially to religion and state. (1696)<\/em>, <\/em>(London: EEBO Editions, ProQuest, 2011)<\/p>\n

    [3]<\/a> Warner
    \nBros v Nelson<\/em><\/strong> [1937]
    \n1 KB 209<\/p>\n

    [4]<\/a> Earl
    \nof Oxford’s case (1615) 21 ER 485 <\/p>\n

    [5]<\/a> Elliott and Quinn, English
    \nLegal System<\/em>, 16th<\/sup> edn (Pearson, 2015) pg 130<\/p>\n

    [6]<\/a> Alastair Hudson, Principles of Equity
    \nand Trusts , 2nd<\/sup> edn (London: Cavendish Publishing, 2001).<\/p>\n

    [7]<\/a> D&C Builders<\/em> Ltd v Rees<\/em> [1966] 2 QB 617<\/p>\n

    [8]<\/a> Alastair Hudson, Principles of Equity
    \nand Trusts , 2nd<\/sup> edn (London: Cavendish Publishing, 2001).<\/p>\n

    [9]<\/a> Leaf v International Galleries<\/em> [1950<\/em>] 2 KB 86<\/p>\n

    [10]<\/a> Alastair Hudson, Principles of Equity
    \nand Trusts , 2nd<\/sup> edn (London: Cavendish Publishing, 2001<\/p>\n

    [11]<\/a> Chappell v Times Newspapers Ltd<\/em> [1975<\/em>] 1 WLR 482 <\/p>\n

    [12]<\/a>  Anton Piller KG v Manufacturing Process Ltd<\/em> [1976<\/em>] 1 ALL ER 779<\/p>\n

    [13]<\/a> Mareva Compania Naviera SA v International
    \nBulkcarriers SA [1980] 1 All ER 213<\/p>\n

    [14]<\/a> Ferdinand v MGN<\/em> [2011] EWHC 2454 <\/p>\n

    [15]<\/a> Catrin Fflur, Huws, Text, cases and materials on equity and trusts<\/em>, (London: Pearson, 2015), p.43.<\/p>\n

    [16]<\/a> Catrin Fflur, Huws, Text, cases and materials on equity and trusts<\/em>, (London: Pearson, 2015), p.61.<\/p>\n

    [17]<\/a> Catrin Fflur, Huws, Text, cases and materials on equity and trusts<\/em>, (London: Pearson, 2015), p.63.<\/p>\n

    [18]<\/a>
    \nAlastair Hudson, Principles of Equity and
    \nTrusts<\/em>, 2nd<\/sup> edn (London: Cavendish Publishing, 2001), p.4.<\/p>\n","protected":false},"excerpt":{"rendered":"

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