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COMMON LAW AND EQUITY

INTRODUCTION

Common law is a system of precedence-based rulings that is used to decide cases brought
before a judge. Common law precedent can be used in combination with statutes to decide
cases with similar circumstances or to decide cases that are not covered under existing
legislation.
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This process is called stare decisis, which in Latin means "let the decision stand".
Common law precedent is used to ensure the fairness of the legal system by treating all cases
with similar facts in the same way. Many times the written law can be interpreted differently
by different individuals. Common law systems also allow for fairness by prohibiting most
bias and different interpretations by judges. As long as decisions are based on precedent, then
citizens will generally be treated fairly by the legal system. Sometimes a precedent can be
overruled. However, this will generally not be done unless the judge has grounds for doing
so.

Many countries employ a common law system based on precedent. The common law
originated in England after the Norman Conquest, which is why most countries that have
roots in English heritage will use the common law, as opposed to a civil law system.
Countries that employ a common law system include the United States, Ireland, India,
Canada, and South Africa. In civil law countries, court decisions will be mostly based on
written statutes that are developed by legislation.
Countries that utilize a common law system will employ an adversarial system in court cases.
This means that each party will be accompanied by an advocate that will represent the
interests of that party. In this case, there will be a group of impartial observers that will
decide the outcome of the case. This refers to the judge and the jury. This is in opposition to
an inquisitorial system that some civil law countries employ. In this type of system, a judge
or group of judges will investigate the facts of the case in order to make a decision.

The common law is based on precedent which is why it is usually more predictable than other
types of systems. Based on the rulings of prior cases, a plaintiff or defendant is able to

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generally assume what will happen in their case. Procedural fairness is an issue in common
law that attempts to ensure that all procedures are followed correctly in order to provide
fairness to every party in a court case.
There are two major rules of procedural fairness in common law jurisdictions.
First, the judge must offer a fair trial to all parties before the court.
Secondly, the judge must not be biased in any way.
If a judge does not offer procedural fairness, then the decision of the court can be overruled
under common law.

If we talk about the equity, equity is not a complete legal system it just a source to mitigate
the harshness and strictness of the common law or in other words a supplementary rules for
the common law. Under equity a lot of new principles were adopted and many new rights
were recognized and new remedies introduced like injunction, specific performance, concept
of trust etc.
Actually, real relationship of common law and equity is rooted in the history. Before 1066
Anglo Saxon system were prevailed in England means disputes were resolved by customary
laws of each community but after Norman Conquest centralism were evolved and judges’
council developed some courts called common law courts like Court of Exchequer and judges
travelled the whole country. After the completion of travel they make a uniform pattern of
law by excluding unreasonable customs and adding reasonable that is called common law.
But the passage of time common law became very rigid and strict and aggrieved parties try to
approach the kings for the enforcement of their civil rights. That is known as writ system in
modern legal systems but it was not suitable because in case of any error in filing of writ, not
entertained by the king. So to resolve that kinds of issues principles of equity were introduced
by the court of chancery by reducing the errors and mistakes of the common law. So in that
way equity became the complement for the common law. Common law developed by judges
by applying customary laws base on stare decisis rule but on the other hand equity developed
by chancellors in court of chancery in dealing with complaints addressed to the chancellors
by the citizens against the rigid common law. Common law is a complete system of law but
equity is complement to it but not replace it. Common law does not recognize the existence
of equity but equity acknowledges it and try to provide an alternative solution. Remedies
available in the common law as of tort, contract but remedies in equity are discretionary
means depends on judges to which they consider just and equitable according to the
circumstances. Sometimes in common law disputed parties already know about the
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consequences because of the stare decisis rule but not in equity because of the discretionary
powers of the judges.
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Here I am going to put a hierarchy of laws

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HISTORICAL DEVELOPOMENT OF COMMON LAW AND EQUITY

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English legal development can be traced back to 1066 when William of Normandy gained
the crown of England by defeating King Harold at the Battle of Hastings. Before the arrival
of the Normans in 1066 there really was no such thing as English law. The Anglo Saxon legal
system was based on the local community. Each area had its own courts in which local
customs were applied. For example, courts generally consisted of informal public assemblies
that weighed conflicting claims in a case and, if unable to reach a decision, might require an
accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a
cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's
wound healed within a prescribed period, he was set free as innocent; if not, execution
usually followed.

The Norman Conquest did not have an immediate effect on English law; indeed, William
promised the English that they could keep their customary laws. The Normans were great
administrators and they soon embarked on a process of centralisation, which created the right
climate for the evolution of a uniform system of law for the whole country.

ORIGIN OF COMMON LAW

The Norman kings ruled with the help of the most important and powerful men in the land
who formed a body known as the Curia Regis (King’s Council). This assembly carried out a
number of functions: it acted as a primitive legislature, performed administrative tasks and
exercised certain judicial powers. The meetings of the Curia Regis came to be of two types:
occasional assemblies attended by the barons and more frequent but smaller meetings of
royal officials. These officials began to specialise in certain types of work and departments
were formed. This trend eventually led to the development of courts to hear cases of a
particular kind. The courts which had emerged by the end of the 13th century became known
as the Courts of Common Law and they sat at Westminster.

 The first to appear was the Court of Exchequer. It dealt with taxation disputes but
later extended its jurisdiction to other civil cases.
 The Court of Common Pleas was the next court to be established. It heard disputes
of a civil nature between one citizen and another.

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 The Court of King’s Bench, the last court to appear, became the most important of
the three courts because of its close association with the king. Its jurisdiction included
civil and criminal cases and it developed a supervisory function over the activities of
inferior courts.

Anglo saxon system

different community to
customary law
community

Norman conquest (1066)

curia ragis common law courts

Judges travel to whole country

case to case similar
uniform pattern of law
decisons

The Normans exercised central control by sending representatives of the king from
Westminster to all parts of the country to check up on the local administration. At first these
royal commissioners performed a number of tasks: they made records of land and wealth,
collected taxes and adjudicated in disputes brought before them. Their judicial powers
gradually became more important than their other functions. To begin with, these
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commissioners (or justices) applied local customary law at the hearings, but in time local
customs were replaced by a body of rules applying to the whole country.

When they had completed their travels round the country, the justices returned to
Westminster where they discussed the customs they had encountered. By a gradual process of
sifting these customs, rejecting those which were unreasonable and accepting those which
were not, they formed a uniform pattern of law throughout England. Thus, by selecting
certain customs and applying them in all future similar cases, the common law of England
was created.

A civil action at common law was begun with the issue of a writ which was purchased from
the offices of the Chancery, a department of the Curia Regis under the control of the
Chancellor. Different kinds of action were covered by different writs. The procedural rules
and type of trial varied with the nature of the writ. It was essential that the correct writ was
chosen; otherwise the claimant would not be allowed to proceed with his action.

ORIGIN OF EQUITY

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Over a period of time the common law became a very rigid system of law and in many cases
it was impossible to obtain justice from the courts.

The main defects of the common law were as follows:

 The common law failed to keep pace with the needs of an increasingly complex
society. The writ system was slow to respond to new types of action. If a suitable writ
was not available, an injured party could not obtain a remedy, no matter how just his
claim.
 The writ system was very complicated, but trivial mistakes could defeat a claim.
 The only remedy available in the common law courts was an award of damages. This
was not always a suitable or adequate remedy.
 Men of wealth and power could overawe a court, and there were complaints of
bribery and intimidation of jurors.

It became the practice of aggrieved citizens to petition the king for assistance. As the volume
of petitions increased, the king passed them to the Curia Regis and a committee was set up to
hear the petitions. The hearings were presided over by the Chancellor and in time petitions
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were addressed to him alone. By the 15th century the Chancellor had started to hear petitions
on his own and the Court of Chancery was established. The body of rules applied by the court
was called equity.

The early Chancellors were drawn from the ranks of the clergy and their decisions reflected
their ecclesiastical background. They examined the consciences of the parties and then
ordered what was fair and just. At first, each Chancellor acted as he thought best. Decisions
varied from Chancellor to Chancellor and this resulted in a great deal of uncertainty for
petitioners. Eventually, Chancellors began to follow previous decisions and a large body of
fixed rules grew up. The decisions of the Court of Chancery were often at odds with those
made in the common law courts. This proved a source of conflict until the start of the 17th
century when James I ruled that, in cases of conflict, equity was to prevail. For several
centuries the English legal system continued to develop with two distinct sets of rules
administered in separate courts.

Equity is not a complete system of law. Equitable principles were formulated to remedy
specific defects in the common law. They were designed to complement the common law
rules and not to replace them. Equity has made an important contribution to the development
of English law, particularly in the following areas:

1. Recognition of new rights

The common law did not recognise the concept of the trust. A trust arises where a settlor (S)
conveys property to a trustee (T) to hold on trust for a beneficiary (B). The common law
treated T as if he were the owner of the property and B’s claims were ignored. The Court of
Chancery, however, would require T to act according to his conscience and administer the
trust on B’s behalf. Thus, equity recognised and enforced the rights of a beneficiary under a
trust.

The Court of Chancery also came to the aid of borrowers who had mortgaged their property
as security for a loan. If the loan was not repaid by the agreed date, the common law position
was that the lender (mortgagee) became the owner of the property and the borrower
(mortgagor) was still required to pay the outstanding balance. Equity gave the mortgagor the
right to pay off the loan and recover his property even though the repayment date had passed.
This equitable principle is known as the equity of redemption.
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2. Introduction of new remedies

The new equitable rights were enforced by means of new equitable remedies. In the field of
contract law, the Court of Chancery developed such remedies as

SPECIFIC
INJUNCTION
PERFORMANCE

RESCISSION RECTIFICATION

These remedies were not available as of right like common law remedies: they were
discretionary. The Court of Chancery could refuse to grant an equitable remedy if, for
example, the claimant had himself acted unfairly.

By the 19th century the administration of justice had reached an unhappy state of affairs and
was heavily criticised. The existence of separate courts for the administration of common law
and equity meant that someone who wanted help from both the common law and equity had
to bring two separate cases in two separate courts. If a person started an action in the wrong
court, he could not get a remedy until he brought his case to the right court. The proceedings
in the Court of Chancery had become notorious for their length and expense. (Charles
Dickens satirised the delays of Chancery in his novel Bleak House.) Comprehensive reform
of the many deficiencies of the English legal system was effected by several statutes in the
19th century culminating in the Judicature Acts 1873–75. The separate common law courts
and Court of Chancery were replaced by a Supreme Court of Judicature which comprised the
Court of Appeal and High Court. Every judge was empowered thenceforth to administer both
common law and equity in his court. Thus, a claimant seeking a common law and an
equitable remedy need only pursue one action in one court. The Acts also confirmed that,
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where common law and equity conflict, equity should prevail. These reforms did not have the
effect of removing the distinction between the two sets of rules: common law and equity are
still two separate but complementary systems of law. A judge may draw upon both sets of
rules to decide a case.

COMMON LAW

Also known as case law or precedent, Common Law is developed by judges through the
decisions rendered by courts or similar tribunals. This characteristic is held separate from
other forms of law, which are typically developed through an executive branch action or
legislative statutes. As a result of the formation, a “common law system” is a legal system
that places a significant weight on common law, on the basic premise that it is unfair to treat
similar legal matters differently on different occasions.

In a legal matter where the opposing parties disagree on what the underlying law is, a
common law court will look into past precedential decisions of relevant courts. If a similar
legal matter or dispute has been resolved in the past, the court of common law is bound to
follow similar reasoning used in the prior decision. That being said, if the court finds the
current dispute to be fundamentally distinct from all previous cases, the presiding judge
possesses the authority and duty to make a law through the creation of precedent. Therefore,
when the new decision is viewed as a precedent it will bind future courts presiding over
similar matters.

In general practice, a common law system is considerably more complicated than the
aforementioned idealized legal system. The decisions of a legal forum are binding in a
particular jurisdiction; even in a given jurisdiction, some courts will hold more power than
other. For instance, in the majority of jurisdictions, a decision rendered by an appellate court
are binding on lower courts located in the same jurisdiction and on future decisions rendered
by the same appellate court.

Stare Decisis

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Common law is a type of legal system in which judicial decisions are made primarily based
on precedent. Precedent refers to prior court case decisions that will set a standard for how
similar subsequent cases should be judged. Basically, cases with similar circumstances to
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prior cases will be ruled in the same way. The main basis for this type of legal system is stare
decisis. This is a Latin phrase that means "stand by decisions". This phrase holds judges to
prior court decisions and will not allow for change unless a judge has reasonable grounds for
doing so.

Stare decisis is only applied in common law systems. In contrast, a civil law system is based
on formal, written legislation rather than a case-by-case process. Civil law systems allow for
a wider interpretation of statutes by judges. However, this can sometimes lead to bias. This is
why common law systems rely on precedent to form judicial opinion. For the most part, stare
decisis allows for judgments to be slightly more predictable in common law systems than
civil law systems.

There are two important components within the concept of stare decisis. There is a procedure
of authority that must be followed in all common law systems. Any decisions that are made
in a higher court are binding over lower courts. This means that any decision made in an
appellate court is binding and cannot be overturned in an inferior court.

The judicial system in common law jurisdictions is divided in descending order into supreme
courts, appellate courts, and trial courts. Supreme Court judicial decisions are absolutely
binding over all other courts, meaning they must be obeyed. This is sometimes called vertical
stare decisis because of the ranking authority of the courts. However, this process can
sometimes be complicated because there are also judicial decisions that are based on
horizontal stare decisis. State courts are generally divided into circuits. Each circuit must also
obey the decisions of other circuit courts in their jurisdiction.

The term super stare decisis, or super-precedent, have also been used in common law
systems. This term is used to describe a judicial decision that is very difficult to overrule.
Super stare decisis are a controversial issue because many people believe that a precedent
should not be so concrete, especially if it is not considered to be the correct decision.

In discussing super-precedent, many people have cited the abortion issue that was decided in
Roe v. Wade. Some people believe that abortion, being such a controversial issue, should not
be set in stone by a court case where one side was able to convince the court. However,
generally precedents will be able to be overturned when the view of society has changed. A
super stare decisi is considered to be an extreme type of precedent.
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THIS DIAGRAM SHALL CLEARLY EXPLAIN THE CONCEPT OF STARE

DECISIS

BINDING
ON
INFERIOR
COURTS
GIVEN
BELOW

DECISONS
OF DECISIONS PURSUASIVE
SUPREME OF HIGH
COURY FOR OTHER
STATE COURT
BINDING HIGH COURTS
DECISI ON AND FOREIGN
S COURTS

ON SAME
HIGH COURT FOR
COURT SIMILAR FUTURE
CASES
TRIAL
COURT TRIAL
COURT
CIVIL
COURT CIVIL
COURT

COMMON LAW V/S STATUTORY LAW

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The common law differs from statutory law because it is mainly based on precedent.
Statutory law is a more formal body of the legal system that consists of written legislation.
This legislation will mainly be based on rules and regulations either mandating or prohibiting

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certain behaviours of the general public. Common law, on the other hand, will allow judges
to decide cases based on the rulings of prior cases with similar circumstances.
Many times statutory law can be interpreted differently by different people. This is why
making rulings based on precedent in common law systems can be beneficial when the
meaning of a law is disputed. When the facts of a case are unique and there is no binding
precedent, these are called cases of first impression. In this case, a judge’s decision will
essentially form law and subsequent cases will be ruled in a similar way.

The main differentiation between common law and statutory law is the way in which the laws
are created. As stated above, common law comes from precedent. Statutory law is made by
the Government. It is designed to keep citizens safe as well as ensure that citizens are able to
function in everyday life. If there is an issue before the court that absolutely cannot be
decided by precedent or a judge's decision, the court may turn to statutory law to decide the
case. When a statutory law is broken by a citizen, the Government will have a predetermined
punishment that is in proportion to the nature of the crime.
There are many different types of Government agencies that are able to issue statutory law.
Many times, a judge's decision will be based on a combination of statutory law and common
law. This means judges will incorporate both written statutes and case precedent when
issuing a ruling. It is important for both judges and attorneys to be aware of recent changes in
statutory law and relevant court decisions that will affect common law.

Most of the time, the areas of contract law, tort law, and property law exist within common
law, not statutory law. Although there may be some written statutes in these areas, most of
the time a judge's decision will be based on precedent. Statutory law will give only a rigid,
formal interpretation of the law. It does not always apply easily to all situations. This is why
it is beneficial for judges to refer to prior cases, rather than legislation. Many times, a
precedent will be identified and then applied to the case at hand through analogy.

LAW OF EQUITY

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The law of equity began in the court of chancery which was set up because a fair and just
remedy could not be given through common law as monetary compensation was not suitable
and sometimes a well deserving plaintiff was denied because the writs where quite narrow

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and rigid. Courts were guided by the previous decisions and that's how the twelve maxims
were formulated. These maxims limit the granting of equitable remedies for those who have
not acted in an equitable manner. The decisions of the court of chancery and common law
were constantly conflicting. This rivalry was ended in The Earl of Oxfords case 1615. In
which the king stated ‘Where common law and equity conflict equity should prevail'. The
two courts are now unified and the same judges give decisions out common law and equity.

The law relating to equity is largely built on precedent. The rules have been built upon by
previous situations which they have dealt with. Although there has been a lot of disagreement
about changing laws and adding to the law of equity, the rules that have been accepted by
proceeding judges became precedent and are now known as maxims and are used as
guidelines by the court. I agree with the statement by Denning as equity is born from the
interpretation of judges and there problem solving abilities. There are a lot of different rules
regarding equity that have all been created through precedent. It is my opinion that although
Equity dates back hundreds of years and the law is still just as relevant. There are alterations
to the law as recent as the 1975 Eves V Eves case. I am of the opinion that as long as there
are judges to create precedent there can be new law created in equity.

The Maxims Of Equity

These are the general legal principles that have been adopted threw following precedent in
regard to equity. These maxims are the body of law that has developed in relation to equity
and these help to govern the way equity operates. All maxims are discretionary in nature and
courts may choose whether they wish to apply these principles.

1. Equity will not suffer a wrong to be without a remedy:

This maxim developed as common law had no new remedies only monetary damages. Maxim
must be treated with caution as today's laws are made by the Oireachtas. Maxim can be used
by the beneficiary of a trust whose rights were not recognised by the common law. Equitable
remedies such as injunctions or specific performance may be given.

 (Patterson v Murphy 1978 ILRM 85) injunction

Attempts to alter this maxim in recent times by Lord Denning in (Hussey v Palmer 1972)
were unsuccessful.
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2. Equity follows the law:

Courts will firstly apply common law and if this is not fair then an equitable remedy will be
provided. This maxim sets out that equity is not in place to overrule judgements in common
law but rather to make sure that parties don't suffer an injustice.

3. He who seeks equity must do equity:

A remedy will only be provided where you have acted equitable in the transaction. This
maxim is discretionary in nature and is concerned with the future conduct of the plaintiff.

 (Cheese v Thomas 1994)

4. He who comes to equity must come with clean hands:

This maxim is linked to the previous maxim and relates to the past conduct of parties. They
must not have had any involvement in fraud or misrepresentation or they will not succeed in
equity

 (Overton v Banister 1844) A beneficiary failed in their action against the trustees
to pay her back the assets of the trust she had already received as a result of a
misrepresentation of her age.

5. Delay defeats equity:

Laches is an unreasonable delay in enforcing a right.

If there is an unreasonable delay in bringing proceedings the case may be disallowed in

equity. Acquiescence is where one party breaches another's rights and that party doesn't take
an action against them they may not be allowed to pursue this claim at a later stage. These
may be used as defences in relation to equity cases. For a defence of laches courts must
decide whether the plaintiff has delayed unreasonably in bringing forth their claim and the
defence of acquiescence can be used if the actions of the defendant suggest that they are not
going ahead with the claim so it is reasonable for the other party to assume that there is no
claim. (Nelson v Rye 1996)

6. Equality is Equity:
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Where more than one person is involved in owning a property the courts prefer to divide
property equally. Prefer to treat all involved as equals. In the case of a business any funds left
over from dissolution should be divided equally.

7. Equity looks to the intent rather than the form:

Principle established in (Parkin v Thorold 1852). This maxim is where the equitable remedy
for rectification was established this allows for a contract to be corrected when the terms are
not correctly recorded. This maxim allows the judge to interpret the intentions of the parties if
the terms aren't recorded properly.

8. Equity looks on that as done which ought to have been done:

The judges look at this contract from the enforceable side and the situation they would be in
had the contract been completed.

9. Equity imputes an intention to fulfil an Obligation:

If a person completes an act that could be regarded as fulfilling an original obligation it will
be taken as such.

10. Equity acts in personam:

This maxim states that equity relates to a person rather than their property. It applies to
property outside a jurisdiction provided that a defendant is within the jurisdiction.

 (Penn v Lord Baltimore 1750) English court ordered specific performance on

land in the US.

11. Where the equities are equal, the first in time prevails.

Where two parties have the right to possess an object the first one with the interest will
prevail.

12. Where the equities are equal, the law prevails.

Where two parties want the same thing and the court can't honestly decide who deserves it
most they will leave it where it is.
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Equitable Remedies

Injunctions

This is an order by the court to make a party complete an action or to make them refrain from
doing an action. It is awarded to protect a legal right rather than compensate for the breach of
one. If a party breaches this court order it is a serious offence and can merit arrest or possible
jail sentence. The reason for injunctions is that money would be an inadequate remedy for
breaching the person's right. An injunction is a discretionary remedy which courts will only
grant if they feel it is just and equitable in the circumstances to do so. Interim and
interlocutory injunctions are temporary and last up until specified date or until a trial hearing.
Injunctions can be used to stop trespass, passing off, prevent illegal picketing and to freeze
assets.

Conduct of the parties will also affect whether the judge will grant them an injunction
(Chappell v Times Newspaper 1975)

Interlocutory Injunction

Granted prior to a court hearing because plaintiff may suffer un-repairable damage if right is
breached which cannot be compensated by money. The plaintiff must prove to the judge that
there is sufficient reason to believe that the damage will be caused to them.

Three stage test on granting interlocutory injunctions was introduced in the English case
(American Cyanamid) this was accepted and followed as law in the Irish case (Campus Oil
V The Minister for Energy) :

1. If it is a serious and fair issue that will be tried you need not prove it'll be a successful
claim.

2. Set out if damages would be a suitable remedy. It must be impossible to quantify

damages and must give an under taking which means in the event of an injunction not
being granted they must compensate the other party for any losses.
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3. Whether it is convenient or not to grant the injunction. Need for plaintiff to be

protected must outweigh against the right of the other party in order to grant the
injunction.

Qui Timet Injunction

Prevents an act before it has been committed it may be feared or could have been threatened.
Plaintiff must show that there is a strong possibility of this happening and the consequences
of the act will be extremely damaging. The burden of proof is higher than a normal injunction
(AG v Rathmines & Pembroke Joint Hospital Board 1904).

Mareva Injunction

This type of injunction can also be known as a freezing injunction. Where one feels that they
have a substantial case against the other the can apply to the courts for this only if they feel
that the other may move of hide assets. In order to gain this type of an injunction plaintiff
must prove that they have a substantial case and must also prove that the assets are at risk. It
must also be convenient to grant it.

This type of injunction was introduced in the (Nippon Case 1975) by Lord Denning where
defendant owed money to plaintiff he was not allowed to take out the amount he had owed
from his account. This became another instrument of law when it was confirmed in the
(Mareva Case).

Anton Piller Order

This can also be known as a search order. It was thought of in order to prevent the defendant
from destroying anything that could be used by the plaintiff in court to assist their trial. It is
granted without the other party's knowledge in order to maintain the element of surprise. The
order requires the defendant to allow the plaintiff or a representative to enter his premises and
to collect what is relevant for evidence. If the defendant does not follow the order then he
shall be held in contempt of court. It is only granted where it is deemed to be absolutely
necessary where it is feared that vital evidence will be destroyed.

The order takes its name from the 1976 Anton Piller KG v Manufacturing Processes Ltd case
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Specific Performance

Is a form of injunction where a court orders an individual to complete a specific task which is
generally part of a contract. This remedy is discretionary and only used when an individual
cannot be compensated by money. If they do not complete the contract they will be held in
contempt of court.

Rescission

This remedy aims to return parties to the position they were in before they entered into the
contract. The main grounds for rescission are mistake, misrepresentation, undue influence
and unconscionable transactions. (Solle v Butcher 1950)

THE SUBJECT-MATTER OF EQUITY

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It may be helpful to the understanding of equity to list the subjects which should properly be
included within it. No list can be exhaustive. However, the following matters are assigned to
the Chancery Division by the Supreme Court Act 1981:

* The sale, exchange or partition of land, or the raising of charges on land;

* The redemption or foreclosure of mortgages;
* The execution of trusts;
* The administration of the estates of deceased persons;
* Bankruptcy;
* The dissolution of partnerships or the taking of partnership or other accounts;
* The rectification, setting aside or cancellation of deeds or other instruments in writing;
* Probate business, other than non-contentious or common form business;
* Patents, trademarks, registered designs or copyright;
* The appointment of a guardian of a minor's estate;
* All causes and matters involving the exercise of the High Court's jurisdiction under the
enactments relating to companies.

DIFFERENCES BETWEEN COMMON LAW AND EQUITABLE

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Following are the major differences between common law and law of equity:

1) Equity, according to Maitland, “is now that body of rules administered by our … courts
of justice which, were it not for the operation of the Judicature Acts, would be
administered only by those courts which would now be known as Courts of Equity."
Therefore, birth of equity came about when the strictures of the writ system through the
twelfth and the thirteenth centuries failed to develop further remedies. Disappointed
litigants began petitioning the King to do justice in their particular case, as he was “the
fountain of all justice". As the petitions increased, the King delegated the duty to the
Chancellor, his most senior official, as the “keeper of the King’s conscience". On
receiving the petitions, the Chancellor would adjudicate them, according to principles of
fairness and justice, thus developed equity.
2) By the fifteen century, equity became well established and was seen as the rival system of
common law. The Chancellor’s jurisdiction was exercised through the Court of Chancery.
He was not bound by precedent or strict legal rules as the common law courts and
consequently, was able to use discretion to administer justice to a particular case. They
developed well established principles which govern the exercise of the discretion of the
court, which was flexible and adaptable to achieve justice and fairness, which is, as Lord
Selborne LC in Wilson v Northampton and Banbury Junction railway Co, remarked,
to “do more perfect and complete justice than would be the result of leaving the parties to
their remedies at common law".
3) The increasing popularity of the Court of Chancery soon led to conflict with the common
law courts. When there was a conflict between the two, equity would use a remedy which
had the effect of preventing common law action from proceeding or prevent the common
law judgement from being enforced. One such conflict occurred in the Earl of Oxford’s
Case where the court of common law ordered the payment of a debt. The debt had already
been paid, but the deed giving rise to the obligation had not been cancelled. The court of
equity was prepared to grant an order preventing this and ratifying the deed. It was ruled
that, where there is a conflict between the common law and equity, equity will prevail.
The conflict was finally put to rest by the setting up Judicature Acts in 1873-75 where the
Supreme Court could now administered both rules of common law and equity.

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4) One of the major differences between common law and equitable rights lies in the
deficiencies of the common law remedy. When equity originally developed as a “gloss on
the common law" according to Pettit, it developed new remedies and recognized new
rights where the common law fails to act. Therefore, equity provides a remedy where
common law provides none or provides a more suitable remedy than common law.
According to Lord Nicholls in AG v Blake, “in general, legal rights and remedies
remain distinct from equitable ones. Some overlap does, however, occur, for example, an
injunction, an equitable remedy, can be sought for an anticipatory breach of contract, or
to stop a nuisance, both common law claims". In this case, the House of Lords allowed
the equitable remedy of account of profits for a claim for breach of contract where the
common law remedy of damages would have been inadequate.
5) Equity has been important in supplementing many new remedies to the common law.
Some of the most important are those of specific performance, injunction, rescission and
rectification. A decree of specific performance compels the defendant to perform his side
of the bargain while an injunction prevents someone from performing a certain act. The
remedies developed by equity, are, distinct from the common law remedy of damages,
subject to the discretion of the judge. Thus a judge will decide that, for claimants to be
granted equitable remedies they must come to court with clean hands, they must have
behaved equitably and must not have delayed in seeking the intervention of equity.
Otherwise, if damages are an adequate remedy, then there is no need to substitute an
equitable remedy.
6) Another difference between common law and equitable rights is the concept of trust.
According to Haley and Mc Murtry , “the concept of the trust has been the vehicle for
much creative activity on the part of the courts of equity". It recognized the trust when the
common law had refused to acknowledge the existence of a beneficiary and provide
remedies for breach of trust against a trustee who fail to perform its duties.
7) Also, equitable rights acts in personam, while common law rights act in rem. This means
that equity remedies are personal in that they exercise against specific persons except, a
bona fide purchaser of a legal estate for value without notice of the prior equitable rights.
For example, where someone build a home on someone else’s land, with the
understanding that the ownership of the land would be transferred to them on completion.
If the land owner refused to perform this duty, the builder of the home would have no
action under common law; however equity will act against the person and order him to do
something such as specific performance.
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8) Common law and equitable right has two different function in that, common law
establishes general rules which provide certainty, while, equitable rights acts as a check
and balance of common law. This arises from the strict application of the common law.
9) On the other hand, one could also argue that there are no differences between common
law and equitable rights. While it is clear that the Judicature Act fused the
administration of common law and equity, there is a view by Ashburner , ‘that common
law and equity are two streams running alongside one another, but never mingling their
waters’. As well, in Salt v Cooper, Sir George Jessel MR states that; “the main object
of the acts was not the fusion of the law and equity, but the vesting in one tribunal of the
administration of law and equity in all actions coming before that tribunal". However
Lord Diplock had a different view, in United Scientific Holdings Ltd v Burnley
Borough Council, he states, “The innate conservatism of English lawyers may have
made them slow to recognise that by the Judicature Act 1873 the two systems of
substantive and adjectival law formerly administered by courts of law and courts of
equity . . . were fused. If Professor Ashburner’s fluvial metaphor is to be retained at all,
the confluent streams of law and equity have surely mingled now".
10) Although equity did not acquire the rigidity of the common law, there are rules of equity,
whereas once equitable rights were entirely discretionary, it must now obey the rules of
precedent as does the common law. While common law and equitable rights have become
closer, there are both some similarities and differences which is reflected in the maxims.
Therefore equitable follows the law, show a relationship between common law and
equitable rights, in that equity will only intervene when there are reasons to.
11) According to Sir Nathan Write LJ in Lord Dudley and Ward v Lady Dudley , state
that “equity represent a later development of law, laying an additional body of rules over
the existing common law which, in the majority of cases, provides an adequate remedy.
Equity, therefore, does not destroy the law, nor create it, but assists it". Therefore, there
still remains differences between common law and equitable right, equity work alongside
the common law and provide different solutions to problems.

ANALYSIS ON THE RELATIONSHIP OF COMMON LAW AND

EQUITY
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Common law proves to be a self-sufficient legal system or source of law when compared to
equity. This can be attested by the fact that equity presupposes the existence of common law
and if we abolished the equity system, we would still have a coherent system of law, common
law, but not vice versa.

The equity system of law was developed as a measure to address the rigidity of the common
law system. Therefore, in its early years, the equity system was largely viewed as being
against common law. The general feeling among a majority of people in legal circles was that
the common law system would be equity abrogated by the inception of equity. On the
contrary, it is evident that the modern development of equity is has in no way come to
abrogate the common law but instead it serves to strengthen it.

Because of the nature of equity, a conflict between the two systems was in the offing and so
between the years 1873-75, the court of chancery abolished the courts that propagated the
equity system of law, by means of the Judicature Act (Holmes O. W., 1881). This was done
through the transfer of their jurisdiction to the new supreme court of judicature, which in its
administration led to the fusing of both the common law and equity. However, the substantive
body of rules or laws found in the two systems was still maintained as separate entities. It is
worth noting that the relationship between equity and common law is today is not one of
contradiction but rather one of complementarily. The Judicature Acts (1873–75) succeeded in
the merge of the administration of both equity and common law. This means that a majority
of modern day law courts apply the two set of rules in their proceedings.

Whenever conflict still existed between the rules of the two systems, the rules of equity were
to prevail in favor of those of common law. The overall effect of the Judicature Act that
merged the two systems was the conversion of the exclusive and separate jurisdiction of
equity into a concurrent jurisdiction. It also served to abolish the auxiliary jurisdiction, which
meant that there was no longer need to go to a separate court if one wishes to obtain an
equitable remedy. This change applied not only in the United Kingdom but also in the
Commonwealth Nations.

However, the equity system continues to perform its core function, which is to complement
and supplement the common law, in accordance with the morally accepted notions of justice
and fairness (Antoine R. B. 2008).
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CONCLUSION

The relationship of common law and equity can be seen in the history, even now no system of
law can run with the assistance of other in the modern society because it is essential to reduce
the rigidity of common law and provide just and equitable remedies to the litigants. In early
stages both common law and equity were executed in separate courts and most of the time
conflict with each other. As law of equity is not a complete system of law like common law
but it proved to be complement to the common law not to replace the common law. Equity
admits the authority of common law but common law doesn’t recognize it. So in 1873-1875
the judicature act fuse them and then started to apply in the same courts like Supreme Court
and observed by the same judge. The nature of the relationship between the two systems
today is that they strive to balance each other. This is accomplished without having either of
the two systems being accorded less significance than the other is.

It is evident that there exists a mutual relationship between the two systems of law. This is in
the interest of providing fair and just rulings and arbitration in any given legal dispute.

The most significant distinction that exists between the two systems is based on the
remedies that each offers. In the common law, decisions are made by reference to existing
legal doctrines or statutes, whereas in the equity system, the emphasis is laid on fairness and
flexibility, which are known as the maxims of equity. For instance, the most common remedy
a court of law can award is money in lieu of damages caused. Equity, on the other hand,
enters injunctions or decrees directing someone either to act or to forbear from acting, which
are in practical terms more valuable to a complainant. These equitable remedies can be only
be dispensed by a judge as it is a matter of law. Another important distinction between equity
and common law lies in the source of the rules governing the decisions that are made in each
of the systems (suryanarayana v. 2007)

As provide above equity describes many principles which adopted from various precedents
came from famous and unique cases. Principles like specific performance in the contracts
instead of the monetary damages or injunction to do or to forbid to do something or rescission
in which parties have to put in previous position as they were before the transaction or
contract or breach of civil rights. So by analysing such remedies and new rights, we can say
that development of equity was the absolutely right step to meet the needs of the society. So
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common law and equity are two kinds of water that flow in the same stream and sometime
mingled together.

Bibliography
A.Www.laws.com/common law
B.www.lawaspect.com/comparison of common law and
equity
C.www.lawteacher.com/introduction to equity
D.Www.venables.co.uk
E. www.infolaw.co.uk
F. www.legalabbrevs.cardiff.ac.uk
G.www.mylawchamber.co.uk/richesallen
H.www.kent.ac.uk/lawlinks
I. www.britannica.com/topic/common-law
J. Jurisprudence by V.D Mahajan
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