Equity and Today
Equity was actually created and developed to cover the gaps of common law.
It all started from the Norman conquest 1066. William the Conqueror realized that control of the country would be easiest by first conquering the legal system and therefore set up Curia Regis - The King's Court. He appointed his own judges and nobles would settle their disputes here. Alongside with this effort, judges were sent to major towns to solve disputes of the general public by following the local customs. Over a period of time, it is believed that the judges gathered on their return to Westminister in London to discuss the laws they used and to synchronize them and thus the common law is created.
However, common law has many loopholes as it was operated in writ system. The system requires citizens to first purchase a writ before getting a hearing. Any mistakes done in form-filling would most likely cause the claimant to lose the case as the law was too technical at that time—intentions are not taken into account. In addition, the common law only recognizes certain types of laws. The remedies given were only damages, and this might adequately bring justice to every case.
Therefore, citizens who felt unjust consulted the king and was referred to Lord Chancellor who was both a priest and a lawyer. Lord Chancellor looked beyond legal documents and used his natural sense of justice do what is right so as to bring justice to the people. This concept is termed equity—fairness.
Equity and Today
Equity introduced a few remedies which the common law could not provide. They are injunction, specific performance, rescission, and rectification.
Injunction is an order from the court to an individual or party involved in the case to do or not to do something. If the order is requiring the party involved to perform something, it is called a mandatory injunction. If the order is refraining the party from doing something, it is termed as a prohibitory injunction.
Related case: Kennaway v Thompson (1980)
Specific performance requires the party involved to complete the contract agreed upon. This is only done when the court feels that remedy of damages could not adequately compensate the loss of the other party.
Related case: Beswick v Beswick (1967)
Rescission is another remedy in contract cases which returns both parties as far as possible to conditions before the contract was made.
Rectification is given to correct the mistakes made on the contract which was against the intentions on both parties.
They are like law proverbs. For example, he who comes to equity must come with clean hands. This requires both parties involved to be of good intentions and equitable remedies will not be granted to a claimant who has not acted fairly. To illustrate, in the case of D & C Builders Ltd v Rees (1965), Mrs. Rees took advantage
of the company's financial situation. She claimed the work was not done properly and therefore the company reluctantly agreed not to charge her the full payment. However, the company afterward sued the Rees for the remaining amount of money. As the Rees has taken advantage of the Builders Ltd, they had not come with clean hands. Consequently, although this case was against the promissory estoppel, the company won the case.
Other maxims include:
- Delay defeats equity
- Equity looks to the intention and not the form
- Delay defeats equity
- Equity will not suffer a wrong to be without a remedy
These are rights where the law initially could not cover. An example of this doctrine is equitable estoppel. It prevents a party to take advantage over the other party when there are misrepresentations.
Other equitable doctrines include:
- Equitable distribution
- Equitable adoption
- Equitable conversion
- Equitable servitude
These are principles drew out through the core elements of equity - fairness. The most famous equitable principle would be the neighborhood principle which was created in the case of Donoghue v Stephenson (1932). It states that, in this case, the manufacturer owes an ultimate duty of care to the consumers as they will be drinking the ginger beers.
Other principles include principles of mortgages and trusts.
As discussed above, equity has contributed to the efficient development of the law by laying down vital rights, doctrines, and principles. Until today, such principles and concepts are still widely applied in most, if not all countries around the world. Therefore, the importance of equity towards the law, society, and country is definitely undeniable.
Question of the Day
What do you think is important to the development of law and the country?
Share—If you have the ideas, I am ready to hear.