Kara Sears
Common law, equity, and statute are three distinct legal concepts that interact in complex ways and form the basis of many legal systems. Common law, or 'judge-made law', is a system based on precedent, where judicial decisions in previous cases guide the resolution of future disputes. Equity, on the other hand, focuses on fairness and justice, providing remedies and recognising rights where common law may fall short. Statute refers to laws written by legislative bodies and can codify common law without displacing it. While there is overlap and interplay between these three concepts, understanding their distinctions is crucial for legal practitioners and scholars alike, as it influences the interpretation and application of law in various jurisdictions, including the United States, the United Kingdom, Canada, and Australia.
| Characteristics | Values |
|---|---|
| Historical origin | Equity originated in the English Court of Chancery and developed as a distinct legal system alongside common law. |
| Development | Equity developed as a "gloss on the common law", creating new remedies and rights where common law failed to act. |
| Relationship | Equity follows the law and will only intervene when common law does not provide a remedy or an adequate one. |
| Nature of remedies | Common law provides monetary compensation, while equity offers a wider range of remedies, including specific performance, injunction, rescission, and rectification. |
| Discretion | Equity allows judges more discretion in applying principles and granting remedies, considering the unique circumstances of each case. |
| Trust | Equity recognizes the concept of trust, which common law may not always recognize. |
| Enforcement | Equity played a vital role in enforcing uses, a role that the rigid framework of common law could not accommodate. |
| Jurisdiction | Jurisdictions with a common law system may treat equity differently. For example, in the US, federal and state courts have merged law and equity, while in England and Wales, Australia, New Zealand, and Canada, equity remains distinct. |
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What You'll Learn
Common law and equity have different historical origins
Common law and equity have distinct historical origins. Common law, or "judge-made law", developed in England and spread to many English-speaking countries. It is based on the principle of judicial precedent, where decisions made by judges in previous cases guide future rulings on similar disputes. Common law relies on accumulated rulings of judges, statutes, and legal treatises.
Equity, on the other hand, has a different origin story. It emerged in the English Court of Chancery, also known as the King's Court of Chancery, to address cases that common law courts could not adequately resolve. The birth of equity can be traced back to the twelfth and thirteenth centuries when disappointed litigants began petitioning the King, as the "fountain of all justice", to seek justice outside the confines of the writ system. As the number of petitions increased, the King delegated this duty to the Chancellor, who became known as the "keeper of the King's conscience". The Chancellor's decisions were guided by principles of fairness and justice, thus giving rise to the development of equity as a distinct legal system alongside common law.
By the fourteenth century, the Chancery was functioning as a court, offering remedies in situations where common law procedures fell short or resulted in injustice. The Roman concept of "aequitas" influenced the evolution of the English concept of equity during this period. Chancellors were often well-versed in Roman law and canon law, shaping the distinct yet related nature of equity.
In jurisdictions that have inherited the common law system, the treatment of equity varies. While some have downplayed the historical or institutional origins of legal rules, others like England and Wales, Australia, New Zealand, and Canada, continue to maintain equity as a separate body of law. This distinction is reflected in the remedies available under each system. Common law typically provides monetary compensation, while equity offers a broader range of remedies, including specific performance, injunction, rescission, and rectification.
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The two systems have distinct principles
Common law and equity are two distinct legal systems that coexist in many jurisdictions, including the United States, the United Kingdom, Canada, and Australia. While they share some similarities and overlap, they differ in their historical origins, principles, and remedies.
Equity originated in the English Court of Chancery, developing as a distinct legal system alongside common law. It arose from the petitions of disappointed litigants to the King, who was seen as "the fountain of all justice". As petitions increased, the King delegated this duty to the Chancellor, who would adjudicate according to principles of fairness and justice, thus giving rise to equity.
Common law, on the other hand, is a legal system that developed in England and spread to many English-speaking countries. It is based on judicial precedent, where decisions made by judges in previous cases guide the resolution of future disputes. It relies heavily on the principle of stare decisis, meaning that judges are bound by the decisions of higher courts in similar cases.
Equity provides remedies and recognises rights where common law fails to act or provide adequate solutions. It allows judges to exercise discretion, considering the unique circumstances of each case to achieve fairness. This discretionary nature enables judges to tailor relief to the specific facts and equities of each case.
Common law, with its rigidity, provides a more predictable framework for resolving disputes based on established principles and precedents. It offers a foundation for consistency and stability in the legal system, ensuring that similar cases are treated similarly and that judges' decisions are constrained by established legal principles.
In summary, while both systems play important roles in the legal landscape, they operate with distinct principles. Equity focuses on fairness and flexibility, filling gaps and providing additional remedies, while common law provides a foundation of precedent and predictability, ensuring consistency and stability in legal decision-making.
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Common law and equity offer different remedies
Equity provides a remedy where common law provides none, or where it provides a more suitable remedy than common law. For example, in the case of AG v Blake, the House of Lords allowed the equitable remedy of an account of profits for a claim for breach of contract where the common law remedy of damages would have been inadequate. Similarly, in the case of Casey v. Phila. Auto Sales Co., a party was allowed to seek equitable remedies when remedies at law were not adequate.
Equity developed as a "gloss on the common law" and created new remedies and recognised new rights where common law failed to act. The Chancellor, as the "keeper of the King's conscience", would adjudicate petitions according to principles of fairness and justice. The Chancellor was not bound by precedent or strict legal rules, and this allowed for flexibility and adaptability in achieving justice and fairness.
The two main equitable remedies are injunctions and specific performance. Injunctions may be mandatory, requiring a person to do something, or prohibitory, stopping them from doing something. Specific performance requires a party to perform a contract, such as by transferring a piece of land to the claimant.
In summary, the main difference between a legal remedy and an equitable remedy is that legal remedies are typically awarded in the form of damages, while equitable remedies are more flexible and are designed to provide a fair and just solution to a dispute.
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Statute law can codify common law
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Common law is practised in the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand.
Another example of statute law codifying common law is the California Labor Code Section 2750.3, which codified and expanded on the California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court. This decision articulated a three-part test for determining whether California workers were independent contractors or employees for purposes of California labor law. The California Legislature responded by creating a new section of the Labor Code, which specifically mentioned the Dynamex holding and went into effect on January 1, 2020.
In some cases, statute law can also override common law. For example, in the case of Li v. Yellow Cab Co., the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.
The relationship between common law and statute law is complex and evolving. While common law is based on judicial precedents, statute law is created through the legislative process. In some cases, statute law may codify or modify existing common law, while in other cases, it may override or replace common law. This dynamic interplay between common law and statute law allows the legal system to adapt to changing social and technological landscapes.
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Common law and equity have different relationships with precedent
Common law and equity have distinct relationships with precedent. Equity was historically discretionary, with the Chancellor's jurisdiction exercised through the Court of Chancery, where he was not bound by precedent or strict legal rules, allowing for the use of discretion to administer justice in specific cases. This gave rise to well-established principles that were flexible and adaptable to achieve fairness and justice.
Over time, equity evolved into a system of precedents, and while it still retains some discretionary aspects, it must now obey the rules of precedent, similar to common law. This evolution aligned equity more closely with common law, as reflected in various maxims and legal doctrines.
However, the relationship between common law and equity regarding precedent is complex. While both systems adhere to precedent, they may have different precedents due to their distinct historical origins and developments. Equity, as a body of law, originated in the Court of Chancery to address the limitations of common law, providing remedies where common law failed to act or was inadequate. This distinction between the two systems led to conflicts, with equity often prevailing in these situations.
The Judicature Acts in the 1870s brought procedural fusion between common law and equity, allowing the Supreme Court to administer both rules. Despite this fusion, the substantive distinction between the two systems remained, and they continue to have separate bodies of law in certain jurisdictions, including England and Wales, Australia, New Zealand, and Canada.
In summary, while both common law and equity adhere to precedent, their historical differences and unique developments have resulted in distinct bodies of law and precedents. The relationship between the two systems is complex, with equity often prevailing in conflicts and providing remedies where common law falls short.
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Frequently asked questions
Common law is a legal system that developed in England and spread to many English-speaking countries. It is based on judicial precedent, meaning that decisions made by judges in previous cases serve as a guide for resolving similar disputes in the future. On the other hand, equity is rooted in the concept of fairness and seeks to address situations where the application of strict legal rules may lead to unjust outcomes. It originated in the English Court of Chancery and developed as a distinct legal system alongside common law.
Statute refers to laws written by legislative bodies such as Parliament. Common law, or "judge-made law", generates new common law on a "slow incremental basis". Statutory law can codify common law without displacing it. For example, the Criminal Code codifies criminal law by statute, but criminal law also involves important common law concepts such as mens rea and natural justice.
Common law and equitable rights have become closer, and there are both similarities and differences between them. Equity supplements common law by providing additional remedies and principles when common law falls short. It fills gaps in the law and addresses situations that may not have clear solutions under common law principles.
The distinction between common law, equity, and statute is important because they are three distinct sources of law that interact with and complement each other. While there may be some overlap between them, each has its own unique characteristics, origins, and principles that influence how they are applied in practice.
