Anaya Nolan
The difference between common law and equity lies in who hears a case and passes judgment on it, as well as the type of action that may result from such judgment. Common law typically refers to laws based on precedent and the rulings of judges who hear a case in a courtroom. Equity, on the other hand, refers to laws that are similarly established by court rulings but deal with judgment and justice through equitable decisions. While the two systems share similarities, they have distinct differences.
| Characteristics | Values |
|---|---|
| Nature of the law | Common law is a much older system of law, while equity is a more modern body of legal doctrine. |
| Court systems | Before 1873, England had two complementary court systems: courts of "law" and courts of "equity". |
| Court judgments | Common law relies on the doctrine of precedent when making court judgments. |
| Court administration | The Judicature Act of 1873 merged law and equity administration. |
| Court remedies | Common law courts award monetary damages, while equity enters injunctions or decrees directing someone to act or refrain from acting. |
| Jurisdiction | Common law was administered by the King's Benches, while equity was administered by the Court of Chancery. |
| Rigidity | Common law is bound by precedent and strict legal rules, while equity is flexible and adaptable to achieve justice and fairness. |
| Relationship | Equity follows the law and only intervenes when there is a reason to. |
| Conflict resolution | In the event of a conflict between common law and equity, equity prevails. |
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What You'll Learn
The history of common law and equity
After the Norman Conquest of England in the 11th century, royal justice was administered in three central courts: the Court of King's Bench, the Court of Common Pleas, and the Exchequer. These courts, created by the authority of the King of England, were the origin of common law. Initially, a writ was likely a vague order to do right by the plaintiff, and it was usually a writ of grace, issued at the King's pleasure.
Equity, on the other hand, evolved from the Court of Chancery, where the chancellor, appointed by the monarch, presided. Citizens could appeal common law decisions to the monarch, who was seen as the ultimate arbiter of justice. The Court of Chancery was not bound by precedent or strict legal rules, allowing the chancellor to use discretion to administer justice. This flexibility and adaptability in achieving justice and fairness made the Court of Chancery quite popular, leading to conflicts with the common law courts.
In the 15th century, equity was well-established and seen as a rival system to common law. The increasing popularity of the Court of Chancery led to "jurisdiction shopping", where litigants would seek equitable injunctions to prohibit the enforcement of common law court orders. The conflict between the two systems intensified in 1615 due to a clash between Lord Chancellor Ellesmere and the Chief Justice of the King's Bench, Sir Edward Coke. This tension reached a climax in the Earl of Oxford's case, where a judgment was allegedly obtained by fraud.
The Judicature Acts of the 1870s in England, and 1873-1875 in the US, ended the institutional separation of common law and equity, allowing the Supreme Court to administer both rules. However, the reforms did not fuse the actual bodies of law, and some jurisdictions that inherited the common law system continue to treat equity separately.
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Differences in court proceedings
Historically, common law and equity were administered by two separate court systems. Common law was established in the legal courts, presided over by judges, while equity was established in the Courts of Chancery, presided over by the Chancellor to the monarch. The Judicature Acts of 1873-75 ended this institutional separation, allowing the Supreme Court to administer both rules of common law and equity.
In modern legal practice, the two systems are differentiated by the way cases are heard and the type of decision that can be handed down. Most cases in common law are heard by a jury, with a judge as arbiter, and decisions can result in punishment or financial restitution. Equity cases, on the other hand, are typically heard only by a judge, who can order action or cessation of action by one party.
For example, in a common law court, a person who stole a computer might be ordered to repay the value of the computer to the wronged party, which would be just but may not be fair. A court of equity, however, could order the computer to be returned to the owner as a more equitable solution.
Another difference is that common law acts in rem, while equity acts in personam. This means that common law remedies are directed towards the property itself, whereas equity remedies are personal and directed towards specific persons. For instance, in the case of someone building a home on someone else's land with the understanding that the land ownership would be transferred to them upon completion, common law would not provide a remedy, but equity would act against the landowner and order specific performance.
The remedies available under common law and equity also differ. Common law provides the remedy of damages, whereas equity provides remedies such as specific performance, injunction, rescission, and rectification.
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The role of judges
In the context of common law, judges primarily rely on precedent or stare decisis, meaning they base their decisions on previous court rulings in similar cases. This system of precedent helps maintain consistency and predictability in the law. Judges interpret and apply these precedents to the facts of the case before them, contributing to the evolution of the common law over time.
However, the role of judges in equity is somewhat different. Equity is often described as a more flexible and adaptable system, focused on achieving fairness and justice in individual cases. While equity follows the law, it intervenes when the common law is inadequate or unjust. Judges in equity have more discretion to adapt the law to the specific circumstances of a case. They may use remedies such as injunctions, specific performance, or rectification to ensure a fair outcome.
The historical development of equity as a separate system of justice is worth noting. In England, the Court of Chancery, led by the Chancellor, administered equity. The Chancellor was not bound by strict precedent, allowing for more flexibility and discretion in administering justice. This distinction between the two systems led to conflicts, as seen in the 1615 clash between Lord Chancellor Ellesmere and the Chief Justice of the King's Bench, Sir Edward Coke.
Today, the fusion of common law and equity administration has blurred the lines between the two systems. In many jurisdictions, such as England and Wales, the Judicature Act merged the administration of common law and equity. However, the influence of both systems remains, and judges continue to apply the principles of each as appropriate.
In summary, while judges play a pivotal role in both common law and equity, their approach and discretion differ. Common law judges focus on precedent and consistency, while equity judges emphasise fairness and flexibility. The fusion of the two systems has created a dynamic legal environment where judges can draw on both traditions to deliver justice.
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The concept of trust
The trust was developed in the Court of Chancery, also known as the Court of Equity, to address the strictness of common law. The Court of Chancery, administered by the Lord Chancellor, exercised discretion to achieve fairness and justice in individual cases. The trust, as a legal concept, arose from the medieval 'use', where one person held equitable or beneficial interests in property for the benefit of another. This concept was further developed and enforced by the Court of Chancery, which gave rise to the modern trust.
The trust became a way to compel a legal owner of property to use it for the benefit of another when it was deemed fair and just by the Court of Chancery. This recognition of the split between legal and beneficial ownership allowed for greater flexibility and fairness in property law, which was lacking in the strict doctrines of common law.
The creation and enforcement of trusts by the Court of Chancery were seen as a way to supplement and correct the rules of common law, ensuring that justice was served in individual cases. The trust, therefore, became a powerful tool for the Court of Chancery to address the deficiencies of common law and provide equitable remedies.
In summary, the concept of trust is a significant distinction between common law and equity, with equity recognising and enforcing trusts to achieve fairness and justice in property law.
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Equity's primacy over common law
The concept of equity was born out of the need to supplement the common law, which was considered too rigid and unable to fairly resolve certain legal matters. Equity is a more modern body of legal doctrine that is flexible and adaptable to achieve justice and fairness. It is a separate field of law with its own unique rules and principles, administered by courts of equity.
The Judicature Acts of the 1870s, which fused the courts of equity and common law into a unified court system, enshrined equity's primacy over common law in England. This was further emphasised in the Earl of Oxford's case (1615), where a judgment of Chief Justice Coke was allegedly obtained by fraud. Chancellor Ellesmere issued an injunction from the Chancery, prohibiting the enforcement of the common law order. The matter was referred to the Attorney General, Sir Francis Bacon, who ruled that in any conflict between common law and equity, equity would prevail. This was based on the principle that equity aims to secure substantial justice when the rule of common law might lead to injustice.
Equity's primacy is also reflected in the types of remedies each system offers. While the common law typically awards monetary damages, equity provides injunctions or decrees directing someone to act or refrain from acting, which are often more valuable to a litigant. For example, a plaintiff may want their only milk cow back from their neighbour, instead of just receiving its monetary value.
Equity's jurisdiction also covers areas that common law courts failed to enforce, such as partnerships, mortgages, bankruptcy, company law, trusts, and estate administration. Equity's maxims illustrate its qualities as a more flexible and responsive approach, taking into account the parties' conduct and worthiness.
However, it is important to note that equity does not contradict or destroy the common law but assists it by providing a different course of events when the law is too severe or unfair.
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Frequently asked questions
After the Norman Conquest of England in the 11th century, royal justice was administered in three central courts: the Court of King's Bench, the Court of Common Pleas, and the Exchequer. The common law developed in these royal courts, which were created by the authority of the King of England. During the 12th and 13th centuries, the writ procedure became more rigid. Equity, on the other hand, emerged from the Court of Chancery, which was presided over by the chancellor to the monarch.
Common law typically refers to laws based on precedent and the rulings of judges who hear a case in a courtroom. Equity, on the other hand, refers to laws that are similarly established by court rulings but deal with judgment and justice through equitable decisions.
In common law, a plaintiff or prosecutor often seeks the return of property and the punishment of the defendant. In equity, the judge strives to find a solution that satisfies both parties, which may involve ordering the return of property or negotiating a settlement.
While common law and equity were initially separate systems with distinct courts, they have since become closer. Equity will only intervene when there is a reason to, and it assists the law rather than destroys or creates it.
In cases of conflict, equity prevails over common law. This was established in the Judicature Acts of the 1870s, which unified the court system, allowing the Supreme Court to administer both rules.
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