Text c Common Law and Equity

Over the years, however, the common law tended to become rigid, both in its principles and its remedies. Writs (court orders) were developed for certain specific purposes, and if a litigant needed relief that could not be supplied by one of those writs, the common-law courts could not help him. Basically, the remedy the courts were prepared to supply was money damages to compensate for a wrong. They were unable to prevent or abate the wrong itself. Smith might be threatening to cut down trees belonging to Jones, but Jones could do nothing at common law except wait until the trees were cut down and then sue Smith for the value of the trees. But what Jones really needed was some legal method of preventing Smith from destroying the trees.

Historical Development

After the conquest of England by William the Conqueror (A.D. 1066), Norman kings created an independent, but parallel, system of justice alongside the developing common law, with ultimate judicial responsibility residing in the king himself. This system, the equity system, had exclusive jurisdiction over injunctive relief (court-ordered action). The ordinary meaning is justice or fairness. Equity developed because in many situations there was no legal remedy available at common law.

Our main purpose is to draw a distinction between common law and equity and the way the courts apply the rules of these two areas of law. The differences arise from their historical development. First let us consider what we mean by the words ‘common law’:

1. It is law which is common to the whole country – national law in contrast to local law.

2. It is law which is based on judicial decisions (case law) in contrast to the law which is made by Parliament (statute law).

3. It distinguishes the common law legal systems based on precedents from civil law jurisdictions based on civil codes.

4. It comprises the rules developed by the common law courts in contrast to the rules developed by the courts of equity.

Do the rules of equity remain different from the rules of common law?

To answer this question we must remember the purpose of equity which is to achieve justice and fairness. To do this the courts have developed a set of rules to govern the application of equity. These are called the 'maxims' of equity. They are different from the rules which apply in the common law and these maxims are the reason why the British continue to distinguish between common law and equity. There are many equitable maxims of which the following are just brief examples:

1. Equity will not suffer a wrong to be without a remedy. Equity will only intervene when there is no adequate common law remedy.

2. Equity follows the law. Equity recognizes legal rights and does not take the place of the common law.

3. He who comes to equity must come with clean hands. A litigant who has behaved unfairly in the dispute will be denied an equitable remedy.

4. Equitable remedies are discretionary. Litigants do not have a right to an equitable remedy. The courts will decide whether to grant a remedy after considering the individual circumstances of each case.

These examples illustrate the wider principles and interests which the courts will consider before granting an equitable right or remedy. One of the most important features of equity which distinguishes it from common law is the maxim that equitable remedies are discretionary.

As the equity system functioned alongside the common law courts, the two systems of law gradually merged. Equity maxims – "He who comes into equity must come with clean hands," and many other "fair play" principles – were adopted by the common law and are currently cited in judicial decisions.

Equity absorbed a number of functions involving the family (divorce, annulment, adoption). These equity responsibilities became part of the general legal system – and part of the common law – that developed in the United States.

Although law and equity are today merged into a common system, the old equity domain (injunctive relief, specific performance of contract, contract modification, family law, divorce) is particularly influenced by the idea of fairness and is deliberately more relaxed in its concept of justice. Also, jury trial is not available in an equity-type proceeding.