Development of Common Law and Equity

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  • Development of Common Law and Equity
    • judges wer sent from major towns to decide on important cases.
      • Henry II divided the country up into circuits.
        • initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases.
          • gradually, judges selected the best customs and these were then used by all judges throught the country.
            • this made the law become uniform or 'common' through the whole country. it is here that the phrase 'common law' seems to have developed.
    • Common law is the basis of our law today; it is unwritten law that has developed from customs and judicial decisions.
      • 'common law' is used to distinguish between laws that were made by judicial decisions and those that were made by Parliament.
        • for example, murder is a common law crime while theft is a statutory crime. this means that murder has never been defined under an act of parliament bhut theft is now defined by the Theft Act 1968.
          • common law is also used to distinguish between rules that were developed by the common law courts (the King's Courts) and the rules of Equity which were developed by the Lord Chancellor and the Chancery Courts.
    • Equity developed from equitable maxims. the word 'equity' has a meaning of 'fairness', and this is the basis on which it operates, when adding to our law.
      • Equity developed becasue of the problems in the comon law. only certain types of cases were recognised. The law was very technical; if there was an error in the formalities the person making the claim would lose the case.
        • the only remedy the common law courts could give was 'damage'. in some cases this would not be the best method of putting matters right between parties.
          • People who could not obtain justice in the common law courts appealed directly to the King.
            • Most of these cases were referred to the King's Chancellor, who was a lawyer and a priest, and became known as the Keeper of the King's conscience.
              • he based his decisions on principles of natural justice and fairness, making decisions on what seemed right in the paricular case rather than on the strict following of previous precedents.
                • he was also prepared to look beyond legal documaents, which were considered legqlly binding by the common law courts, and to take account of what the parties had intended to do.
              • to ensure that decisions were fair the chancellor used new procedures such as subpoenas, which ordered a witness to attend court or risk imprisonment for refusing to obey the Chancellor's order.
                • He has also developed new remedies which were able to compensate plaintiffs more fully than the common law remedy of damages.
                  • the main equitable remedies were: injunction; specific performance; rescission; and rectification. these are still used today.
                    • eventually a Court of Chancery under the control of the Chancellor came into being whchoperated these rules of fairness of equity. equity was not a complete system of law; it merely filled the gaps in common law and softened the strict rules of common law.
                      • the two systems of common law and equity operated quite seperately, so it was not surprising thatb thgis overlapping of the two systems led to conflict between them. one of the main problems was that the common law courts would make an order in favour of one party and the Court of Chancery an order in favour of the other party.
                        • The conflict was finally resolved in the Earl of Oxford's Case (1615) when the king ruled that equity should prevail; in other words, the decision made in the Chancery Court was the one which must be followed by the parties. this ruling made the position of equity str
                          • stronger and the same rule was subsequently included in s 25 of the Judicature Act 1873


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