problems with common law

  • Created by: bethlph
  • Created on: 17-03-15 12:42


In the beginning, writs could be drafted to fit new situations. However, after the Provisions of Oxford(1258) the King prohibited the creation of new writs. 

The writ system became very rigid and unjust: You simply had to make your case fit an already existing writ or you could not persure your case. There was a reluctance to change writs too, as the justices felt that it was better to suffer an individual hardship than make exceptions to clear rules.

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Common law problems

  • The only awardable remedy was damages; This was insufficient for cases where the problem was on-going.
  • Juries were corrupt - Henry II generally credited with the establishment of juries to try land law cases, of which there were a lot of after Stephen's reign.
  • The system was arbitrary and disorganised
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Development of equity

Chancellor was delegated writs as the King's Council (curia regis) was overrun with writs. 

The Chancellor combined the role of juries and judges and based his court on conscience.

The Chancellor/Chancery was more flexible and seen as superior to the King's Bench and common pleas.

John Selden in the mid-seventeenth century said 'if the meausre of equity was the Chancellor's own conscience, one might as well make the standard neasure of one foot the Chancellor's foot'.

The relationship between common law judges and the Chancery worsened over the passage of time and conflicts of approach arose.

In 1615, the Earl Of Oxford's case established that where the two would conflict, EQUITY would prevail.

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Equity and it's rigidity

Equity became extremely popular and attracted a vast number of petitioners.

By 1590, lawyers were beginning to take note of what the chancellors said in court, and Chancellor Bacon in 1617 even appointed an official recorded to sit at his feet.

Equity hardened into law: Trusts and mortgages were governed by rules as clear as any rules of common law. Precedens were as binding in equity as law, and now even the Chancery would sooner suffer a hardship than a departure from known rules.

Cases could take as long as thirty years to solve because there were so many being petitioned.

Eldon in 1824:- A simple matter could take 5 years to determine and vast funds - £39million - mouldered in court.

The case of Morgan v Clarendon started in 1808 and was still in pre-trial (interlocutory) stages sixteen years later and the fees had already reached £3,719.

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Nineteenth century reform

Judicature Acts 1873-75

All judges of the supreme court of judicature were empowered to administer both common law and equity.

The Chancery and common law courts were abolished.

The Chancery division of the High Court was created.

Section 25 of the Judicature Act 1873 stated that "in all matters in which there is any conflict or varianc between the rules of equity and the rules of common law with reference to the same matter, the rules of EQUITY shall prevail"

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