Equity: The Inflexibility Of The Common Law

What is equity?

In layman’s terms equity is the term used to describe fairness and justice. The legal term is more strictly defined in that they must obey the rules of precedent and its development appears to be more inflexible and rigid. However there is an element of discretion on the part of the judges in that they have some flexibility. It has well established principles which govern the exercise of the discretion but these principles are flexible and adaptable. The aim of equity is to ‘do more perfect and complete justice’ than would be the result of leaving the parties to their remedies at common law.

Equity developed as a result of the inflexibility of the common law. To deal with this a writ system was introduced in the 12th century.To

The King, through his Chancellor, set up the Court of Chancery to deal with these petitions. Writs bearing the royal seal were issued out of Chancery to deal with any matters of law and justice falling within the King’s concern or prerogative. These issues included murder, treason, and governance of the forests. The King’s prerogative included the power to deal with ‘unjust judgment’ and ‘default of justice’. The Chancellor adjudicated the individual’s petitions, not according to the common law but to the principles of fairness and

Until the late 19th century it operated in a separate set of courts which meant that there was much delay and expense for the individual. They are working in different ways towards the same ends. Law and equity are administered by the one court and have borrowed from each other to further the harmonious development of the law . The problems surrounding this was resolved by the Judicature Acts 1873 and 1875 in England and in 1877 in Ireland.

Under the English Judicature Acts 1873-5 the Supreme Court of Judicature was established with concurrent jurisdiction to administer the rules of equity and law within a uniform procedural code. This was followed in Ireland by the Judicature (Ireland) Act 1877.Today the same judges administer both law and equity.

Changes produced by the Interaction of Equity and Common law Equity was not a complete alternative to the common law. Instead it provided a gloss on the law. It added to and improved the common law. These acts established a system of courts in which both the rule of equity and common law could be