History of Equity

Defining Equity:

◦ body of legal principles based on justice and fairness;

◦ originates as mitigation to the harshness and rigidity of common law

◦ Contributed to law of trust etc and provides remedies, general not monetary

◦ Deals with the conscience of the person (acts in personam

◦ Administered in the chancery court(Exchequer)

History:◦ Early times there were no real structure

◦ Legal strife led to equity

◦ Originally administered by the Kings Council made up of clergyman and originated as a result of the rigidity of the common law.

◦ King had wide discretion and operated as the father of the nation

◦ Powers was delegated to the chancellor who whenever he made a ruling did so on behalf of the King thus the court of chancery

◦ Chancellors was subjective or described as the length of his foot but he was the keeper of the King’s conscience.

◦ 14th 16th century varied development from the court getting a lawyer as the Chancellor to writs and bills be addressed by the Chancellor

◦ 16th Century, injunctions became the terror of the common law courts and this gave rise to conflicts between the common law and equity(Earl of oxford – questioned whether the monarch was subject the laws like common people; maxim originated: where equity and the law conflict equity prevailed)

◦ Equitable decision was final and this prevented jurisdictional shopping

◦ Equity not intended to vacate common law judgments because it acts against the person conscience.

◦ Contributions from equity: excel jurisdiction (new rights created by the court); concurrent jurisdictions (new remedies such as Specific performance, injunctions), auxiliary jurisdictions (new processes –subpoena, discovery, testimony, etc)

◦ Morality was the bedrock of the CC◦ Earl of Oxford: CL cannot prevent litigant from the CC; decision

rendered in equity not subject to reversion; prevented jurisdiction shopping