Angel Versetti, 2011

What are the Principles of Equity and why are they important?

DEVELOPMENT OF EQUITY WITHIN THE ENGLISH LAW SYSTEM

1) DEFINITIONS

The paralegal definition of Equity (Oxford Law Dictionary, 11th edition): “a

system of natural justice allowing a fair judgment in a situation where the

existing laws are not satisfactory”

TO CONTRAST

Description of Equity by F.W. Maitland, prominent legal scholar on Equity: “I

do not think that any one has expounded or ever will expound equity as

a single, consistent system, an articulate body of law” ; Maitland argued

that equity could not exist without common law and only serves to supplement

and “gloss” it.

FOR CLASS TO UNDERSTAND THE SYSTEM BETTER In practice in

England the legal system has historically consisted of the common law (narrow

sense: laws created by the King’s courts); Statute law (enactments of the

parliament) and Equity (see below)]

FINALLY

Historical Definition: Equity is a series of remedies evolved mainly in England

of the 15th

and 16th

centuries and applied by the court of the Chancellor in order

to complete and occasionally correct the common law that had become

insufficient and defective.

THE PREMISES FOR EMERGENCE OF EQUITY IN ENGLAND

The procedure of the common law courts was too crude and formalistic and the

law applied was rigid and incomplete (Common Law of England:

Rigid in previously set precedents only;

Judges were taught in law, but not theology (justice? Morality? Good

conscience?)

technical errors in the law

bribing of witnesses

procedural tricks

political influence of opponents

Angel Versetti, 2011

Parties losing the lawsuit and believing the decision unfair could petition

directly to the King, who being a sovereign, was the supreme judicial authority

in England. King’s conscience? The King would entrust the Chancellor –

highest administrative official – do deal with these appeals. The chancellor was

both a legal expert of the common law and (in the 14th/15

th centuries) a

churchman – sense of justice. Over time petitions would go directly to the

Chancellor and his decisions developed into a complex set of exceptional rules

or special laws – this set is called Equity. IMPORTANCE TODAY still

important and referred to in the British courts.

Notable novelties in Chancellor’s procedure:

as petitioners complained about their opponents’ behaviour being contrary

to morals and good conscience – formal rules of proof used in royal courts

did not apply

sworn statement and answers to chancellor’s questions

no jury in the decision process; only chancellor

initially no technical/formal procedures

However, over the decades to follow, Chancellors developed models of rules

strongly resembling the Common Law courts:

binding precedent cases

development of formal procedures

establishment of the court of Chancery

(THE VERY END OF THE PRESENTATION – IMPORTANCE TODAY):

IMPORTANCE TODAY: Earl of Oxford’s Case (1615) – a complex case that

involved around the conflict of ownership of real estate between the Earl of

Oxford and Magdalene College’s Master.

The result of that case was a stand-off between Chief Justice Coke (the supreme

authority of the common law) and Lord Chancellor Ellesmere (supreme

authority of the court of Chancery) – as the latter forbade the execution of

judgement obtained in the common law court.

The dispute between these two judges was submitted to King James I who

upheld the injunction against the common law court and decreed the following:

“If there is a conflict between the common law and equity, equity shall prevail”

King James I of England

Although today equity does not exist in a unique court system – the principle

established by this case has been – and still is today – fundamental to nature of

the English Law