Lecture notes
Introduction to Equity and Historical Development
- Module
- Equity And Trusts
- Institution
- University Of Sussex (UoS)
Lecture notes of 7 pages for the course Equity And Trusts at UoS (.)
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Introduction to Equity and Historical DevelopmentEquity
‘Equity can be described as the body of rules which evolved from those rules applied
and administered by the Court of Chancery before the Judicature Acts 1873 and
1875’.
Before the Judicature Acts, equity was very much a separate entity and in conflict
with what was happening in the common law.
Dudley (Lord) v Dudley (Lady) (1705)
Lord Cowper (Lord Chancellor at the time) – ‘Now, equity is no part of the law, but a
moral virtue, which qualifies, moderates and reforms the rigour, hardness and the
edge of the law and is a universal truth; it does also assist the law where it is
defective and weak in the constitution[…] and defends the law from crafty evasions,
delusions and new subtleties invested and contrived to evade and delude the
common law, whereby, such as have undoubted right are made remediless: and this
is the office of equity, to support and protect the common law from shifts and crafty
contrivances against the justice of the law. Equity therefore does not destroy the
law, nor create it, but assists it’.
Law and equity are different.
Equity exists to supplement the law.
To rectify situations where the common law, the legal remedy, might fall
short of doing justice.
Equity can step in when someone is trying to use the law for improper or
immoral purposes, to make that right.
Equity sometimes has a reputation for being “soft and fluffy”. Contrastingly,
the law can be “hard and rigid”.
Application of the law may be viewed as being unfair. N
That’s where equity can step in to qualify, moderate and reform the
rigour, hardness and the edge of the law.
The Common Law
Law developed after 1066, following the Norman invasion.
From a “patchwork of tribal customs” (Hudson) to a system of law that is common to
the entire realm.
They were applied unevenly.
When the Normans arrived in this country, they introduced a whole new
legal system.
They changed the way that the law was administered.
They strove to make the same legal principles and the same law
applicable throughout the land.
To make the law and its’ application, common to the entire realm.
, Before the Norman invasion, the law was applied locally and it was very
different across the country.
Before 1066, there was no communication of what was being
decided.
There was no universality in the application of the law.
The Normans didn’t like this, they felt this was very disordered, and
ultimately unfair.
If you want a law that people will respect and adhere to, it needs to
be universally applied.
“Litigation…was as uncertain as a game of dice”.
As early as the end of the 12th century, reference is found in court record to the
custom of the Kingdom.
Heard in local shire by local lords.
To manage this, the King and his court (the king who was sovereign at the
time) would get on their horses and travel the length and breadth of the
country, administering and dispensing justice.
Itinerant system.
They would pick and choose what the best systems were to be put in
place by identifying and taking best practice forward to regulate and
promote universality.
The system was changing, and slowly but surely the rules were
starting to impact everyone.
By the end of the 12th century, the courts were doing it so successfully that
they had superimposed a single system on this former-multiplicity of local
customs.
In 200-300 short years, the Normans had looked at how justice was being
administered, they had chosen what they had considered to be best practice,
and they were ensuring that that practice was being administered in a
consistent and common way in every time in the country.
By the end of the 13th century, the first permanent common law courts had
begun to emerge, providing a sense of centralisation.
The Court of Exchequer.
The Court of Common Pleas.
The King’s Bench.
In the 13th century it was the beginning of the centralisation of legal
authorities, and growing the institutional authority of these new courts.
They’re assuming not only the role of applying the law, but also what
comes with having great institutional power and authority.
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