Equity is the name given to the set of legal principles, in jurisdictions following the English English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countriesand the United States . It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to common law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different tradition, which supplement strict rules of law where their application would operate harshly. In civil legal systems Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined by judges. Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices, as, broad "general clause" allow judges to have similar leeway in applying the code A Code is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in common law and civil law systems, their usage is different. In a civil law country,.[1]
Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and apply justice Justice is the concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of said ethics in accordance with natural law Natural law or the law of nature has been described as a law whose content is set by nature and that therefore has validity everywhere. As classically used, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. The phrase natural law is opposed to the positive law (meaning "man-made law&. In practice, modern equity is limited by substantive Substantive law is the statutory or written law that governs rights and obligations of those who are subject to it. Substantive law defines the legal relationship of people with other people or between them and the state. Substantive law stands in contrast to procedural law, which comprises the rules by which a court hears and determines what and procedural Procedural law comprises the rule by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice (in other common law countries) to all cases that come before a court. The substantive law, which rules, and English and Australian legal writers tend to focus on technical aspects of equity. There are 12 "vague ethical statements"[2][3] which guide the application of equity, and an additional five can be added.[2]
As noted below, a historical criticism of equity as it developed was that it had no fixed rules of its own, with the Lord Chancellor The Lord High Chancellor of Great Britain, or Lord Chancellor is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign on the advice of the Prime Minister. Prior to the from time to time judging in the main according to his own conscience. As time went on the rules of equity did lose much of their flexibility, and from the 17th century onwards equity was rapidly consolidated into a system of precedents much like its common-law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different cousin.
Charles Dickens Charles John Huffam Dickens was the most popular English novelist of the Victorian era, and he remains popular, responsible for some of English literature's most iconic characters' Bleak House Bleak House is the ninth novel by Charles Dickens, published in twenty monthly installments between March 1852 and September 1853. It is held to be one of Dickens's finest novels, containing one of the most vast, complex and engaging arrays of minor characters and sub-plots in his entire canon. The story is told partly by the novel's heroine, parodied A parody , in contemporary usage, is a work created to mock, comment on, or make fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation. As the literary theorist Linda Hutcheon (2000: 7) puts it, "parody … is imitation, not always at the expense of the parodied text." the excessive time and expense associated with the Court of Chancery, the court that heard suits in equity in 19th-century England The area now called England has been settled by people of various cultures for about 35,000 years, but it takes its name from the Angles, one of the Germanic tribes who settled during the 5th and 6th centuries. England became a unified state in AD 927, and since the Age of Discovery, which began during the 15th century, has had a significant.
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History
The distinction between "law" and "equity" is an accident of history History is the study of the human past. Scholars who write about history are called historians. It is a field of research which uses a narrative to examine and analyse the sequence of events, and it sometimes attempts to investigate objectively the patterns of cause and effect that determine events. Historians debate the nature of history and its. The "law courts" or "courts of law" were the courts in England The area now called England has been settled by people of various cultures for about 35,000 years, but it takes its name from the Angles, one of the Germanic tribes who settled during the 5th and 6th centuries. England became a unified state in AD 927, and since the Age of Discovery, which began during the 15th century, has had a significant that enforced the king's laws in medieval times. Here the King's Judges, educated in law rather than theology, administered the universal law of the realm.[4] This body of law evolved on the basis of previously set precedent into what is recognised as the Common law of England. However, if changes were not quick enough, or if decisions by the judges were regarded as unfair, litigants could still appeal directly to the King, who, as the sovereign, was seen as the 'fount of justice' and responsible for the just treatment of his subjects. Such filings were usually phrased in terms of throwing oneself upon the king's mercy or conscience. Eventually, the king began to regularly delegate the function of resolving such petitions to the Chancellor The Lord High Chancellor of Great Britain, or Lord Chancellor is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign on the advice of the Prime Minister. Prior to the, an important member of the King's Council.[5] The early Chancellors were often Catholic clergymen or nobles, acting as the King's confessor Its oldest use is to indicate a saint who has suffered persecution and torture for the faith, but not to the point of death. The term is still used in this way in the East. In Latin Christianity it has come to signify any saint, as well as those who have been declared blessed, who cannot be categorized by another title: martyr, apostle, evangelist, and thereby literally as keeper of the King's conscience. As a result of their theological and clerical training, Chancellors were well versed in Latin and French languages as well as in Roman civil and canon law, which heavily influenced equity.[6] Soon the Chancery, the Crown's secretarial department, began to resemble a judicial body and became known as the "Court of Chancery".
By the 15th century, the judicial power of the Chancery was recognized. Equity, as a body of rules, varied from Chancellor to Chancellor, until the end of the 16th century. After the end of the 17th century, only lawyers were appointed to the office of Chancellor.
One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a role which the rigid framework of land law Real property and personal property are the main classifications of property in the common law. Real property refers to land and the improvements made by human efforts—buildings, machinery, the acquisition of various property rights, and the like. Real property is also termed realty, real estate, and immovable property could not accommodate. This role gave rise to the basic distinction between legal and equitable interests.
Development of equity in England
It was early provided that, in seeking to remove one who wrongfully entered another's land with force and arms, a person could allege disseisin (dispossession) and demand (and pay for) a writ of entry. That writ not only gave him the written right to re-enter his own land, but it also established this right under the protection of the Crown if need be, whence its value. In 1253, to prevent judges from inventing new writs, Parliament provided that the power to issue writs would thereafter be transferred to judges only one writ at a time, in a "writ for right" package known as a form of action. However, because it was limited to enumerated writs for enumerated rights and wrongs, the writ system sometimes produced unjust results. Thus, even though the King's Bench might have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff might still not have a case if there was not a single form of action combining them. Therefore, lacking a legal remedy, the plaintiff's only option would be petitioning the King.
People started petitioning the King for relief against unfair judgments and as the number of petitioners rapidly grew, the King delegated the task of hearing petitions to the Lord Chancellor. The first Chancellors were men of the cloth Clergy is the generic term used to describe the formal religious leadership within a given religion. The term ultimately comes from the Greek "κλῆρος" - klēros, "a lot", "that which is assigned by lot" or metaphorically, "inheritance", and they were required to pass judgment guided by conscience and based on morals and equality. It has been suggested that ecclesiastics were chosen for this position as they belonged to the small class of people who were able to read and write.
As these Chancellors had no formal legal training, and were not guided by precedent, their decisions were often widely diverse. However, in 1529 a lawyer, Sir Thomas More Sir Thomas More , also Saint Thomas More, was an English lawyer, social philosopher, author, and statesman. He is also recognised as a saint within the Catholic Church. During his life he gained a reputation as a leading Renaissance humanist, an opponent of the Protestant Reformation, of Martin Luther and of William Tyndale. For three years toward, was appointed as Chancellor, marking the beginning of a new era. After this time, all future Chancellors were lawyers, and from around 1557 onwards, records of proceedings in the Courts of Chancery were kept, leading to the development of a number of equitable doctrines. Criticisms continued,the most famous being 17th century jurist John Selden's aphorism: ‘Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: ‘tis the same thing in a Chancellor’s conscience.’[7]
As the law of equity developed, it began to rival and conflict with the common law. Litigants would go ‘jurisdiction shopping’ and often would seek an equitable injunction prohibiting the enforcement of a common law court order. The penalty for disobeying an equitable ‘common injunction’ and enforcing a common law judgment was imprisonment.
The Chief Justice of the King’s Bench, Sir Edward Coke Sir Edward Coke (1 February 1552 – 3 September 1634) was a seventeenth-century English jurist and Member of Parliament whose writings on the common law were the definitive legal texts for nearly 150 years. Born into a family of minor Norfolk gentry, Coke travelled to London as a young man to make his living as a barrister. There he rapidly began the practice of issuing writs of habeas corpus that required the release of people imprisoned for contempt of chancery orders.
This tension grew to an all-time high in the Earl of Oxford’s case (1615), where a judgment of Coke CJ was allegedly obtained by fraud.[8] The Lord Chancellor, Lord Ellesmere Thomas Egerton, 1st Viscount Brackley PC was an English Nobleman, Judge and Statesman who served as Lord Keeper and Lord Chancellor for twenty-one years, issued a common injunction out of the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to the Attorney-General In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may in addition have executive responsibility for law enforcement or responsibility for public prosecutions, Sir Francis Bacon Francis Bacon, 1st Viscount Saint Alban, KC was an English philosopher, statesman, scientist, lawyer, jurist and author. He is known as the Father of Empiricism and famously died of pneumonia contracted while studying the effects of freezing on the preservation of meat. He served both as Attorney General and Lord Chancellor of England. Although. Sir Francis, by authority of King James I James VI & I was King of Scots as James VI from 1567 to 1625, and King of England and Ireland as James I from 1603 to 1625, upheld the use of the common injunction and concluded that in the event of any conflict between the common law and the equity, equity would prevail. Equity's primacy in England was later enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system.
Once equity became a body of law, rather than an arbitrary exercise of conscience there was no reason why it needed its own courts. Consequently the Judicature Act was established, which is the basis of the court structure in England to this date, and that there would no longer be different procedures for seeking equitable and common law remedies. The Judicature Acts fused only the administration of common law and equity; there is still a body of rules of equity which is quite distinct from that of common law rules, and acts as an addition to it. Although they are implemented by the same courts, the two branches of the law are separate. Where there is conflict, equity still prevails.
Statute of Uses 1535
In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of trust called ‘the use’. This trust enabled one person (who was not required to pay tax) to hold the legal title of the land for the use of another person. The effect of this trust was that the first person owned the land under the common law, but the second person had a right to use the land under the law of equity.
Henry VIII enacted the Statute of Uses The Statute of Uses is an Act of the Parliament of England (27 Hen. VIII c. 10) passed during the reign of Henry VIII which converted all English equitable estates that were created through "use" into legal estates. Thus, a grant of property to A under common law with the equitable title going to B ("to A for the use of B") in 1535 (which became effective in 1536) in an attempt to outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner of the land the legal owner, and liable for feudal dues.
The response of the lawyers to this Statute was to create the ‘use upon a use’. The Statute recognised only the first use, and so land owners were again able to separate the legal and beneficial interests in their land.
For an example, see Godwyne v. Profyt (after 1393): a petition to the Chancellor [9]
See generally treatises on equity and trusts.
Comparison of equity traditions in common law countries
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As with the geographical transmission of any cultural artifact, direct English influence over equity weakened with time and distance. However, the widespread import of printed opinions provided a corrective force, however long delayed. As the colonies gained political independence, each of their legal systems began drifting from the original in an irreversible departure from the English way of making laws and deciding cases. Nonetheless, each former colony acknowledged the reception of the common law A reception statute is a statutory law in a former British colony enacting pre-independence English law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedents originating from it, as the default and equity of England as a vital source of their jurisprudence.
The comparative question is an easy one to pose. Did English equity develop maturity early enough that all of its derivative systems necessarily tended toward the same doctrines because based on exactly the same set of general principles? Or did the split-offs of any of the colonies occur somewhere in the middle of its development so that substantial permanent differences resulted? One equity? or many?
The answer generally accepted in America, the earliest of the English colonies to gain independence, is the former, that the outcome of a case to be decided today upon principles of equity should be expected to be substantially the same whether decided in the UK or the US. The reasonableness of the belief enjoys strong historical support.
The perfection of modern equity as a system has been authoritatively credited to Philip Yorke, 1st Earl of Hardwicke Philip Yorke, 1st Earl of Hardwicke PC , English Lord Chancellor, son of Philip Yorke, a barrister, was born at Dover who served as Chancellor 1737-1756.[citation needed]
For a review of several distinct approaches to identifying how law changes that utilize English legal history as a test bed see Robert Palmer, English Legal History course.
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Wed, 25 Aug 2010 09:07:16 GMT+00:00
MarketWatch (press release) The Company's Stockholders' Equity at FY 2010's third-quarter end was $2.50 billion, compared to $2.45 billion at FY 2010's second-quarter end. ...
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