Development of Common Law and Equity

Introduction I have been asked to write a essay on the development of common law and equity. Common law refers to the law created by judges that was historically significant but has been since replaced by parliament common law is the basis of our law today it is an unwritten law that developed from customs and judicial decisions. It is parallel with equity which refers to the source of law created by the Lord Chancellor which was designed to supplement the common law and allow people the opportunity to avoid problems. Equity is 'the gloss on the common law'.

The following essay will go through step by step on how common law and equity have developed between the years 1066 to our present day. In 1066 William the Conqueror invaded England, he found a country with no centralized legal system. It was William who set events in motion to bring about the system of law we have today.

The law in 1066 was based on local custom with Local courts and Borough Courts applying the law as per the custom of the area. William decided to centralize the law establishing a strong central government to control the land.

To do this he arranged all the local custom based laws, discarding the laws which would not work, and keeping the laws which he thought did work. Those laws which were kept were then applied in ‘common’ by all the courts across the country, this is why it was reffered to as common law. As well as this central government the king appointed judges who travelled to major towns to decide any important cases. By 1250 a common law had fully developed with rules, which applied to the whole country At first the common law system appeared to be fair but soon became rigid and fixed. A civil action could only be started by way of a writ.

The writ sets out the cause of action and the grounds for the claim. Initially, when circumstances arose that were not covered by an existing writ, a new one was created. However, by the end of the13th century this was stopped, so if a person wished to bring a case he/she would need to fit his/her circumstances to an existing writ in order to bring the case to court. This led to hardship as there were not enough writs for the actions people wanted to bring to court.

The other major problem with the common law system was that there was only one solution available at common law, which was money. In some cases money is not the appropriate solution. As a result of these problems many people either had no right to take their case to court or wanted another solution. Instead of accepting this they petitioned the King for help. The King delegated the power to hear such cases to his Lord Chancellor who heard cases on an individual basis.

The Chancellor was not bound by the rigid rules like the common law judges and decided each case on the basis of what he thought fair or equitable. It was then that the system of equity started. The common law being too rigid required a safety valve to allow people access to justice and different solutions. As his workload increased the Court of Chancery was set up in 1474 to hear cases brought under equity as opposed to the common law.

The most important aspect of equity was that it allowed a person to claim for a solution other than money. By supplementing the common law equity has been described by some as the ‘gloss on the common law’. It adds the finishing touches by offering additional solutions and covers any problems in the common law. The two systems often came into conflict but it was not until 1615 that this dispute was eventually resolved. In the Earl of Oxford’s case in 1615 there were two conflicting decisions from the common law court and the Court of Chancery.

The final decision was referred to King James I. The King’s verdict was that where common and equity conflict then Equity should prevail. Without this decision equity would have been useless and eventually disappeared. This decision ensured the continuation of equity as a system of law available to supplement the common law. The two systems continued to be administered by the separate courts until the Judicature Acts in 1873-75 the result of these Acts was that courts were merged into one High Court, which could deal with both common law and equity.

It also stated that where there is conflict equity will prevail. It is important to remember however, that we still have the two systems; common law being the major one with equity helping out when the court thinks it fair. It also overcame once and for all the problematic writ system as new cases could now be started. Equity was at first successful and popular being less rigid than the common law in that the court did not have to follow previous cases and could grant new solutions. The most important aspect of equity both historically and today is that it allows a claimant to claim a solution other than money.

Equitable rules have allowed people to gain differrent solutions other than money over the years where they would not have been able to under common law. Modern equitable decisions have often led to Acts of Parliament being passed to reflect equity. Equity has had a great impact on the law, allowing relief where the common law has failed. It must be remembered that equity’s role both past and present is as an addition to the common law and only available if the common laws solution is inadequate. When equity was developed it acted as a safety valve in two ways, allowing people access to the court without going through the writ system and access to more solutions.

Today there is no rigid writ system but there is still only one solution under common law. Equity therefore today continues to supplement the common law by offering a full range of solutions. Common law is the basis of our law today it is an unwritten law that developed from customs and judicial decisions simarlarly equity still plays a part today with many of our legal concepts having developed from equitable principles the word equity has a meaning of fairness and this is the basis on which it operates, when adding to our law.