The Development of Common Law and Equity

Before common law and equity came into existence, there were only customs that protected the people and their rights. Customs can be divided into general customs and local customs. General customs are said to be the basis of common law because it is thought that after the Norman Conquest, judges who travelled around the land making decisions in the King’s name based at least some of their decisions on the common customs. Local customs only operated in a particular area. For example, when a person claims that he is entitled to some local right, such as right of way.

After the Norman Conquest in 1066, an organised system of courts was introduced and the idea was to standardize the law. King William set up the Curia Regis which is known as the King’s Court and he appointed his own judges. Over time, judges picked the best customs which were used by judges throughout the country and the result was law which applied to the whole country which became known as the common law because it was common to the whole country. By 1250, a common law had developed from the cases heard in the Curia Regis which was then used to apply to the whole county.

However the common law gradually changed from a dynamic and adaptable system to one that was very well formalised, inflexible and inadequate. Among the defects of the common law was the limited writs availability which was also expensive. Another disadvantage of the common law was that the only remedy then was damages. Damages mean monetary compensation and that was often inadequate. Due to the problems of common law hence came the existence of the principles of equity.

Equity means fairness and it refers to the specific set of legal principles which came into existence to supplement and fill in the gaps of common law. Many unsatisfied parties from common law petitioned the King, who later passed these petitions to the Lord Chancellor. The Lord Chancellor decided cases in the notion of justice and fairness. The Court of Chancery was established as the number of petitions increased.

The reasons for the growth of equity were that equity ensured justice as the court could grant remedies other than damages. The other remedies available were specific performance, injunctions, rectification and rescission. Besides the new remedies offered in equity the decisions made by equity was based on good sense and fairness. The Court of Chancery was less formal and cheaper than the common law.

At first equity was not bound by precedent and the quality of decisions started to vary from chancellor to chancellor as fairness was a subjective quality. However, by the 19th century equity too became ruled by precedent and standard principles. In order to ensure justice flows into equity maxims were created and they had to be satisfied before equitable rules could be applied. The common law and equity eventually got fused together by the Judicature Act 1873-75 which means that both common law and the Court of Chancery are now unified and there were no longer different courts and procedures for those seeking equitable and common law remedies.

The conclusion is that equity came into existence to fill gaps in and supplement the common law by providing just and practical remedies where the common law was not adequate. Equity is not and was never intended to be a complete system of law. The equitable rights, interests and remedies discussed above remains relevant and important today but the discretionary nature of the remedies and equitable maxims ensure that remedies are only granted if it is clear that a person genuinely and justly deserving.