Assignment of Equity 11
Assignment of Equity 11
Assignment of Equity 11
Assignment of Equity......!
Topic:
(1) Historical development
of Equity
(2) What is Equity
Submitted to:
Sir Barrister
Shehzad
Submitted by:
Nasika Zafar
Roll No.
14081624-013
Department:
LAW
L.L.B(hons)
5th
Equity
Historical Introduction
Before 1066 all laws were local and enforced in the manorial, shire and
hundred courts. Under the Normans, Royal Courts began to emerge from
the King's Council (Curia Regis). These did not take over the jurisdiction of
the local courts immediately, but over a long period of time the local
courts lost jurisdiction over cases and thus lost income. A practice was
started of sending judges around the country to hold assizes (or sittings)
to hear cases locally. This enabled the judges, over a period of roughly
200 years, to take the best local laws and apply them throughout the land,
thus creating law which was common to the whole country ie, common
law.
In 1258 the Provisions of Oxford forbade the issue of new writs without the
permission of the King in Council. As a result the common law became
rigid and the rules operated unjustly. In 1285 the Statute of Westminster II
authorised the clerks to issue new writs but only if claims were in 'like
cases' to those before 1258. This was restrictive and made further
development of the common law very technical.
Other defects in the common law
There were also other faults with the common law courts, for example:
* the common law courts used juries which could be intimidated and
corrupted.
* the common law had only one remedy, damages, which was often
inadequate.
* the common law paid too much attention to formalities, eg if a contract
was made which required written evidence for its enforcement, then lack
of such evidence meant that the common law courts would grant no
remedy.
* the common law courts did not recognise the trust.
What is Equity?
Meaning
The word "equity" means fair or just in its wider sense, but its
legal meaning is the rules developed to mitigate the severity of
the common law.
In jurisdictions following the English common law system, equity refers to
the body of law which was developed in the English Court of Chancery
and which is now administered concurrently with the common law.
The English common law was principally developed and administered in
the
central royal courts: the Court of King's Bench, the Court of
Common Pleas, and the Exchequer.
Equity was the name given to the law which was administered
in the Court of Chancery.
The Judicature Reforms in the 1870s effected a procedural fusion of the
two bodies of law, ending their institutional separation. The reforms did
Equity Definition:
(1)The English system of justice that developed during 17th to 19th
centuries, separate and distinct from the system of common law.
Not bound by the precedents, it tempered the harshness and
inflexibility of common law, especially in cases involving families
and children. Although both systems of law merged by 1875, the
rules of equity prevail in case of a conflict with the rules of common
law.
(1)
(2)
(3)
New Procedures
Equity was not bound by the writ system and cases were heard in English
instead of Latin. The Chancellor did not use juries and he concerned
himself with questions of fact. He could order a party to disclose
documents. The Chancellor issued subpoenas compelling the attendance
of the defendant or witnesses whom he could examine on oath.
New Rights
Equity created new rights by recognising trusts and giving beneficiaries
rights against trustees. (A trust arises if one party gives property to
trustees to hold for the use of beneficiaries.) The common law did not
recognise such a device and regarded the trustees as owners.
Equity also developed the equity of redemption. At common law, under a
mortgage, if the mortgagor had not repaid the loan once the legal
redemption date had passed, he would lose the property but remain liable
to repay the loan. Equity allowed him to keep the property if he repaid the
loan with interest. This right to redeem the property is known as the
equity of redemption.
New Remedies
Equity created new remedies:
(a) Specific performance, which is an order telling a party to perform their
part of a contract. This was useful where damages were not adequate, eg,
in the sale of land. Thus if the seller refused to sell after signing a
contract, the buyer could obtain an order of specific performance making
the seller sell the house.
What is Equity?
Equity is often referred to as the second branch of English law which
originated after the introduction of Common Law. In medieval England,
parties aggrieved by a decision of the court would petition the King to do
justice regarding the harsh judgment. The King, in response to such
petitions and complaints, in turn relied on the advice of the Lord
Chancellor, who looked into the dispute and sought to deliver a fair
outcome against the rigid principles of Common Law. The Lord
Equity, simply put, is a form of legal relief in the event such relief
cannot be found in the rules of common law.
And these words from John A. Finch relating the answer of a great judge to
the question,
"What is the difference between the common law and equity?":
"Very little in the end.
"At common law you are done for at once.
"In equity you are not so easily disposed of.
"The former is a bullet which is instantaneous and charmingly effective.
"The latter, the angler's hook, which plays its victim before it kills him.
"Common law is prussic acid (cyanide), equity is laudanum."
In the 1876 Comic Blackstone, author Gilbert Beckett wrote:
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the officials depended on fees paid by the litigants so that there was every
incentive to prolong litigation for individual tasks and mulitply these tasks.
Some attempt was made to assimilate the remedies granted by the Court
of Chancery and the common law courts. Thus under the Common Law
Procedure Act 1854 the common law courts were given some power to
award equitable remedies and the Chancery Amendment Act 1858 gave
the Chancellor the power to grant damages in addition to, or in
substitution for, an injunction or a decree of specific performance.
The Judicature Acts 1873-75
The Judicature Acts 1873-75 rationalised the position. They created one
system of courts by amalgamating the common law courts and the court
of equity to form the Supreme Court of Judicature which would administer
common law and equity.
The Supreme Court of Judicature consists of the High Court divided into
divisions known as the Queen's Bench Division, Chancery Division, and
the Probate, Divorce and Admiralty Division (re-named the Family Division
in 1970 and the work reassigned); the Court of Appeal; and, since the
Supreme Court Act 1981, the Crown Court. Each Division exercises both
legal and equitable jurisdiction. Thus any issue can be adjudicated in any
Division; and any point of law or equity can be raised and determined in
any Division; but, for the sake of administrative convenience, cases are
allocated to the Divisions according to their general subject-matter. Thus
the court "is now not a Court of Law or a Court of Equity, it is a Court of
complete jurisdiction." (Pugh v Heath (1882), per Lord Cairns.)
It was forseen that a court which applied the rules both of common law
and of equity would face a conflict where the common law rules would
produce one result, and equity another. Section 25 of the Judicature Act
1873 provided that if there was any conflict between these principles,
then equity was to prevail. However, this did not fuse the principles of
common law and equity, which still remain as separate bodies of rules.
"The two streams have met and still run in the same channel, but their
waters do not mix" (Maitland).
NEW REMEDIES
In recent times the courts have used their equitable jurisdiction to develop
new remedies:
Mareva Injunctions
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In 1975 the Court of Appeal recognised the Mareva injunction for the first
time. This is a court order freezing the assets of a party to an action or
stopping that party moving the assets out of the country.
In Mareva v International Bulkcarriers [1975] 2 Lloyd's Rep 509, a
shipowner let the 'Mareva' to a foreign charterer, with payment half
monthly in advance. The charterer defaulted on a payment. The
shipowner found out that the charterers had money in an English bank
and sought an injunction freezing the account. It was held that an order
would be granted to stop the charterers from moving the money abroad
before the case was heard. Normally the application will be ex parte,
which means that one party applies without giving notice to the other side
for if the other party did have notice, they could move the assets.
In The Due Process of Law (1980) Lord Denning described the Mareva
injunction as "The greatest piece of judicial law reform in my time".
Anton Piller Orders
In 1974 the High Court started to grant what later became known as
Anton Piller orders. This is an order to a defendant to allow the plaintiff on
to the defendant's premises to inspect, copy or remove documents or
other objects relating to the plaintiff's property. The aim is to stop the
defendant removing or destroying vital evidence. The defendant may
refuse entry, but such action would be regarded as contempt of court, for
which the defendant could be sent to prison. Once again it is an ex parte
application. The use of such orders was confirmed in the following case.
In Anton Piller v Manufacturing Processes Ltd [1976] Ch 55, the plaintiffs
made electrical equipment and employed the defendants as their agent in
the UK. They suspected that he was selling their technical drawings to
competitors and so applied for an order. The court held that an ex parte
mandatory injunction would be granted, to the effect that the plaintiff
could enter the defendant's premises and inspect relevant documents.
These orders have been used for breach of copyright, passing off and
matrimonial disputes.
THE SUBJECT-MATTER OF EQUITY
It may be helpful to the understanding of equity to list the subjects which should
properly be included within it. No list can be exhaustive. However, the following
matters are assigned to the Chancery Division by the Supreme Court Act 1981:
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