Chapitre 2 Common Law And Equity

Question 1

Differences between common law and equity

Answer 1

The difference is the remedy.
Common law = damages
Equity = equitable remedy like injonctions or order of specific performance

Question 2

History of common law

Answer 2

It started in the Middle Ages in England and then Wales.
After the Norman Conquest and from mid-11th century, the Norman kings continued applying certain customary rules but also introduced their own decisions. In the late 12th century under Henry II (Plantagenet), similar judicial practices became common to all parts of England and became known as the Common Law.

The System of Common Law writs were originally courts orders handed down by the royal courts in exchange of payment of a fee by the plaintiffs. These courts orders enabled the plaintiff’s cases to be heard. Gradually the courts gathered a collection of acceptable claims which were used as models. If no relevant writ existed, the plaintiff might not be able to obtain a remedy in court.

Later on, the writ was the name given to the actual document filed by the plaintiff with the court, setting out the nature of his claim. The name remained until the Civil Procedure Rules were adopted in 1999 when « writ » was replaced by « claim ».

« Injuction » and « order of specific performance » are equitable remedies, as opposed to the traditional common law remedy which is an award of damages. Nowadays the distinction between common law and equitable remedies is no longer that important, as the Supreme Court of Judicature Acts 1873 and 1875 merged the 2 types of court. Each court is now able to grant a common law or an equitable remedy.

Before the creation and the development of the role of Parliament (well before UK jointed the EU in 1973 which added extra layers of legally binding documents), case law used to be the exclusive source of law in the UK.

Nowadays the UK Parliament passes a huge number of laws each year but the role of the courts in interpreting them and ordering that they be complied with is very important

Question 3

Supreme Court of Judicature Acts

Answer 3

1873 and 1875 : the former courts of common law and equity merged into one set of courts. But the distinction between the 2 remedies still exist

Question 4

Bind

Answer 4

: put under legal obligation

A binding precedent establishes a rule for similar cases

Question 5

Case law

Answer 5

: law established by judicial decision in particular cases

Question 6

Claim

Answer 6

: official request for money or for the right to something

Question 7

Damages

Answer 7

: monetary compensation awarded by a court

Question 8

Plaintiff

Answer 8

: claimant (name given in the UK to a person who brings a civil action in court)

Question 9

Precedent

Answer 9

: a judgment or court decision on a point of law supplying a citable exemple or authority for deciding a similar case in the same manner or on the same principle or by analogy.

Question 10

Ratio decidendi

Answer 10

: what lower courts have to follow

Question 11

Obiter dicta

Answer 11

: only persuasives

Question 12

To distinguish

Answer 12

: in law, to distinguish a case means a court decides the legal reasoning of a precedent case will not wholly apply due to materially different facts between the two cases