Common Law And Equity Flashcards
1066
In 1066 William the Conqueror came to power and sent out itinerant judges across the whole country to hear and settle disputes. They reported back to him with the best laws from all the different areas and they then chose which ones to keep and began to standardise them throughout the whole country.
1189
In 1189 King Henry II established the Common Law which was to be followed by the whole country and many Commonwealth countries.
Prior to 1006
Before 1066 the legal system was a mess, different areas were governed by different laws. The North by the Danish Law, the Midlands by the Mercian Law and the South and West by the Wessex Law.
The Provisions of Oxford 1258
By the 12th century Common Law courts had developed and civil actions were being started by writs, to start with a new writ was created for each case but this system was getting out of control. So the Provisions of Oxford 1258 prevented any more writs from being developed, if there was not a writ to fit your case it could not be hurt. ‘No writ, no remedy’, the only remedy at the time was damages.
1474
Soon people were becoming dissatisfied with this and began to petition the King with their cases, the King often passed these onto the Chancellor to hear and settle. By 1474 the Chancellor was being petitioned himself, the decisions made by the Chancellor became known as equity, this was the start of the Court of Chancery. The decisions made by the Chancellor were very unpredictable and they were able to decide whichever remedy they saw fit, ‘equity varies with the length of the Chancellors foot’.
1529
The Chancellors were not lawyers and had no form of legal training, in 1529 Sir Thomas More was the first lawyer to be appointed Chancellor.
The Earl of Oxfords Case 1615
Soon people were becoming confused whether to follow common law or equity, in a the Earl of Oxfords Case 1615, the King said that when there is conflict between common law and equity, equity should prevail.
The Judicature Acts 1873 and 1875
People were still getting confused with what to follow so the Judicature Acts 1873 and 1875 tried to bring the two together by administering them in the same court, ‘it is no longer a court of common law, or a court of equity but a court of complete jurisdiction’.
S52 Judicature Act
People were still confused with what to follow, so the S52 Judicature Act stated that ‘when there is conflict between common law and equity, equity will prevail’.
What are maxims?
Maxims are things that must be satisfied for an equitable remedy to be applied.
‘He who comes to equity must come with clean hands’
This means that the party trying to apply for an equitable remedy must be an innocent party. For example, D&C Builders V Ree’s 1996, in this D&C did some building work for Ree’s which she claimed was faulty and refused to pay the full fee, knowing the builders would have no choice but to except a partially fee due to their financial situation. The builders sued Ree’s for the rest of the money, she applied for promissory estoppel but his was rejected as she had taken advantage of the builders financial situation. Therefore she did not have ‘clean hands’.
‘He who seeks equity must do equity’
This means that to receive an equitable remedy then the party applying for it must be willing to be fair. For example Chappell V Times Newspaper Ltd 1975, in this case the employees at the Times were on strike, they were told they would be sacked if the did not return to work. So the employees applied for an injunction to prevent them from being sacked, however this was rejected as when asked by a judge if they would return to work when the injunction was put in place, they said no. Therefore they were not willing to be fair.
‘Delay defeats equity’
This means a claim must be filed within a reasonable amount of time in order to receive an equitable remedy. For example in Leaf V International Galleries 1950, in this Leaf purchased a painting described by the seller as a genuine, however 5 years later the buyer discovered that the painting was actually a fake and sought the equitable remedy of rescission. However this was rejected as the court held that too long had passed.
What are equitable remedies?
There are 4 equitable remedies which assist the system of damages, these remedies of discretionary and are not automatically granted. A claimant is only entitled to damages.
Specific Performance
This is an order telling a party to perform a part of their contract. For example Wolverhampton Corporation V Emmons 1902, a builder was forced to carry out part of his contract to build on a demolition site.
