LA1: Common Law and Equity Flashcards
Development of Common Law:
Judge made law that is common to all
Before 1066, no unified system of law, different areas had different types of law e.g. wessex law in south and west. Laws were based on customs**. These are rules based on established patterns of behavior “since time immemorial”** meaning time extending beyond memory.
Norman conquest lead by William the Conqueror, lead to development of the fuedal system:
William ‘sub-let’ land to nobility in return for providing an army who then sub let it to knights in return for working in that nobles army. Knights then let peasants use land in return for payments and services. This meant William still owned all of the land. The people had to be loyal and follow any laws he made or they would be replaced.
King was dictator and had his own court, Curia Regis, that had representatives from each area to tell local’s his laws. Disputes dealt with by sheriff.
Henry II
Had ‘Circuit Judges’ who travelled around and handled disputes. The justices would meet up at the Curia Regis in London and discuss what decisions they had made. Other judges would then use these decisions in similar cases, which lead to the law become ‘common’ throught the country. This is how Common Law came into being.
Doctrine of Stare Decisis
By 1200’s, the monarch had allowed judges to create various courts to deal with different cases. The judges shared decisions and agreed to follow the same principles.
This led to the creation of the Doctrine of Stare Decisis meaning: Let the Decision Stand.
Problems With Common Law
- Recognition of Legal Wrongs: A trust could be held by a Trustee if someone was too young to own it. The Trustee could take the land and keep it and Common Law said it was ok. The concept of a Mortgage was also not recognised and if you borrowed money to buy land, the land could be taken by the lender-even if you paid them back.
- The Writ System: You needed a document called a writ to begin a case in court. Writs were very expensive and lawyers would only ask for one if it had been successful in the past. If there wasn’t an appropriate one, you wouldn’t have a case, ‘No Writ, No Right’.
- Legal Fictions: Provisions of Oxford 1258 forbade people from making new writs without knig’s permission. They had to leave facts out or add things to get their claim to comply with the writ. This led to legal fictions.
- Obsession with Formality: Writs were very technical and if the wording of a writ was wrong people would lose their case.
- Only Remedy in Common Law is Damages: Common law only gave one type of remedy that wasn’t appropriate for all cases.
Development of Equity
The many problems with law left people unhappy. his made people petition the king who was thought to be the fountain of justice. The king decided each petition as it came up, but this became more popular and the king was swamped with petitions.
He asked the Lord Chancellor (LC) to take up the job. By 1474 the LC had his own court to decide these in. It was called the Court of Chancery.
He would decide cases on the basis of fairness (Equity) and his own morals rather than what Common Law told him to do.
Also made new laws about Trusts and Mortgages. The trusts had to be given back and mortgages to buy land were given out, they had to be paid back in installments with interest.
Conflicts between Common Law and Equity
- You Couldn’t go Straight to Equity: Equity wasn’t a complete set of laws and it was made to solve the problems of Common Law. If you wanted an Equitable Remedy then you would have to start in the Common Law court, get damages and then go to Court of Chancery.
- There was much Conflict between the Two sets of Laws: This problem was finally dealt with in the Earl of Oxford’s Case 1615. He had trusted land to Oxford Uni and they had sold it without permission. Comman Law said they could, Equity said they couldn’t. King said “Equity Will Always Prevail.” Equity became a ‘Gloss’ on the Common Law.
- Lord Chancellors were corrupt and Lazy: Chancellor role often given to church members who weren’t very rich/powerful. They would be easily bribed to rule case in someone’s favour.It is said equity “Varied with the length of the Chancellor’s foot.”
- Equity Courts were still Seperate from Common Law: You had to go to Common Law courts before you could start claim in Equity. Had to exhaust all appeals.
- Equity became as Stagnant as Common Law: Lawyers eventually began to be Lord Chancellor and so they brought their principles e.g. precedent, which made Equity more predictable. Equity also became very expensive to use and now followed set procedures.
Fusion of Courts
Two Acts passed to allow judges in both courts to use Law from the other court: Chancery Amendment Act 1850 & Common Law Procedures Acts 1852-60. Equitable remedies became discretionary: judge didn’t have to give them but they could if they wanted to. Two courts finally merged under Judicature Acts 1873-75. Laws haven’t merged, there are still seperete CL and Equity laws but they can both be used in the same court. You must tell court what kind of solution you are looking for when you bring your case to them.
Old Equitable Remedies
Injunctions
Injunctions
Prohibitory: Stops someone from doing something.
Warner Bros v Nelson 1937
Injunction used to stop Bette Davies making a film with another company as it would have been a breach of her Warner contract.
Mandatory: Makes someone do something.
Interlocutory Injunction
Can be either Prohibitory or Mandatory. It is used to keep ‘Status Quo’ during trial E.g. Stop D hiding property when claim is made against them, or to force them to give documents to court.
Contra Mundum Injunction: Issued against whole world e.g. to protect James Bulger killers.
Order of Specific Performance
When a party fails to perform their duty under a contract, the order forces them to carry it out as agreed. Only granted when court feels remedy of damages isn’t acceptable.
Cooperative Insurance Society v Argyll Stores Ltd 1979
Co-op shopping centre tried to force small supermarket to stay open after it ran into financial difficulty. Supermarket had bought business to other shops in area and its closure would effect trade.
Order granted by CA but House of Lords overturned it because it was oppressive.
Order of Rectification
Where a mistake has been made in a document, the document can be altered to show what the parties truly intended.
Order of Recission
Aims to return parties to their pre-contractual positions. Used if contract has fallen through without fault. E.g. person changed mind about a deal.
Evaluation Of Old Equity Laws
Advantages
- Well known so everyone knows how to obey them
- Can adapt to modern situations and contracts
- Proved to be fair and just solution
- Mortgages and Trusts vital to life
Disadvantages
- Only Discretionary
- Used to protect rich and powerful & celebrities from exposure
- Stops freedom of speech, HRA/ECHR
- Government try to use them to keep mistakes a secret
New Developments in Equity:
Equitable Estoppel
In CL if you only pay back part of a debt, the lender can sue for full amount - unless you give them something to ‘cover the difference’.
High Trees House Case 1947
Landlord let tennants pay half rent during ww2 because they were in danger of being bombed. After ww2 tennants refused to strat paying full rent again. Landlord sued for full rent from ‘war years’ and to get them to pay in full.
Lord Denning said they needed to pay in full again but Landlord wouldn’t be able to claim ‘war years’ rent because of Equitable Estoppel. This hadn’t been used in 71 years.
New Developments In Equity:
Search Order
Freezing Injunction
Freezing Injunction:
If there is a risk one of the parties will be removed from the uk before trial, 3rd parties e.g. banks, must freeze all of their assets.
Search Order:
Allowed Claimant to search Defendant’s premises without notice. They can take any documents that may be relevant to case. This prevents D destroying evidence.
Future of Equity
Won’t develop much further
Scandinavian Trading Tanker Co. AB v Flota Petrolera Ecuatoriana 1983
This case shows Equity won’t develop much further because court refused to extend land law’s equitable practices into commercial law. This was because land law takes time to investigate claim whereas in commercial law, delay means loss of money.
Evaluation
Advantages
- Need Equity to function as a modern society
- New remedies developed to cope with modern problems
- Modern communication has been incorporated
Disadvantages
- Too much development leads to uncertainty in law
- It is discretionary so you can’t predict outcome
- There will always be a winner and loser
