Equity and common law

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Equity evolved to cover the cracks within the common law. Over the years it has evolved a separate but parallel set of legal rules which complement the common law. The case of Dudley v Dudley illustrates this by announcing that ‘Equity…does not destroy the law, nor create it, but assist it’[1]. The common law was prone to reaching an unjust outcome, due to the rigid constraints. This was combated by the introduction of equity. During the reign of King James I, the public would petition the King appealing as it were to his conscience. The King dealt with these matters in conjunction with the Chancellor. This then led to the creation of the court of Chancery in the fourteenth century to administer the new set of complimentary rules. This led to confusion over which set of rules took precedent over the other. This was defined in The Earl of Oxfords Case (1615)[2] in which King James I stated that ‘if there is a conflict between common law and equity, then equity should prevail’. Lord Ellesmore LC went on to clarify the position of equity by stating ‘The office of the chancellor is to correct mans conscience’s for fraud, breach of trusts, wrongs and oppressions of whatever nature and to soften and mollify the extremity of the law…when judgement is obtained by hard conscience.’[3] The equitable maxims also known, as rules of conscience are different than their Common Law counterparts, this is evident within the way in which evidence and facts are treated. The common law judges are limited to providing only one remedy, that of damages. Equity in contrast has a range of remedies available, allowing the judge to consider the individual circumstances on a case by case basis. The remedies available in equitable judgements are specific performance[4], rescission[5], rectification and injunctions[6]. So what are the equitable principles under discussion? This paper will now consider them in turn. The first considered is equity follows the law. Beever explains that ‘equity fills the gap between legal justice and absolute justice’[7] he went on to explain further by stating that ‘the content of equity consists of those judgements required to reconcile the former with the latter.’[8] They further back this explanation by the following words from Aristotle. ‘[W]hen the law states a general rule, and a case arises under this that is exceptional, then it is right, where the legislator owing o the generality of his language has erred in not covering that case, to correct the omission by a ruling such as the legislator himself would have been there, and as he would have enacted if he had had been aware of the circumstances’[9] This highlights equity’s position within the law. It points out that when there is a dispute between the common law and equitable principles; the common law will prevail.

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