In jurisdictions following the English common law system, equity is the body of law which
was developed in the English Court of Chanceryand which is now administered concurrently
with the common law.[1]
For much of its history, 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 not effect any substantive
fusion, however. Judicial or academic reasoning which assumes the contrary has been
described as a "fusion fallacy".[2]
Jurisdictions which have inherited the common law system differ in their current treatment of
equity. Over the course of the twentieth century some common law systems began to place
less emphasis on the historical or institutional origin of substantive legal rules. In England,
Australia, New Zealand, and Canada, equity remains a distinct body of law. Modern equity
includes, among other things:[2][3]
The law relating to express, resulting, and constructive trusts;
Fiduciary law;
Equitable estoppel (including promissory and proprietary estoppel);
Relief against penalties and relief against forfeiture;[4]
The doctrines of contribution, subrogation and marshalling; and
Equitable set-off.
The latter part of the twentieth century saw increased debate over the utility of treating equity
as a separate body of law. These debates were labelled the "fusion wars".[5][6] A particular
flashpoint in this debate centred on the concept of unjust enrichment and whether areas of
law traditionally regarded as equitable could be rationalised as part of a single body of law
known as the law of unjust enrichment.[7][8][9]
o 1.1Origins of the common law
o 1.2Emergence of the Court of Chancery
o 1.3Development of equity in England
o 1.4Ecclesiastical laws
o 1.5Statute of Uses 1535
2Comparison of equity traditions in common law countries
o 2.1Australia
o 2.2United Kingdom
 2.2.1England and Wales
 2.2.2Scotland
o 2.3India
o 2.4United States
3See also
6External links
Main article: History of equity
Origins of the common law[edit]
After the Norman Conquest of England in the 11th century, royal justice came to be
administered in three central courts: the Court of King's Bench, the Court of Common Pleas,
and the Exchequer. The common law developed in these royal courts. To commence
litigation in these royal courts, it was necessary to fit one's claim within a form of action. The
plaintiff would purchase a writ in the Chancery, the head of which was the Lord Chancellor. If
the law provided no remedy (or no efficacious remedy), litigants could sometimes appeal
directly to the King. Eventually, the King would delegate resolution of these petitions to the
King's Council. These petitions were eventually delegated to the Lord Chancellor himself.
In the early history of the United States, common law was viewed as a birthright. Both the
individual states and the federal government supported common law after the American
Revolution. U.S. courts draw on decisions of English courts, individual state courts, and
federal courts in formulating common law.[10]
Emergence of the Court of Chancery[edit]
By the 14th century it appears that Chancery was operating as a court, affording remedies
for which the strict procedures of the common law worked injustice or provided no remedy to
a deserving plaintiff. Chancellors often had theological and clerical training and were well
versed in Roman law and canon law.[11]
By the 15th century the judicial power of Chancery was clearly recognised. Equity, as a body
of rules, varied from Chancellor to Chancellor, until the end of the 16th century. After the end
of the 17th century, only lawyers were appointed to the office of Chancellor. Over time,
Equity developed a system of precedent much like its common-law cousin.
One area in which the Court of Chancery assumed a vital role was the enforcement of uses,
a role that the rigid framework of land law could not accommodate. This role gave rise to the
basic distinction between legal and equitable interests.
Development of equity in England[edit]
It was early provided that, in seeking to remove one who wrongfully entered another's land
with force and arms, a person could allege disseisin (dispossession) and demand (and pay
for) a writ of entry. That writ gave him the written right to re-enter his own land and
established this right under the protection of the Crown if need be, whence its value. In 1253,
to prevent judges from inventing new writs, Parliament provided that the power to issue writs
would thereafter be transferred to judges only one writ at a time, in a "writ for right" package
known as a form of action.[citation needed] However, because it was limited to enumerated writs for
enumerated rights and wrongs, the writ system sometimes produced unjust results. Thus,
even though the King's Bench might have jurisdiction over a case and might have the power
to issue the perfect writ, the plaintiff might still not have a case if there was not a single form
of action combining them. Therefore, lacking a legal remedy, the plaintiff's only option would
be petitioning the King.
People began petitioning the King for relief against unfair judgments, and as the number of
petitioners rapidly grew, so the King delegated the task of hearing petitions to the Lord
Chancellor. As the early Chancellors lacked formal legal training and showed little regard for
precedent, their decisions were often widely diverse. In 1529, a lawyer, Sir Thomas More,
was appointed as Chancellor, marking the beginning of a new era. After this time, all future
Chancellors were lawyers. Beginning around 1557, records of proceedings in the Courts of
Chancery were kept and several equitable doctrines developed. Criticisms continued, the
most famous being 17th-century jurist John Selden's aphorism:
Equity is a roguish thing: for law we have a measure, know what to trust to; equity is
according to the conscience of him that is Chancellor, and as that is larger or narrower, so is
equity. 'Tis all one as if they should make the standard for the measure we call a foot, a
Chancellor's foot; what an uncertain measure would this be? One Chancellor has a long foot,
another a short foot, a third an indifferent foot: 'tis the same thing in a Chancellor's
A criticism of Chancery practice as it developed in the early medieval period was that it
lacked fixed rules and that the Lord Chancellor was exercising an unbounded discretion. The
counter-argument was that Equity mitigated the rigour of the common law by looking to
substance rather than to form.
Litigants would go 'jurisdiction shopping' and often would seek an
equitable injunction prohibiting the enforcement of a common law court order. The penalty for
disobeying an equitable ‘common injunction’ and enforcing a common law judgment was
The Chief Justice of the King's Bench, Sir Edward Coke, began the practice of issuing writs
of habeas corpus that required the release of people imprisoned for contempt of chancery
This tension climaxed in the Earl of Oxford's case (1615) where a judgment of Chief Justice
Coke was allegedly obtained by fraud.[13] The Lord Chancellor, Lord Ellesmere, issued a
common injunction from the Chancery prohibiting the enforcement of the common law order.
The two courts became locked in a stalemate, and the matter was eventually referred to
the Attorney-General, Sir Francis Bacon. Sir Francis, by authority of King James I, upheld
the use of the common injunction and concluded that in the event of any conflict between the
common law and equity, equity would prevail. Equity's primacy in England was later
enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity
and the common law (although emphatically not the systems themselves) into one unified
court system.
Ecclesiastical laws[edit]
Ecclesiastical laws are a branch of English law and were English laws that dealt with matters
concerning the church, this was so that religion and law was differentiated. These laws are
considered an unwritten law of England and cannot be withheld in the court of law.
Ecclesiastical laws are not currently established in the U.S as Common law.[10]
Statute of Uses 1535[edit]
In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive
form of trust called ‘the use’ that enabled one person (who was not required to pay tax) to
hold the legal title of the land for the use of another person. The effect of this trust was that
the first person owned the land under the common law, but the second person had a right to
use the land under the law of equity.
Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an
attempt to outlaw this practice and recover lost revenue. The Act effectively made the
beneficial owner of the land the legal owner and therefore liable for feudal dues.
The response of the lawyers to this Statute was to create the 'use upon a use'. The Statute
recognized only the first use, and so land owners were again able to separate the legal and
beneficial interests in their land.
For an example, see Godwyne v. Profyt (after 1393): a petition to the Chancellor[14]
Comparison of equity traditions in common law
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Equity remains a cornerstone of Australian private law. A string of cases in the 1980s saw
the High Court of Australia re-affirm the continuing vitality of traditional equitable
doctrines.[15] The High Court has recently affirmed the importance of Equity and dismissed
the suggestion that unjust enrichment has explanatory power in relation to traditional
equitable doctrines such as subrogation.[16]
The state of New South Wales is particularly well known for the strength of its Equity
jurisprudence. However, it was only in 1972 with the introduction of reform to the Supreme
Court Act 1970 (NSW) that empowered both the Equity and Common Law Division of the
Supreme Court of NSW to grant relief in either equity or common law.[17] In 1972 NSW also
adopted one of the essential sections of the Judicature reforms, which emphasised that
where there was a conflict between the common law and equity, equity would always
prevail.[18] Nevertheless, in 1984 three alumni of Sydney Law School and judges of the NSW
Supreme Court, Roderick Meagher, William Gummow and John Lehane produced Equity:
Doctrines & Remedies. It remains one of the most highly regarded practitioner texts in
Australia and England.[19][20] The work is now in its 5th edition and edited by Dyson Heydon,
former Justice of the High Court, Justice Mark Leeming of the NSW Court of Appeal, and Dr
Peter Turner of Cambridge University.[2]
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