Tuesday, 18 August 2020

COMMON LAW AND EQUITY


English legal system is based on common law and equity. When Normans conquered England, customary was the law of land. Norman decided to replace customary law with judge-made law. They set up Hundred courts that were gradually taken by new Royal Courts. The itinerant judges who traveled from place to place, started applying common set of rules, based on previous customs to govern the land and these rules become known as common law.

There were defects in the common law and people began complaining to the king. The court of Chancery was created to provide justice where common law common law was failed to do so. The lord chancellor was given given the authority to create new rules based on equity, which means fairness, where common law failed to be fair> Then after some cases it was decided that Equity should always prevail over common law which is still true today. 

Later Common Law Courts and Courts of Equity were fused together to form Supreme Court. Today the same Courts apply both Common Law principles and the Equitable Principles in order to provide Justice. Today the same courts apply both common law  principles and equitable principles in order to provide Justice. Due to the defects in Common Law this all was done.

As according to the common law ''Part payment of the debt is never satisfaction for whole amount''. In some cases such as Pinnel's case this proved to be unfair and so Equitable Principle of ''promissory estoppel'' was created in CLPT V HIGH TREES. In this case landlord agreed to accept half the rent for months during war. When  was ended it was held that he should be paid the full rent for the months after the war. Lord Dennings started Obiter that hand the landlord demanded full payment for the months during the war, he would have been 'estopped from going back on his promise because it would have been unfair for him to do do'.

EQUITY HAS PROVIDED JUSTICE BY CREATING CONCEPT OF TRUST.

Judges also created new law that one should be held accountable if his negligent advice causes financial loss to another. As it is fair to hold the maker of the statement liable if he has more knowledge than the the other party or knows that the other party would rely upon his or her advice for financial-well-being. Common law did not recognize any such liability. Judges created rules based on equity due to defects in common law, 
Example:
Judges created equitable remedies because the only remedy provided by common law was damages ( monetary compensation ) and this can be unjust in some cases.

EQUITABLE REMEDIES:

1) SPECIFIC PERFORMANCE :
     Is an order of the court that forces one to carry out his or  her legal duty.

2) PROHIBITORY INJUNCTION :
     Is an order of the court that stops someone from doing a wrongful act.

3) MANDATORY INJUNCTION :
    Requires Defendant to do a positive act to do undone the.

4) FREEZING ORDER ( MAREVA INJUNCTION) :
   This injunction freezes the assets of a debtor so that  he can      not  sell of property until the repayment  of debt.

5) RECTIFICATION :
    Allows a written document to be corrected if it does not            represent  the true intentions of the parties due to a mistake or    fraud.

6) RESTITUTION :
    Order of court to put things right. If one party has obtained an    unfair benefit form another then he must pay back.

7) RESCISSION :
    Awarded if there is a breach of a voidable contract in order to      terminate the contract and restore the parties to their pre-        contractual financial positions.

8) ANTON PILLER ORDER :
    Search order that is obtained before final judgement.

The second in common law was it was based on outdated write system '' no write no remedy'' emphasized on formalities rather than case itself.
Equitable maxim '' Intention , not form''remedied this defect.

EQUITABLE MAXIMS :

  1.  HE WHO COMES MUST COME IN EQUITY WITH CLEAN HANDS.
  2. DELAY DEFEATS JUSTICE.

IN THE LIGHT OF ABOVE MENTIONED FACTS, I AGREE WITH LORD DENNINGS THAT '' EQUITY WILL NEVER GO BEYOUND THE AGE OF CHILDBEARING IT WILL ALWAYS REMAIN IMPORTANT BECAUSE IT WILL PROVIDE JUSTICE WHEN COMMON LAW FAILS TO DO SO.    

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