Development of Law of Equity: HSP READING MATERIAL-3

1. End of 14th century:

 The Procedure of the royal courts had become too crude and formalistic and the applicable law was too
rigid and incomplete.
 Suits were being lost because of:
i. Technical errors
ii. Opponents political influence
iii. Could not obtain an appropriate writ that petitioned the king to issue an order that compelled
the adversary to act on morality, good conscience or for that matter, rules of common law.
 Transmit such petitions to his highest administrative official, the Chancellor.
i. Had an intimate knowledge of the Common Law and its remedies since it was he who issued the
writs,
ii. ‘keeper of the king’s conscience‘ and a prominent churchman he was best fitted to judge
whether in the particular case the petitioner ought to receive the favor he sought ‘ for the love
of God and in the way of charity’
 In time these petitions were addressed directly to the Chancellor and the decisions he made developed
into a complex set of special rules of law which are still referred to in England as they have been ever
since the fifteenth century, as ‘equity ’.
2. Procedure followed
 Chancellor called the person named in the petition to a hearing which took place before himself rather
than before a royal court
 Defendant called by special writ carrying the threat of a steep penalty, (subpoena
centum librarum ) ‘ writ of subpoena’
 Formal rules of proof used did not apply instead had to make sworn statement to chancellor and had to
give answers under oath.
 Decided all matters of fact and law by himself without a jury.
3. Through the 15th century Chancellor decided more or less as he deemed fit. The decisions were colored by
individual preferences of the churchman then in office.
4. 1529- Thomas Moore( first secular lord chancellor)-
 Equity jurisdiction began to follow the model of the Common Law.
 Developed rules and doctrines, originally in a very fluid and uncertain form, to which the Chancellor had
recourse when similar fact situations arose
5. End of 16th century- Regular publication of chancellor’s decisions. They became as bound by precedents as
judges of common law.
6. Activity became more and more judicial- separate office of Court of chancery.
7. From 1730 onwards the chancellor wasn’t the sole judge but was helped by the immediate subordinate- The
Master of the Rolls.
8. 18th century: was as much fixed by decisions and as much formed into technical legal rules as the rules of the
Common Law.
9. Important body of rules:
 Rules of trust( earlier called uses)
It was common for people who wanted to avoid the feudal burdens attaching to land to transfer to a
‘trustee’ the land he held of his superior, to the outside world the ‘ trustee’ would appear to own the
land. But he was bound to let the setttler have possession and profits during his lifetime and then,
either on his death or when his heirs reached manhood, to deal with the property in a prescribed way in
 favor of another (beneficiary). If the trustee didn’t deal with the property in the way that he had
undertaken he could go to the royal courts however there was no writ for the same, they were too rigid
to permit the trust agreement to be fully established. The Chancellor took these cases up as such
breaches were contrary to morality, as an offence against ‘good conscience’. In his decisions the
Chancellor gradually refined this principle into very detailed rules
 Legal Remedies
i. Injunctions: the old Common Law with its archaic formalism clung to the view that a person
could not protect himself in advance against the illegal behavior of another, but had to wait until
the harm had already been caused and then bring a claim for damages. This was unacceptable
to the Chancellor with his more sensitive conscience. Under certain circumstances he would
grant an ‘injunction’ to prevent a future legal wrong which would be unconscionable.
ii. Specific performance: These remedies offered by the Common Law to victims of breach of
contract were insufficient because, having developed out of the writ of trespass, they only
sounded in damages . Cases were therefore brought before the Chancellor, and if he felt that it
was unfair to restrict the innocent party to a claim for damages, he would allow, under
conditions which gradually became fixed and clear, a claim for performance of the contract in
specie.

Thus Common Law and did not seek to oust or replace them. Instead, equity added marginalia, glosses, and
supplements to the Common Law; they are often extremely important and sometimes go so far, to speak frankly, as
effectively to neutralize the Common Law rules.