Equity Has No Place in the Common Law

What is Equity?

The author understands equity to be the concept of fairness and justice but in the legal

perspective, equity can be defined as, according to Rose-Marie Belle Antoine, “a body of law

which developed in separate and different English courts, the chancery, admiralty and

ecclesiastical courts.” This body of law grew alongside, but not together with, the common

law and stepped in where the common law could not remedy its own restrictions. Thus, the

author was not incorrect when the concept of fairness and justice was mentioned as equity is

a branch of law that is surrounded by the aforesaid elements.

The Development of Equity

While the common law was more “flexible, faster and responsive than parliamentary law”

(tqdlaw.com), it posed many limitations to the legal system. These limitations were

incentives for the creation of the ‘equitable principles’ which provided remedies, other than

monetary solutions. It is understood that ‘Common Law’ is a body of law based on court

decisions rather than codes or statutes (legal.thomsonreuters.com) and was developed on an

‘ad hoc’ basis. An ‘ad hoc’ basis refers to “something you do only when you need to and in a

way that is not planned before it happens” (dictionary.cambridge.org).

In addition to being developed on an ad hoc basis, it was made to be “a flexible system of law

which provided innovative solutions to problems that arose”, stated Rose-Marie Belle

Antoine. This scheme proved to be unsuccessful as it did not retain its original character. The

development of the doctrine ‘stare decisis’ encouraged rigidity within the law. In accordance

with law.cornell.edu, ‘stare decisis’ is the doctrine that courts will adhere to precedent in
making their decisions. The convenience of such a doctrine extended to procedural issues as

well as judicial precedents consequently causing the Common Law to devise strict legal

procedures, which also had the effect of promoting rigidity.

The Court of Chancery

The Court of Chancery was commanded by the ‘Chancellor’ who was the King’s Chief

Minister. The Chancellor was usually a member of the King’s clergy. Take for instance,

Thomas Moore who ascended through Parliament’s ranks and won King Henry VIII’s favour

before being appointed Lord Chancellor in 1529 (sacredheart.edu). The Court of Chancery

only became a separate and distinct court in the 15th century. This court hosted “sessions” in

which the Chancellor attended to matters which were brought to the King in which “no

suitable redress or remedy could be found under the common law as had developed by that

time.” Where the common law failed to provide or enforce a remedy, informal petitions were

addressed to the Council, which in the interest of justice imposed specific remedies. These

petitions were then passed to the Lord Chancellor.

Often referred to as the “principal advisor to the sovereign”, the Chancellor would not only

deal with public deeds, contracts and other documents relating to the crown (Britannica.com)

but also issue writs of attendance and gave relief. In the sake of justice and fairness, he was

granted wide discretion and authority to rule on matters as he saw fit. A set of rules known as

the equitable principles that aimed to correct the deficiencies of the common law were

developed by the inventive Chancellors. There are ‘maxims’ which serve as the body of the

Law of Equity. These maxims serve as general principles for administering justice and

fairness (blog.ipleaders.in) and would be stated and elaborated in the subsequent paragraph.

In order for the Prerogative to utilise his authority to correct inequities within the legal

system, this specific Court of Chancery was established.

The Maxims of Equity

As aforementioned, the maxims of equity were adopted to administer justice and fairness.

Simply, they govern the Law of Equity and are discretionary. The maxims are as follows:

Equity is equality, He who comes to equity must come with clean hand, Equity will not suffer

wrong to be without remedy, Delay defeats equity, Equity abhors forfeiture, Equity follows

the law, Equity regards as done what ought to be done, Equity looks to intent rather than form

and Equity acts in personam. “Equity is equality” derives from the ideas of fairness and

equality. Simply said, it means that each party would receive the same treatment. “He who

comes to equity must come with clean hand” simply means that a person who is responsible

for some wrongdoing in the specific situation for which he seeks to assert rights is not

entitled to any relief. This merely means that you must not have violated the law in the

specific situation for which you are seeking redress.

The much broader legal principle "ubi jus, ibi remedium" (where there is a wrong, there is a

remedy) is related to the third maxim of equity. Simply put, it says that once a right is

granted, if a harm arises, there should be a co-existing remedy offered by equity to assuage

that injury. “Delay defeats equity” refers to the idea that equity would not support a "stale

claim." This only indicates that an implied waiver of such rights may occur if the plaintiff

fails to present his claim within a reasonable amount of time. “Equity follows the law” simply

means that equity does not seek to overturn or obstruct the law as its main goal. Instead, it

strives to eliminate flaws, soften harshness, and make contradictions clear. “Equity looks to

intent rather than form” exemplifies how equity considers more than just the 'form' of a

contract and considers the true 'purpose' of such an agreement. In contrast, the stricter

common law is content with a transaction's outward appearance. “Equity acts in personam”

can be traced back to the original jurisdictional differences between the Courts of Law and
the Courts of Chancery, where the former had jurisdiction over both people and property and

the latter only over people. It has been said that these maxims can all be reduced to just two:

"Equity will not suffer injustice" and "Equity acts in personam." These maxims, while

perhaps not universally applicable or absolute, nonetheless communicate the goal of courts of

equity, which is eventually to achieve justice (djetlawyer.com).

The Author’s Stance

Going back to the topic of research: “Equity Has No Place in the Common Law” allowed the

author to conduct thorough research on what equity is and its relation to the Common Law,

the development of equity which branched off into the Court of Chancery and the maxims of

equity. This exhaustive investigation has led the author to a conclusion which disagrees with

the topic of research. The writer believes that equity has a place, a distinct one rather, in the

Common Law as the concepts of equity and the Common Law intersect each other and, as

aforesaid, stepped in where the common law could not remedy its own restrictions. The

author’s stance is justified by the approach termed “equity jurisprudence” in which courts

have the jurisdiction to apply both concepts of common law and equitable principles to

ensure that justice is achieved.

To reiterate, the role in which equity has in the common law is paramount and helps maintain

the balance between firmly enforcing the law and respecting the principles of justice and

fairness. In summation, equity provides a beneficial set of guidelines and solutions that can

be combined with common law to create more equitable resolutions to legal disputes.