Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Thursday, July 7, 2011

The historical evolution of the doctrine of equity and its relationship to common law.

By Bakampa Brian Baryaguma
[Dip. Law (First Class)–L.D.C; L.L.B. Student–Mak]
bsaint3@gmail.com; www.bbbakampa.blogspot.com

1.0 Introduction

Equity has the ordinary and technical (legal) meaning. Ordinarily, equity means fairness and right judgment [1]. Here, equity is understood to mean doing what is good and morally right.

Technically, “…equity may be described as that part of the law which immediately prior to the coming into force of the Supreme Court of Judicature Acts of 1873 and 1875 was enforced exclusively in the Court of Chancery… [2].” It denotes the body of rules formulated and administered by the Court of Chancery to supplement and/or correct the rules and procedure of the common law when these would apply unfairly.

On the other hand, the common law refers to the set of cogent rules of the law of England which was formulated, developed and administered by the old common law courts based originally on the common customs of the country [3]. The common law was neither a result of legislation nor was it necessarily local law. It was the unwritten law developed from old customs of the people that were employed by judges across the realm in adjudication of disputes, flourishing on the belief that it was the commonsense of the community crystallised and formulated by their forefathers [4].

1.1 Historical Evolution of Equity

Equity evolved purely on moral considerations, principally designed to remedy the defects of the common law on grounds of conscience and natural justice [5]. It started with popular demand on the King’s Court to intervene in the delivery of justice, basing on the belief that a residuum of justice still resided in the Sovereign owing to the fact that he was the fountain of justice in the country [6]. This was extraordinary justice sought from the King by either petitioning him in person or through his council. When petitioned, the King often referred such requests to the Lord Chancellor who heard and determined the cases presented based on notions of conscience and natural justice. Many times the Chancellor [7] was called the ‘Keeper of the King’s Conscience’.

The practice became habitual and references frequent, addressed to the “Chancellor and the Council.” Soon the petitions were addressed to the Chancellor alone and by the fifteenth century, his office (Chancery) took on the real characteristics of a court which led to the birth of the Court of Chancery [8]. Cases where the law was defective and those where the petitioner couldn’t take benefit of a remedy available at common law due to instability in the country or where the defendants were so wealthy and powerful that they easily influenced the presiding judge to decide in their favour, were the commonest [9]. In adjudication of these new cases, new law was being created and this is what later became ‘equity’.

At this time, equity was highly individual and was based on individual decisions of the Chancellor [10]. Most Chancery decisions therefore, depended on the Chancellors’ personal ideas of right and wrong [11] and failure to comply with them amounted to contempt of Court punishable by imprisonment on the orders of the Lord Chancellor [12]. In 1873, the Judicature Act was enacted which provided for the fusion of equity and common law by providing that both common law and equity could be administered by the same court. But before this time, equity had had a vigorous separate existence for nearly 500 years [13].

1.2 Relationship of Equity to Common Law

The relationship between common law and equity is one of contrast and comparison. To comprehend this relationship, the scholar has to address his/her mind to the salient features, critical points of contention and similarities characterizing the two branches of law.

1.2.0 The Positive Relationship

The emergence of maxims of equity turned “…equity into a system of law almost as fixed and rigid as the rules of the common law [14].” Before the maxims, equity was what the Chancellor believed was equity. In the mid-seventeenth century, John Selden criticized this state of affairs observing that equity was a roguish thing that varied according to the conscience of the individual Chancellor in the same way as if the standard measure were a Chancellor’s foot [15]. Other critics averred that the court of equity was actually not a court of conscience [16]. Maxims therefore developed as safety valves to ensure that a settled system of law which is consistent and certain was built in the Court of Chancery. Following the emergence of maxims, the Chancery also started relying on precedent just like the common law.

The other relationship is derived from the 1873 Judicature Act, which caused administrative fusion of equity and common law in a bid to remove the quarrel between law and equity. Section 24 empowered all judges to recognize and give effect to both legal and equitable rights, claims, defences and remedies. This provision resolved the dilemma where both common law and equity had different rules relating to the same subject matter giving rise to inconsistent remedies. Section 25(11) of the same Act provided that where there was conflict between common law and equity, the rules of equity shall prevail. Due to these provisions, “…the courts of Chancery are no longer courts of equity. …They are as fixed and immutable as the courts of law ever were [17].” This is because S.25 (11) put a stop to or severely limited the inventive faculties of future Chancery judges [18]: since this sub-section necessarily proceeded upon the view that the rules of equity were then a known body of established doctrine. To Megaw LJ, the consequence of the 1873 Judicature Act is that, “…the creation of new rights and remedies is a matter for Parliament, not the judges [19].”

1.2.1 The Negative Relationship

The first is to be got from the foundation basis of two laws. Whereas common law was based on writs, equity was based on petitions. A writ was a document in the Queen or King’s name and under the seal of the Crown, commanding a person to whom it was addressed to do or forbear from doing some act while a petition was a written statement addressed to the Crown setting forth facts on which the petitioner bases a prayer for remedy or relief. The common law writ system didn’t separate substance and procedure. Equity sought to remedy this by distinguishing the two and coined the maxim that equity looks to the substance rather than the form. The rationale is that insisting on the form or technicalities will defeat the substance or main purpose of the transaction, something considered to be inequitable.

Due to the writ system, the common law became rigid and unadaptable (or sluggishly adaptable at best) [20]. Cubby-hole justice, you could call it. On the other hand, equity was highly flexible owing to its individual character––so much so that in 1670, Vaughan C.J maintained that “Equity is a universal truth and there can be no precedent in it [21].” Equity permitted wide discretion whereas the common law was highly legalistic emphasizing strict adherence to law and procedural formalities. It must be noted though that equity didn’t have a monopoly of the pursuit of justice and fairness and so the contrast between law and equity cannot entirely be thought to have been one between a system of strict rules and one of broad discretion.

There is still subsisting the age-old difference in principles. Much as the above provisions of the 1873 Judicature Act are alleged to have fused common law and equity, the orthodox view is that they only achieved administrative fusion but not physical fusion (or fusion of principles). This is to be captured from Professor Ashburner’s metaphor that “…the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters [22].” In fact, the Attorney General, while introducing the Bill for the second reading, said that “The Bill was not one for the fusion of law and equity” arguing that “The defect of our legal system was, not that Law and Equity existed, but that if a man went for relief to a court of Law, and an equitable claim or an equitable defence arose, he must go to some other Court and begin afresh [23].” This contrast manifests in the fact that up to the present day, there are equitable rights and remedies different from those of the common law.

1.3 Conclusion

The evolution of the doctrine of equity is not only captivating but also puzzling because it is by no means self-evident that two separate legal systems can develop in one jurisdiction and apply simultaneously therein. For that matter, therefore, explaining clearly the relationship between equity and common law is a herculean task especially as far as the negative one is concerned. Yet this relationship is the essence of the existence of equity alongside common law since they are the inadequacies in one that lead to the emergence of the other. It is this phenomenon that is responsible for the negative relationship.

Notes and References

1. A. S Hornby with A.P Cowie and A.C Gimson, OXFORD ADVANCED LEARNER’S DICTIONARY OF CURRENT ENGLISH, Oxford University Press, 1983, p.294

2. Philip Pettit, EQUITY AND THE LAW of TRUSTS, 8th Ed, Butterworths, p.1

3. Osborne, A CONCISE LAW DICTIONARY, 8th Ed, p.77

4. Ibid

5. Philip Pettit, op. cit. at p.4

6. Philip Pettit, loc. cit.

7. According to Bill Long (THE EARLY HISTORY OF EQUITY), “The Chancellor…was the King’s Secretary, and he ran the administrative apparatus of the state.” Most Chancellors were ecclesiastics well versed in civil and canon law.

8. Philip Pettit, op. cit. at p.2

9. Ibid


11. Philip Pettit, op. cit. at p.4

12. See Chellaram Vs Chellaram [1985] 1 All ER 1043, 1053

13. Bill Long, “The Early History of Equity” p.1

14. Philip Pettit, op. cit. at p.4

15. Pollock (ed, 1927), TABLE TALK OF JOHN SELDEN, p.43

16. See Gee Vs Pritchard (1818) 2 Swan 402, 414, per Lord Eldon.

17. This was the extra-judicial opinion of Lord Denning reported in (1952) 5 CLP 8; reproduced by Philip Pettit, op. cit. at p.5

18. An extra-judicial opinion of Lord Evershed quoted in (1953) 6 CLP 11, 12; reproduced by Philip Pettit, op. cit. at p.5

19. Western Fish Products Ltd Vs Penwith District Council [1981] 2 All ER 204, 218

20. Philip Pettit, op. cit. at p.2

21. See Wilson Chap, op. cit. at p.7

22. Prof. Ashburner, PRINCIPLES OF EQUITY, 2nd ed, p.18

23. See Philip Pettit, op. cit. at p.10