EQUITY Lecture 1 - EQUITY HISTORICAL ORIGIN AND DEVELOPMENT...

This preview shows page 1 - 3 out of 6 pages.

EQUITY HISTORICAL ORIGIN AND DEVELOPMENT OF LAW OF EQUITY IN ENGLAND MAXIMS OF EQUITY EQUITABLE REMEDIES INCLUDE INJUNCTIONS, SPECIFIC PERFORMANCE ETC. APPLICATION OF EQUITY IN KENYA – THE NATURE, HISTORICAL ORIGIN & DEVELOPMENT OF LAW OF EQUITY IN ENGLAND DEFINITION OF EQUITY Equity has an ordinary meaning and a technical meaning. In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. We are talking about doing good, doing what is morally right. In a legal sense equity it is the branch of the law which, before the Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery. A litigant asserting some equitable right or remedy must show that his claim has “an ancestry founded in history and in the practice and precedents of the court administering equity jurisdiction. In the technical sense equity refers to a body of rules and some authors have defined equity as that which is not the common law. They distinguish equity from the common law. It is regarded as a body of rules that is an appendage to the general rules of law. To understand why equity is not common law, we must delve into the history of how equity evolved. There was only the common law in England originally there was only one body of law. Common law is to be found in case law that developed over the years and was administered by the king’s justices. There were 3 courts then, the Kings Bench, the Court of Common Pleas and the Exchequer. The Kings Bench got its name from a practice where the king would sit with his judges in “banco” or on the bench and they would hear civil and criminal cases in which the King had an interest.
Image of page 1

Subscribe to view the full document.

The Court of Common Pleas dealt with civil cases brought by one individual against another individual. The Exchequer dealt with cases affecting the royal revenue, matters to do with taxes for example would be dealt with here. Under the Common law system there was the writ system. Under the writ system a person could only get redress for their grievance if there was a writ disclosing the cause of action. Apart from the writ system there was also the doctrine of precedence. At this point in time, i.e. 12 th century it was felt that the common law system was very rigid. There was a statute that restrained the Chancellor from issuing new types of writs on his own initiative but because of the Provisions of Oxford of 1258 the Chancellor could not issue any new writs and all this added to the rigidity of common law. At this time there were some defendants who were very strong and at times they would defy the courts’ orders and the Plaintiffs would be intimidated. Those were medieval dark ages. Due to all these factors, plaintiffs were not able to have all their grievances addressed and therefore those aggrieved would go and implore the King. The King would then exercise the extra judicial powers if there was no remedy available or if the writ was not recognised as a cause of action. Where there was a failure to
Image of page 2
Image of page 3

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern