Distingtion Between Equity and Common Law
MOUNT KENYA UNIVERSITY
SCHOOL OF LAW
LAW OF EQUITY ASSIGNMENT
IAN NDUNGU WAWERU DLAW/112/00101
DISTINGUISH BETWEEN EQUITY AND COMMON LAW
LECTURER: MARK WAGIA
Common law, defined by Oxford Dictionary, is law that is derived from custom and judicial precedent instead of statutes. Equity, on the other hand, is a branch of law, which developed alongside common law, and is focused on fairness and justice. But aside from their descriptions, there are other differences between common law and equity.
History of common law
Before the 1066 Norman Conquest of England, there was no unified national legal system in the region—just a collection of oral customs which were peculiar to each domain. In 1154, Henry II established a unified system of law, which eliminated local control and arbitrary rulings. Henry II also sent out judges from his own court (thus the origin of "circuit" judges) to resolve disputes throughout England. The law-educated judges tried cases based on how they understood the customs, then would later return to London and discuss their decisions with other judges. These decisions are then recorded.
Eventually, the judges were obliged to follow a decision on a previous case if it had similar facts and issues, creating the concept of precedent and bringing about a mostly "common" law throughout the land. Thus, common law was born. The Writ system was as a result of development of common law( a writ is simply a document that sets out the details of a claim. They were issued to create new rights and encourage business however over time they became too formal and beset with technicalities such that claims would only be accepted if they fit into an existing writ. The rule was “no writ, no remedy” for example a writ to trespass was only valid if it consisted of use of arms and force if the two were not met one had no claim. If a writ was obtained judges spent more time examining the validity of the writ other than the merits of the claim.
SCHOOL OF LAW
LAW OF EQUITY ASSIGNMENT
IAN NDUNGU WAWERU DLAW/112/00101
DISTINGUISH BETWEEN EQUITY AND COMMON LAW
LECTURER: MARK WAGIA
Common law, defined by Oxford Dictionary, is law that is derived from custom and judicial precedent instead of statutes. Equity, on the other hand, is a branch of law, which developed alongside common law, and is focused on fairness and justice. But aside from their descriptions, there are other differences between common law and equity.
History of common law
Before the 1066 Norman Conquest of England, there was no unified national legal system in the region—just a collection of oral customs which were peculiar to each domain. In 1154, Henry II established a unified system of law, which eliminated local control and arbitrary rulings. Henry II also sent out judges from his own court (thus the origin of "circuit" judges) to resolve disputes throughout England. The law-educated judges tried cases based on how they understood the customs, then would later return to London and discuss their decisions with other judges. These decisions are then recorded.
Eventually, the judges were obliged to follow a decision on a previous case if it had similar facts and issues, creating the concept of precedent and bringing about a mostly "common" law throughout the land. Thus, common law was born. The Writ system was as a result of development of common law( a writ is simply a document that sets out the details of a claim. They were issued to create new rights and encourage business however over time they became too formal and beset with technicalities such that claims would only be accepted if they fit into an existing writ. The rule was “no writ, no remedy” for example a writ to trespass was only valid if it consisted of use of arms and force if the two were not met one had no claim. If a writ was obtained judges spent more time examining the validity of the writ other than the merits of the claim.
References: Michael Haley & lara Mcmultry, Equity and Trusts ( Sweet and Maxwell 3rd Edition) Julie Martin , Modern Equity (18th edition) -------------------------------------------- [ 1 ]. [1705] Birchall, John. "An Introduction to Equity & Trusts” [ 2 ]. 1935) 35 SR (NSW) 391 at 394 [ 3 ]. (1985) 1 NSWLR 314 at 336