Equity Vs Equity

In order to understand English law at the beginning of the new millennium it is vitally important to understand that there used to be two completely distinct sets of courts in England, and therefore two completely distinct systems of law: Common Law and Equity. In this paper we will concentrate on Equity. Equity’s greatest contribution has been in the evolution of English land law with the creation of new rights and remedies and the invention of new concepts, such as the notion of the trust. This role in the development of English land law is the reason why we can say that Equity is quintessentially English.

We can define equity as a system of justice administered in particular courts.

It has a long history: as every phenomenon, it knew

They pursued two particular objectives: one to merge Equity and Common Law, the other to reorganise the courts. As a result of the Judicature Acts, equitable remedies could and can still be applied in Common Law courts. But “the two streams of jurisdiction, though they run in the same channel, run side by side and to not mingle their waters”. This means that, despite the convergence, the intellectual separation of the principles remains. In Salt v Cooper the great Sir George Jessel said that the main purpose of the Act “has been sometimes inaccurately called ‘the fusion of Law and Equity’; but it is not any fusion, or anything of the kind; it was the vesting in one tribunal of the administration of Law and Equity in every cause, action or dispute which should come before that tribunal”. In other worlds traditionalists consider that the Judicature Acts merely merged the administration of equity and the common law. This assumption is supported, to me, also by the Judicature Act of 1873 itself. In his section 25 it provided that in all matters never mentioned before in which there is a conflict or variance between the rules of Equity and the rules of Common Law, the rules of Equity shall

Nevertheless, with the emergence of the Common Law, although the efforts of the Judicature Acts, the place and the role of Equity have known a time of uncertainties.

The current judicial trend is to adopt a restrictive approach to the creativity of equity. There are several reasons for this. Most of all, Equity’s creative role is now perceived as being necessarily limited by established doctrine and fundamental principles. It seems no longer appropriate to create new rights and remedies simply because the justice of the case requires it. Any new rules must be shown to have evolved from accepted foundations. So, equity has not past the age of childbearing, but it is sure that “its progeny must be legitimate—by precedent out of principle”. This aspect is well showed by Lord Denning’s essay “The need of a new equity”. Lord Denning started his reflection on Equity’s role with the examination of the relation between law and society: when the rules are given the force of law, they must be obeyed because they are law and not because people accept and agree with the reasons on which they are founded. It is important to understand that the rule is the rule and not the reason for it. A reason can cease to be valid, but the rule will still be