Limitations Of Common Law

Question 1

a. Common Law

Definition of common law:

The common law, sometimes known as case law, is the body of law that is based on the judges through the decisions made in court. In the system of common law, when a court decides and reports its decision regarding a specific case, the case then becomes a part of the body of law and can be used in cases that involve related matters in the future. Common law has been dispensed in the courts in England since the Middle Ages. It can also be found in the United States and in most of the British Commonwealth.

Development of common law:

Different regions of England were ruled by different systems of law before the Norman Conquest. In 1066, when William I gained the throne he started a strong central

Equity

Definition of equity:

Equity is a specific set of strict legal principles devised and managed by the Court of Chancery to complement the rules and procedures of the common law. It is available to people who found no impartiality in the common law courts. Equity was intended to establish the truth of the matter and also to levy an unbiased solution. When existing laws do not provide a solution, equity will help obtain a fair result.

Maxims of equity:

The maxims of equity may be described as a set of general principles, which are said to rule the way in which equity works. They were designed to make sure that decisions were ethically fair. Some of these equitable maxims include: -

• Equity follows the law.

• Equity looks to the intent rather than the form.

• Equity imputes intent to fulfill an obligation.

• Delay defeats equity.

• He who seeks equity must do equity.

• Equality is equity.

Development of equity:

Unlike the common law, equity was never meant to be an autonomous system of law. It presupposed the existence of the common law, which it complemented and amended. The history of equity is very much connected to the common law writ system, the inflexibility of the common law, the Lord Chancellor and the Court of

Before passing of the first Judicature Act in year 1873, there were two different court systems – the common law courts and the court of chancery. The common law courts dealt with the common law and the court of chancery dealt with the law of equity. Therefore, until 1873 the claimant had to choose whether to bring the claim in equity or at common law. This was depended on what remedy the claimant wanted to pursue. If the claim were made in the wrong court, it would fail automatically and ought to be bought again in the suitable court. This system clearly wasted a lot of time and money. The Judicature Act of 1873, subsequently the Judicature Act of 1875, eliminated the necessity to sue in common law for a common law remedy. The Judicature Acts then established a single High Court of Justice with a Queen’s Bench Division and a Chancery Division. Both these divisions can be used to determine questions of equity. Today, the Judicature Acts did not combine common law and equity, only their management. There is still a body of rules of equity, which is remote form common law rules, and acts as a supplement to it. And where there is conflict between common law and equity, equity is to