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Equity and Common Law Master - Essay Example

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Equity to the layman means fairness and justice, but in the legal context its meaning is much more strictly defined. There are rules of equity; it must obey the rules of precedent as does the common law1. Though the foundation of the equity can be trace back to the Norman Conquest (1066), its impact today remains as strong as ever…
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Equity and Common Law Master Essay
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Equity and Common Law Master

When the common law developed the strictures of the writ system through the twelfth and thirteen centuries and failed to develop further remedies. By thirteen century aggrieved litigants to petition to the chancellor to find a more just solution to their problem. Chancellor was trying to give relief in hard cases, and the medieval chancellor was peculiarly well fitted for this work. Chancellor was usually an ecclesiastic. If the petition was successful, the chancellor's conclusion would usually be different from that which the common law court would have reached; otherwise the matter would have been litigant at common law. As a consequence of growth of these petitions, the Court of Chancery had developed, where the decisions were made on the basis of fairness and reason. Thus the notion of 'equity' was established as a precise jurisdiction.
The common law tradition grew in to the ELS3 through a long process of rationalization of traditions, customs and local practices among other different elements most occurring in the medieval time. The Anglo-Saxon customs were there before the Norman Conquest, but afterwards were joined with Royal Justice in a consolidation of 'local laws' and a vast body of judicial decisions have been built up which forms much of the present law. The common law has developed by the judges during the centuries immediately after the Norman Conquest. Customs have long influence since ceased to be any major significance in forming new laws.

Slapper, G. and D. Kelly (2006) said that the common law system develops whereby a civil dispute had to be brought before the appropriate Royal Court by a writ. A claimant could only sue at common law if his complaint came within the scope of an existing writ. In the thirteen century available writs covered very narrow ground. Even if the claim came within the scope of an existing writ, it may have been that for some reason, such as the power and influence of the defendant, his opponent could not get justice before a common law court. Latter the petition was used to obtain relief in cases where the common law was inflexible and incapable of providing a remedy. Hanbury & Martin (2005) argued that the common law developed into a comprehensive system, but a litigant could only sue at common law if his complaint came within the scope of an existing writ. However, the systems quickly become rigid because judges, fearing a flood at actions as a result of the popularity of the royal justice, stopped issuing new forms of action. As a result, this attitude proved to be a majored obstacle to the development of new rules and principles.

Initially this overlapping of the two systems led to conflict. The common law courts would make an order in favour of one party and the Court of Chancery would make an order in favour of other party. This conflict was finally resolved in the Earl of Oxford's case4 when the King ruled that equity should prevail. In this case the court of common law ordered the payment of a debt. The debt had already been paid, but the deed giving rise to the obligation had not been cancelled. The court of equity was prepared to grant an order prevent in this and rectifying the deed. Some limited steps were taken ... Read More
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