Equity does not destroy the common law but assists it.
Equity is no part of the law, but a moral virtue, which qualifies, moderates, and
reforms the rigor, hardness and edge of the law, and is a universal truth. It does
also assist the law, where it is defective and weak. This quote adeptly embodies
the true purpose of equity and the reason for its implementation. Equity, which is
known as the body of law that has to do with natural justice and fairness, was made
not to hinder the common law but to aid it in its function of carrying out justice.
Equity was also created to supplement the common law where it fell short. As
common law is a body of precedence which utilizes the principle of stare decisis and
applies old rulings to new cases, it is seen as harsh and rigid. Equity was developed
to alleviate this rigidity as well as to provide additional remedies in addition to the
damage and properties which the common law allowed for.
The common law was developed in the 11th century after William the
Conqueror gained the throne. This body of law involved using a system of writs. A
writ was a document containing pre-defined circumstances which were filled out in
order to get permission from the king to use his courts. If a persons dispute could
not fit within one of these writs, they could not have their dispute heard. The
disputes were heard in the Kings Court. This body of law was limited, as it was only
able to provide certain cases with the justice they deserved. Even then, the
remedies offered were property and damages which would not be the justice
persons were necessarily seeking.
When the deficiency of the common law was recognized, equity was
developed and was heard within the Court of Chancery by the Chancellor. This
system had no writs and provided other remedies including injunctions which would
better suit a persons need for justice. For equity to be its most efficient, it is
governed by several maxims which include equity aids the vigilant, equity looks at
the intent not the form , he who seeks equity must do equity , equality is equity
and equity looks on that as done which ought to be done.
The case of Walsh v Lonsdale is one such case in which equity and its maxims
are utilized. In this case there was an agreement for a lease between Walsh and
Lonsdale, but there was no deed. When the tenant failed to pay his rent, his
property was distrained. The tenant argued that the landlord had no right to do this
as they had no lease under the statute of fraud. However, using equity, it was
decided that the agreement for a lease was as good as a lease and that the landlord
was within his rights to distrain the property. The maxim applied was equity looks
on that as done which ought to be done as the lease, that which ought to have
been done, was viewed as done, an actual lease, thus ensuring that justice and
fairness prevailed. Under the common law, the opposite result would have been
attained, and a fair result would not have been realized.
Another such case is Mareva Compania v International Bulk in which a
mareva injunction was granted. A mareva injunction is a special injunction also
known as an interim injunction which allows the court to award an injunction before
hearing all the facts of the case. In this case, the assets of the defendant were
ordered to be frozen until the court saw fit to remove the order. This injunction is
useful in cases such as divorces in which assets are being shared. Under the
common law, this injunction would not be offered and this is a way in which the
common law and its restrictions are aided by equity.
The equitable estoppel is another equitable remedy which has developed.
This is prevents a party from taking unfair advantage of another when, through
false language or conduct, the person to be estopped has induced In Central Trust
Properties v High Trees , the defendant was forced to fulfill a promise he had made
to the plaintiff as if he didnt, it would infringe on the plaintiffs rights.
Lastly, the common law and equity are merged by the Judicature Act of 1875
which also merged the Kings Court and the Court of Chancery. This was due to the
fact that persons wanted to be able to receive common law remedies and equitable
remedies when the common law remedies were insufficient. Both equity and
common law are now found in the same court.
In conclusion, persons may argue that the presence of equity destroys
common law but the aforementioned points prove that equity only provides
remedies that did not exist under the common law and allows the law more
flexibility to do its true purpose, which is to carry out justice, thus assisting common
law.+
