The Contrast Between The Development of Equity and The Common Law

According to Maitland, Equity is described as “That body of rules administered by our courts which, were it not for the operation of the Judicators Acts, would be administered only by those courts which would be known as courts of Equity”. Back then it would have been considered as a poor definition, however right now there is no better definition this is because equity is essentially, as he puts it “a collection of appendixes to common law rather than a self-contained system”. In its broad sense equity is fairness as a legal system, it is a body of law that addresses concerns that fall outside the jurisdictions of common law.

The Earl of Oxford case paves the way to the development of the English legal system and it would be regarded as the corner stone of equity in the modern English legal system. This case concerned a parcel of land in London which Henry VIII had gifted to Thomas Lord Audley as a reward for procuring the trial and eventually execution of Anne Boleyn. By his will Lord Audley left the land to Magdelene College, Cambridge. Who subsequently sold it and which were indirectly acquired by the Earl of Oxford Magdelene College then challenged the Earl of Oxford’s title to the land on the basis of a statue which prohibited the fact that, as part of the original sale, Magdelene College had made an immediate intention of circumventing the statue.

Equity follows the law: While equity did not seek to set aside the common law rules as such, it restricted or modified their application where it seemed equitable to do so. It was an essential feature that equity did not seek to replace, still less subvert, the common law. An example of the maxim is equity’s treatment of imperfect gifs, i.e., gratuitous promises to transfer property which are not executed. Treating the gratuitous promise as enforceable, because it would be unconscionable to allow the promisor to withdraw it, would have wholly subverted the fundamental principle of the common law of contract that consideration is essential in the case of every contract not under seal.

Equity will not suffer a wrong without remedy: The common law consistently started to fail to provide an effective remedy for the violation of undoubted legal rights. The range of equitable remedies themselves became limited to those which had been developed by the courts over the centuries. The general idea was that equity was dead. However, as the Supreme Court made clear in L v L, this does not entitle the courts to create new legal or equitable rights hitherto unknown to the law, unless this is ‘clearly and unambiguously warranted by the constitution, since this would be to assume the role of the legislature. Such an entitlement, it was held, could only be conferred by the legislature.