The law of equity came about to remedy the defects of the common law system. Discuss.(includes how equity came about and its remedies. Bibliography included.)
By the end of the 13th century, the central authority had established its precedence at least partly through the establishment of the common law. The Courts of Exchequer was a court originally dealing with disputes involving revenue, taxation and revenue laws. The Court of Common Pleas was where pleas between subject and subject were brought. And the King's Bench heard actions to which the King was a party.
The common law however, had a number of defects. The inflexibility of the writ system appeared to lead to injustice because matters that were not within the scope of writes recognized by the common law were dismissed. Furthermore, the common law did not recognize rights in the property other than those of strict legal ownership. Nor did it recognize security for loans (mortgages) or the right of third parties in general. The common law courts had no power of enforcement. Also, it did not allow any form of oral evidence. The only remedy provided by the common law were damages, which were inappropriate in certain cases. This led to injustice and the need to remedy the perceived weaknesses in the common law system. The more general a rule, the less likely it is to do justice in all the particular cases to which it applies. Moreover, an attempt to construct in advance the qualifications to the rule necessary to do justice in all cases would lead to a system of rules too complex, even if all the problems could be foreseen.
The Court of Chancery emerged as a solution to the common problems faced by the common law system by administering the law of equity. Proceedings before the Chancellor were simple, and were in other respects advantageous when compared with the proceedings of the common law courts. Plaintiffs unable to obtain access...
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