"The law of equity came about to remedy the defects of the common law system." Do you agree with this statement? Elaborate.

Essay by ah_kehCollege, UndergraduateB, April 2004

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1.0 Introduction

The common law courts only provided the remedy of damages, which in some cases was an inappropriate remedy. The writ system was also slow to respond to new types of action and had many "loopholes". (Keenan, 1993) This weakness in the common law system lead to the development of equity. (Kelly, 2002) Ways in which the law of equity supplements the common law will be further discussed in this assignment.

2.0 Common Law

Prior to the Norman Conquest of England in 1066, there was no unitary national legal system. (Kelly, 2002) A uniformed and centralized legal system later emerged under the control of a centralized power of the sovereign king. Originally, courts were no more than an adjunct of the King's Council, the Curia Regis, but gradually, the common law courts took on distinct institutional existence in the form of the Courts of Exchequer, Common Pleas and King's Bench which dealt with separate matters in law.

(Barron and Fletcher, 2003) A writ was granted when there was a denial of justice in the local courts. These writs were standardized and provided specific rights which could be enforced in the King's Courts. (Abbot, 1993) However, the writ system had "loopholes"; if a suitable writ was not available, the plaintiff will not be able to obtain a remedy no matter how just his claim. (Keenan, 1993)

The common law uses damages as a remedy for cases. The aim of damages is to compensate the plaintiff. (Barron and Fletcher, 2003) A case example showcasing the use of damages as a remedy is Rogers v Whitaker (1991) 23 NSWLR 600. The defendant was a doctor who failed to advise his patient (the plaintiff) of the risks of an designed to improved the appearance and sight of one of her eyes. As a...