Explain the Reasons Behind the Creation of Equity. What Is It and How Is It Different from Common Law? What Is the Present Relationship Between Common Law and Equity?

Law Essay

Question: Explain the reasons behind the creation of equity. What is it and how is it different from common law? What is the present relationship between common law and equity?

To back track equity and to get an idea of its roots, we have to look back at the time when the common law courts were first established back in the 13th century. The King’s royal commissioners or also known as justices were sent all over the country to settle disputes and collect taxes, it was through their analysis and the experience they gained through analysing local customary laws that a common and uniform law for the whole country came into place. Though some sort of milestone was achieved, still the common law was in no way always just and was far from perfect. It had several deficiencies, which included problems with the writ system, as the types of action grew there was a lesser chance of getting a suitable writ which deprived many people of justice. Another weak point in common law was that the only remedy it offered was an award of damages, overall a set of uniform laws proved incompetent in dealing with the increasingly complex problems of society. Henry Homes Kames writes in his book, “Under the shelter of common law, many act imprudently, many indecently and not a few act against conscience and moral honesty” , this shows the need for a solution for the ever growing dispute between the local public and the courts themselves, the need for equity.

As the problem of countless petitions flowing in grew, by the 15th century a Court of Chancery was established in which a chancellor would hear all the petitions on his own, the chancellor would base his decisions on a body of rules called ‘equity’. The Court of Chancery had its own flaws at the time. The decision on a petition started to depend more and more on what type of person the chancellor hearing the petition is as they made the decisions according to ‘their’ good conscience but this was tackled...