Salient strengths and weaknesses of Equity a source of Law PDF

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Advantages and Disadvantages of Equity as a source of Law...

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Salient strengths and weaknesses of Equity as a source of law Originally, common law was founded on precedent and was known as customary law or folk law. Of course, there existed statute law, often known as king's law, but common law governed how it was implemented and administered. Today, there is no true common law since it has been codified as statutory law throughout the English-speaking globe. There are, however, what is known as "common law" rights. Now and then, a new circumstance arises in which there is no law to guide a judge yet there is something to decide. When there was no precedence for the situation at hand, equity was invoked. This still happening today. If the court has something to determine but no guiding precedent or legislation, the judge may be done with the help of a jury to set a new precedent based on what is fair and equitable. This is a relatively straightforward legal principle. A body of jurisprudence that supplements and modifies the rigour of common law. These included; 

Common law claims could only be brought through a writ. This document serves as a foundation for the action. As a result, if the topic is not covered by a writ, the action will be dismissed.

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In common law, the sole remedy was damages, which were frequently insufficient.

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Common law imposed an excessive number of procedures. As a result of procedural flaws and technicalities, many grievances were lost.

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Common law was prohibitively costly.

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Trusts were not recognized under common law.

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The notion of stare decisis was established by common law, and it was founded on the doctrine of binding precedent. As a result, the courts were forced to obey a previous decision of another court, which they could not overturn even if it was incorrect. To prevent a precedent, today's procedures include differentiating and overruling.

Strengths of equity as a source of law 1. New rights By recognizing trusts and granting beneficiaries rights against trustees, equity established new rights. The trustees were considered proprietors under common law, which did not recognize such a device. The equity of redemption was also explored. Under common law, if a mortgagor did not repay the debt by the lawful redemption date, he would lose the property but would still be obliged to repay the amount. If he returned the debt with interest, he was able to keep the property. The equity of redemption is the right to redeem the property. 2. Introduction of new remedies In the judicial system, equity has also introduced new remedies. The first is an injunction, which is intended to prevent someone from doing something. A mandatory injunction is a court order ordering the defendant to do something, whereas a prohibitory order is a court order prohibiting the defendant from doing anything. In the case of Davis v Johnson1, the court granted the defendant an injunction against her husband since he had previously been convicted of beating his wife. In the 1970s, two additional remedies were developed to broaden the reach of injunctions: i.

Freezing order (Mareva Injunction);

The principle was created in the case of Mareva v International Bulk Carriers 2, where the court had the right to prevent a person from moving his assets outside of the court's jurisdiction, such as to another country this was done to prevent the defendant from dealing with or disposing of assets within the defendant's control to avoid payment. ii.

Search Warrant (Anton Pillar Order);

This was established in the case of Anton Piller v Manufacturing Processes Ltd where the defendant was accused of handing away his business's technical drawings to a competing company and thus allows the claimant to access the defendant's premises and search for particular documents and other items. iii.

Specific performance;

1 [1979] AC 264. 2 [1975] 2 Lloyd's Rep 509.

This is explained in the case of Wroth v Tyler3 as a court order ordering a party to perform his share of an agreement that he has agreed to complete.

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Rectification;

Is an order that adjusts (changes) the language of a document that does not convey the real intent of the parties to it such as in Re Posner4 case, where the testator was permitted to modify his will to reflect his genuine intentions. v.

Rescission;

This is an order that returns the parties to a contract to the position they were in before the contract's execution such as was explained in the case of Tumstem v Bhanderi. 3. Maxims of Equity Equity developed maxims to assure morally just judgments, this was mainly done progressively and to ensure that every individual could gain redress if they suffered an injury caused by an action that was otherwise not provided for under common law. "He who comes to equity with clean hands must come with clean hands," says one common maxim. In the case of D & C Builders v Rees5. Rees did not arrive with clean hands since he had taken advantage of the construction company's financial difficulties. As a result, he received no compensation for the injury suffered as a result of the claimed action. One more maxim is "delay defeats equity," which argues that if a claimant waits too long to file a lawsuit, equitable remedies will be unavailable. In the instance of Leaf v International Galleries6, this was demonstrated.

4. Flexibility and Adaptability These developments are a demonstration of equity as it is adaptable and adapting to meet the needs of today's society common law due to its very structured nature proved to be very rigid and would be prone to becoming outdated due to the ever-evolving beliefs wants and needs of a 3 [1974] Ch 30. 4 In re Posner, 700 F.2d 1243 (9th Cir. 1983). 5[1965] EWCA Civ 3, [1965] 2 QB 617, [1966] 2 WLR 288. 6 [1950] 2 KB 86.

society in which it is meant to govern. Equity with its discretionary nature cannot be outdated as an interpretation of the law will be fluid following the ways of the people at the time. The evolution of marriage law and the production of new injunctions are examples of this. It can be said that as a society develops, the law will evolve along with it.

Weaknesses of Equity as a Source of Law 1. Lack of corresponding judgements Due to its discretionary nature, one may not rely on the ruling of previous cases as precedent for one's case thus a lack of cohesion within the court system in decision making as interpretations have proven to be widely different between cases and their presiding judges. 2. Misuse of the court system Equity as it allows for a very wide range of claims to be brought before a court of law, there then arises the application of frivolous cases usually for malicious intention, where the courts are used as a tool to punish or evade from one's duties to contracts. The interpretive nature would thus be abused by parties who interpret maxims in such a manner that is detrimental to the respondent, 3. May lack objectivity in making rulings Due to the discretionary nature of the courts of equity the judgement are prone to be at the mercy of the whims of individual judges and their individual whims as it concerns interpretation of maxims and principles of equity. 4. May lead to overcrowding of the system. The nature of the broad nature of equity allows for legally permissible suits that may have been otherwise vexatious in common law. These cases have a nature of being too many for the limited judicial officers to handle in an expeditious manner, this may lead to injustices to the parties who may actually have legal standing due to them being in the large pool of cases which need to be handled....