Text Repsonse about Equity and common law

1.

Introduction:This paper seeks to explain the reasons behind the creation of equity, it nature and difference from common law including that nature of its present relationship with common law.2. Analysis and Discussion2.1 Explain the reasons behind the creation of equity.

The reasons behind the creation of equity include the inadequacy and inflexibility of the common law to attain the objective of justice. It is said that the law my be harsh bit it is still the law. However, man its search for justice is also beset with the conscience which is natural. Hence the law cannot be dry it is balance with equity.The law of equity and the Court Of Chancery developed out of the experience as did the common law.

Under English experience, the chancellor was the most powerful executive officer of the king that can issue writs which permit aggrieved persons to bring an action in a common-law court, but said chancellor himself, as authorized representative of the king, can hear cases which the common-law courts cannot resolve. Thus at the start there was a separate body of law and equity, with a separate court, with the Court of Chancery for the equity.  This may be seen however to have evolved over since it would cause the merging of the two in many aspects particularly in having one courts only to settle the conflicting issues in the case.2.

2 What is it and how is it different from common law?Equity is essentially the law of conscience. It is distinct from common as follows:      First, under the old rules, the remedies in equity were also more flexible. This could be seen that in the case of a judgment of a law court that was limited to money damages or recovery of property while courts of equity can still grant an injunction, a specific performance, a reformation, or even a partition. Second, the common-law court emphasized form, while the chancery courts take more interest in the merits of the case and the justness of the decision. Third, juries were not used in equity.

Despite the distinction, time has allowed the merging of the two although some states still have separate courts of chancery, where in most of the states the same judges sit, often at separate periods, both as law judges and chancellors. In the US however, most states courts have eliminate the distinction between law and equity.[1]The distinction may be best known in implementation in the case of quasi-contracts.     Being rooted  conscience, an injunction are remedy under equity is considered as an extraordinary remedial process, given by the court , not because there is a law on it, but only in the exercise by the judge of a sound judicial discretion. Another proof is that in case of absence of provision of exact words in contract, an implied contract may be taken as the promise or promises that direct words but the court gives implication or deduction from the circumstances, based on the general language, as the conduct of the parties.

[2]Another illustration may be seen in the US where the power of the federal courts to enforce the terms of private agreements must still be subject to the restrictions and limitations of the public policy of the United States as manifested in the Constitution especially in the light of possible violation public policy, hence the exercise of the so called “judicial power."[3]  It may thus be observed the equity assumes the function of the residual power of the courts where the law cannot settle the issue in the most justifiable way. On the other there could be abuse of judicial discretion that could produce judicial activism. 2.3 What is the present relationship between common law and equity?The present relationship of common law and that of equity is that of a merger on the procedures between the two since rules on equity has become body of law.

With the said development, equity instead of being used as an arbitrary exercise of conscience would indicate the absence of need of its own courts.  This therefore causes the establishment of the Judicature Act   which prescribes the court structures in England to this date. This development would therefore point for removal or abolition of the different procedures for the working of equitable and common law remedies. However, it should be made clear that the said Judicature Acts did not combine common law and equity.

What was combined was only their administration. The presence  of l a body of rules of equity and those of  common law rules, and acts as an addition to it, it could not deduced that there was already fusion.  Their implementation by the same courts, does not remove the separateness of the two branches of the law. Thus the relationship would be the precedence of equity over the common when there is conflict between the two.[4]The US courts, both federal state courts have seen the merging of law and equity most notably in such as county courts, which are courts of general jurisdiction.  A substantive distinction between law and equity is, however, still retained with its strength.

[5]3. Conclusion      Equity was historically created to address the inflexibility of the common law.  From the premise it could be deduced that the common may always have its deficiency for which the rules of equity may have to come into play.  With the passage of time however, the UK and US have in fact affected changes particularly the unity of administration of two, hence the absence of further need for separate courts for the two set of rules. Being therefore made part of the laws, equity may be said to still exist in the implementation of the common, so that in case of conflict between the two, it is still equity which will prevail over the other.

Hence it may finally be concluded that equity is still serving its purpose when it was created, that is there is still a way to exercise conscience because of equity.[1] Business Law: Principles and Cases, 1978 Fourth Ucc Edition, Lusk, Hewitt, Donnel and Barnes, Pages 12-13.[2] Business Law: Principles And Cases, 1978 Fourth Ucc Edition, Lusk, Hewitt, Donnel And Barnes, Page 93.[3] Hurd v. Hodge, 68 S.

Ct. 334 U.S. 24, 34-35 (1948).[4] Andrew Edgecomb 2006; Equity in a Nutshell by T.

Cockburn & M. Shirley, Lawbook[5] Sereboff v. Mid Atlantic Medical Services, Inc., No.

05–260, slip op. (U.S. May 15, 2006)