Equity (law)

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Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, that supplement strict rules of law where their application would operate harshly. In civil legal systems, broad "general clauses" allow judges to have similar leeway in applying the code.[1]

Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and apply justice in accordance with natural law. In practice, modern equity is limited by substantive and procedural rules, and English and Australian legal writers tend to focus on technical aspects of equity. There are 12 "vague ethical statements"[2][3] that guide the application of equity, and an additional five can be added.[2]

As noted below, a historical criticism of equity as it developed was that it had no fixed rules of its own, with the Lord Chancellor occasionally judging in the main according to his own conscience. The rules of equity later lost much of their flexibility, and from the 17th century onwards equity was rapidly consolidated into a system of precedents much like its common-law cousin.

Charles Dickens's Bleak House parodied the excessive time and expense associated with the Court of Chancery, the court that heard suits in equity in 19th-century England.

Contents

History

The distinction between "law" and "equity" is an accident of history. The law courts or "courts of law" were the courts in England that enforced the king's laws in medieval times. Here the King's Judges, educated in law rather than theology, administered the universal law of the realm.[4] This body of law evolved on the basis of previously set precedent into what is recognised as the Common law of England. However, if changes were not quick enough, or if decisions by the judges were regarded as unfair, litigants could still appeal directly to the King, who, as the sovereign, was seen as the 'fount of justice' and responsible for the just treatment of his subjects. Such filings were usually phrased in terms of throwing oneself upon the king's mercy or conscience. Eventually, the king began to regularly delegate the function of resolving such petitions to the Chancellor, an important member of the King's Council.[4] The early Chancellors were often clergymen or nobles, acting as the King's confessor and thereby literally as keeper of the King's conscience. As a result of their theological and clerical training, Chancellors were well versed in the Latin and French languages as well as in classical Roman civil and canon law, which heavily influenced equity.[5] Soon the Chancery, the Crown's secretarial department, began to resemble a judicial body and became known as the "Court of Chancery".

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