Equity and Law

Running head: EQUITY AND LAW
EQUITY AND LAW
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1EQUITY AND LAW
Introduction:
In jurisdictions where English Common law system is followed, equity is the system of
law which was the outcome of the English Court of Chancery and it is now administered
simultaneously with the common law (Klinck 2016). On the other hand, common law is the
system of law which had its origin in the judicial decisions given by the courts and similar
tribunals. The most prominent characteristic of common law is that it has arisen from the
precedent. In cases where the court is not sure on what the law is or parties do not argue on the
same point, the common law court may refer to the past decisions of the relevant courts and
incorporate those decisions in the present case. From the basic source of equity and common
law, there lies a difference between the two; which was held in Black’s Law Dictionary 10th ED.,
definition 4. In the following part of this writing, this has been discussed besides referring to the
application of the doctrine of estoppels in common law and equity.
Discussion:
The common law is one of the oldest laws that have been followed in the courts and
tribunals since ages. The common law had developed in the royal court of King’s Bench, the
Court of Common Pleas and the Exchequer. By the 14th century, a gap in law was observed that
the common law could not address. The Courts of Chancery introduced the law of equity to
bridge the gap between the common law and its scope. Besides this, equity provided a kind of
flexibility in the law as the common law approach was very strict and rigid where governed the
judgment system.

2EQUITY AND LAW
Equity remains a keystone of the Australian private law. Numerous cases in the 1980s
saw that the High Court of Australia validated the application of traditional equitable doctrines.
The state of New South Wales is famous for the strength of its Equity jurisprudence (Ryan
2016). Equity is fair and just rule and looked into providing fair judgment to the individuals
based on the rules of equity and the circumstances of the particular case. The common law
provided only monetary remedies when adjudicating the cases of the parties to determine which
party can become successful in the case. This puts a bar on the ability of the courts of law to
refer other issues that were outside the ambit of monetary compensation. In the doctrine of
equity, the judges weighed and shifted the particulars of the case to analyze and adjudicate the
matter by allowing remedies in the form of damages or injunctions or any other remedies
suitable for the situation. The judges in the Common law system on the other hand, refer to the
legislations, previous judgments to adjudicate any case.
The term equity as used in any legal discussion must not be confused with equity used in
the context of natural justice; on the other hand the term is used to indicate a particular division
of law. The fundamental characteristics of equity are discussed in the following paragraph.
In the early development of equity the controlling factors were conscience, good faith and
reason. The doctrine of equity is mainly controlled by a set of maxims that are of some
significance while determining cases not covered by any law or precedents. They are not set of
strict rules but are general principles that can be deviated from in certain cases. Snell’s Equity, a
treatise in English holds that maxim does not cover the entire ground in general, they usually
overlap and one maxim covers provisions covered by others. However all the maxims of equity
can be summed up under two main maxims of ‘Equity will not suffer a wrong to be without a
remedy’ and ‘Equity acts in personam’.

3EQUITY AND LAW
As discussed above the origins as well as the concept of equity and common law are quite
different from one another. As stated above, common law is developed in many cases and over a
long period. The law courts have referred to cases and illustrated what must be done in each of
the cases. Common law has developed over time as judge made law. The rules are formal and
strict whereas that of equity are very flexible and can be modified as per the requirements of the
cases. Equity refers to a body of legal principles that supplement the common law where their
application is not available. Equity does not oppose the common law but it focuses to provide
justice where common law fails to do.
Equity is not a law as it is neither codified nor put under any legislation. Common law is
an independent legal system when it is compared to equity. But equity has no independent
existence, it always pre supposes the presence of common law and if it is abolished, common law
system will apply as it was before, however it was not possible for equity to operate alone in
absence of common law. If there is any conflict between the two principles, rules of equity
would operate in favor of the common law. The main objective of equity system is that it
complements and supplements the common law as per the notions of justice and fairness.
As discussed above, equity is not a law but it follows the law. It has been a very common
and versatile maxim on the basis of which many legal issues have been decided. This maxim is
also indicated as Aequitas sequitur legem which means that “equity will not follow a remedy that
is contrary to law”. The chancery courts never tried to override the provisions of common law
but it tries to fill the gap between common law and administration of justice.
The differences between common law and equity can be demonstrated in the light of
doctrine of estoppel in equity and at common law. Estoppels is a doctrine which stops a person