Law

A Comparative Assessment of Common and Equity Law



A Comparative Assessment of Common and Equity Law

Introduction

I feel that Common Law and Equity must not both be seen as conflicting and contrastable principles of the legal world, but rather complimentary aspects that go hand in hand in order to provide justified and pragmatic solutions.

Historical Background to Common Law and Equity Law

Classically, we have had no entrenched constitution in the UK so judicial decisions have led to precedence which binds future decisions for cases that have similar facts. This is the Common Law and certainly has its limitations that will be discussed.

Equity came to be a separate entity away from the normal courts where it seemed that a decision based on common law would be too harsh or where there was actually no precedent in place. The two courts were merged in the 19th century, but Equity had a vigorous separate existence for a period of nearly 500 years (Slapper & Kelly 2004, pp. 350-690).

Within the common law as described above, there is a further division between common law (or simply Law) and Equity. This reflects the bifurcation structure of the system of courts of England and of responsibility, it is a bifurcation that gave rise to two well-separated strands legal until the nineteenth century, when the two hierarchies of courts were unified (Harris 1984, pp. 150-350).

The reasons behind this merger indicate that there may have been some conflict between common law and equity. It was apparent that there was a large disparity between different cases.

Nevertheless, the distinction between Law and Equity remains essential both in the substantive law of the case: the difference is embodied in a logical order, but not procedural actions, and claims stemming from the common law system (e.g. An action for liability for damages ) are called at law, while the other rights and actions (e.g. action to terminate the contract) are called equity (Harris 1984, pp. 150-350).

Comparative Analysis of Common Law and Equity Law

However I feel that it is important to look at the history of common law and equity to be able to compare and contrast them. Equity came to give more fluidity and pragmatism to what potentially could have been a very harsh system of common law. This was abused to a certain degree, however since the fusion of both as parallel systems; a more cohesive system has been made available.

Another angle to ...