UNIVERSITY INSTITUTE OF LEGAL STUDIES

SUBJECT : LAW OF EQUITY, TRUST & SPECIFIC

DISCOVER . LEARN . EMPOWER

Course Outcome

CO Title
Number
CO1 The students will better appreciate the
concept of equity, justice and good con-
science

Will be covered in this

TOPIC: Common law and

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 Common law and Equity
• Since the terms Common Law and Equity represent two branches or
avenues of Law not created by legislation, we should get to know the
difference between common law and equity. One understands
Common Law to mean precedent or law created by decisions of the
courts. Equity, on the other hand, is associated with the principles of
fairness and equality. Although the tendency is to use the two terms
synonymously, there are differences between the two that are more
fully explained:

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• What is Common Law?
Common Law is more popularly known as case law, precedent law or
judge-made law. The reason for the above names is because Common
Law, in fact, constitutes rules of law developed by the courts through its
decisions. The origins of Common Law can be traced back to the early
centuries to rules developed by the royal courts after the Norman
Conquest in 1066. These rules developed by the royal courts were
recorded and thereafter used as authority or as a guide for future cases
or disputes. The decisions, therefore, were viewed as rules of law.

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• Today many countries, such as the United States of America, Canada
and India, have as their basis the rules of Common Law, which is the
law derived from the English Common Law system. The unique
feature of Common Law is that unlike statute or legislation, Common
L aw rules are developed on a case-by-case basis. For example, if the
parties to a case are at odds in relation to the law applicable to the
dispute at hand, the court will look to precedent or previous court
decisions/reasoning to find a solution and apply it to the facts. If,
however, the nature of the case is such that precedent does not
directly apply, the court will take into account the present trends in
society, practice and rules of law and thereafter deliver a judgment
tailor-made for that particular case. This decision thereafter becomes
precedent and therefore binding on any future cases of a similar
nature. Common Law thus has a unique capability to adapt to the
changing trends in society.
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DIFFERENCE BETWEEN COMMON LAW AND EQUITY?
• Common Law is a body of law based on precedent or court decisions.
Equity constitutes general principles and serves as a supplement to
Common Law.
• Equity, simply put, is a form of legal relief in the event such relief
cannot be found in the rules of common law.
• Equity is based on a judicial evaluation of fairness, reason, good faith
and justice. Common Law entails applying the rules of common law to
the issue before the court.

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• Common Law and the development of Equity
Prior to the Norman conquest of England in 1066 by William Duke of Normandy, England
was at various times under conquest and occupation by Roman, Danes and Norsemen.
However, after William’s conquest in 1066, a systematic and orderly form of government
and law was introduced. It was referred to as Common Law, as it emanated from the
common culture and practices of the people of England. This was one of the great
achievements of the Norman King that, under his rule, a system of law “common” to the
whole of England was consolidated. These laws were administered by the King’s justices on
circuit and the manorial courts (King’s Bench, Common Pleas and Exchequer). This system
of law was frequently referred to as a harsh legal system composed of rigid rules. It was
accused that it paid undue attention to technicalities. The practice and procedure of its
courts were generally unsatisfactory in many respects; thus exposing the weaknesses of the
system, which Festus Emiri and Ayuba Giwa postulate are;
• claims could only be vindicated if they fit within an existing form of action and the then
forms were very restrictive;
• a claim could be defeated by technicalities, misspelling or specious defences;
• the speed at which justice travelled was slow, as the courts were corrupt;
• Its remedy could hardly satisfy the requirements of justice in particular cases.

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As seen from the general juristic sense, the origins of Equity lie in the deficiencies of the Common
Law. The Common Law had gaps where a remedy was not available or where a remedy was
available but was not appropriate to the particular loss of a plaintiff. While Common Law remedies
were basically compensatory, the Chancellor developed the following preventive remedies;
• He could prevent a wrongdoing by injunction, either in the restrictive or mandatory form.
• He could compel parties to a contract to respect its sanctity by an order of specific performance.
• He could also alter a document to reflect the parties’ true intention by an equitable order of
rectification when he makes an order of rescission of a contract which can materially utter the
parties’ position he can decree that they be restored their pre-contractual status quo.
In doing so, the Chancellor did not consider himself as administering a separate body of law. He
was said to act in personam. Equity was thus not conceived as a complete alternative to law, but
as an appendage for improving its machinery. The combination of the administration of both
systems had the effect of:
• Creating and introducing to the English legal system new rights and interests
• Improving the existing procedure and remedies for claimants
• Fusion of the administration of law and Equity

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• The orthodox view of scholars is that the Judicature Act 1873 (“the Act”) fused
the administration of Common Law and Equity by amalgamating the superior
court into the Supreme Court of Judicature having jurisdiction over matters of
law and Equity. This view implies that (for both law and Equity, especially
Equity) no new cause of actions, remedies or defences would become available
which was not previously available in one or more of the courts. Traditionally it
is suggested that “the two streams of jurisdiction, though they run in the same
channel, run side by side and do not mingle their waters”.
• The other view, often referred to as the “fusion theory” states that the Act
codifies both Common Law and Equity into one subject matter and in effect
severed the historical roots of the separate concepts of law and Equity. This was
well explicated in the dictum of erudite Lord Diplock stating that “the innate
conservatism of English lawyers may have made them slow to recognise that by
the Judicature Act 1873 the two systems of substantive and adjectival law
formerly administered by courts of law and Equity have surely mingled now”. By
this proposition, the Act merged together the substantive law.

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• The position and decision obtained by Lord Diplock is however
challenged by Baker (a scholar inclined to the orthodox view) who
points out that no one thinks that the rules of Equity have remained
unchanged since 1875 – they have developed in the same way as
rules of Common Law. He also states out that it is a complete
misapprehension to think that it was a purpose of the Judicature Acts
to do away with the dichotomy between rules of Equity and rules of
Common Law. This was clearly expressed by the Attorney-General in
the second reading where he stated that ‘The Bill (which was passed
as the Judicature Act) was not one for the fusion of law and Equity’.

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• In present day, the position of the law remains the same as Section 49 of the
Supreme Court Act 1984 (an English Legislation) upholds the position of
Section 25(11) Judicature Act 1873. The question then arises that beyond the
letters of the law, how has the fusion theory fared conceptually? Sommers J
in Elders Pastoral Ltd v Bank of New Zealand[18] stated that “neither law nor
equity is now stifled by its origin and the fact that both are administered by
one court has inevitably meant that each has borrowed from the other in
furthering the harmonious development of the law as a whole.”
• In conclusion, it is the candid opinion of the writer, while aligning with the
views of the erudite Sommers J, that indeed the Judicature Act 1873 creates
for the fusion of the two separate systems to be administered by one court,
however, beyond the cold letters of the law, both systems have indeed
borrowed from the other in furthering the harmonious development of the
law as a whole. Simply put, Equity acts as a gloss to cover the deficiencies of
Common Law.

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THANK YOU