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The Law Of Equity Came About To Remedy The Defects Of The Common Law System. Discuss.(Includes How Equity Came About And Its Remedies. Bibliography Included.)

1081 words - 4 pages

By the end of the 13th century, the central authority had established its precedence at least partly through the establishment of the common law. The Courts of Exchequer was a court originally dealing with disputes involving revenue, taxation and revenue laws. The Court of Common Pleas was where pleas between subject and subject were brought. And the King's Bench heard actions to which the King was a party.The common law however, had a number of defects. The inflexibility of the writ system appeared to lead to injustice because matters that were not within the scope of writes recognized by the common law were dismissed. Furthermore, the common law did not recognize rights in the property other than those of strict legal ownership. Nor did it recognize security for loans (mortgages) or the right of third parties in general. The common law courts had no power of enforcement. Also, it did not allow any form of oral evidence. The only remedy provided by the common law were damages, which were inappropriate in certain cases. This led to injustice and the need to remedy the perceived weaknesses in the common law system. The more general a rule, the less likely it is to do justice in all the particular cases to which it applies. Moreover, an attempt to construct in advance the qualifications to the rule necessary to do justice in all cases would lead to a system of rules too complex, even if all the problems could be foreseen.The Court of Chancery emerged as a solution to the common problems faced by the common law system by administering the law of equity. Proceedings before the Chancellor were simple, and were in other respects advantageous when compared with the proceedings of the common law courts. Plaintiffs unable to obtain access to the three common law courts would turn for help to the Chancellor. Moreover, the Chancellor developed several remedies which were not available in other courts, most notably injunction, specific performance, recessions and rectifications.Other improvements made by equity are the imploration of additional obligations on an individual while recognizing his or her rights at common law. By accepting that a trustee is the legal owner of property while requiring the individual to hold it benefit of another.Equity is concerned with individual justice. Therefore, it is only available at the discretion of the court. Also, this means that anyone who seeks equitable remedies must not themselves be guilty of misconduct in the case.The division between the common law courts and the Courts of Equity were eventually combined under the Judicature Acts 1873-1875. Matters of both law and equity is now determined in the course of one set of proceedings: if there is any conflict between rules or law and rules of equity, the latter are to prevail.Injunction is as an order that prevents a person from performing or continuing to perform a particular act. In the case of Kennaway Vs. Thompson, the plaintiff sought an injunction to restrain a...

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