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equity,principles of justice originally developed by the English chancellor. In Anglo-American jurisprudence equitable principles and remedies are distinguished from the older system that the common lawcommon law,
system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that
..... Click the link for more information. courts evolved. One of the earliest functions of the king's chaplain (the chancellor) and of the chancery (the office that he headed) was to govern access to the royal courts by issuing on application the appropriate original writwrit,
in law, written order issued in the name of the sovereign or the state in connection with a judicial or an administrative proceeding. Usually the writ requires the person to whom the command is issued to report at a fixed time (the return day) with proof of compliance or a
..... Click the link for more information. . At first the chancellor had great discretion in framing writs, but in time he was limited to a few rigidly circumscribed forms, and in certain cases worthy claims could not be satisfied. From this inadequacy arose the practice of appealing directly for aid to the chancellor as the "keeper of the king's conscience." By the early 16th cent. a fairly well-defined jurisdiction was exercised by the court of chancery in rivalry with the common law. In the 17th cent. it was definitely established that the court of chancery would decide any claim to jurisdiction that the courts of common law disputed. The early chancellors purported to dispense equity in its original sense of fair dealing, and they cut through the technicalities of common law to give just treatment. Some of their principles were derived from Roman lawRoman law,
the legal system of Rome from the supposed founding of the city in 753 B.C. to the fall of the Byzantine Empire in A.D. 1453; it was later adopted as the basis of modern civil law.
..... Click the link for more information. and from canon lawcanon law,
in the Roman Catholic Church, the body of law based on the legislation of the councils (both ecumenical and local) and the popes, as well as the bishops (for diocesan matters).
..... Click the link for more information. . Soon, however, equity amassed its own body of precedents and tended to rigidity. Equity, even in its more limited modern sense, is still distinguished by its original and animating principle that no wrong should be without an adequate remedy. Among the most notable achievements of equity were the trusttrust,
in law, arrangement whereby property legally owned by one person is administered for the benefit of another. Three parties are ordinarily needed for the relation to arise: the settlor, who bequeaths or deeds the property for another's benefit; the trustee, in whose hands
..... Click the link for more information. and the injunctioninjunction,
in law, order of a court directing a party to perform a certain act or to refrain from an act or acts. The injunction, which developed as the main remedy in equity, is used especially where money damages would not satisfy a plaintiff's claim, or to protect personal
..... Click the link for more information. . Because the decreedecree,
in law, decision of a suit in a court of equity. It is the counterpart in equity of the judgment in a court of law, although in those jurisdictions where law and equity have merged, judgment is sometimes used to include both.
..... Click the link for more information. (final order) of an equity court operated as an order of the king, disobedience might be punished as contemptcontempt,
in law, interference with the functioning of a legislature or court. In its narrow and more usual sense, contempt refers to the despising of the authority, justice, or dignity of a court.
..... Click the link for more information. ; in legal remedies, on the contrary, the plaintiff was limited to enforcing his (monetary) judgmentjudgment,
decision of a court of law respecting the issues before it. The term ordinarily is not applied to the decree (order) of courts of equity. The outstanding characteristic of a legal judgment, in contrast to an equitable decree, is its finality and fixity; thus, except
..... Click the link for more information. . The fact that equity trials were decided without a jury was thought advantageous in complex cases. The coexistence of different systems of justice and delays in the courts of chancery came to present such great procedural difficulties that in England the Judicature Act was adopted (1873) to amalgamate law and equity. In the United States amalgamation had begun with the New York procedure code (1848) drafted by David Dudley FieldField, David Dudley,
1805–94, American lawyer and law reformer, b. Haddam, Conn.; brother of Cyrus W. Field and Stephen J. Field. He was graduated from Williams (1825), studied law in Albany and New York City, was admitted to the bar in 1828, and soon had a large practice
..... Click the link for more information. . Today only a few of the states have separate equity courts. Of the remaining states some divide actions and (to a lesser extent) remedies into legal and equitable, while the others have almost entirely abolished the distinction. Even in those states where law and equity remain unmerged, they are often handled by two sides of the same court, with relatively simple provisions for the transfer of a case that is brought on the wrong side.
See F. W. Maitland, Equity (1909, repr. 1969); R. A. Newman, Equity in Law (1961); H. G. Hanbury, Modern Equity (9th ed., ed. by R. H. Maudsley, 1969); G. H. Webb and T. C. Bianco, Equity (1970).
a legal system that has existed in England from the 14th century along with common law.
The equity system took shape gradually, as a result of the extreme inflexibility of common law, which often prevented subjects from bringing suit in the king’s courts. In these cases or in cases where a litigant was not satisfied with the court’s judgment, the litigant could petition the king for mercy and equity. Owing to growth in the number of such appeals, a whole apparatus with its own rules for resolving cases was set up under the lord chancellor. This apparatus gradually came to be viewed as the Chancellor’s Court, or Chancery. Because this court was not bound by the norms of common law, it was considered to be guided by the principles of equity; hence the name court of equity. In the course of its work, the Chancery developed special norms based on precedents, the body of which served as the rules of equity.
The court of equity had its broadest powers in civil law, because the cumbersome, formalized common-law system did not keep pace with the demands of economic development. The Chancery did not have the right to set aside on appeal the judgment of a common-law court, but it could deliver its own judgment, which ultimately nullified or fundamentally altered the judgment of the common-law court. Certain Anglo-Saxon legal institutions took shape under equity. Examples include the principles of trusts and of specific performance of contracts. (Common law recognized only monetary damages as a penalty for failure to execute a contract.)
The dualism of common law and equity complicated the already cumbersome and intricate system of English law, and in 1873 equity was included in the system of common law. However, the legal institutions that arose as part of equity are clearly delineated from common-law institutions. In theory and practice, equitable rights, that is, rights based on equity, are distinct from subjective rights, which are based on common law.
REFERENCESKhalfina, R. O. Dogovor v angliiskom grazhdanskom prave. Moscow, 1959.
David, R. Osnovnye pravovye sistemy sovremennosti. Moscow, 1967. Pages 268-74. (Translated from French.)