equity

equity

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 law 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 writ. 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 law and from canon law. 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 trust and the injunction. Because the decree (final order) of an equity court operated as an order of the king, disobedience might be punished as contempt; in legal remedies, on the contrary, the plaintiff was limited to enforcing his (monetary) judgment. 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 Field. 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.

Bibliography

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).

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The following article is from The Great Soviet Encyclopedia (1979). It might be outdated or ideologically biased.

Equity

 

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.

REFERENCES

Khalfina, R. O. Dogovor v angliiskom grazhdanskom prave. Moscow, 1959.
David, R. Osnovnye pravovye sistemy sovremennosti. Moscow, 1967. Pages 268-74. (Translated from French.)

The Great Soviet Encyclopedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc. All rights reserved.

equity

The value of an owner’s interest in property, computed by subtracting the amount of outstanding mortgages or liens from the total value of the property.

McGraw-Hill Dictionary of Architecture and Construction. Copyright © 2003 by McGraw-Hill Companies, Inc.

equity

1. Law a system of jurisprudence founded on principles of natural justice and fair conduct. It supplements the common law and mitigates its inflexibility, as by providing a remedy where none exists at law

2. Law an equitable right or claim

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Equity

the actors' trade union

Collins Discovery Encyclopedia, 1st edition © HarperCollins Publishers 2005