Presentation

By

Waqas Balouch

Topic

Historical Background of Equity

The basic concept of equity was fetched from Islam

Basic Concept of equity

"O mankind, indeed We have created you from male and female, and have made you into nations and tribes, that you may know one  another. Indeed the most honored of you in the sight of Allaah is the most righteous. Indeed, Allaah is Knowing and Acquainted" [Quran 49:13]

ALLAH Almighty say’s in Holy Quran “surah hujurat” Verse # 13

) ( ! لئے اس اور ہے کیا پیدا سے وعورت مرد ہی ایک کو سب تم نے ہم لوگو اےسب تم نزدیک کے اللہ ہیں، دیئے بنا قبیلے اور کنبے پہچانو کو دوسرے ایک میں آاپس تم کہ

ہے باخبر اور دانا اللہ کہ مانو یقین ہے۔ وا ڈرنے زیاده سے سب جو ہے وه باعزت المیں

The Holly Prophet (S.A.W) said in khutbah hajj ul widaan Arab has no superiority over a non-Arab nor a non-Arab has any

superiority over an Arab; also a white has no superiority over black nor a black

any superiority over white - except by piety and good action.

The common law forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for its inclusion of extensive non statutory law reflecting a consensus of centuries of judgments by working jurists.

Basic Meaning of Common law

source: Wikipedia

Anglo-Saxon Era

● Organized in smallkingdoms● “Law” during this timewas written (codes)– influenced by Romanlaw.– created by local“kings”

Generally the period from 550 to 1066.

Before Common Law the era was called Anglo-Saxon era

The Normans

● By 1080s Normansestablish wellorganized countieswhich “administerlocal law” and set up“local courts.”

Normans invade in 1066 bringing new culture and language

William the ConquerorFirst king of Normans

1066 to 1086

● Court of the King – the king was basically thelaw when he wanted to be.● Local Courts – held over from the Anglo-Saxonsystem.– County courts presided over by a Sheriff.– Hundred courts: dealt with very local matters,overseen by heads of families.● Feudal Courts – dealt with all disputes withinthe manor, overseen by feudal lord.● Ecclesiastical courts – Catholic Church courts.

Norman Times (1066-1150)

Court System

● Beginning of the 12thcentury, Henry Istarted sending hiscourt judges topreside over localdisputes.● First signs ofcentralization andproceduralconsistency.

Henry I

 King of England from 1100 to 1135. 

The Beginnings

● Many historians creditHenry II (1154-1189) forputting in place thefoundations of thecommon law system.● Yet, well before him,kings decided disputesbrought to them, andmagistrates did so at alocal level. King of England from 1154-1189

Three Ways Henry II Created theFoundations

● Firmly established a permanent court inWestminster.

● Created panel of regularly traveling justices.– they presided over local issues– decided local cases based on principles used inWestminster court.

● Began integrating local courts into a nationwide system through the issuance of writs and other procedural reforms.

Writs

● Writs: Permissionfrom the King to usehis courts.– Circumstances thatentitled a hearingbefore the commonlaw court.– Fixed the jurisdictionof the early royalcourts.– If your issue didn't fallwithin one of thesepredefinedcircumstances, thenyou likely could notget redress in courts Old writ in England

● Roughly 40-75 common law writs (numbervaried)● Courts used of ‘legal fictions’ to expand thetheir jurisdiction● This jurisdiction limit led to the increase in the use of the Chancery Courts.

The Early Writ System

● Three groups of actions, according toremedy:– real: recovery of the thing (property title)– personal: recovery of damages– mixed: recovery of both the thing anddamages

The Writ System Generally

● Court staff started off as close advisers to theKing– Knights or clergy appointed by the King● Over a few generations (by the mid 1200s)judges were being appointed based upon theirexperience as clerks for earlier judges.● During this same period of time a quasi professional class of advocates startedappearing in courts on behalf of parties.

The Legal Profession

Early Use of “Lawyers”

● Early common lawrequired litigants totell their stories to thecourt.● Court language wasformal Latin andFrench.● “Advocates” werestorytellers/translators

Early Juries System

● The right to a jurywas enshrined in theMagna Carta of 1215.– Yet, juries were usedlocally well beforethen.– Juries continued to beconstituted by “peers”– Juries were asked tojudge behavior basedon local custom.

Equity

● As the Common Lawsystem wasbecoming betterorganized, it faced anew challenge . . .● What to do about theincreasing usage ofEquity to settledisputes● What is Equity?

● body of rules administered by courts of equity● justice and fairness● stockholder's proportionate share, or share in alimited company● value of property over and above encumbrances● an equitable right or claim, such as an 'equity ofredemption'

Uses of the Word Equity

According to Snell

The word equity is used in two senses. One is a broad popular sense and Second is a narrow technical sense.

It resembles natural justice or morality.

It may be said to be “ a portion of natural justice which, though of suchA nature as properly to admit of being judicially enforced , was , for

Certain circumstances omitted to be enforced by the common law courts-an omission which was supplied by the court of chancery”.:

Narrow technical sense

Broad popular sense

Source: snell’s principles of equity, 27th edn.,p13

“No, we ought to think of the relation between common law and equity not as that between two conflicting systems, but as that between code and supplement, that between text and gloss. And we should further remember this, that equity was not a self-sufficient system-It was hardly a system atall-But rather a collection of additional rules. Common Law was, we may say, a complete system-If the equitable jurisdiction of the Chancery had been Destroyed, there still would have been law for every case, somewhat rude law it may be, and law. imperfectly adapted to the needs of our time, but still law for every case. On the other hand if the Common Law had been abolished equity must have disappeared also, for at every point is presupposed a great body of common law”.

According to Frederic William Maitland

Mait land : Lectures on equity, p 153,edn1969

Frederic William Maitland1850 to 1960

Late 13th Century

● Three great courtsexisted– King's Bench● heard matters dealingwith the Crown– Court of Common Pleas● heard all other matters– Exchequer● heard petitions to king

Exchequer (Chancery)

● King's administrativeoffice, consisting of:– Exchequer (treasury)– Chancery, head bythe Chancellor● scribe and keeper ofthe great seal● issued writs, initiatingactions in the lawcourts● assisted the king andhis Council withpetitions

Henry Booth, Chancellor of the Exchequer (1689-1690)

When Was Equity Used

● Person cannot get remedy in courts– usually because he was poor (writs cost money) orhis adversary was too powerful.– Petition would plead 'for the love or God'– As Chancellor's power grew, petitioners stoppedgoing to King and went to Chancellor directly● Chancellor could:– create new writ (the weaker the king, the harder itwas to grant new writs)– provide some other remedy after hearing the party

16th Century

● More is known about Chancellors becauserecords improved.● At this time Chancellors applied 'rules of equity and good conscience.'– not bound by precedent– often used common law rules, consulted judges and lawyers.– also started using maxims of jurisprudenceborrowed from canon and civil law.

Late 16th Century

● Jurisprudence ofChancery becamesettled.● could enjoin parties tocases in common lawcourts.– could actually sendsomeone to jail fortrying to enforcecommon lawjudgment.

King James

● Wanted to exerciseauthority over courts.● issued decreefavoring Chancery● Chancery neverclaimed to besuperior, merely justand fair. King of England and Ireland

Settled development of modern Equity

Lawyers began to be appointed as Chancellors with the first appointment of Lord Nottingham (1673-1682) ‘Father of Modern Equity’ – equity was systemized, classifications to trusts.

Lord Hardwicke (1736-1756) – Laid down general principles of equity.

Lord Eldon (1801-1827) – Strengthened the idea that decisions must be based on precedents, he also consolidated principles developed by his predecessors.

By 19th Century, equity transformed into a system of law almost as fixed as the Common Law.

Source: www.ukparliamentary.com

Administration of Law and Administration of Law and EquityEquity

The introduction of Judicature Act 1873 and 1875.To solve the persistent problems caused by the overlap of Common Law and Equity.The old separate courts of common law and equity were abolished.Out went the Courts of Common Pleas, King’s Bench, Exchequer, and Court of Chancery.In came the Supreme Court of Judicature, with each division exercising both equitable and legal jurisdiction.Thus any issue can be adjudicated in any division; and any point of law or equity can be raised and determined in any Division; but, for the sake of administrative convenience, cases are allocated to the divisions according to their general subject-matter.

Thus the court "is now not a Court of Law or a Court of Equity, it is a Court of complete jurisdiction.“

In Case of Pugh v Heath (1882)

Lord Cairns remarks

Sec 25(11) of the Judicature Act 1873

“In all cases in which there was a conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the former shall prevail”.

The common law court gave a verdict in favor of one party and the Court of Equity then issued an injunction to prevent that party from enforcing that judgment. The dispute was referred to the King who asked the Attorney-General to make a ruling. It was decided that in cases of conflict between common law and equity, equity was to prevail. 

Oxford's Case (1616) 1 Rep Ch 1

Fast forward

● So do common law systems still have a Courtof Chancery or Equity Court?– England = no (Judicature Acts of 1875)– U.S. federal = no (merged around same time)– U.S. states● historically the northeast states never had equity courtsbut the southeast did.● Only four states have separate courts ( Delaware, Mississippi , Alaska, and Tennessee).● Common Law and Equity are merged.

● Yes. It never really was a self-sufficient,separate system.● Equitable claims and remedies still exist today– Either adopted by courts– or codified into law● Equitable principles are still used by courtswhen required by fairness.

Does Equity Still Matter?

Abraham Lincoln's 5000 cases

At Law● assumpsit's (1,240 cases)● debt (667 cases)● criminal (27 cases)● appeals before theIllinois Supreme Court(400)● cases in the federalDistrict and circuit courts (at least 340)

At equity● mortgage foreclose(more than 200 cases)● petition for injunction topartition real estate (142cases)● petitions to sell realestate to pay debts (75cases)● divorce cases (145)● dower petitions (

Some Principles of Equity

● equity acts in personam● equity acts on the conscience● equity aids the vigilant● equity will not suffer a wrong without a remedy● equity looks at the intent, not at the form● he who seeks equity must do equity● he who comes to equity must come with clean hands● equality is equity● equity looks on that as done which ought to be done

● California Civil Code (a few examples)– For every wrong there is a remedy = (maxim) equity will not suffer a wrong without a remedy.– The law helps the vigilant = (maxim) equity aids the vigilant.– The law respects form less than substance = equity looks at intent, not at form.

Modern Codes & Equity

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