Equity developed alongside the common law system to provide remedies in situations where the common law was inadequate or unfair. The Court of Chancery, overseen by the Lord Chancellor, would hear cases and provide equitable relief directed at the parties. Over time, equitable principles and remedies became established through precedent. Today in common law countries, equity has merged with the legal system but still provides judges with additional remedies beyond damages when needed, drawing from long-established equitable doctrines and maxims.

1. A Little Historical DetourA Little Historical Detour
Common Law and Equity:
A Very Brief History
Red TextRed Text = words you= words you
should learnshould learn
Blue TextBlue Text = links to= links to
additional informationadditional information

2. Structure of this sessionStructure of this session
●
How judge made law became
a primary source of law
●
Origins of and difference
between common law and
equity.
●
Classifications of law in
common law countries.
●
Why is this important?
History explains:
➢
why we still use judge made
law;
➢
what equity is.

3. Before Common Law:Before Common Law:
Anglo-Saxon EraAnglo-Saxon Era
●
Generally the period from 550 to
1066.
●
Organized in small kingdoms
●
“Law” during this time was written
(codes)
– influenced by Roman law
– created by local “kings”
●
Shire courts = responsible for
administration.
●
Hundred Courts = quasi judicial court

4. Before Common Law: The NormansBefore Common Law: The Normans
●
Normans invade in 1066
bringing new culture and
language
●
By 1080s Normans establish
well organized counties
which “administer local law”
and set up “local courts.”
William the Conqueror

5. Norman Times (1066-1150):Norman Times (1066-1150):
Court SystemCourt System
●
Court of the King – the king was basically the law when he
wanted to be.
●
Local Courts – held over from the Anglo-Saxon system.
– Shire (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 within the manor,
overseen by feudal lord.
●
Ecclesiastical courts – Catholic Church courts.

6. The BeginningsThe Beginnings
●
Many historians credit
Henry II (1154-1189) for
putting in place the
foundations of the common
law system.
●
Yet, Henry I, son of William
the Conqueror, was also
instrumental in setting up a
system of traveling “judges.”

7. The England Henry II InheritedThe England Henry II Inherited
and the seeds of common lawand the seeds of common law
●
The crusades created legal
problems.
– landowners were off fighting in
the crusades.
– this invited squatters to unlawful
reside on vacant land
– this created land disputes
among heirs of landowners
killed in crusades.
Crusade Knight from the time of Henry II

8. Assize of ClarendonAssize of Clarendon
●
Discontinued the practice of trial by ordealtrial by ordeal (link to video about pre-assizes
punishment).

9. Assizes in PracticeAssizes in Practice
●
The Assizes of Clarendon
➢
established procedures for
local courts to deal with
disputes related to everything
from land rights (civil) to
murder (criminal)
●
Goal:
➢
create a consistent, reliable,
efficient practice for settling
disputes and handing out
justice.
●
Use:
➢
plaintiff had to obtain writwrit from
the King (Chancellor) to
proceed and the process was
administered by a royal judge.
➢
Writ – document issued by
Chancellor giving access to
royal court.

Used as means to categorize
cases.

Substantive law slowly begins
to form for each kind of writ.

10. Characteristics of the Early SystemCharacteristics of the Early System
●
Concerned more with
procedureprocedure than substantivesubstantive
lawlaw or rules.
●
“Case Law” was understood as
a matter of the “common
culture” of a unified and learned
profession NOT as binding
precedent.
●
Basic records were not kept
until mid to late 1100s (plea
rolls).
●
No PrecedentPrecedent

11. Early Sources of LawEarly Sources of Law
●
The main source of law in
classical common law = King:
– King & Council were judiciary,
legislature and executive.
– When we talk about
“parliament” during the early
development of common law,
we are talking about the King's
Council.
●
When we talk about a high court
during this time, we are talking
about the Council (curia regis).

12. The Early Medieval Court SystemThe Early Medieval Court System
●
Developed slowly, often creating overlapping jurisdictions.
●
The Medieval Royal (Common Law) Courts:
– Court of Exchequer –
●
A court of equity alongside the Chancery Court (more on this later)
●
limited common law jurisdiction, initially concerns disputes with the king
about revenue.
– Court of Common Pleas – dealt with private actions based on common
law and “statutes.”
– King's Bench – generally court used to restrain abuses of power by
lower courts and officials.
●
The Local Courts – slowly folded into the royal court system.

13. The Legal ProfessionThe Legal Profession
●
Court staff started off as close advisers to the King
– Knights or clergy appointed by the King
●
By the mid 1200s judges appointed by King based upon their
experience as clerks for earlier judges.
➢
Quasi apprenticeship system
●
Quasi-professional class of advocates develops
➢
Some helped people navigate the complicated procedures (origins of
solicitorssolicitors).
➢
Others presented cases on behalf of people in court (origins of
barristersbarristers).

14. Cliqr QuestionCliqr Question
●
Two different types of legal advocates were necessary in early
common law because:
➢
(a) the aristocracy had a special set of advocates to represent them in
court
➢
(b) someone needed to help people with the complicated process of
getting into court and another needed to act as a translator because
most judges spoke Law French
➢
(c) criminal and civil law were different
➢
(d) there were two sources of law: common law and statutory law

15. ●
Late 1200s → judicial decisions are written down (Yearbooks).
➢
These are often just the result, no facts or reasons.
●
Mid 1500s → common substantive rules/principles based on
past court decisions consistently used by judges and advocates
= “judge made law.”
●
1800s → judge made rules/principles must be followed (starestare
decisisdecisis).
➢
We will discuss this development in greater detail as we learn about
the modern system.
Origins of Modern Common LawOrigins of Modern Common Law

16. Common Law System: The Bottom LineCommon Law System: The Bottom Line
●
Court decisions, not statutes =
foundation of legal system
●
Common Law court system
handles cases that fall within
writs.
●
Substantive law develops to
deal with each kind of writ.
●
Remedy is almost always
damages (money)
➢
Could also recognize property
owner in property cases.

17. EquityEquity: An Overview: An Overview
●
What is it:
➢
System developed alongside
common law that provides
remedy when common law
cannot.
●
Why is it important?
➢
Because it is still a source for
remedies/claimsclaims.
➢
We still use the language:

Equitable claim

Equitable remedy

Equitable relief

Equitable title
" A court will typically award equitable remedies when a legal remedy is insufficient or inadequate" -
https://www.law.cornell.edu/wex/equity

18. Equity: The Early DaysEquity: The Early Days
●
From the beginning,
King was ultimate
source of law.
●
There was always the
possibility to petitionpetition
the King for relief
➢
He being the King,
could grant any relief
he saw fit in the
name “fairness and
justice.”
●
Soon the King tired
of this duty and
passed the task
along to his
Chancellor of the
Exchequer.
➢
The Exchequer
eventually hired
“judges” to carry
out this task.

19. Chancellor of the Exchequer
●
King's administrative office,
consisting of:
– Exchequer (treasury)
– Chancery, head by the
Chancellor
●
scribe and keeper of the great
seal
●
issued writs, initiating actions
in the law courts
●
assisted the king and his
Council with petitionsThomas Cromwell, 1st
Earl of Essex (1485 - 1540)
Chancellor of the Exchequer (1533-1540)

20. The Need for Equity
●
Writ needed to get into common
law court.
– Different writs for different types
of legal claims.
●
If new type of case came along,
Chancellor could issue new writ.
●
In 1258 Chancellor was told by
King he could no longer issue
new writs.
– Thus, new types of cases had to
fit into existing writs.
●
Result of 1258 reform:
– Cases that did not fit into
existing system were brought
to King (Chancellor) for relief.
– OR cases that didn’t fit well
were placed under existing
writ; often led to unfair result.
●
These too were then brought to
the Chancellor.
– Chancellor could then grant
“equitable relief.”
“when one wants to have his cause tried by the Court of Chancery, he relates his story to the court, representing at the same time
that the courts of common law can grant him no redress.” - Adam Smith

21. Equity Example
●
The concept of a “trust”:
– Philip, about to head on a long and hazardous journey, gives land to
his friend Thomas, for Thomas to hold for Philip’s baby son Theo
(who cannot own property) until Theo is grown up. Philip’s ship sinks
without trace.
– Common law regards Thomas as the owner – he has the relevant
papers (Deed) and Philip transferred the land to Thomas.
– Equity would prevent Thomas from selling the land for his own benefit
and require Thomas to hand the land over when Theo becomes an
adult.

22. Equity Example
●
Notice here equity is both a
substantive principle (the
holding of property for another)
AND
●
A remedy – the court grants
Theo “equitable title” in the
property that is held by Thomas
until Theo is age of majority.
– A remedy that was not available
in common law courts!
●
BUT also notice:
– It does not change the
common law!
– It provides a remedy when the
common law result is unfair.
– The substantive principle of
trust can only be used when
the common law principle/
remedy is unfair or
unavailable.

23. Equitable Remedies:
Directed at the Person, Not the Court
●
Courts of equity could NOT
change a common law court
ruling.
●
Instead, their remedy was
directed at the parties!
– NOTE – this distinction is no
longer important after the
merger of common law and
equity. (see later slides)
Example: Loan (Darlehen)
●
Deed = proof of debt
●
Deed should be returned after debt is paid
●
What happens if it is not?

24. Equitable Remedies:
Directed at the Person, Not the Court
●
The case at common law:
– Deed is evidence of debt.
– Parties not allowed to orally
give contradictory evidence.
– Because bank still has deed,
court will rule that debt is still
owed.
– This is obviously not fair, but
is the proper result under
common law.
●
The case at equity:
– Chancellor has power to
investigate.
●
This includes hearing oral
evidence from the parties.
– Chancellor can order bank to
hand over deed & cease
enforcing common law
judgment.
●
NOTE: the remedy is directed
at the bank, not the common
law court!

25. Cliqr Question
●
The system of equity was created in order to:
– (a) fight against the corruption in the common law system
– (b) offer a fair and just resolution when common law was too rigid
– (c) to give the king more power than judges
– (d) help Parliament create statutory law

26. How it worked in practice
●
Exclusive
Jurisdiction
– Rare
circumstance
where no right
existed at
common law but
one was created
in equity.
– e.g. Trust
●
Concurrent
Jurisdiction
– Right at common
law exists, but is
insufficient and
person seeks
equitable
remedy.
– e.g. specificspecific
performanceperformance
●
Auxiliary
JurisdictionJurisdiction
– Party in common
law case needed
a procedure only
available in court
of equity.
– e.g. discoverydiscovery

27. Norms, But Not a System of Law
●
Jurisprudence (norms) of
Chancery became settled.
●
Similar cases were dealt with
in a similar fashion, and
eventually a form of
precedent evolved.
– But precedent only dealt
mostly with REMEDIES, it did
not create a separate system
of substantive law.
“’[E]quity’ and ‘equitable’ refer to the whole body of equitable
precedent and practice which lawyers and judges can only
understand once they know such precedent and practice.”
- "Equitable Remedies and Principled Discretion: The Michigan Experience,"
by Kevin C. Kennedy (1997)

28. The Merging of Equity and Common Law
●
United States
– While many states originally
had their own courts of equity,
others simply merged equity
into their common law court
system.
●
But even in these states,
Common Law and Equity are
merged.
●
England
– Judicature Acts of 1875
merged the equity and
common law systems.
– Note that there is still a court
called Chancery Court, but it
is not a separate court of
equity.
“The Judicial Power shall extend to all Cases, in Law and Equity”
- Article III, United States Constitution (creating the federal judicial branch)

29. Equity Today
●
Provides judges with additional
source of remedies.
●
Will only be used when the common
law remedy of damages is
inadequate.
●
The remedies available are firmly
established by precedent or statute.
●
In rare cases also provides parties
with substantive right, e.g. trusts
Equitable remedies cannot be granted
"beyond the already-settled principles of
equity jurisprudence."
- Spoon-Shacket Co. v. Oakland County, 97 N.W.2d 25, 30 (Mich.
1959).

30. Some Maxims of EquityMaxims 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

31. Maxim Example
●
Life insurance policy owned by
married couple for 25 years.
– Always paid on time.
●
Husband, who always made
payments, gets sick, wife is
unaware that she has to pay,
and overdue notice from
company gets lost in the mail.
●
Husband dies soon thereafter
and insurance company
refuses to pay wife.
●
The Law
– Common Law – failure to pay
premium = policy is canceled.
– Equity – “Equity regards that
as done that ought to be done”

32. Applying the Principle
●
Court concluded, based on
the couple’s payment history,
had she known of the policy
lapse, she would have paid
immediately.
– “Equity regards that as done
that ought to be done”
– Court ordered the insurance
company to pay, minus the
amount of the premium still
owing.
●
Rationale
– Allowing company not to pay
would be unjust enrichmentunjust enrichment.

33. Another Maxim Example
Equity Looks to the Intent, Rather Than to the Form
●
Austin creates two distinct
corporate entities under
Michigan law in order to
avoid paying state taxes.
●
Michigan Supreme Court
looked at intent to evade tax
law rather then legal form of
the companies.
– Charles E. Austin, Inc. v. Kelly

34. Can Also Be Used as Defenses
●
Clean Hands Doctrine
– One who asks for equitable
relief cannot have also acted
badly.
●
Example
– Student denied high school
diploma for too many
absences.
– She asks court for injunction.
– Court refuses because
student forged excuse notes
from her parents.
●
NOTE – the bad behavior was
related to the incident.

35. Equity in a Nutshell
●
It is NOT free flowing or
limitless.
●
It is based on principles and
remedies developed over
hundreds of years
– Similar to the way common
law developed.
●
Today it is well established in
precedent or statute.
●
Equitable principles can
serve as basis for certain
kinds of cases:
– Property disputes, bankruptcy
●
Many kinds of suits
can be brought undercan be brought under
statutory, common law and
equitable principles.
– In this respect it is today also
a source of law.

36. Cliqr Question
●
Equity operates in the modern legal system as
– (a) another source of legal principles and remedies that judges may
use when necessary
– (b) a separate and distinct legal system
– (c) a source of common law precedent
– (d) something judges no longer can use to decide cases

37. Examples of Equitable Remedies
●
InjunctionInjunction
– court order compelling to act or refrain from acting.
●
specific performancespecific performance
– court order forcing party in breach to perform under an existing
contract.
●
rescissionrescission
– allows parties to get out of a contract
●
estoppel
– prevents person from making assertions inconsistent with prior actions.

38. Classifying the Law
●
Substantive vs. Procedural
●
Common vs. Statutory
●
Primary vs. Secondary
●
Criminal vs. Civil
●
Public vs. Private
●
Domestic vs. International
– Dualism vs. monism
Source:
https://ejmccallum.weebly.com/uploads/8/8/5/1/88518282/cata
gories_of_canadian_law.pdf