Jai Narain Vyas University, Jodhpur

B.B.A. LL.B. 5th SEMESTER

Subject: - LAW OF EQUITY

Topic : - EQUITY CAME, NOT TO DESTROY BUT TO FULFILL COMMON LAW

Roll No. : - 19BBL50023

Submitted to: - Submitted by:-

I would like to express my special thank of gratitude to our dean

1. INTRODCTION
2. MEANING OF EQUTIY
3. COMMAN LAW
4. QUESTION OF CONFLICT BETWEEN TWO LAWS
5. CONCLUSION
6. BIBLIOGRAPHY
Introduction

• Equity is a set of rules that exists alongside the common law and is applied where the
normal form of dispute resolution, where damages would not be sufficient, and provides
an alternative most often through specific performance or an injunction, but also by
rescission and reformation.
• Specific performance is an order to fulfill contractual obligations, in order to obtain the
remedy of specific performance; the plaintiff must prove that he has fulfilled his
obligations. An injunction can be sought where the plaintiff has property interest in need
of protection and if monetary compensation would be an inadequate remedy.
• For most of the history of the common law, there were two sets of courts, the courts of
common law and of equity. Equity had a vigorous separate existence for nearly 500
years, though some attempt was made to assimilate the remedies granted by the Court of
Chancery into the common law courts.
• Under the Common Law Procedure Act 1854 the common law courts were given some
power to award equitable remedies and the Chancery Amendment Act 1858 gave the
Chancellor the power to grant damages in addition to, or in substitution for, an injunction
or a decree of specific performance.
• A certain rivalry developed between the two courts and this came to a head in the
Oxford’s Case in which 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 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. From that time on the common law and equity worked together, side by
side.
• The Judicature Acts 1873-75 rationalized the position. They created one system of courts
by amalgamating the common law courts and the court of equity to form the Supreme
Court of Judicature which would administer common law and equity. It was foreseen that
a court which applied the rules both of common law and of equity would face a conflict
where the common law rules would produce one result and equity another.
Meaning of equity

• The term equity is derivation from the roman term acquitas, which mean equalization or
leveling. Etymological, therefore, equity is that which level down any arbitrary reference
or denial of justice.
• There have been three manifestation of it. Firstly, there is the need and reasonable
interpretation of law Secondly, there is the need to temper the law in its applications to
the individual’s case. Thirdly there is need to supplement the shortcomings of the law.
• The literal meaning given to equity is a right as founded on the “law of nature”,
“fairness” and “justice”. This is also the most popular notion about this expression.
• we call the equity, which is human transaction is founded on natural justice, in honesty
and right. In this sense it means that one should do to all men as he expects to be done to
him.

• In law, the term "equity" refers to a particular set of remedies and associated procedures
involved with civil law. These equitable doctrines and procedures are distinguished from
"legal" ones.

• it can be said that Equity supplements the general law, although when compared to
Common Law, Equity adopts a different approach to administering justice.

• Most of the equitable principles and rules have, in India, been embodied in the statute law
and has been made applicable to the extent of the provisions made therein.

• Black stone’s definition – he says, ”as the soul and spirit of all laws; positive law is
construed, and natural law is made by it. In this, equity is made synonymous with justice
in that, to the true and sound interpretation of the rule
• Mainland: ‘’Equity now is that body of rules administered by English Courts of justice
which were if not for the operation of the judicature Acts, would be administered only by
those courts which would be known as Courts of Equity.”
Common law

• Common law is a body of unwritten laws based on legal precedents established by the
courts. Common law influences the decision-making process in unusual cases where the
outcome cannot be determined based on existing statutes or written rules of law. The U.S.
common-law system evolved from a British tradition that spread to North America during
the 17th- and 18th-century colonial period. Common law is also practiced in Australia,
Canada, Hong Kong, India, New Zealand, and the United Kingdom.

• The equitable jurisdiction in England grew up because of the deficiencies of the common
law and the inadequacy of the remedies. The common law was deficient in the following
three respects:
1. Remedy was not available in all cases for many wrongs remained un-redressed for
want of proper writs;
2. The relief granted by the common law courts was not always adequate. There was no
relief by way of specific performance of the contract or injunction, accounting,
appointment of receiver, etc. and
3. The procedure in the common law courts was defective and unsatisfactory. The
inevitable result was that persons who could not get relief in common law courts
presented their petitions to the King-in-Council and later to the Chancellor.
QUESTION OF CONFLICT BETWEEN TWO LAWS

• The first thing that is apparent on a reading of section 25 (11) (d) is that the sub-section is
quite non-committal. It does not recognize that there was any conflict between the rules
of equity and the rules of the common law in any case. The question, however, as to
whether there was ever any conflict between the two systems is difficult to answer.
• The Chancellor Ellesmere argued that there was no conflict in the issue of common
injunction, but Lord Chief Justice Coke strongly refused that contention. There are no
doubt admitted cas.es of conflict where the above provision definitely uprooted the legal
rule and replaced it by the equitable rule.
• In this connection Maitland observes that the first thing that we have to observe is that
relation between law and equity was not one of conflict. Equity had come not to destroy
the law but to fulfill it. Every jot and every title of the law was to be obeyed but when all
this had been done something might yet be needful something that equity would require.
There might have been conflicts but, according to Maitland for two centuries before the
year 187 the two systems had been working together harmoniously.
• It will thus be apparent that, although the residuary power of S. 25 (11) (d) sounded high,
.it was not of very great significance". The distinction between the legal ownership of the
trustee and that of beneficial ownership of the cestui que trust still existed. The Judicature
Acts left the law of trusts just where it stood because there was no conflict, no variance
even, between the rules of the Common law and the rules of equity.
• the Judicature Act also did not destroy the distinction between legal and equitable claims,
between legal and equitable defenses and between legal and equitable remedies. They
still maintained that a person who acquired the legal estate for value and without notice
of another person's equitable interest therein took precedence over the person having only
equitable estate. This was in consonance with the maxim that equity follows the law.
• It’s also important to remember that the common law courts strictly applied the doctrine
of stare decisis, the legal principle by which judges are obliged to obey the precedents
established by prior decisions, this meant the law did not develop even when it was
obviously in need of change.
• Equity can also be seen to “fill the gaps of the common law” in the new rights it created
in relation to trusts and mortgages. Equity created new rights by recognizing trusts, which
arise where one party transfers property to one person to hold on trust for another and
giving beneficiaries rights against trustees.
• some equitable maxims may seem to protect the integrity of the common law, the maxim
“equity will not allow a statute to be used as a cloak for fraud” which prevents a party
from relying upon a statutory provision if to do so would be unconscionable and unfair,
whilst this may seem to be an equitable principle, it visibly allows equity to ignore
common law, and as equity’s concern is with individual justice, the common law delivers
universal justice, which means that whilst the decision may be fair under the
circumstances of one particular case, the opposite could be true for many other scenarios.
• Maitland Critically discusses this statement ‘Equity came not to destroy the law but to
fulfill it' in light of the role equity plays in today's legal system. Equity is defined as "a
system of rules developed to counter balance the rigouts of statute and common law by
the Courts of Chancery so as to allow for fairness in individual cases." Since the
Judicature Acts has amalgamated the two separate systems of Courts for the
administration of Common Law and Equity into one. Equity now is that body of rules
administered by the English Courts of Justice which, were it not for the operation of the
Judicature Acts, would be administered to only by those Courts which would be known
as Courts of Equity". Equity was essentially as to the Common Law. It provided a
distinct set of rules. "Equity had come not to destroy the law, but to fulfill it." Meant to
assist the law. “Equity is not a self sufficient system". Equity presupposed the extension
of common law at every point.
Conclusion

• In the end that equity “came not to destroy the law but to fulfill it”, as allowing courts to
use their discretion and apply justice in accordance with natural law merely mitigates
“the rigor of common law”, I would agree with the words of Cardozo in Graf v. Hope
Building Corporation, 254 N.Y 1 at 9 (1930), in which he states that “equity works as a
supplement for law and does not supersede the prevailing law”.
• 'Equity is no part of the law, but a moral virtue, which qualifies, moderates, and
reforms the rigor, hardness and edge of the law, and is a universal truth. It does also
assist the law, where it is defective and weak.
• Equity, which is known as the body of law that has to do with natural justice and
fairness, was made not to hinder the common law but to aid it in its function of
carrying out justice.
• Equity was developed to alleviate this rigidity as well as to provide additional remedies
in addition to the damage and properties which the common law allowed for.
• The common law was developed in the 11 century after William the Conqueror
gained the throne. This body of law involved using a system of writs. This body of
law was limited, as it was only able to provide certain cases with the justice they
deserved. Even then, the remedies offered were property and damages which would
not be the justice persons were necessarily seeking.
BIBLIOGRAPHY

1. www.blogs.ipleaser.com/law-of-equit/maxims/comman-law
2. www.investopedia.com/comman-law/law-of-equity
3. www.scribd.com/Equity-does-not-destroy-the-common-law
4. www.markedbyteachers.com/law
5. www.lawteacher.net/equity-came-not-to-destroy-law.php