Lecture # 4 Common Law and Equity: Customs

Lecture # 4
Common Law and Equity

By: Salik Aziz Vaince
[0313-7575311]
 Introduction
 The law of England and wales has been built up very gradually over the centuries.
 There is not just one way of creating or developing law; there have been, and still are, a number of
different ways. These methods of developing law are usually named as sources of law.
 Historically, the most important ways were custom and decisions of judges.
 Then, as parliament became more powerful in the eighteenth and early nineteenth centuries, Acts of
parliament were the main source of new laws, although judicial decisions were still important as they
interpreted the parliamentary law and filled in gaps where there was no statute law.
 During the twentieth century, statute law and judicial decisions continued to be the major sources of
law but, in addition, two new sources of law became increasingly important: these were delegated
legislation and European law.
Customs
 These are rules of behaviour which develop in a community without being deliberately invented.
 Custom habitual group pattern of behavior that is transmitted from one generation to another and is
not biologically determined.
 Since societies are perpetually changing, no matter how slowly, all customs are basically impermanent.
 If short-lived, they are more properly called fashions.
 Custom in law is the established pattern of behavior that can be objectively verified within a particular
social setting.
 Definition
 A traditional and widely accepted way of behaving or doing something that is specific to a particular
society, place, or time.
 Customs in Common law
 Most customary laws deal with standards of community that have been long-established in a given
locale. However the term can also apply to areas of international law where certain standards have
been nearly universal in their acceptance as correct bases of action - for example, laws against piracy
or slavery.
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 In many, though not all instances, customary laws will have supportive court rulings and case law that
has evolved over time to give additional weight to their rule as law and also to demonstrate the
trajectory (flight) of evolution in the interpretation of such law by relevant courts.
 Custom, in English law, an ancient rule of law for a particular locality, as opposed to the common law
of the country. It has its origin in the Anglo-Saxon period (from 410 to 1066), when local customs
formed most laws affecting family rights, ownership and inheritance, contracts, and personal violence.
 The Norman conquerors granted the validity of customary law, adapting it to their feudal system. After
the great transformations of the 13th and 14th centuries, when English law was given statutory
authority under the crown, the “customs of the realm” became England’s common law. Since that
time, a local custom outside of common law has been considered valid if it:
- (1) has been practiced peaceably and continuously from time immemorial—in practice, as long as
living testimony can recall;
- (2) is reasonable, certain, and obligatory; and
- (3) is confined to a specific locality.
 With the cultural uniformity of the modern age, custom as a force of law retains its validity, but in
practice it has lost ground to common law.
 As we have seen the basis of Common Law was custom. The itinerant (Traveling from place to place to
work) justices sent out by William the Conqueror examined the different local practices of dealing with
disputes and crime, filtered out the less practical and reasonable ones, and ended up with a set of laws
which were to be applied uniformly throughout the country.
 As Sir Henry Maine, a nineteenth-century scholar who studied the evolution of the legal systems has
pointed out, this did not mean that the custom itself was ever law - the law was created by the
decisions of judges in recognizing some customs and not others.
 Types of custom
 There are two main types of custom:
 General custom
 Historically these are believed to have been very important in that they were, effectively, the basis of
our common law.
 It is thought that following the Norman conquest (as the country was gradually brought under
centralized government) the judges appointed by the kings to travel around the land making decisions
in the King’s name based at least some of their decisions on the common customs.
 This idea caused Lord Justice Coke in the seventeenth century to describe these customs as being one
of the main triangles of the laws of England. However, other commentators dispute this theory.
 Today, Michael Zander writes that probably a high proportion of the so-called customs were almost
certainly invented by the judges.
 In any event, it is accepted that general customs have long since been absorbed into legislation or case
law and are no longer a creative source of law.

 Local custom
 This is the term used where a person claims that he is entitled to some local right, sued as a right of
way or a right to use land in a particular way, because this is what has always happened locally.
 Such customs are an exception to the general law of the land, and will only operate in that particular
area.
 Since there were (or still are) exceptions to the general common law, the judges, from the earliest
times, established a series of rigorous tests or hurdles that had to be passed before they recognised
any local custom.
 These tests still exist today and are used on the rare occasion that a claim to a right comes before the
courts because of a local custom.
 The tests are as follows:
- Time immemorial: It must have existed since 'time immemorial'. In practice today claimants usually
seek to prove the custom has existed as far back as living memory can go, often as calling the
oldest inhabitant as a witness. However, this may not always be sufficient.
- Reasonableness: The custom must be reasonable. A legally enforceable custom cannot conflict
with fundamental principles of right and wrong, so a customary right to commit a crime, for
example, could never be accepted.
- Certainty and clarity: It must be certain and clear. The locality in which the custom operates must
be defined, along with the people to whom rights are granted and the extent of those rights. In
[Wilson v Willes (1806)] the tenants of a manor (The landed estate of a lord) claimed the
customary right to take as much turf (Surface layer of ground containing a mat of grass and grass
roots) as they needed for their lawns from the manorial commons. This was held to be too vague,
since there appeared to be no limit to the amount of turf which could be taken.
- Locality: It must be specific to a particular geographical area. When a custom is recognized as
granting a right, it grants that right only to those specified. Custom is only ever a source of local
law.
- Continuity: It must have existed continuously.
- Exercised as of right: It must have been exercised peaceably, openly and as of right. Customs
cannot create legal rights if they are only exercised by permission of someone else. In [Mills v
Corporation of Colchester (1867)] it was held that a customary right to fish had no legal force
where the right had always depended on the granting of a license, even though such licenses had
traditionally been granted to local people on request.
- Consistency: It must be consistent with other local customs. For example, if a custom is alleged to
give the inhabitants of one farm the right to fish in a lake it cannot give another farm the right to
drain the lake. The usual course where conflict arises is to deny that the custom has any force,
though this is not possible if it has already been recognized by a court.
- Obligatory: Where a custom imposes a specific duty, that duty must be obligatory - a custom
cannot provide that the Lord of the Manor grants villagers a right of way over his land only if he
likes them, or happens not to mind people on his land that day.

- Conformity with a statute: A custom which is in conflict with a statute will not be held to give rise
to law.
 It is very unusual for a new custom to be considered by the courts today and even rarer for the courts
to decide that it will be recognised as a valid custom, but there have been some such cases.
- [Egerton v Harding (1974)] the court decided that there was a customary duty to fence land against
cattle straying from the common.
- [New Windsor Corporation v Mellor (1974)] where a local authority was prevented from building
on land because the local people proved there was a custom that they had the right to use the land
for lawful sports.
 Although customs may develop, they are not part of the law until recognised by the courts; it is the
judges who decide which customs will be recognised as enforceable at law.
Common law
 Introduction
 The legal system in England and wales could not rely only on customs. Even in Anglo-Saxon (England
between the 5th century and the Norman Conquest) times there were local courts which decided
disputes, but it was not until after the Norman Conquest in 1066 that a more organized system of
courts emerged.
 This was because the Norman kings realised that control of the country would be easier if they
controlled, among other things, the legal system.
 The first Norman king, William the Conqueror, set up the Curia Regis (the King’s court) and appointed
his own judges to decide the disputes.
 It is said that Laws of land created and developed by judges sitting in court deciding case in any matter
(civil/criminal).
 It’s the law of land created by judiciary. Generally common law referred as case law.
 The common law developed by judges following the decisions of other judges who have decided
similar cases previously.
 When judges follow the decision they basically follow the reasoning, legal principles applied by judges
in previous cases. What they are doing they are following the doctrine of precedent.
 When a judge decides a case today looks back how judges decided that case in a similar case in past.
 What principle did he apply and judge will follow that reasoning today, this is the operation of the
doctrine of the precedent.
 The judicial decisions are ready-made and documents in collection of case law in year books. These
decisions are collected in law reports.
 The precedent applied to new cases that come before the court.

 History and development of common law
 William Blackstone gave rather good definition of common law as: Common law is to be found in
record of several courts of justice, books of reports handed down to us. He gave a lot of phrases as; “it
is better ten guilty persons escaped, than one innocent people should suffer”.
 How did the common law develop?
 Reasonable starting point is 1066 William the Conqueror.
 I am not going to give an impression that there was no law prior to 1066. Each kingdom often with
their own laws, they are said to be clear sophisticated and remain the highly regarded.
 Abraham Lincoln when he was studied to be a lawyer read William Blackstone by candle light.
 Basically William the conqueror first came to give the unified system of law to England and wales.
 When William invaded from France in 1066, different systems of law and the local justice in the
country known as shire. Different parts of England governed by different systems of law often derived
from the various people who invaded in England, but there was no uniform national legal system.
 English legal system existed in massive oral customary rules that varied from region to region.
 Each county or shire had his own local courts; these local courts dispense justice in their courts with
local customs, varied from community to community all around the country. Very different laws
enforced in very different ways. You can say the law was arbitrary fashion in London.
 The local courts existed around the 11th century would not recognised as courts today. For example
courts existed in formal public assemblies. If I could reach the decision might ask from the accused to
show their innocence by catching red hot iron or cold to boiling water. The accused is asked to prove
their innocence by walking over red hot iron or boiling water.
 In this ordeal, the accused is thrown into a river with weights attached. The assumption is innocent
people will survive due to a miracle performed by God. This is a form of “trial by ordeal” (A primitive
method of determining a person's guilt or innocence by subjecting the accused person to dangerous or
painful tests believed to be under divine control; escape was usually taken as a sign of innocence).
 That was a debate to which trial by ordeal actually were carried out that is quit clean looking through
at that time that was recognised way of seeking to establish the truth of person’s guilt or innocence.
 The idea was because the defendant would pick up red hot iron, if burnt that would naturally occur
and if wound heal within few days the man will be set free, he would deem to be innocent if didn’t heal
then executed. That was a bad luck to pick up red hot iron and wound doesn’t heal then may hang you.
 The idea of trial by ordeal that if a person is innocent then God would intervene, the God would
perform a miracle and man can go free.
 Certainly that was brutal way to establish a guilt or innocent as it sounds.
 The business of trial by ordeal that eventually stopped and condemned by the judges in 13 th century.
 There was a feature local justice so we call this system of local courts with local courts with local
customs as trial by ordeal.
 William the conqueror was interested in establishing his power and in establishing order in kingdom.
 He laid the foundation of the legal system.

 He understood that in order to exercise his power over the citizens, he needed a central system of
justice over which he as a king had power and he had laws that would be obeyed by the citizens.
 So how did you do this? He created the Curia Regis (the king’s court). This was courts of law like
household that comprised the king and somehow his most trusted advisors and the Curia Regis would
be advisory body for the king.
 That would also a place where people bring their disputes to have been decided by the king and his
advisors.
 Now this time England the kingdom was not particularly populated and people could not read & write,
travel around the country was difficult and roads have not built.
 So it was quite difficult to move around the country, for the king to maintain their authority in the
entire kingdom, king was happy to travelling around the country taking the court with them so that
they process in the different parts of the country and William did this same thing he would travel
around with Curia Regis as king’s court going around the country in different areas as he travelled
around the country and citizens came to him and bring their grievances, complaints accordingly king
and his advisors would give judgments on the disputes.
 The king will literally sit with advisors on a bench and hear cases in his own court this why the court
known as the King’s Bench, king sits on the bench and advisors around and people would come to him.
 We can see this activity around of king and his advisors going the country and giving rulings on disputes
and grievances around the country.
 We see this activity as beginning of common law system, and of centralized and unified system of law
because you have a consistent approach for the king and his advisors.
 Another thing the William did was interpret the idea of juries into English Legal System. Under the jury
system minister of justices would go out into the country to try to determine the manorial (relating to
the landed estate of a lord (including the house on it)) the state and for the purpose of taxation. What
ministers do actually establish the value to how court change to tax, the minister would call 12 free
men together and ask them to testify under oath about the value of each estate. This is simply free
man called the jury.
 Eventually the jury became a body responsible for finding facts in both civil & criminal cases.
 So we have the idea and we reach the point that the William trying to establish his powers over the
country he travels around the country with his Curia Regis listening to grievances and disputes and
giving ruling on it, that’s the beginning of Common law system.
 After William left/thrown out and then rather downhill of social order. This gives you the names of
various kings as William the first then there was fighting going and destruction in the country. Things
gone badly in King Stephen (he used to be said the time when God & all his angels slept) and such a
dreadful (Causing fear, dread or terror) time.

 For the development of common law system after Stephen Henry II came.
 Henry II came in 1154, he is one of the known as Angevin king (The Angevins ("from Anjou") were a
distinct English royal house in the 12th and 13th centuries composed of three English monarchs—
Henry II, Richard I and John. In the 10 years from 1144, two successive Counts of Anjou won control of
a vast assemblage of lands that would last for 80 years and would retrospectively be referred to as the
Angevin Empire) having the connection with European Union and France. He was focusing to create a
single system of justice for whole country.
 Henry II took the thrown after the set of period and disapproval of disruption, he wanted to regain
stability and he wanted to reform land law.
 Henry II played a significant role in the development of English Legal System.
 He likes the William conqueror and wanted to create a single system for whole country. That would be
under the control of the king (power & order).
 It was under the Henry II that was the first time the judges was sent out to circuits.
 The idea the judges from London from Westminister will travel around the country and that time the
Henry II there was only 18 judges in the country.
 Henry II ordered 5 out of 18 to stay in London and take over the cases he might decide himself and
these five judges stayed in London constituted the kings bench of the judges who sit in Westminister.
 In 1166 henry issued a declaration of assize (a court which formerly sat at intervals in each county of
England and Wales to administer the civil and criminal law. In 1972 the civil jurisdiction of assizes was

transferred to the High Court and the criminal jurisdiction to the Crown Court) that was an early form
of king’s council.
 In this declaration of 1166 Henry said that remaining judges would be sent out to travel to different
parts of the country.
 The idea that judges going out in different parts of the country dispensing the justice of Westminister,
Dispensing the king’s justice that is decided in Westminister. When the judges travelled they have to
take the law of Westminster.
 Henry II divided up the country into ‘circuits’ of areas for the judges to visit.
 Initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases, but over a
period of time it is believed that the judges on their return to Westminister in London would discuss
the laws or customs they had used, and the decisions they had made, with each other.
 Gradually, the judges selected the best customs and these were then used by all the judges throughout
the country.
 This had the effect that the law became uniform or ‘common’ through the whole country and it is from
here that the phrase ‘common law’ seems to have developed.
 In this way gradually local rule, local justice is replaced by new national rules.
 “Law that was common to all is common law”.
 So travelling judges formed a nucleus of judges with national jurisdiction and they didn’t have local
rules, the advantages of judges travelling around the country because they haven’t any particular stake
in any local area, so less likely to subject to influence the any possible corruption.
 The judges going from Westminister and they don’t know the people in the local area and that was a
very good way to establishing justice in a unified way.
 That was relatively free from corruption.
 In time the decision of these judges started to be written down, that was oral gradually the judges
written down and as the decisions of these courts to be recorded and publishes, so the practice
developed of past precedent being applied in later cases.
 The judges from Westminister going out to local areas, hearing cases, deciding cases and begin to write
down decisions in those cases and applied in later cases.
 That was the gradual spread of the common law from London from the King’s Bench in Westminister
to out to the rest of the country.
 This is how we have a sense that the common law spreads to the whole of the country, you can say
development of the unified common law.
 Law reporting
 The first system of law reporting:
 From the 13th century around 1272 in early years of King Edward I and the earliest law reports known
as the years book.
 Principle source material of development of legal doctrine concepts and method and during the period
when the law was being reported in the years books. That was how common law was recognised and
we are formal now.
 These were written in either French or Latin.
 So gradually with the spread of the common law local laws and customs began to fade away.
 The content of the law at that time was preventing bloodshed by recognizing rights of property and
person’s freedom and punishing people committed violent acts.
 So that is the rather basic introduction to the development of the common law system and the
common law courts.
 We are going to look at some of the common law courts gave rise to development of equity.
 Before arriving on that I want to reflect a little bit as the significance of what I was talking about.
 First of all it’s interesting to know the system of assizes, the judges going around the country and
sitting in the different parts of the country established by the Henry II actually lasted the pretty much
until 1971.
 That is interesting that something is established in 13 th century and continued until 1971. If you think
about it that we have a current system now where High Court judges in Queen’s Bench Division still
travel around the country to hear the most serious criminal offences and to deal with civil matter,
judges still who sit in High Court of justice still spent part of their time each year serving in courts
outside the London.
 That is the continuing circuit system which we see is the development from Henry II’s idea in 13 th
century.
 Henry II innovation was the further development of the jury, which was established by William the
conqueror but actually Henry the II used the jury for dealing with criminal cases.
 One of the things he did was to use people from certain localities to bring them together.
 As 12 people from towns and villages bring them together periodically for the purpose of telling the
king whether or not the suspected people committed robbery, murder, or forgery.
 So the idea bringing the people together to identify members of the community those who have
committed the crime.
 The establishment of king’s court in the 12th century didn’t just punish the criminals they also provided
a peaceful means to resolving disputes over land and other property.
 So courts even not that but offering a service to the public instead of people solving their disputes but
as a result of violence happening that would encourage to bring their disputes and grievances in the
public forum to the court to the king to the king’s justices to be offered a remedy for decision to be
made.
 So what we see idea of encouraging people not to take the law into their hands and resolving disputes
without violence but actually to bring them to the public forum for the peaceful resolution of the
disputes and they receive a remedy, so in the resolution of the disputes in the land, contracts, debts
and in criminal offences the courts were supporting to social order and the tranquility of the state and
that is the justice today and was in the time of the William the conqueror and Henry II.
 The courts promoting the social order not just about punishing criminals but also about peacefully
resolving disputes. They support economic activity. They support social harmony and it was a struggle
at that time to bring people their case to these public courts and something we have to be careful
protection in time.

 Another reflection: The extent to which the English common law has influenced the development of
legal system round the world. This is a system which shows the spread of common law to other
jurisdictions in the world.
 So the English common law tradition transported round the world to places that had been colonized by
British in Australia, USA, Canada, and New Zealand, some of having mix system like Africa, Pakistan and
India.
 Meaning of common law
1. The term common law is derived from the French word ‘common ley’ which means ‘the body of
law derived from judicial decisions, rather than from statutes’.
2. The law developed by the early judges from a common law for the country.
3. The law which has continued to be developed by the judges through the doctrine of judicial
precedent.
 Definitions of common law
 Common law is the basis of our law today; it is unwritten law that developed from customs and judicial
decisions.
 The phrase ‘common law’ is still used to distinguish laws that have been developed by judicial
decisions, from laws that have been created by statute or other legislation.
 Common law also has another meaning, in that it is used to distinguish between rules that were
developed by the common law courts (the king’s courts) and the rules of Equity which were developed
by the Lord Chancellor and the Chancery courts.
 Common law can be defined as:
1. Common law (also known as case law or precedent) is law developed by judges through decisions
of courts and similar tribunals, as opposed to statutes adopted through the legislative process or
regulations issued by the executive branch.
2. The system of laws originated and developed in England and based on court decisions, on the
doctrines implicit in those decisions, and on customs and usages rather than on codified written
laws.
3. According to Salmond: “The common law is the entire body of English law, the total ‘corpus juris
angliae’ ("body of English law") with three exceptions, namely (1) statute law (2) equity and (3)
special law (special law consists of certain other bodies of legal rules which are so special and
exceptional in their nature for example martial law & international law) in its various forms.
4. According to Black Stone: ‘Common law is the municipal law of England or the rule of civil conduct
prescribed to the inhabitants of the kingdom’.
 Common Law in England & Wales
 Common law is in effect legal precedent that is made by judges sitting in court. Unlike statutory
provisions, which are laws that are codified as Acts of Parliament, the common law is constantly
changing.
 This is because of the fluid way in which judges interpret the law using their knowledge of legal
precedent and common sense and by applying the facts of the case they are hearing to those prior
decisions. English law works on a common law system, as opposed to a civil law system, which relies on
statute and certain texts.
- The Common Law in England is a system of law that is common to all parts of a kingdom and
consistently applied to all royal judges.
- It is sometimes called "judge-made-law" due to that fact that judges would compare facts of
the case at hand to earlier cases in an attempt to rule in a consistent manner- earlier rulings
become rules to guide future cases.
- Common Law was developed when William the Conqueror became the king of England and
attempted to provide one standard system of law for the entire country.
 A "common law system" is a legal system that gives great potential precedential weight to common
law, on the principle that it is unfair to treat similar facts differently on different occasions.
 The body of precedent is called "common law" and it binds future decisions. In cases where the parties
disagree on what the law is, a common law court looks to past precedential decisions of relevant
courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning
used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the
current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"),
judges have the authority and duty to make law by creating precedent. Thereafter, the new decision
becomes precedent, and will bind future courts.
 In practice, common law systems are considerably more complicated than the simplified system
described above. The decisions of a court are binding only in a particular jurisdiction, and even within a
given jurisdiction, some courts have more power than others.
 For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the
same jurisdiction, and on future decisions of the same appellate court; but decisions of lower courts
are only non-binding persuasive authorities. Interactions between common law, constitutional law,
statutory law and regulatory law also give rise to considerable complexity. However, stare decisis, the
principle that similar cases should be decided according to consistent principled rules so that they will
reach similar results, lies at the heart of all common law systems.
 Common law is an invention of the English courts: Because common law was built on a case-by-case
basis the terms "common law" and "case law" are sometimes used synonymously.
 The common law ensures that the law remains ‘common’ throughout the land.
 There are some situations that are entirely new in relation to the common law, and the English courts
do sometimes look abroad at the decisions of other commonwealth courts in order to seek direction or
guidance from them.
 For example, an English court may be asked to consider a case decided in Canada or Australia in the
absence of there being any precedent set in an English court. This can also assist in allowing the
common law system to have a degree of flexibility but also, because courts look to each other for
guidance, a certain level of stability too.

 Common Law and Statute Law
- Although the English legal system is founded on common law, that is not to say that statutes
are any less binding. In fact, statute law codifies certain rules whereas the common law
provides interpretations and clarification when facts of instant cases are applied to the
codified law. As a result, the common law and statute law complement each other well.
- Common law keeps statute law up to date and in keeping with modern problems and solutions,
as well as creating precedent where there is no statutory codification.
 Using the Common Law
- As a lawyer or law student you will often be required to research a point of law to check the
current legal position in respect of a particular statutory provision or factual scenario. What
this means is that you will have to research whether there is are any relevant statutes that
relate to the area you are considering, and then look at recent (and sometimes not so recent)
case law decisions of the higher courts to see if there is any other guidance thereon. Once you
have identified these, it is also very important that you ensure that any statutes you have found
are still in force.
- Further, check that any case law decisions have not been subsequently overturned either by
more recent case law, or by a judgment of a higher court (e.g. House of Lords overturning a
Court of Appeal decision) or because a subsequent Act of Parliament has codified the common
law and by virtue of the new statute the law has been amended or changed.

Equity
 Introduction
 Equity is the quality of being fair and impartial.
 Equity is the means whereby the law and its administration are made to approximate as closely as
possible to the ideals of justice.
 Equity is needed to supplement the shortcomings of the law. Equity fulfils the gaps of law, as no law
can provide provisions for all the situations.
 Equity is the body of rules formulated and administered by the court of chancery to supplement the
rules and procedure of the common law.
 Snell says “the whole distinction between equity and law is not so much a matter of substance or
principle as of form and history”.
 Historically this was an important source and it still plays a part today with many of our legal concepts
having developed from equitable principles.
 Meaning
 The term ‘Equity’ is derived from the Roman term, acquitas, which means equalization or levelling.
 What is Equity?
 The term ‘equity’ is used in three different senses:
- In the first sense it means morality, natural justice, honesty and uprightness (vertical position
means moral excellence). This is the most general sense in which the term is used.
- In the second sense it means the principle of natural justice which would temper the fixed rules
of law. Wherever law is inadequate, rigid or technical, it will be supplemented by justice,
equity and good conscience.
- In the third sense equity consists of, in itself, a set of fixed rules. In this sense it is a system of
law parallel to the rules of common law and the statute law.
 Definition
 There are many definitions of equity but all agree on the general nature of equity which is synonymous
with principles of ‘natural justice’, ‘honesty’ and ‘right’.
 Aristotle’s definition: The comprehensive definition is given by Aristotle in whom he has masterly
described the general nature and scope of equity.
He says: “It is equity to pardon human failings, and to look to the law-giver and not the law, to the
spirit and not to the letter; to the intention and not to the action; to the whole and not to the part; to
the character of the actor in the long run and not to the present moment; to remember good rather
than evil, and the good that one has received rather than the good that one has done; to bear being
injured, to which to settle a matter by words rather than by deeds; lastly to prefer arbitration to
judgments for the arbitrator sees what is equitable, but judges only the law and for this an arbitrator
was first appointed in order that equity might flourish”.

 Blackstone’s definition: “the soul and spirit of all laws; positive law is construed and natural law is
made by it. In this Equity is synonymous with justice in that, it is the true and sound interpretation of
the rule”.
- The above definition suggests that equity is something distinct from law as he says it, ‘not the
law but the soul and spirit of the law’.
 Snell’s definition: “in its technical sense Equity may be defined as a position of natural justice which
although of a nature suitable for judicial enforcement was, for historical reasons not enforced by the
common law courts, an omission which was supplied by the court of chancery”.
 Maitland says: “we ought not to think of law and equity as two rival systems. No, we ought to think of
equity as supplementary law, a sort of appendix added to our code. Equity is now that body of rules
administered by English Court of justice which was but for the operation of the Judicature Acts, would
be administered by those courts, which would be known as courts of equity”.
 Conclusion: Taking into consideration all the above definitions this becomes quite clear that equity,
now is that body of rules administered by English Courts of Justice which before the operation of
Judicature Act 1873, were administered only by those courts which were known as courts of Equity,
We can further add that:
- Equity is founded on natural justice;
- It is the body of rules and principles which exist side by side of the original civil law;
- It is the soul and spirit of law; and
- It does not supersede the existing law, but is a supplementary addition to such law.
 Equity is a gloss on the common law
 Equity is merely a gloss (explanation) on the Common Law. Or
 Equity was nothing more than a gloss on the common law.
 Equity is not a self-sufficient system. It is a collection of Supplementary material. While some chapters
of law have been copiously (In an abundant manner) glossed by it others are quite free from equitable
gloss. It is only a supplementary law designed to meet the shortcomings of common law and relieves
against its hardship.
 It provides to administer justice according to the principles of Common law.
 So it’s important that how common law developed; and what were the hardships of the common law
to which equity came to remove. Equity basically supplemented the common law through its new
remedies; and equity explained the common law well so we can say that the equity is a gloss on the
common law.
 Historical development of Equity
 How equity developed in competition with common law and how over time equity has emerged with
common law principles that merged in 19th century by judicature Act?
 The word equity means fair or just in wider sense but its legal meaning is the rules developed to
mitigate the severity of the common law.
 Equity developed in 15th century, when common law developed throughout the England and wales,
through the king’s courts.

 By the 15th century there were some problems with the common law courts.
 Common law courts become slow rather expensive, and in particular become very technical.
 It was also true that the juries were used in both criminal and civil cases and there was a concern that
the scope of the juries to be either intimidated by defendants or juries could be bribed.
 There was also a concern that the system of writs had become very rigid. A writ was essentially a
permission granted by the king for a party with a complaint to sue another party as king’s subjects in
the king’s court.
 A writ is simply a document setting out the details of a claim. Writs were issued to create new rights
not recognized by the local courts. Over a period of time the writ system became extremely formal and
with technicalities and claims would only be allowed if they could fit into an existing writ. The rule was
'no writ, no remedy'. For example, certain writs of trespass would only be issued for those acts done
with force and arms against the King's Peace. If the two requirements were not met, a person had no
claim.
 Even if a writ was obtained, the judges would often spend more time examining the validity of the writ
than the merits of the claim.
 So despite the development of common law courts, king himself continued to be source of English law.
Even after the law courts developed people still sometime petition the king for justice, this is known as
petitioning the king.
 The king is regarded as a "Fountain of Justice", from whom the redress could be sought; if a subject
felt that he couldn’t get the justice in the ordinary court, people petition the king to redress their
grievances. They would plead directly, to hear that complaints and to provide them with a remedy.
 The procedure of petitioning the king at that time is petition or bill asking him to do justice in respect
of some complaints.
 This was going on at the same time as the common law courts dealing with the cases. So people
sometime throw themselves on the king’s mercy or the king’s conscience.
 When I felt some reasons that they wouldn’t able to get remedy through the ordinary system through
the common law courts or common law justices, they would petition the king directly and appeal to
the king’s conscience for some kind of remedy.
 Now for a time the king or king’s advisors dealt with these petitions himself, gradually the number of
petitions coming directly to the king began to grow and king developed a practice of passing these
petitions on to his chancellors.
 The chancellor was known as the keeper of king’s conscience. Chancellor was usually clergymen,
bishop or somebody who would be learned in civil and canon law. So the chancellor are trusted
advisors those who knew about the law.
 The king overtime threw his chancellors eventually set up a special court known as a court of chancery.
The idea of court of chancery to deal with these petitions that were not going to the common law
courts and coming directly to the king or appealing to the king to decide the case on the basis of his
conscience.

 The chancellors drive the chancery and issue the writs of permission and other legal documents. The
chancellor dealt with these petitions in different way from the common law justices rather than
looking at the common law precedents.
 What the chancellor would do was to deal with the petitions on the basis of what was morally right or
what seems fair in the circumstances.
 So the chancellor would give whole relief not according to the some strict precedents but according to
the effect produced on his own individual sense of right and wrong by the merits of a particular case
before him.
 Now one has to be careful about this because chancellors would not doing in a completely arbitrary
fashion they were drawing on legal principles known as equitable maxims applying in reaching a
decision when doing in an arbitrary way but they are not doing it using the strict common law
approach adopted by king’s justices in the common law courts.
 So if we think about equity as more fluid and flexible approach to dealing with disputes and grievances.
 In 1474 the chancellor issued first decree in his own name which began the independence of the court
of chancery from the king’s council.
 So what we see in 15th century is the court of chancery establishing itself separately from the king’s
court.
 So we have initially the petition coming directly to the court you have chancellor dealing with those
petitions in a delegated way. But actually in the 15th century you have the chancellor establishing a
separate court of chancery and the court of chancery had new procedures new rights and new
remedies, so what we saying is the development of alternative system of law.
 The equity created new rights by recognizing trusts, chancellor would recognize the idea that the
individual could hold legal title of something but on behalf of other persons so that’s the concept of a
trust. So you may have the title of the land but person entitled to have the land or to have the benefit
to the land the beneficiary is actually somebody else so you hold the legal title of the land somebody
else is the beneficiary. That is the idea of the trust that was a form unknown and unrecognized in
common law but actually chancellor would prepared to recognize the concept of a trust and to give
beneficiaries rights against trustees. The person holding the legal title common law didn’t recognize
this device and regarded the trustees as an owner.
 So we see a difference in approach in the equity also developed the idea of equity of redemption. So
common law under mortgage if mortgagor hasn’t paid the loan once the legal redemption deed has
passed he would lose the property but remain liable to pay loan.
 The equity took the different approach the equity allowed the mortgagor to keep the property if you
paid the loan with the interest right to redeem the property is known as equity of redemption.
 So it’s offering something more offering some remedy that the common law courts couldn’t offer.
 There was a condition that a person seeking equitable relief on the basis of equitable principles, so
they have to show first of all that they wouldn’t obtain the justice in the common law courts, they
wouldn’t have an opportunity to get remedy in the common law courts.
 They also have to show the person bringing the claim a claimant or plaintiff is himself without blame,
the claimant must come to the court with the clean hands.
 They would also have to show that they have not been any delay in bringing the case.
 So the idea is if chancellor is dispensing justice based on fairness and equity, then the person seeking
that remedy that relief have to show they himself are blameless and the justice is being done to them
they didn’t have any blame in the case.
 If the chancellors were convinced that a person had suffered a wrong, then the court will grant a
remedy. The court will devise a way to ensure that something was done to prove right, the wrong have
been done with the person making the claim.
 Now the common law courts have very limited range of remedies, and centrally the main remedy
provided by the common law was compensation as somebody who is complaining about the breach of
contract of some wrong done to them the common law courts would provide the remedy of
compensation.
 Somebody had suffered a wrong the main remedy provided that was money by way of compensation
to put back in the position if wrong wouldn’t have happen to them.
 But there are circumstances that you are actually in a dispute or in some difficulty where having
compensation or being given money is not actually what you want is not much help.
 Then the court of chancery developed new remedies as remedy of specific performance, injunction
rectification and rescission.
 I am going to say more about specific performance and injunction; I will try and give you a sense of
how they developed, why they developed. These remedies were preferable to the circumstances, and
the remedies offered by common law courts.
 Specific performance: Let’s start with the remedy of specific performance. Suppose you have
found your dream house you want to buy the house, the owner is selling the house, you offered to buy
and seller agrees to sell it.
 You have a contract you are very happy about your dream house. Just the point you are going to
complete the sale moving into it, the owner said he changes his mind he doesn’t want to sell the
property, what you have there is a breach of contract.
 If you go to the common law courts for a remedy, the common law courts say absolutely you have a
legally binding agreement and you are entitled to a remedy. What we will give you compensation we
will give you money, but you say I don’t want money; I want my dream house that is the only place I
want. Common law can offer you nothing but if you go to the court of equity you can say we had an
agreement he agreed to sell his house now he refuses to sell the house give me a remedy.
 The chancellor would say in fairness you must do what you agreed he will grant an order of specific
performance that means the person must do the thing that they have agreed to do.
 In this particular instance what would happen, the person who owes the house will be compelled to
sell it to you. That is the much more valuable remedy having the compensation you want.
 Injunction: Now another example is the example of injunction.
 You moved into your dream house, you love it, but the problem is your next door neighbor decides to
keep animals in their house, you are living in your house but your next door neighbor having animals,
can snore can smell and mud etc. what do you do you go to the common law courts and what could I

do about this. The court say it is a kind of a nuisance and give you compensation but you don’t want
compensation, you want to the neighbor to get rid the animals.
 In equity you would be entitled, you might able to get injunction. An injunction is centrally an order
from the court prohibiting somebody from doing something. So the injunction is to stop your neighbor
from keeping animals next door to you.
 Now you are much happier than having the money.
 [Kennaway v. Thompson 1980]
 Rectification: the other one is the rectification which allowed a written document to be changed if
it did not represent the actual agreement made by the parties.
 Rescission: the one more remedy is rescission which allowed parties to a contract to be put back
in their original position in the case of a contract induced by a misrepresentation.
 These are the some of the ways in which equity provided something more, something more flexible
and offering something more valuable that would not available under common law system or in the
common law courts.
 The system of equity the court of chancery developed and grows over the years, in the 19th century
however the court of chancery had begun to develops some of the problems, that had been visible in
common law courts in the 15th century.
 There was a problem that some of the decisions of equity are arbitrary, some of the cases became very
expensive and lengthy.
 During the 19th century particularly under the Lord chancellor Eldon cases in the chancery begun to
come very expensive and positively became very dramatic for people seeking remedy through
chancery.
 In fact there was around a time the Charles Dickens wrote his novel ‘Bleak House’. I recommend this
to anybody who wants to have any understanding how the legal system was operating in 19th century.
The story of bleak house the central issue in the novel of bleak house is the case of Jarndyce and
Jarndyce is a theme running throughout the novel Bleak House by Charles Dickens concerning a
fictional court case in the English Court of Chancery. It’s a case over disputed will, that have been
decided in chancery and this case run throughout the entire the book and the punch line is the case
goes on so many years, so many generations endlessly coming back to the court, endlessly being
debated by lawyers. It takes so long and cost so much money that by the time the decision is given by
the judge in the chancery court at the end and there is nothing left actually no money left and been
spent of lawyers fee.
 Charles Dickens spent some time as a lawyer and he knows some of the process and system of English
civil justice.
 I recommend you the bleak house in which Ch # 1. He described the court of chancery “This is the
court of chancery which has its decaying houses and its blighted (anything that prevents growth or
prosperity) lands in every shire, which has its worn-out lunatic in every madhouse and its deed in every
churchyard, which has its ruined suitor with his slipshod (Marked by great carelessness) heels and
threadbare dress borrowing and begging through the round of every man’s acquaintance which gives

to monied (Based on or arising from the possession of money or wealth) might the means abundantly
of wearing out the right, which so exhausts finances patience, courage, hope so ever throws the brain
and breaks the heart, that there is not an honorable man among its practitioners who would not-give
who does not often give-the warning, “suffer any wrong that can be done you rather than come here, ”
 So as you see Charles dickens was not a fan of court of chancery.
 In 1873 the common law courts under the court of equity actually combined in judicature Act 1873-85.
Where one of the divisions of the current HC is still court of chancery. All courts are not divisible by
common law or equitable principles.
 NEW REMEDIES
 In recent times the courts have used their equitable jurisdiction to develop new remedies:
 Over the past 20 years such as the Mareva Injunctions and the Anton Piller.
 Mareva Injunctions
 Mareva injunction (Court order preventing a defendant from transferring assets until the outcome of
the associated law suit is decided. Named after 1975 UK case 'Mareva Compania Naviera S.A. vs.
International Bulk Carriers S.A.' Also called freezing injunction, freezing order.)
 In 1975 the Court of Appeal recognized the Mareva injunction for the first time. This is a court order
freezing the assets of a party to an action or stopping that party moving the assets out of the country.
 In Mareva v International Bulk carriers [1975] 2 Lloyd's Rep 509, a ship-owner let the 'Mareva' to a
foreign charterer, with payment half monthly in advance. The charterer defaulted on a payment. The
ship-owner found out that the charterers had money in an English bank and sought an injunction
freezing the account. It was held that an order would be granted to stop the charterers from moving
the money abroad before the case was heard. Normally the application will be ex parte, which means
that one party applies without giving notice to the other side for if the other party did have notice,
they could move the assets.
 In The Due Process of Law (1980) Lord Denning described the Mareva injunction as "The greatest piece
of judicial law reform in my time".
 Anton Piller Orders
 In 1974 the High Court started to grant what later became known as Anton Piller orders. This is an
order to a defendant to allow the plaintiff on to the defendant's premises to inspect copy or remove
documents or other objects relating to the plaintiff's property. The aim is to stop the defendant
removing or destroying vital evidence. The defendant may refuse entry, but such action would be
regarded as contempt of court, for which the defendant could be sent to prison. Once again it is an ex
parte application. The use of such orders was confirmed in the following case.
 In Anton Piller v Manufacturing Processes Ltd [1976] Ch 55, the plaintiffs made electrical equipment
and employed the defendants as their agent in the UK. They suspected that he was selling their
technical drawings to competitors and so applied for an order. The court held that an ex parte
mandatory injunction would be granted; to the effect that the plaintiff could enter the defendant's
premises and inspect relevant documents.

 Equity a matter of grace
 The authority by virtue of which the court of chancery created those rights and provided those
remedies arose to its head chancellor.
 In granting relief, equity was exercising the prerogative of the king and therefore, no subject could
claim it as of right that such relief outside the law should be afforded to him.
 While a person seeking relief in a court of law was called a plaintiff in personal actions, and a
defendant in real actions, and in both cases he claimed benefit to which he was entitled. All that the
court had power to do was to decide if his claim was good at law, in granting him relief according to
law.
 A person on the other hand, seeking relief in a court of equity was called a petitioner, and he humbly
prayed the benefit of the court’s grace. He was asking for something which the law did not allow to
him, and which the king alone could give him, by the voluntary exercise of his prerogative entitling him
when he thought proper to interfere and grant relief outside the law.
 Thus equitable relief was always within the discretion of court of chancery, while legal relief was the
right of the concerned party.
 In this way it can be concluded that equity was a matter of grace of the equity court.
 Leaf v International Galleries [1950] 2 KB 86
Facts: In March 1944, Leaf paid £85 for a painting from International Galleries which was described in
the contract as "One original oil painting Salisbury Cathedral by J. Constable". Approximately five years
later Leaf took the painting to Christie's to put it up for auction and was informed that it was not a
Constable. He returned the painting to International Galleries and requested his money back. The
gallery insisted that it was a Constable and refused to give him back his money. Leaf brought an action
for rescission claiming there was innocent misrepresentation and that he paid money on reliance.
Issue: Is a buyer allowed to rescind a contract in equity even though it is executed?
Decision: Appeal dismissed.
Reasons: Denning, writing for a unanimous court, held that counsel for the appellant had claimed the
wrong remedy - there should have been a claim for damages under the Sale of Goods Act, 1893. There
was a mistake as to quality of the painting (not being a Constable) and thus two avenues for breach:
condition and warranty. However, under the Sale of Goods Act, 1893 a person is deemed to have
accepted goods "when after a lapse of a reasonable time, he retains the goods without intimating . . .
he has rejected them" and a reasonable time has definitely passed in this case. If a claim for breach of
condition fails (as it does) then it is necessary by implication that a claim for rescission should fail.
 Equity and Conscience
 The principle conscience is a nebulous (Lacking definition) concept. It generally means a person’s
awareness of right or wrong with regard to his or her own thoughts and actions.
 The word of conscience has also been defined as: ‘The part of your mind that tells you whether your
actions are right or wrong’.
 The court of chancery was a court of conscience; equity originated from the king’s conscience.

 Hence conscience always involves a moral judgment. Nevertheless the principle of conscience as the
foundation of EQUITY has been instrumental in many jurisdictions towards the development of law.
 Where the common law was constrained by precedent and strict procedural and substantive rules,
equity relied on principles of natural justice - or 'conscience' - to decide cases on the basis of right and
wrongs.
 Overseen by the Lord Chancellor, equity became one of the twin pillars of the English legal system with
the Court of Chancery playing an ever greater role in the legal life of the nation. Yet, whilst the
Chancery was commonly - and still sometimes is - referred to as a 'court of conscience', there is
remarkably little consensus about what this actually means, or indeed whose conscience is under
discussion.
 The development of equity has made the law fair, because equity based on conscience.
 Equity has its roots in morality, which means equity take sense of right and wrong into consideration
 Conflict between common law and equity
 There are divergent views expressed by writers in regard to relation of equity with common law.
 Maitland’s fundamental stand is that equity is not in conflict with law. He says, “We ought not to think
of common law and equity as two rival systems. Equity was not a self-sufficient system; at every point
it pre-supposed the existence of common law. Equity without common law had no base and it had no
function to perform without law, because equity supplemented the law. Equity came to fulfill the law,
but not to destroy it.
 It is, however, not possible to establish that there was no conflict between equity and the common
law. The very need or object of equity was to do something which the common law refused or failed to
do. This could not be achieved unless equity evolved a principle of rule opposite, directly or indirectly
in form as well as substance or in substance alone to that existing under the common law.
 England’s Judicature Acts of the 1870s combined the courts of law and equity, establishing that equity
should prevail in the event of conflict.
 The common law courts and Court of Chancery operated separately. On occasion, this led to conflict,
as the common law courts would make an order in favor of one party, and the Court of Chancery the
other party. This situation was resolved by the Earl of Oxford's case (1615), when the King ruled that in
such cases equity would prevail.
 The Court of Equity (or Chancery) became very popular because of its flexibility; its superior
procedures; and its more appropriate remedies.
 Problems arose as to the issue of injunctions: the common law courts objected to the Chancellor
issuing injunctions restraining the parties to an action at common law either from proceeding with it
or, having obtained judgment, from entering it in cases where, in the Chancellor's opinion, injustice
would result. Consequently, a certain rivalry developed between the two courts and this came to a
head in the Earl of Oxford's Case (1616) 1 Rep Ch 1 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.
 Some attempt was made to assimilate the remedies granted by the Court of Chancery and the
common law courts. Thus 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.
 "The two streams have met and still run in the same channel, but their waters do not mix" (Maitland).
 Comparison between common law and equity
Common Law Equity
Originally operated the doctrine of stare decisis The Lord Chancellor in the Court of Chancery
strictly. This meant the law did not develop even was not bound by precedent. Rules were
when it was obviously in need of change. established to ensure fairness was done.
Strict procedural rules were followed. Rules and maxims of equity were developed.
These were flexible to ensure even-
handedness and fairness.
The only remedy available was damages. Recognized the limits of usefulness of money
and created new remedies including
injunctions and order of specific performance.
Common law refers to laws created and upheld Equity, on the other hand, usually refers to
through the rulings of a judge or jury hearing a case. judgments that deal with fairness in justice,
This is also sometimes called case law, and such often stemming from a sense of “natural law.”
precedents are quite important in a legal system that
relies on common law.
English common law was established in the legal Equity, on the other hand, came from the
courts, which were presided over by judges who Courts of Chancery.
served as the source and upholders of the law.
Most cases in common law are heard by a jury, with a Equity cases, however, are typically heard only
judge as arbiter, and decisions can result in by a judge who passes judgment on the case,
punishment or financial restitution. which can take the form of action of action by
Someone who steals a computer, for example, might one party.
be ordered by a common law court to repay the value A court of equity, on the other hand, could
of the computer to the wronged party, which would order the computer be returned to the owner
be just but may not be fair. as a more equitable solution to the situation.
 The effect of judicature Act

 Prior to the judicature Acts, common law and equity were administered in different courts. No court
had full power to grant completely both legal and equitable remedies.
 As a result of the judicature Acts of 1873 & 1875 the courts of common law and court of chancery were
amalgamated together.
 All courts (QBD, Exchequer, common pleas & chancery), were swallowed up by the Supreme Court of
Judicature established under the Acts.
 This Supreme Court was directed to administer both law and equity. What really took place was the
fusion of administration of the two systems, in law and equity.
 As a result of the Act every judge of the high court or the court of appeal which constitute the Supreme
Court is bound to recognise equitable rights and is entitled to grant equitable remedies.
 Though this fusion of administration did not necessitate a wholesale modification of the rules either of
law or of equity, yet wherever equity contradicted rules of law certain adjustment was necessary.
 S. 25 of the judicature Act of 1873 provided that wherever equity contradicted the rules of law, equity
should prevail.
 The rule that equity prevails over law is applicable only to matter of principle and not to matters of
practice. Where there was a difference in the practice of the two courts before the judicature Acts, the
more convenient practice is now followed.
 It should also be noted that the Act fused only the administration of the two systems and it did not
abolish the distinction between legal and equitable remedies or between legal and equitable right.
 Snell observes, “What the judicature Acts have really done is to provide for the administration of law
and equity in the same courts, and for the recognition of those courts of both legal and equitable
rights, remedies and defences, and for the submission of law to equity where they were previously in
direct conflict. It is a fusion of administration rather than of principles. The two streams, as has been
well said, have met, and not run in the same channel but their waters do not mix”.
 Common Law and Equity in the modern world
 Today, most legal systems in the West use both common law and equity. The courts look at common
law first, and then equity. If there is no precedent, a court may consider factors such as existing
statutes, precedents from other countries, and fairness (i.e. equity).
 Equity serves as a way to remedy the sometimes odd pronouncements of common law. One good
example of this is the outdated "a caelo usque ad centrum" land rule, which translates "from heaven
all the way to the centre of the earth”. This refers to rights of a landowner over the property and
everything else above (e.g. the air occupied by a building in the property), on or under its surface (e.g.
mineral rights).
 The rule became a problem because it inhibits the use of land and implies that every time an airplane
flies over a property, landowners can file a suit for trespassing even if the craft is several thousand feet
up in the air. Thankfully, in Bernstein of Leigh v Sky views & General Ltd (1978) QB 479, the court
made an equitable verdict where a landowner’s rights "extend only to a height necessary for the
ordinary use and enjoyment of his land".
 Equity is relevant in the modern world. The growth of equity from the defects in the common law is
relevant. The early contribution of equity in new procedures remedies and also rights. There were two
distinct systems until the Judicature Acts 1873-1875.
 Relevance in the modern world is clear by the development of certain remedies in the 1970s such as
the Anton Pillar Order or search order and the Mareva Injunction the freezing order.

Equity has also allowed the development of various types of estoppel (A rule of evidence whereby a
person is barred from denying the truth of a fact that has already been settled) including promissory
estoppel and proprietary estoppel. The doctrine of estoppel is a principle of equity by which a person
is held bound by the representations made by him, or arising out of his conduct. It is to the effect that
if a person has made a statement or promise to another, intending that other person should act upon
it, he (the promisor) will be estopped (i.e. will be prevented) from denying the truth of his statement or
going back on his promise, once the other person has altered his own position on the basis of the
statement or promise.
“By operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time
and deny at the other. He cannot be allowed to mislead another person into believing in a state of
affairs and then turning round to say to that person’s disadvantage that the state of affairs which he
represented does not exist at all or as represented by him”
 The essence of estoppel is that where you have caused the other party to act on an assumption as part
of the relationship, you will not be allowed to depart from it, or act as if it were not so. You will be
estopped from denying that the assumption is true. If you lead the other party to believe that you will
not enforce certain rights against them, and they act on that information, assuming it to be true - you
may not later go back and put those rights into effect.
 Proprietary Estoppel: Now seen as part of a more general equitable estoppel. This involves doing
something which a person believes will give him rights in or over land. Putting up a building or making
improvements to the land. The actual owner may be estopped from denying the right or title which the
other has assumed to exist.
 Promissory Estoppel: This invariably involves a promise, given by one party during the performance of
a contract, not to hold the other party to the terms of the original contract. As in Foakes where the
landlord says to the tenant that payment of the full rent will not be insisted upon and a lesser amount
will be accepted instead. Why should a landlord wish to do such a thing? Well, there may be problems
letting shops in that area, or at that time. Of course, if the lease still has a period left to run, then the
tenant is legally obliged to pay the full rent. But if the landlord fears that because the shop is not doing
so well, the tenant may not be able to pay the full rent, and then it may be better to accept say two
thirds of the normal rent, rather than have the problem of letting the shop again. But where is the
consideration for the reduction of one third? Some have said that there is none, and that if the
landlord were to subsequently ask for the balance of the rent which is due, the tenant would be
required to pay up.
 It has been thought that this might involve an element of unfairness. That the tenant continued in
occupancy of the premises, in reliance on the statements which were made, and that it should not be
open to the landlord to try and get "the best of both worlds". This is where estoppel comes in - the
party who makes the representation is estopped from denying the truth of the statements which were
made - the statements constituting a representation with regard to a certain state of affairs, An
estoppel can arise in different areas of the law - if it is in connection with property law, it is called a
proprietary estoppel.
 Relevant case laws:
 Hughes v Metropolitan Railway Co (1877) House of Lords
 Birmingham & District Land Co v London & NW Railway (1888)
 D & C Builders Ltd v Rees [1966] Court of Appeal
 Central London Property Trust v High Trees House Ltd [1947] Kings Bench
 THE BEAUTY IN EQUITY – Contributions of Equity to modern day
jurisprudence
 Throughout its evolution, disagreements often arose between equity and the common law as equity is
perceived to be too flexible and without any measure. But in spite of the criticism of equity, there is no
doubt that it has contributed a great deal too modern day jurisprudence and its influence is felt in
many areas of law.
 Equity intervened where the remedy at law was defective. Thus, specific performance is granted to
enforce performance of obligation under a contract where damages are inadequate.
 For the same reason, equity grants an injunction to restrain infringement of rights, the consequences
of whose breach cannot be estimated in monetary terms.
 The Doctrines of Equity have actively participated in the development of many aspects of the laws of
different nations of the world. For instance, at common law, ‘Mistake’ is a vitiating element and the
Proof of ‘mistake’ makes the contract void ab initio. But nevertheless, forms of equitable reliefs are
provided by equity in contractual mistake such as rescission, refusal of specific performance and
rectification.
 Thus, the court will set aside a contract if it will be unfair or create undue hardship, or if one of the
parties (the one requesting enforcement of the contract) ought to have known the other was
mistaken, as was the case in Magee v. Penine Insurance Co. Ltd (1969).
 The court will refuse to grant specific performance of the agreement or of the contract in the interest
of justice, or in order to mitigate the hardship which the party resisting specific performance will
suffer. In Day v. Wells (1861) 30 Beav. 220, the defendant instructed an auctioneer to sell collages
(made by sticking together pieces of paper to form an artistic image), thinking he had told the
auctioneer to put a reserve price on them. When the auctioneer sold without a reserve price at a lower
price, the court refused to decree specific performance of the contract.
 Also, the court in its equitable jurisdiction may allow a written agreement to be rectified either to
exclude a term wrongly or mistakenly included or to include a term wrongly left out. In Joscelyne v.
Nissen (1970), an agreement between a father and his daughter provided for the transfer of his
business and premises and on condition that the daughter would pay the gas and electricity bills. The
terms concerning payment for gas and electricity were mistakenly left out in a subsequent written
agreement. It was held that the document could be rectified to include missing terms.
 The Statute of Frauds requires that an agreement for the sale of land or the transfer of any interest in
land must be in writing, or else, such contract is unenforceable in law. But where a party to an oral
contract has performed his own part of the contract, in the expectation that the other party would
perform the rest of the contract, the court will not allow the latter to escape his contractual liability by
pleading non-compliance with the statute, but will order specific performance. This is an ‘equitable
intervention’ achieved by means of the doctrine of part-performance.
 In the case of Udolisa v. Nwanosike (1973) E.C.S.L.R. 653, the defendant’s agents approached the
plaintiff with the proposition that the plaintiff should demolish the mud building on her (defendant’s)
land, build a modern house on it and on payment of £200, will be given a lease of the new premises by

the defendant. The plaintiff accordingly demolished the mud house, put up a modern building and paid
£200 to the defendant. The defendant subsequently refused to execute a lease of the premises. Rather
she requested the plaintiff to pull down his building and re-erect her own mud building which had
been demolished. The plaintiff brought an order of specific performance against the defendant. The
defendant counsel argued inter alia (Among other things) that the agreement was unenforceable since
being one involving the transfer of an interest in land; it was not in writing as required by the Statute of
Frauds.
The court held that since it was neither possible or just to require the plaintiff to remove his building
from the defendant’s land and restore her old thatched building, and also in view of the fact that the
plaintiff had performed his part of the contract, it (the court) would exercise its equitable jurisdiction
to order the specific performance of the lease agreement. And this it did.
 Under Land Law, equity provides for the doctrine of laches and acquiescence which estops a person
from laying claim to property he had previously pretended was not his. The authorities such as Mogaji
v. Nuga (1960), Agonran v. Olishi (1967) establish that where a land owner stood by and knowingly by
his inaction allowed a stranger to develop the land in good faith without the owner appraising the
stranger the defect of his title, then the doctrine of acquiescence may properly be invoked to estop the
owner of from reaping the benefit of the stranger’s labour.
 In the area of Trust, equity recognizes the beneficiary of the trust as a holder of an equitable right in
the property, so as to prevent mismanagement of the property by the trustee. This is contrary to the
old common law position which made the trustee unaccountable and the latter was free to use the
trust property as he wished.
 Under the Laws of Succession, The basis of the decision was that the customary law in question which
permits the son of the brother of the deceased to inherit the property of the deceased to the exclusion
of the deceased’s female child was a clear case of discrimination, thus violating the principles of
equality and equity.
 Furthermore, it cannot be ignored that Equity is the foundation of many legal instruments in the world
today. The doctrines of equity are clearly present in local enactments, treaties, conventions and
constitutions all over the world.
 In the process of Interpretation of the Constitution by the courts, the adoption of the purposive
approach is clearly in consonance with upholding the doctrines of equity and doing justice at all cost.
 Indeed examples of equity’s contribution to the contemporary law can hardly be exhausted but the
few contributions mentioned above illustrate the importance of equity; the beauty in equity.

Maxims of Equity
 Introduction
 The function of equity was to administer adequate relief in cases where common law courts failed to
do so.
 Till the appointment of Lord Nottingham (1673-1682, who has been called “father of modern equity”)
as chancellor, there were no principles to guide the courts of equity in granting such relief, and it was
no exaggeration to say that equity depended on the length of the chancellor’s foot.
 A chancellor exercised his powers on the ground of conscience. Gradually, however, the principles
upon which courts of equity acted in their work of supplementing the common law became crystallized
and were known as the maxims of equity.
 These maxims embody the general principles by which the courts of equity are guided.
 The learned author Keeton gives two reasons for the maxims gaining general currency:
- The text book writers have used them as a convenient method of classifying certain parts of
equity which it would otherwise be rather difficult to assemble systematically.
- The second reason for the currency of maxims would appear to be providing some theoretic
justification for the existence of equity jurisdiction and also to provide an atmosphere of
antiquity to equity jurisdiction.
 The court of chancery in England exercised jurisdiction on certain general principles to supplement the
rules and procedure of common law in order to ensure complete justice being done to the litigants.
These principles are known as the maxims of equity.
 The rules that have been accepted by proceeding judges became precedent and are now known as
maxims and are used as guidelines by the court. I agree with the statement by Denning as equity is
born from the interpretation of judges and there problem solving abilities.
 It is my opinion that although Equity dates back hundreds of years and the law are still just as relevant.
There are alterations to the law as recent as I am of the opinion that as long as there are judges to
create precedent there can be new law created in equity.
 These are the general legal principles that have been adopted threw following precedent in regard to
equity. These maxims are the body of law that has developed in relation to equity and these help to
govern the way equity operates. All maxims are discretionary in nature and courts may choose
whether they wish to apply these principles.
 They do not cover the whole of the subject matter of equity and moreover they overlap.
 Equitable maxims have been vital tools in the development of justice.
 The maxims of equity evolved, in Latin and eventually translated into English, as the principles applied
by courts of equity in deciding cases before them.
 EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY
 Meaning: Where there is a right there is a remedy or no wrong without a remedy. This idea is
expressed in the Latin Maxim Ubi jus ibi remedium. It means that no wrong should go undressed if it is
capable of being remedied by courts. This maxim indicates the width of the scope and the basis of on
which the structure of equity rests. This maxim imports that where the common law confers a right, it
gives also a remedy or right of action for interference with or infringement of that right.

 Application and cases: In Ashby v. White, wherein a qualified voter was not allowed to vote and who
therefore sued the returning officer; it was held that if the law gives a man a right, he must have a
means to maintain it, and a remedy, if he is injured in the enjoyment of it.
 In cases where some document was with the defendant and it was necessary for the plaintiff to obtain
its discovery or production, recourse to the Chancery Courts had to be made for the Common Law
becoming ‘wrongs without remedies’.
 Limitation
- If there is a breach of a moral right only.
- If the right and remedy both were in within the jurisdiction of the Common Law Courts.
- Where due to his own negligence a party either destroyed or allowed to be destroyed, the
evidence in his own favors or waived his right to an equitable remedy.
 EQUITY FOLLOWS THE LAW
 Meaning: The maxim indicates the discipline which the Chancery Courts observed while administering
justice according to conscience. As has been observed by Jekyll. M.R: ‘The discretion of the court is
governed by the rules of law and equity, which are not to oppose, but each, in turn, to be subservient
to the other.” Maitland said, “Thus equity came not to destroy the law but to fulfill it, to supplement it,
to explain it.” The goal of equity and law is the same, but due to their nature and due to historic
accident they chose different paths. Equity respected every word of law and every right at law but
where the law was defective, in those instances, these Common Law rights were controlled by
recognition of equitable Rights. Snell therefore explained this maxim in slightly different way: “Equity
follows the law, but not slavishly, nor always.”
 Application and cases: At common law, where a person died intestate who owned an estate in fee-
simple, leaving sons and daughters, the eldest son was entitled to the whole of the land to the
exclusion of his younger brothers and sisters. This was unfair, yet no relief was granted by common law
Courts. But in this case it was held that if the son had induced his father not to make a will by agreeing
to divide the estate with his brothers and sisters, equity would have interfered and compelled him to
carry out his promise, because it would have been against conscience to allow the son to keep the
benefit of a legal estate which he obtained by reason of his promise.
 Stickland v. Aldridge &
 Loffus v. Maw.
 Equity follows the law and even if by analogy law can be followed, it should be followed.
 Limitation
- Where a rule of law did not specifically and clearly apply
- Where even by analogy the rule of law did not apply
 HE WHO SEEKS EQUITY MUST DO EQUITY
 Meaning: The maxim means that to obtain an equitable relief the plaintiff must himself be prepared to
do ‘equity’, that is, a plaintiff must recognize and submit to the right of his adversary. The simple
meaning of the maxim is that if a litigant claims something by way of equity, he must be ready and
willing to grant to the other party that which belongs to that party in equity. The maxim expresses that

equity the person seeking the assistance of court of equity must himself do i.e. act fairly. Islam also
informs us to be conscientious:
 Who when they take by measure from others, exact the full;
 Application and cases:
 This maxim has application in the following doctrines-
- Illegal loans
- Doctrine of Election
- Consolidation of mortgages
- Notice to redeem mortgage
- Wife’s equity to settlement
- Equitable estoppel
- Restitution of benefits on cancellation of transaction
- Set-off
 Illegal loans: In Lodge v. National Union Investment Co. Ltd., the facts were as follows. One B
borrowed money from M by mortgaging certain securities to him. M was a unregistered money-lender.
Under the Money-lenders’ Act, 1900, the contract was illegal and therefore void. B sued M for return
of the securities. The court refused to make an order except upon the terms that B should repay the
money which had been advanced to him.
 Doctrine of election: Where a donor A gives his own property to B and in the same instrument
purports to give B’s property to C, B will be put to an election, either accept the benefit granted to him
by the donor and give away his own property to C or retain his own property and refuse to accept the
property of A on condition. But B cannot retain his property and at the same time take the property of
A.
 Consolidation of mortgages: Where a person has become entitled to two mortgages from the same
mortgagor, he may consolidate these mortgages and refuse to permit the mortgagee to exercise his
equitable right to redeem one mortgage unless the other is redeemed. The right of consolidation now
exists in England but after the enactment of the Law of Property Act, 1925, it can exist only by express
reservation in one of the mortgage deeds.
 Notice to redeem mortgage: Notice to a mortgagor to redeem one’s mortgage is an equitable right of
the mortgagor.
 Wife’s equity to a settlement: There was a time when woman’s property was merged with that of her
husband. She had no property of her own. Equity court imposed on the husband that he must make a
reasonable provision for his wife and her children. But, now, Under the Law Reform (Married Women
and tortfeasor’s) Act, 1935, married women have full right on her property and it is not consolidated
with her husband’s property.
 Equitable estoppel: A promissory estoppel arises where a party has expressly or impliedly, by conduct
or by negligence, made a statement of fact, or so conducted himself, that another would reasonably
understand that he made a promise thereon, then the party who made such promise has to carry out
his promise.

 Restitution of benefits on cancellation of transaction: It is proper justice to return the benefits of a
contract which was voidable, and, equity enforced these principles in cases where it granted relief of
rescission of a contract. A party cannot be allowed to take advantage of his own wrong.
 Set-off: Where there have been mutual credits, mutual debts or other natural dealings between the
debtor and any creditor, the sum due from one party is to be set-off against any sum due from the
other party, and only the balance of the account is to be claimed or paid on either side respectively.
 Limitation
 The demand for an equitable relief must arise from a suit that is pending.
 This maxim is applicable to a party who seeks an equitable relief.
 HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS
 Meaning: Equity demands fairness not only from the defendant but also from the plaintiff While
applying this maxim the court believed that the behavior of the plaintiff was not against conscience
before he came to the court. When a plaintiff who seeks the protection of equity, has violated
conscience or good faith, equity will refuse to aid him, to acknowledge his right, or to award him any
remedy.
 Application and cases: In Highwaymen case, two robbers were partners in their own way. Due to a
disagreement in shares one of them filed a bill against another for accounts of the profits of robbery.
Courts of equity do grant relief in case of partnership but here was a case where the cause of action
arose from an illegal occupation. So, the court refused to help them.
 The working of this maxim could be seen while giving the relief of specific performance, injunction,
rescission or cancellation.
 Limitation
 General or total conduct of the plaintiff is not to be considered. It will be seen whether he was of clean
hands in the same suit he brought or not. Brandies J. in Loughran v. Loughran said that “Equity does
not demand that its suitors shall have led blameless lives.”
 Exception
- If the transaction is against public policy
- If the party repents for his conduct before his unjust plans are carried out.
 Overton v. Banister
 D & C Builders v Rees [1966]
 High Trees through Davis v Johnson
 DELAY DEFEATS EQUITIES
 Meaning: A Latin term in this regard is “Vigilantibus, non dormentibus, jura subvenient.” which
means “Equity aids the vigilant and not the indolent”. So, if one sleeps on his rights, his rights will slip
away from him. Legal claims are barred by statutes of limitation and equitable claims may be barred
not only by limitation law but also by unreasonable delay, called laches. This principle recognizes that
an adversary can lose evidence, witnesses, and a fair chance to defend himself or herself after the
passage of time from the date that the wrong was committed. If the defendant can show
disadvantages because for a long time he or she relied on the fact that no lawsuit would be started,
then the case should be dismissed in the interests of justice. The law encourages a speedy resolution
for every dispute. It does not favor the cause of someone who suddenly wakes up to enforce his or her
rights long after discovering that they exist.
 Application and cases
 The equitable rule of laches and acquiescence was first introduced in Chief Young Dede v. African
Association Ltd. (1910)
 Doctrine of laches- Plaintiff’s unreasonable delay is a weapon of defence by the defendant against the
plaintiff.
 In a case, the plaintiff allowed his land to be occupied by the defendant and this was acquiesced by him
even beyond the period of limitation. On a suit of the land it was decided that as the period of
limitation to recover possession had expired, no relief could be granted. Also the case of Allcard v.
Skinner is worth mentioning here.
 Limitation
 This maxim does not apply when-
 Where the law of limitation expressly applies
 Where it applies by analogy, and
 Where the law of limitation does not apply but the cases are governed by ordinary rules of laches.
 EQUALITY IS EQUITY
 Meaning: Plato defined that “If you cannot find any other, equality is the proper basis.” This maxim is
also explained as “equity delighteth in equality”, which means that as far as possible equity would put
the litigating parties on an equal level so far as their rights and responsibilities are concerned. This
maxim flows from the fundamental notion of equality or impartiality due to the conception of equity,
and is the source of many equitable doctrines. This maxim is of very wide application. It aims at
equality and impartiality. This rule of ordinary law may give one party an advantage over the other, but
a court of equity will, where it can, put the parties on equality. Equity proceeds on the principle that a
right of liability should as far as possible be equalized among all interested. This maxim is illustrated by
equity’s dislike of joint tenancy owing to the right of a surviving joint tenant to take the whole of the
property.
 Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been
sometimes called proportionate equity.”
 Application and cases
 Application of this maxim can be understood from the following:
- Equity’s dislike for joint tenancy and presumption of tenancy-in-common
- Equal distribution of joint funds and joint purchases
- Contribution between co-trustees, co-sureties and co-contractors
- Ratable (Liable to payment of locally assessed property taxes) distribution of legacies
 EQUITY LOOKS TO THE INTENT RATHER THAN THE FORM
 Meaning: Common law was very rigid and inflexible. It could not respond favorably to the demand of
time. It regarded the form of a transaction to be more important than its substance. It looked to the

very letter of the agreement and not the intention behind it. On the other hand, Equity looks to the
spirit not to the letter; it looks to the intention of parties and not to the words.
 This maxim, in other words, is stated as “equity regards substance rather than form”. It means that
equity regards the spirit and not the letter of the law and that the actual words of the contract are not
as material as the actual intention of the parties entering into it. Equity always attempts to get at the
substance of things and to ascertain, uphold and enforce rights and duties which spring from real
relations of the parties. It will never allow the mere appearance and external form to conceal the true
purpose, subject and consequences of a transaction.
 Application and cases: In case of sale of land, if a party fails to complete it within the fixed for it, he is
at Common Law, in breach of the contract, but equity does not take this rigid attitude. It allows a
reasonable time to the party to complete it.
 [Berry v. Berry 1929]
 Between equal equities the first in order of time shall prevail
 This maxim operates where there are two or more competing equitable interests; when two equities
are equal the original interest (i.e., the first in time) will succeed.
 When two parties each have a right to possess something, then the one who acquired an interest first
should prevail in equity. For example, a man advertises a small boat for sale in the classified section of
the newspaper. The first person to see the ad offers him £20 less than the asking price, but the man
accepts it. That person says he or she will pick up the boat and pay for it on Saturday. Meanwhile
another person comes by, offers the man more money, and the man takes it. Who owns the boat?
Contract law and equity agree that the first buyer gets the boat, and the second buyer gets his or her
money back.
 Equity will not aid a volunteer
 Equity cannot be used to take back a benefit that was voluntarily but mistakenly conferred without
consultation of the receiver. This maxim protects the doctrine of choice.
 This maxim is very important in restitution. Restitution developed as a series of writs called special
assumpsit, which were later additions in the courts of law, and were more flexible tools of recovery,
based on equity. Restitution could provide means of recovery when people bestowed benefits on one
another (such as giving money or providing services) according to contracts that would have been
legally unenforceable.
 However, pursuant to the equitable maxim, restitution does not allow a volunteer or "officious
intermeddler" to recover. A volunteer is not merely someone who acts selflessly. In the legal (and
equitable) context, it refers to someone who provides a benefit regardless of whether the recipient
wants it. For example, when someone mistakenly does not build an improvement on a home, equity
nor restitution will allow the improver to recover from the homeowner.
 An exception to this maxim can be seen in cases where the doctrine of estoppel applies.

 Questions from past papers
Q1. ‘Equity was nothing more than a gloss on the common law’. Critically evaluate this statement and
assess the past and present contributions of equity to the growth of the common law. [October/
November 2004]
Q2. Identify some of the rights and remedies introduced by Equity to English Law. Explain why they were
necessary and assess whether they have been effective. [May/June 2005]
Q3. Equity is irrelevant in the modern world. Discuss. [May/June 2006]
Q4. Equity still has a role to play in English Law. Discuss. [October/November 2006]
Q5. The development of Equity has made the law more fair Discuss. [May/June 2007]
Q6. He who comes to Equity must come with clean hands. (D & C Builders v Rees [1966]), Consider
critically the contribution made by equity to the law. To what extent does it remain relevant? [May/June
2008]
Q7. ‘Equity has brought benefits to many litigants who would otherwise have been severely disadvantaged
by the common law’. Discuss, with reference to decided cases. [May/June 2009]
Q8. ‘The system of equity is a very great system’. (Charles Dickens in Bleak House) With reference to
decided cases, analyse the extent to which this statement can be substantiated. [May/June 2010]
Q9. ‘Equitable maxims and equitable remedies have been vital tools in the development of justice’.
Identifying and illustrating both maxims and remedies, discuss how far you would agree with the above
statement. Your answer should refer to decided cases. [October/November 2010]
Q10. In 1990, Lady Carbury purchases a painting from the art dealers Melmotte & Co, which they assure
her is the work of the celebrated artist Ghiselli. In 2009 she takes the painting to the television programme
‘the Fine Art Roadshow’, where an expert advises her that her picture is a worthless fake. She now wishes
to recover from Melmotte & Co. the £20,000 she paid for the painting. Discuss briefly whether equity will
assist her. To what extent has equity generally assisted those seeking remedies in the civil courts?
[May/June 2011]
Q11. Mrs. Norris agrees to pay £5000 for the landscaping of her garden. Rushworth completes the work
satisfactorily. Aware that Rushworth has gambling debts and is in urgent need of money, Mrs. Norris tells
him ‘You can have £4000 immediately – but not a penny more! Even. Would equity assist either party in
this situation? To what extent have equitable remedies and maxims promoted fairness in the law?
[October/November 2011]
Q12. ‘Equity has its roots in morality’. Discuss. [May/June 2012]
Q13. Equity is merely a gloss on the Common Law. Discuss the accuracy of this statement, using cases and
examples. [May/June 2014]

 Class activity
 Give practical example of use of common law in recent days.
 How the customs are practiced in our locality, support your discussion from recent customs.
 How can you define common law?
 Historical overview charting the development of law from customary law to the creation of common
law and the development of equity in response to societal problems.
 Write a definition of equity.
 Awareness of remedies, maxims and equitable concepts.
 A series of mini case studies where learners can identify the appropriate remedy/maxim concept etc.
 Use of appropriate case example to illustrate these concepts. Learners should seek out modern day
applications where possible.

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Lecture # 4

Common Law and Equity

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 The effect of judicature Act

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Q12. ‘Equity has its roots in morality’. Discuss. [May/June 2012]

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