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Origins and Nature of Equity Some parts of equity you may recognise. You will have come across it in Contract, breach (remedies) and it also relates to co-ownership issues in property law. Equity is a little bit difficult to get used to as a concept- it is thus easier to briefly examine its origins and history. Until the Judicature Acts were passed in the 1870s, Equity was a separate jurisdiction. Since then it is no longer a separate/supplementary jurisdiction but rather has developed through the common law. Before the Judicature Acts, Equity was applied and administered by the Court of the Chancery. In the 14th/ 15th Centuries, if an individual had a common law action he went to the Common law courts for redress. If his grievance was not resolved by the common law, he had to turn to the Chancery Courts for redress- for example, if he wanted damages, he sought them at common law but if an injunction was desired, he had to look to Chancery. Chancery offered specific performance of the obligation. Prior to the 18th Century, the Chancellor was the most important man in the kingdom after the monarch. It was he who issued writs, allowing plaintiffs to proceed with their actions in court. A Plaintiff could only sue if his action/complaint came within the scope of an existing writ. These writs were very specific in their application and covered only very narrow ground. The Common law was thus frozen by its inflexibility. Because the action by writ was so limited, people began to petition the Chancellor directly, requesting that he exercise discretion. The Chancellor then began to receive these petitions and started to run his own court, where he would receive the parties. He had the power to subpoena people to this court, a power the common law judges did not enjoy. Thus the Chancellor's court developed, dealing with work that could not be dealt with by the common law judges. However, people soon realised that the Chancellor afforded better justice and therefore began to bring common law actions before the Chancellor as well. The Chancellor was not so much concerned with case law and precedent but rather an individual sense of right and wrong (idea of the 'Chancellor's foot'). Thus equity came into its own. Although the jurisdiction was vague and undefined, the Chancellor gave justice according to conscience. This is not how equity functions nowadays, however- it is not simply a case of going to court and seeing what mood the judge is in today! The Chancellor was developing things which were equitable (eg. specific performance, injunctions and other equitable remedies) but the most far-reaching development was the trust. What is a trust?? The following gives a simple illustration: A gives land to B. However, A does not want B to own the land just yet and thus passes it to C on the undertaking that he hold it for B.
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