Thursday, March 14, 2013

What is equity?

If asked ‘what is equity?’ the addressee will likely respond that: equity is to do what is fair; it means to do justice; it is to do what is right. The list could continue. If the question is posed after the year 1875—which was the year when the rules of equity became fully developed—the addressee could easily say, as Maitland once said, that ‘it is that body of rules which is administered only by those courts which are known as Courts of Equity’(Maitland Equity (Cambridge: Cambridge University Press, 1947) at 1). But it would be incorrect to defi ne equity as such today because there are no courts that can now be called courts of equity.

Furthermore, one may also defi ne equity in the years post 1875 as ‘that body of rules administered by the English courts of Justice which, were it not for the operation of the Judicature Act, would be administered only by those courts known as Courts of Equity’(Maitland at 1). As with the previous defi nition, this latest one is poor because, despite acknowledging that equity forms a part of the substantive English law, it
describes this part and distinguishes it from other aspects of the law by reference to courts that are no longer in existence.

We may even add another drawback to such a handicapped defi nition of equity as just given. In stating that equitable rules, or the rules of equity, are administered by English courts of justice after 1875, we raise certain ambiguities as to what part of equity is now administered with common law. As will be seen later, while the Judicature Acts undoubtedly brought equity and common law together within one judicial system, the question remains as to what the exact effects of these Acts are. Did the Acts ‘fuse’ the rules of equity and common laws—which undoubtedly used to be administered separately by different courts before 1875—or did they simply ‘unify’ or ‘amalgamate’ the previous different administrations of equity and common law and entrust this upon the shoulder of a single court?

Equity is the means by which a system of law balances out the need for certainty in rule making on the one hand, with the need for suffi cient judicial discretion to achieve fairness in individual factual circumstances on the other.

Equity is a body of principles, doctrines, and rules developed originally by the old Court of Chancery in constructive competition with the rules, doctrines, and principles of Common Law Courts but now applied, since the Judicature Acts, 1873–5, by the unifi ed Supreme Court of England and Wales.

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