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Hadith From Abu Darda.

• “If anyone travels on a road in search of knowledge, Allah will cause him to travel on one of the roads of Paradise. The angels will lower their wings in their great pleasure with one who seeks knowledge, the inhabitants of the heavens and the Earth and the fish in the deep waters will ask forgiveness for the learned man.

• The superiority of the learned man over the worshipper is like that of the moon, on the night when it is full, over the rest of the stars. The learned are the heirs of the Prophets, and the Prophets leave neither dinar nor dirham, leaving only knowledge, and he who takes it takes a big fortune.” [Abu Dawud]

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HISTORY & DEVELOPMENT OF EQUITY

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LEARNING OBJECTIVES

At the end of the lecture, student will be able to :

know various definition of equity understand how Equity develops appreciate the roles of equity know the concept of fusion of equity know and apply the current position of equity

after fusion

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Meaning of Equity

Layman terms equity = justice and fairness. Equitably = acting ‘fairly’ Related to Judicial decisions where cases

should be decided in a way which is fair and right so justice is achieved between parties.

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The state, quality, or ideal of being just, impartial, and fair. Something that is just, impartial, and fair. Law.

Justice applied in circumstances covered by law yet influenced by principles of ethics and fairness.

A system of jurisprudence supplementing and serving to modify the rigor of common law.

An equitable right or claim. Equity of redemption.

The residual value of a business or property beyond any mortgage thereon and liability therein.

The market value of securities less any debt incurred. Common stock and preferred stock.

Funds provided to a business by the sale of stock.

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A system of law originating in the English chancery and comprising a settled and formal body of substantive and procedural rules and doctrines that supplement, aid, or override common and statutory law

A body of doctrines and rules developed to enlarge, supplement, or override any narrow or rigid system of law

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Latin word Aequitas meaning Equity Hanbury Foundation of Equity is ‘justice and

conscience’ –the sense of right and wrong that governs a person’s thoughts and actions.

A supplementary jurisdiction, an appendix or gloss on the common law,

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Common law Common Law came from the Anglo-Saxon

and Norman Times. Forms the major part of the law of many

countries The term was officially used only at the end

of 13th century, based on tradition, custom and precedent

Prior to institutional system, the England and its counterparts were governed by unwritten local custom that varied from community to community, county to county

Henry II, 1154, institutionalized common law

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Sources of Common law-some

Custom Roman law division of public and private law Canon law-protection of rights, trusts, charitable

trusts, legitimacy Charters Statutes Plea Rolls Law reports

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Common Law Courts

During the 12/13th Century, English Kings developed 3 system of Courts at Westminster Court of Exchequer Court of Kings Bench Court of Common Pleas

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Actions in Common Law Courts

♥ Actions begun by Royal Writ ♥ Definition of Writ-–A Command♥ Primarily an administrative document,

authenticated by a seal, in form of a letter.♥ Procedure♥ Action began with a writ, obtainable only

from the King’s chancellor

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The writ chosen would result in a particular form of action and appropriate procedure

Procedures are important-an error in formalities- loss of remedy-case dismissed

The Rule of ‘Ubi remedium, ibi jus’-where there is remedy there is a right, unless there is an appropriate writ, there is no cause of action

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Defects of the CL

Remedies Writ Jury – trial of facts Sources of rules : general guides known as

maxims

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EQUITY = ?

A result of the weaknesses of the CL system

WHY EQUITY?

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Definition

Hanbury Wide- fair and just, moral and ethical Technical branch of law before the COJ 1873

was applied Administered in the Court of Chancery Body of rules to mitigate the severity of the

rules of the common law court

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Maitland; In origin based on moral principles designed

to removed injustices incapable of being dealt with in the common law courts.

A supplementary jurisdiction, an appendix or gloss on the common law.

Equity had come, not to destroy the law but to fulfill it.

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Maine: any body of rules existing by the side of the original civil law. Founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sactity inherent in these principles.

Snell : layemen equity means justice. Law administered by the Court of Chancery

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Equity ….

Foundation : Conscience and Justice Alternative solution / remedy

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Chancery Courts

By 15th Century-Officially-known

THE CHANCELLOR Maitland described him as ‘the King’s prime

minister’ or ‘the king’s secretary of state for all departments’

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Chancellor

Issue Royal Writs Early duration 13/14th century merely giving

relief to the cases ecclesiastic, civil law and canon law

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History of the Court of Chancery

Remove injustice Edward 1-petitions addressed to the

Chancellor and the Council Dealt with procedural matters; issuing writs,

collecting fines etc Only in 1474 that the Chancellor made a

decree upon his own authority-Court of Equity

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Weaknesses of the Chancery Court

Interference-Frequent 17/18 –defect-corruption and abuse-delaying

tactics Inadequate number of judicial staff- Too many incompetent officials Heavy expenses-procedure complex, slow,

bribery

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Jurisdiction Provide remedies –Equity acts in personam Chancellor-ecclesiastic, civil law and canon law no defined jurisdiction Judgements-conscience and natural justice John Selden-Equity varies like the Chancellor’s

foot-wide discretion Issues subpoena Q-law and fact

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Chellaram v. Chellaram [1985]1 ALL ER 1043 at 1053 Scott J. The jurisdiction of the court to administer

trusts …is in a personam jurisdiction.

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continue

End of 17th -rigor aequitatis Precedent Lord Nottingham –Father of Modern Equity Court of Conscience to Court of Precedent

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Fusion of Common Law and Equity

Fusion of Equity and law or of their administration?

Growth of Equity Conflict

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Several Acts before the Fusion

Bankruptcy Act 1831 : transferred the jurisdiction in bankruptcy to common law

Chancery Act 1833 : Regulated proceedings and practices of certain offices of the the High Court of Chancery in England

Chancery Act 1841 : equitable jurisdiciton of the Court of Excheqer was transferred to Court of Chancery

Court of Chancery Act 1850 : diminished delay and expense of proceeding

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Court of Chancery Act 1851 : A court of Appeal was set up. Appeal to the HOL. Lord Justice and the Chancellor may sit together of alone

Common Law Procedure Act 1852 : combination of Common Law and Equity

Court of Chancery Procedure Act 1851 : Chancery Court to hear matter of law.

Common Law Procedure Act 1854 : Fusion was advance, powers are given to CL Courts to issue prohibitory injunctions, discovery documents etc

Chancery Amendment Act 1858 : Lord Cairns Act ; to award damages

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Judicature Act 1873- 1875

Supreme COJ 1873-1875 Came into operation on Nov 1st 1875 To establish one Supreme Court Concurrent administration in the Supreme

Court rules of Equity and Law Ashburner : “the two streams of jurisprudence, though

they run in the same channel, run side by side, and do not mingle their water.”

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Equity –At present

UK –one system US – Delaware- 2 separate systems AREAS of Equity – Unconscionability Fiduciary principles Estoppel Trust Relief