Development of Equity

Nature of Equity

Equity is a body of principles and procedures which developed side by side with the common law and statute law. Early common law was rigid and could produce arbitrary and unjust results in many cases. Equity originated with the Courts of Chancery, which sought to mitigate the harshness of the early common law.

As a court of conscience, equity was not bound by the rigours of the common law. The Courts of equity were synonymous with conscience, fairness and even-handed dealing. In its formative years, it emphasised common sense, flexibility and fairness. Equity was and largely remains flexible, discretionary and responsive to circumstances than the common law.

The early Chancellors had ecclesiastical backgrounds and were trained canon lawyers. They dispensed justice in accordance with principles of conscience and morality. Some of the earlier Chancellors considered themselves to be keepers of the King’s conscience. Some early Chancellors took the view that the law should follow the law of God.

Equity modified and supplemented the common law. It rivalled the common law but did not seek to destroy it. Equity contributed new remedies to English law. Where common law remedies were unsuitable, equity supplemented them with more flexible remedies. This is seen clearly in the remedies of specific performance and injunction, which are available where damages would be an inadequate remedy.

Equity introduced new procedures, including that of discovery. It enforced new rights and developed new institutions, in particular, that of the trust.

The maxims of equity are epitomes or short statements of key principles. See separately the chapter on the maxims of equity.