A PROJECT

ON

EQUITY IN COMMON LAW

[Submitted as a partial fulfilment of the requirements for B.A.L.L.B. (Hons.) 5 Year

Integrated Course]

Session: - 2019-20

Submitted On:-

11/09/2019

Submitted By: - Submitted To: -

SHUBHAM SONI Ms. SHATAKSHI
ROLL NO:- 79 JOHRI
SEMESTER:- V, B

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 University Five Year Law College,

University of Rajasthan, Jaipur

CERTIFICATE

Ms. SHATAKSHI JOHRI DATE: 11/09/2019

Faculty
University Five Year Law College
University of Rajasthan, Jaipur.

This is to certify that Mr SHUBHAM SONI student of semester V, sec. B has carried out
project titled EQUITY IN COMMON LAW under my supervision. It is an investigation
report of a minor research project. The student has completed research work in stipulated
time and according to the norms prescribed for the purpose.

Supervisor

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 DECLARATION OF ORIGINALITY

I, SHUBHAM SONI, hereby declare that this project title “EQUITY IN COMMON
LAW” is based on the original research work carried out by me under the guidance and
supervision of “Ms. SHATAKSHI JOHRI”.

The interpretations put forth are based on my reading and understanding of the original texts.
The books, articles, websites etc. which have been relied upon by me have been duly
acknowledged at the respective places in text.

For the present project which I am submitting to the university, no degree or diploma has
been conferred on me before, either in this or any other university.

Signature
DATE:-11/09/2019 SHUBHAMSONI
ROLLNO.:- 79
SEMESTER:- V, B

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 ACKNOWLEDGEMENT

I have written this project “EQUITY IN COMMON LAW” under the supervision of “MS.
SHATAKSHI JOHRI” Her valuable suggestions herein have not only helped me
immensely in making this project but also in developing an analytical approach to this work.

I would like to express my sense of gratitude for Director, Dr.SanjulaThanvi and Deputy
Directors Mr. Manoj Meena& Mr. Abhishek Tiwari for constant encouragement at every
step.

I am extremely grateful to the library staff and the librarian of the college for the support and
Cooperation extended by them from time to time.

SHUBHAM SONI

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 INTRODUCTION

DEFINITION OF EQUITY

[1] Plato: Equity is a necessary element supplemental to the imperfect generalisation of legal
rules.

[2] Black Stone: Equity is the soul and spirit of all law.

[3] Maitland: We ought not to think of common law and equity as of two rival systems but
we ought to think of equity as supplementary law which used to administered by the high
court of justice as a part of code.

Thus, equity is an original attempt to solve the riddles of law, where difficult and complex
problems confront our legal systems.

DEFINITION OF EQUITY IN ENGLISH LAW

[1] Equity means a claim to the interposition of the court of chancery and it is no less equity
because the aid of chancery is sought to protect a legal right- Wadsworth.

[2] Equity is a body of rules, the primary source of which was neither custom nor written law,
but the imperative dictates of conscience and which had been set forth and developed in the
court of chancery- Henry levy-ulman.

[3] A portion of natural justice which, though of such q nature as properly to admit of being
judicially enforced was from circumstances hereafter, to be noticed, omitted to be enforced
by common law courts-Snell.

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 CHAPTER 1

1.1 ORIGION OF COMMON LAW

Prior to the Norman conquest in the eleventh century certain customs and usages had become
common to almost the whole of England and now and then some of them were also
recognised in their dooms issued by kings, with the advent of the Normans they swelled in
number in an unwritten form. The king judge in course of hearing a case try to find out these
common custom and based their decision thereon. The view of one judge was then adopted
by another, because that course saved the judges the trouble of ascertaining such customs and
usages again and again and in this way grew the precedents and the doctrine of stare decisis.
In course of time these customs were applied by judges as having the force of law and thus
developed a body of rules which, as professor Munro says had really never been ordained but
an monarch or enacted by any legislative body, but which early represented the crystallization
of usages and customs, and these gradually came to be known as the common la.

By the time of Edward I, common law had taken definite shape. It was administered by
king’s justice on circuit and three common law courts, namely, king’s Bench, Common Pleas
and Exchequer. Of the three courts of common law, the Exchequer was not only a court law
but was also an administrative department, its secretarial section being called a chancery. The
head of this section was called a Chancellor, those businesses was to collect state revenue and
to decide dispute concerning the same.

If a person wanted to start an action at Common Law, he had to obtain a writ on payment of
prescribed fee from the chancery section. The chancellor issued such writs. An injured party
could only sue at Common Law if his complaint came within the scope of an existing writ or
form of action. Much genuine case remained undressed and the plaintiff was without a
remedy because his cause of action did not fit into any of the existing forms of action.

In those rough days of the n13th century, it was the King and the King alone in his council
who had wide discretionary power to do justice among his subjects. The plaintiff there
therefore had to petition to the king in council praying for remedy. The Chancellor looked
after this aspect and issued new writs. By 1348, the king completely assigned his equity
jurisdiction to the Chancellor. This formed a custom and the same was confirmed and
recognised by Edward III, 1258. In the 14th Century these petition were addressed directly to

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him.cby the end of 15th Century, the Chancellor heard the petitions and decided them
independily without the aid of council. He made decrees in his own name. This position
remained continued upto 1474.

2.2 RELATION OF EQUITY WITH THE COMMON LAW

During the early period of the common law, the judge exercised a wide discretion to do
justice according to moral law.

In England the Common Law Courts laid it down that every kind of civil injury could be
referred to some forms of action and carrying this principle to its logical conclusion, held that
unless an injury could be referred to some forms of action, the party was left without a
remedy. Cases, therefore, frequently arose for which the common law had no remedy at all.
Equity, came to fulfil the gaps of common law whether the matter related to substantive law
or the procedural law. Working under three different jurisdictions, equity fulfil the equitable
claims of the litigants who ventured to seek remedy from the court of chancery. Some
differences can be noticed in two systems.

The common law courts dealt with both civil and criminal matters but the chancery court
confined itself only to the civil matters.

In Chancery Court, the conduct of the petitioner weighed too much in getting the redress. On
finding that petitioner’s conduct was unconscionable, the court refused to grant him any
relief. But in Common Law Courts, plaintiff’s misconduct was not very material in
pronouncing the judgement in his favour. He was not refused and disentitled to obtain a
decree and relief only on the ground of his misconduct. There was jury system in Common
Law Court unlike Chancery Court.

Equity supplemented the Common Law in the following three ways:

[1] By creating New Rights

Firstly equity, enforced rights which the Common Law Courts failed to enforce.

[2] By inventing New Remedies

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Secondly, equity has developed additional remedies to the Common Law, for thr enforcement
of common right even after the Law Courts had developed the Law of Contract ND Tort, the
only remedy which the plaintiff could obtain was the payment of damages.

[3] By adopting a New Procedure

Thirdly, the procedure in Common Law Courts was defective, especially in not compelling or
even allowing a defendant not to give evidence, and in limiting the inquiries to the parties to
the action, however, great an interest other person might have in the result of action, of all
which things Equity allowed in its own Court.

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 CHAPTER 2

2.1 DEFICIENCIES IN COMMON LAW

It is undoubtedly true to say that equity jurisdiction in England grew up because of the
deficiencies of the Common Law and the inadequacy of the remedies. Following were the
deficiencies found in the Common Law:

[1] That the reasonable remedy was not available in all cases from many wrongs remained
unredressed for want of proper writ.

[2] That the relief granted generally by the Common Law Court was not always adequate.
There was no relief by way of specific performance of the contract or injuction, and
appointing receiver, and

[3] That the procedure at the Common Law Courts was defective and unsatisfactory. The
inevitable result was that persons who could not get relief in Common Law Courts presented
their petition to the King in Council and letter to the Chancellor.

The special deficiencies or imperfections of medieval Common Law were as to law itself,
that its rules were too strict and that it did not cover the whole field of obligations, as to its
administration.

2.2 DISTINCTIVE FEATURE OF EQUITY AND COMMON LAW

[1] A person seeking relief in Court of Law was called a plaintiff in personal actions and a
defendant in real action. On the other hand, a person seeking relief in Court of equity was
called a suitor or petitioner.

[2] In Court of Law, the plaintiff claimed the benefit to which he was by law entitled. All that
the court had power to do was to decide if his claim was good by law. Once it decided that
his claim was good at law, it was compelled to grant him relief according to law. In court of
law, on the other hand, the petitioner humbly prayed the benefit of the court’s grace.
Equitable relief could not be claimed as of right and was continued to be within the discretion
of the Court.

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[3] In a Court of Law, the plaintiff’s conduct in the matter did not affect the legal relief if he
petitioner’s conduct and the Court of Equity refused its aid if the conduct was unconscionable
or imposed upon the relief a condition precedent or subsequent.

[4] Common Law is derived from feudal customs while equity it derived from roman and
Canon law. Equity was originally the revolt of common sense against the pedantry of law and
trammels of the feudal system.

[5] The judgement of a Court of Common Law altered the legal title to the property in
question as between the parties to the action. The orders and decrees of Court of Chancery
bound the person only. In equity, therefore, the legal title was transferred, not by the act of
Court but by the conveyances made by the parties under orders from the Court.

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 CONCLUSION

The trust is widely considered to be the most innovative contribution of the English legal
system. Today, trusts play a significant role in most common law systems, and their success
has led some civil law jurisdictions to incorporate trusts into their civil codes. The law of
trusts is voluminous and often complicated, but generally it is concerned with whether a trust
has been created, whether it is a public or private trust, whether it is legal, and whether the
trustee has lawfully managed the trust and trust property.

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 BIBLIOGRAPHY

 Ahmad Aqil, Equity, Central Law Agency, Fifteenth Edition, 2015

 Gandhi B.M., Equity Trusts and Specific Relief, Fourth Edition, 2018

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