Law CHP 2 Notes

Common Law and Equity
1. Customs
These are rules of behavior which develop ion a community without being deliberately
invented There are two main types of custom: genera; customs and local customs.
(a) General Customs
Historically these are believed to have been very important in that they were, effectively,
the basis of our common law. It is thought that following the Norman Conquest the judges
appointed by the kings to travel around the land making decisions in the King’s name based
on at least some of their decisions on the common customs.
It is accepted that general customs have long since been absorbed into legislation or case
law and are no longer a creative source of law.
(b) Local Customs
This is the term used where a person claims that he is entitled to some local right, such as a
right of way or a right to use land in a particular way because this is what has always
happened locally. Such customs are an exception to the general law of the land and will only
operate in that particular area.
Since there were exceptions to the general common law, the judges from the earliest times,
established as series of rigorous tests of hurdles that had to be passed before they
recognized any local customs. The tests are as follows:
(i) The customs must have existed since ‘time immemorial’.
(ii) The custom must have been exercised peaceably, openly and as of right
(iii) The custom must be definite as to locality, nature and scope
(iv) The custom must be reasonable
Although customs may develop, they are not part of the law until recognized by the courts;
it is the judges who decide which customs will be recognized as enforceable at law.
2. Common Law
Even in Anglo Saxon times there were local courts which decided disputes, but it was not
until after the Norman Conquest of 1066 that a more organized system of courts emerged.
The first Norman king, William the Conqueror, set up Curia Regis and appointed his own
judges. The nobles who has a dispute were encouraged to apply to have the king or his
judges decide the matter.
As well as this central court, the judges were sent to major towns to decide any important
cases. In the time of Henry II these tours became regular and Henry divided up the country
into ‘circuits’ or areas for the judges to visit. Over a period of time it is believed that the
judges on their return to Westminster in London would discuss the laws or customs they
had used and the decisions they had made with each other. Gradually the judges selected
the best customs and these were then used by all the judges throughout the country. This
had the effect that the law became uniform or ‘common’ through the whole country and it
is from here that the phrase ‘common law’ seems to have developed.
Definition of Common Law: It is unwritten law that developed from customs and
judicial decisions. The phrase ‘common law; is still used to distinguish laws that have been
developed by judicial decisions from the laws that have been created by statute or other
legislations. Common Law also has another meaning, in that it is used to distinguish
between rules that were developed by the common law courts and the rules of Equity which
were developed by the Lord Chancellor and the Chancery courts.
3. Equity
The word equity means ‘fairness’. The system of Equity developed because of problems in
the common law. Only certain types of case were recognized. The law was also very
technical; if there was an error in the formalities the person making the claim would lose the
case.
Another major problem was the fact that the only remedy the common law courts could
give was damages. In some cases this would not be the best method of putting matters right
between the parties.
People who could not obtain justice in the common law courts appealed directly to the king.
Most of the cases were referred to the king’s Chancellor who was both a lawyer and a
priest, and who became known as the keeper of the king’s conscience. This was because the
Chancellor based his decisions on principles of natural justice and fairness, making a
decision on what seemed ‘right’ in the particular case rather than on the strict following of
previous precedents. He was also prepared to look beyond the legal documents, which were
considered legally binding by the common law courts, and to take account of hat the parties
had intended to do.
Lord Chancellor developed new remedies which were able to compensate plaintiffs more
fully than the common law remedy of damages. The main equitable remedies are as follow:
(a) Injunction:
An injunction is an order to one of the people involved in the case to do something or not to
do something. Where the court orders one of the parties to do something, it is called a
mandatory injunction; where the order is to refrain from doing something it is called a
prohibitory injunction.
An injunction can also be granted to protect one party’s rights while waiting for the case to
be heard. This is called interlocutory injunction.
Case Law: Warner Brothers v. Nelson (1937)

(b) Specific Performance
This is an order that a contract should be carried out as agreed. It is only granted in
exceptional circumstances where the court feels the common law remedy of damages could
not adequately compensate the plaintiff. Specific performance is never granted to order
someone to carry out personal services, nor it is granted for a breach of contract where one
of the parties is a minor.
(c) Rescission
This is another remedy in contract cases and it aims to return the parties as far as possible
to their pre-contractual position.

(d) Rectification
Under this the court will order that, where a mistake has accidentally been made in a
document so that it is not a true version of what the parties agreed, that document should
be altered to reflect the parties’ intention.
Even in the twentieth century the courts were still developing new equitable remedies.
These were the freezing order and the search order.
Apart from the above remedies, certain rights were also initiated by Equity. Concepts such
as mortgaged and trusts are founded on the idea that one person owns the legal interest in
property but has to use that property for the benefit of another. This other person is said to
have an equitable interest in the property.
Moreover, over the period of time a series of maxims were developed which formed the
basis of the rules on which equity operated. Many of the rules on which equity is based are
expressed in a series of sayings. The most important of these maxims are as follows:
1. Equity looks to the intention and not the form (case: Berry v. Berry 1929)
2. He who comes to equity must come with clean hands (case: D&C Builders Ltd.
v. Rees 1965)
3. Delay defeats equity (case: Leaf v. International Galleries 1950)
4. Equity will not suffer a wrong to be without a remedy

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Common Law and Equity

(a) General Customs

on at least some of their decisions on the common customs.

law and are no longer a creative source of law.

(b) Local Customs

operate in that particular area.

recognized any local customs. The tests are as follows:

(i) The customs must have existed since ‘time immemorial’.

(iii) The custom must be definite as to locality, nature and scope

(iv) The custom must be reasonable

judges decide the matter.

were developed by the Lord Chancellor and the Chancery courts.

between the parties.

had intended to do.

be heard. This is called interlocutory injunction.

Case Law: Warner Brothers v. Nelson (1937)

of the parties is a minor.

to their pre-contractual position.

be altered to reflect the parties’ intention.

These were the freezing order and the search order.

have an equitable interest in the property.

4. Equity will not suffer a wrong to be without a remedy

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