Difference Between Common Law and Equity

【Abstract】Common Law is morepopularly known as case law, precedent law or judge-made lawwhich constitutes rules of law developed by the courts through its decisions. Equitywas developed with the intention of alleviating the harshness and inflexibilityof the Common Law rules at the time or the rigid interpretations given to suchrules by the Courts. where there was a conflict between Common Law and Equity,it was accepted that the rules of Equity prevailed.

Common Law vs Equity

Since the terms Common Law and Equity represent twobranches or avenues of Law not created by legislation, we should get to knowthe difference between common law and equity. Oneunderstands Common Law to mean precedent or law created by decisions of thecourts. Equity, on the other hand, is associated with the principles offairness and equality. Although the tendency is to use the two termssynonymously, there are differences between the two that are more fullyexplained below.

What is Common Law?

Common Law is more popularly knownas case law, precedent law or judge-made law. The reason for the above names is because CommonLaw, in fact, constitutes rules of law developed by the courts through itsdecisions. The origins of Common Law can be traced back to the early centuriesto rules developed by the royal courts after the Norman Conquest in 1066. Theserules developed by the royal courts were recorded and thereafter usedas authority or as a guide for future cases ordisputes. The decisions, therefore, were viewed as rules of law.

Today many countries, such as the United States ofAmerica, Canada and India, have as their basis the rules of Common Law, whichis the law derived from the English Common Law system. Theunique feature of Common Law is that unlike statute or legislation, Common Lawrules are developed on a case-by-case basis. For example, if the partiesto a case are at odds in relation to the law applicable to the dispute at hand,the court will look to precedent or previous court decisions/reasoning to finda solution and apply it to the facts. If, however, the nature of the case issuch that precedent does not directly apply, the court will take into accountthe present trends in society, practice and rules of law and thereafter delivera judgment tailor-made for that particular case. This decision thereafterbecomes precedent and therefore binding on any future cases of a similarnature. Common Law thus has a unique capability toadapt to the changing trends in society.

What is Equity?

Equity is often referred to as the second branch of English law which originatedafter the introduction of Common Law. In medieval England, parties aggrieved bya decision of the court would petition the King to do justice regarding theharsh judgment. The King, in response to such petitions and complaints, in turnrelied on the advice of the LordChancellor, who looked into the dispute and sought to deliver a ‘fair’outcome against the rigid principles of Common Law. The Lord Chancellor’s rolein administering equity was thereafter transferred to a separate court calledthe Court of Chancery. Equity was developed with the intention of alleviating theharshness and inflexibility of the Common Law rules at the time or the rigidinterpretations given to such rules by the Courts. A body of generalprinciples developed and these general principles are more commonly known as maximsof equity. Some of these maxims include:

Equity willnot suffer a wrong to be without a remedy.

He who comesto equity must come with clean hands.

Furthermore, where there was a conflictbetween Common Law and Equity, it was accepted that the rules of Equityprevailed. Principles governing Trusts, equitable interests over property andequitable remedies fall within the purview of Equity.

What is the difference between Common Law and Equity?

Common Law is a body of law based onprecedent or court decisions. Equity constitutes general principles and servesas a supplement to Common Law.

Equity, simply put, is a form of legal relief inthe event such relief cannot be found in the rules of common law.

Equity is based on a judicial evaluation offairness, reason, good faith and justice. Common Law entails applying the rulesof common law to the issue before the court.