L'équité (document en anglais)

Equity is a body of rules evolved mainly in the 15th and 16th centuries to complete the common law system which had become insufficient and defective. When the royal courts applying the common law could not be seized of a case or could not provide an adequate remedy it was possible to request the king by appealing to his conscience to intervene as sovereign justiciar. The king then the Chancellor to whom he delegated his powers , did not intervene to create new rules of law , he intervened only in the name of morality.

Main application of equity :

-case of trespass : the common law offered damages but didn’t provide a means to have the trespasser stop ; the Chancellor intervened in equity and granted an injunction ordering the defendant to stop infringing on another property , if the defended did not obey he was sent to prison for contempt of court.

-case of breach of contract : the only remedy at common law was damages but the aggrieved party was more interested in obtaining the actual performance of the contract ; Chancellor by a decree of specific performance enjoined the execution of the contract.

The Chancellor intervened against those who took unfair advantage of their dominant position to obtain contract. For property matters equity obliged trustees to respect their covenant.

Fusion of the common law and equity :

Equity and the common law system went on in parallel , the former complementing the letter , until 1875 as a result of the application of the Judicature Act 1873 the old courts of common law and the court of Chancery were abolished and replaced by one Supreme Court of Judicature each branch of which had the power to administer with the common law and equity ; in the case of conflict the latter should prevail. What happened was a fusion of the administration of common law and equity, it didn’t mean that the 2 system of law themselves fused but both are open to a plaintiff in one action before the same court.

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