The foundations of England Law have derived from two main sources; common law and equity. Common Law was developed through a centralised system of government


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НазваниеThe foundations of England Law have derived from two main sources; common law and equity. Common Law was developed through a centralised system of government
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Sources of English Law

The foundations of England Law have derived from two main sources; common law and equity. Common Law was developed through a centralised system of government introduced by William the Conqueror that has seen the emergent of justice system common to all, known as “Common Law”.

The justice process takes the form of the King appointing Commissioners with judicial powers to deal with the crown affairs around the county and reporting back to the King, of which have become the first royal judges. The King and his Council gradually took on judicial functions, brought before the “King’s Council”; a split in the King’s council has seen the establishment of a common law court with judges making law. The Law administered by the common law court in England were based on a system of writs (these are judge rules base on case different cases), written by the Lord Chancellor. Initially, there were no limits to the types of writs that can be developed; however, restriction was introduced the 13th century that has affected further development. Because of this, complainants (plaintiffs) have no remedy if his case did not fit in one of the existing categories of writs, has resulted in the development of the law of “equity”, which means justice.

Now, the plaintiffs could take their grievance to King’s common law court, administered by the Lord Chancellor (usually a Cleric), whose objectives was to established the truth or the matter, and then impose a just solutions without undue regards for technicalities or procedural points.

In England and the United Kingdom before legislation or (statute) started; case laws were extremely important to the development of common law and equity. Case laws are a body of laws that judges uses to formulate legal principles, base on their experience and common sense. Laws that evolved in this way are generally refers to as judge-made, case law or common law. Case law may become a source of law in two ways; where no statute covers the point at issue and where the judge interprets a statute. For examples contract and tort are still based on case law. Case law are know by the parties names for examples Klein v Calnori [1971]; and one should say Klein and Calnori (or against), but not versus. A fundamental concept of UK is that the court decision is said to be “declaratory”, meaning the judge declares what the law is.

(Word Count 400)

The Importance of Equity

Base on common law and equity, in England, there were basically two types of court; common law court, of which the administration of common law was inflexible, and the Court of Chancery, where equity offers discretion in way or administering law, which common law did not allow.

The equity system develop was not an alternative of common law, but instead an addition to improving common law, where it fails to protect the plaintiff. The relationships between equity and common law have created two important results; new rights and better remedies.

New rights

Equity recognises and protects the rights for which common laws gave no safeguards. The development of trust law is a clear example of these new rights. For examples, Anthony transferred a property to the legal ownership of Nancy, in order for her to pay the income of the property to Christopher, the common law simply recognised that Nancy was the owner of the property at common law and gave no recognition of Nancy’s obligations to Christopher. Equity however, recognises that Nancy was the owner of the property, must insisted that she complies with terms, and pay over income to Christopher.

Better remedies

Common law remedy for the successful claimant was the award of monetary compensation primarily for damages for loss, while Equity could able to force the defendants to perform the contract or abstain from wrong doings.

The creation of the Supreme Court of Judicature has seen the court of Chancery and Common Law Court being merge under one body, that allows for common law and equity actions be brought under the same court, does not meet combination of common law and equity, the clear distinction between the two are still uphold. However, while common law applications tend to be automatic in its effect, equity recognising common law, in some circumstances offers alternative solutions. The court has the discretion to choose whether to grant an equitable remedy replacing a common law one. For examples, Claimant is entitled compensations for damages for proven breach of contract under common law; the court may under equity force the defendant to perform the contract instead of paying to get out of his contractual obligations. Hence, equity remedy does not always resulted in a desirable remedy for defendant. Over time, a general rule has developed, that says if there is ever a conflict between common law and equity, equity should prevail.

(World Count 398)

BIBLIGRAPHY

Birks, P. (1989) An introduction to the law of Restitution, Clarendon Press, Oxford.

Burrows, A. S. (1993) The Law of Restitution, Butterworths, London.

Gifis, S. H. (2008) Dictionary of Legal Terms: A simplified Guide to the Language of Law, (4th Ed), Barron’s Educational Series, New York

Slapper, G., and Kelly, D. (2009) English Law, (3rd Ed), Routhledge - Cavendish, London

Slapper, G., and Kelly, D. (2006) English Law, Routhledge - Cavendish, London

Simpson, A.W.B (1975) History of the Common Law of Contract, Clarendon Press, Oxford.

Smith, K., and Keenan, D.J. (2007) English Law: text and cases, (15th Ed), Pearson Longman, London.

Smith, K., and Keenan, D.J. (1992) English Law, Pitman, London.

Stone, R. (2009) The Modern Law of Contract (8th Ed), Routhledge - Cavendish, London

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