The Law of Equity: Historical Origin and Development
THE LAW OF EQUITY
Class Notes by J. K. Asiema © 2005
University of Nairobi TOPICAL OUTLINES
1. Historical Origin and Development of Law of Equity in England
2. Maxims of Equity
3. Equitable Remedies include Injunctions, Specific Performance Etc.
4. Application of Equity in Kenya -
The Nature, Historical Origin & Development Of Law Of Equity In England
DEFINITION OF EQUITY
Equity has an ordinary meaning and a technical meaning.
In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. We are talking about doing good, doing what is morally right.
In a legal sense equity it is the branch of the law which, before the Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery. A litigant asserting some equitable right or remedy must show that his claim has “an ancestry founded in history and in the practice and precedents of the court administering equity jurisdiction.
In the technical sense equity refers to a body of rules and some authors have defined equity as that which is not the common law. They distinguish equity from the common law. It is regarded as a body of rules that is an appendage to the general rules of law.
To understand why equity is not common law, we must delve into the history of how equity evolved. There was only the common law in England originally there was only one body of law. Common law is to be found in case law that developed over the years and was administered by the king’s justices. There were 3 courts then, the Kings Bench, the Court of Common Pleas and the Exchequer.
The Kings Bench got its name from a practice where the king would sit with his judges in “banco” or on the bench and they would hear civil and criminal cases in which the King had an interest.
The Court of Common Pleas dealt with civil cases brought by one individual against another individual.
The Exchequer dealt with cases affecting the royal revenue, matters
Class Notes by J. K. Asiema © 2005
University of Nairobi TOPICAL OUTLINES
1. Historical Origin and Development of Law of Equity in England
2. Maxims of Equity
3. Equitable Remedies include Injunctions, Specific Performance Etc.
4. Application of Equity in Kenya -
The Nature, Historical Origin & Development Of Law Of Equity In England
DEFINITION OF EQUITY
Equity has an ordinary meaning and a technical meaning.
In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. We are talking about doing good, doing what is morally right.
In a legal sense equity it is the branch of the law which, before the Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery. A litigant asserting some equitable right or remedy must show that his claim has “an ancestry founded in history and in the practice and precedents of the court administering equity jurisdiction.
In the technical sense equity refers to a body of rules and some authors have defined equity as that which is not the common law. They distinguish equity from the common law. It is regarded as a body of rules that is an appendage to the general rules of law.
To understand why equity is not common law, we must delve into the history of how equity evolved. There was only the common law in England originally there was only one body of law. Common law is to be found in case law that developed over the years and was administered by the king’s justices. There were 3 courts then, the Kings Bench, the Court of Common Pleas and the Exchequer.
The Kings Bench got its name from a practice where the king would sit with his judges in “banco” or on the bench and they would hear civil and criminal cases in which the King had an interest.
The Court of Common Pleas dealt with civil cases brought by one individual against another individual.
The Exchequer dealt with cases affecting the royal revenue, matters