1.

In the field of jurisprudence, equity is the particular body of law, developed in

[1]
the English Court of Chancery, with the general purpose of providing legal
remedies for cases wherein the common law is inflexible and cannot fairly
[2]
resolve the disputed legal matter. Conceptually, equity was part of the
[2]
historical origins of the system of common law of England, yet is a field of
law separate from common law, because equity has its own unique rules and
[2]
principles, and was administered by courts of equity.

Legal equity: The Court of Chancery, in early 19th-century London.

Equity exists in domestic law, both in civil law and in common law systems, and in
[1]
international law. The tradition of equity begins in antiquity with the writings of
[1][3]
Aristotle (epieikeia) and with Roman law (aequitas). Later, in civil law systems,
equity was integrated in the legal rules, while in common law systems it became an
[1]
independent body of law.

2. Equity in common law jurisdictions (general)

In jurisdictions following the English common law system, equity is the body of law
which was developed in the English Court of Chancery and which is now
[4]
administered concurrently with the common law. In common law jurisdictions, the
word "equity" "is not a synonym for 'general fairness' or 'natural justice'", but refers to
[5]
"a particular body of rules that originated in a special system of courts".

For much of its history, the English common law was principally developed and
administered in the central royal courts: the Court of King's Bench, the Court of
Common Pleas, and the Exchequer. Equity was the name given to the law which
was administered in the Court of Chancery. The Judicature Acts of the 1870s
effected a procedural fusion of the two bodies of law, ending their institutional
separation. The reforms did not fuse the actual bodies of law however. As an
example, this lack of fusion meant it was still not possible to receive an equitable
remedy for a purely common law wrong. Judicial or academic reasoning which
[6]
assumes the contrary has been described as a "fusion fallacy".
Jurisdictions which have inherited the common law system differ in their treatment of
equity. Over the course of the twentieth century some common law systems began
to place less emphasis on the historical or institutional origin of substantive legal
rules. In England and Wales, Australia, New Zealand, and Canada, equity remains a
[6][7]
distinct body of law. Modern equity includes, among other things:

● the law relating to express, resulting, and constructive trusts;

● fiduciary law;
● equitable estoppel (including promissory and proprietary estoppel);
[8]
● relief against penalties and relief against forfeiture;
● the doctrines of contribution, subrogation and marshalling; and
● equitable set-off.
Black's Law Dictionary, 10th ed., definition 4, differentiates "common law" (or just
[9][10]
"law") from "equity". Before 1873, England had two complementary court
systems: courts of "law" which could only award money damages and recognized
only the legal owner of property, and courts of "equity" (courts of chancery) that could
issue injunctive relief (that is, a court order to a party to do something, give
something to someone, or stop doing something) and recognized trusts of property.
This split propagated to many of the colonies, including the United States. The states
of Delaware, Mississippi, South Carolina, and Tennessee continue to have divided
Courts of Law and Courts of Chancery. In New Jersey, the appellate courts are
unified, but the trial courts are organized into a Chancery Division and a Law
Division. There is a difference of opinion in Commonwealth countries as to whether
equity and common law have been fused or are merely administered by the same
court, with the orthodox view that they have not (expressed as rejecting the "fusion
[11]
fallacy") prevailing in Australia, while support for fusion has been expressed by
[12]
the New Zealand Court of Appeal.

For most purposes, the U.S. federal system and most states have merged the two
[13]
courts.

The latter part of the twentieth century saw increased debate over the utility of
treating equity as a separate body of law. These debates were labelled the "fusion
[14][15]
wars". A particular flashpoint in this debate centred on the concept of unjust
enrichment and whether areas of law traditionally regarded as equitable could be
rationalised as part of a single body of law known as the law of unjust
[16][17][18]
enrichment.

● History of equity in common law jurisdictions

After the Norman Conquest of England in the 11th century, royal justice came to be
administered in three central courts: the Court of King's Bench, the Court of Common
Pleas, and the Exchequer. The common law developed in these royal courts, which
were created by the authority of the King of England, and whose jurisdiction over
[19]
disputes between the King's subjects was based upon the King's writ. Initially, a
[19]
writ was probably a vague order to do right by the plaintiff, and it was usually a
[20]
writ of grace, issued at the pleasure of the King.

During the 12th and 13th centuries, writ procedure gradually evolved into something
much more rigid. All writs to commence actions had to be purchased by litigants from
[19]
the Chancery, the head of which was the Lord Chancellor. After writs began to
become more specific and creative (in terms of the relief sought), Parliament
responded in 1258 by providing in the Provisions of Oxford that the Chancellor could
no longer create new writs without permission from the King and the King's Council
[19] [19]
(the curia regis). Pursuant to this authorization, litigants could purchase
certain enumerated writs de cursu (as a matter of course) which later became known
[20]
as writs ex debito justitiae (as a matter of right). Each of these writs was
associated with particular circumstances and led to a particular kind of
[19]
judgment. Procedure in the common law courts became tightly focused on the
form of action (the particular procedure authorized by a particular writ to enforce a
particular substantive right), rather than what modern lawyers would now call the
cause of action (the underlying substantive right to be enforced).
Because the writ system was limited to enumerated writs for enumerated rights and
wrongs, it sometimes produced unjust results. Thus, even though the King's Bench
might have jurisdiction over a case and might have the power to issue the perfect
writ, the plaintiff might still not have a case if there was not a single form of action
combining them. Lacking a legal remedy, the plaintiff's only option would be to
petition the King.
Litigants began to seek relief against unfair judgments of the common law courts by
petitioning the King. Such petitions were initially processed by the King's Council,
which itself was quite overworked, and the Council began to delegate the hearing of
 [21]
such petitions to the Lord Chancellor. This delegation is often justified by the
fact that the Lord Chancellor was literally the Keeper of the King's
[22][23]
Conscience, although Francis Palgrave argued that the delegation was
[21]
initially driven by practical concerns and the moral justification came later. The
moral justification went as follows: as Keeper of the King's Conscience, the
Chancellor "would act in particular cases to admit 'merciful exceptions' to the King's
[23]
general laws to ensure that the King's conscience was right before God". This
concern for the King's conscience was then extended to the conscience of the
defendant in Chancery, in that the Chancellor would intervene to prevent
"unconscionable" conduct on the part of the defendant, in order to protect the
[23]
conscience of the King.

By the 14th century, it appears that Chancery was operating as a court, affording
remedies for which the strict procedures of the common law worked injustice or
provided no remedy to a deserving plaintiff. Chancellors often had theological and
[22][24]
clerical training and were well versed in Roman law and canon law. During
this era, the Roman concept of aequitas influenced the development of the distinctly
different but related English concept of equity: "The equity administered by the early
English chancellors ... [was] confessedly borrowed from the aequitas and the judicial
[22]
powers of the Roman magistrates." By the 15th century, the judicial power of
Chancery was clearly recognised.
Early Chancery pleadings vaguely invoked some sort of higher justice, such as with
[25]
the formula "for the love of God and in way of charity". During the 15th century,
Chancery pleadings began to expressly invoke "conscience", to the point that
English lawyers in the late 15th century thought of Chancery as a court of
[25]
"conscience", not a court of "equity". However, the "reasoning of the medieval
chancellors has not been preserved" as to what they actually meant by the word
[26]
"conscience", and modern scholars can only indirectly guess at what the word
[27]
probably meant. The publication of the treatise The Doctor and Student in the
early 16th century marked the beginning of Chancery's transformation from a court of
[28]
conscience to a court of equity.
Before that point in time, the word "equity" was used in the common law to refer to a
principle of statutory interpretation derived from aequitas: the idea that written laws
ought to be interpreted "according to the intention rather than the letter" of the
[29]
law. What was new was the application of the word "equity" to "the extraordinary
form of justice administered by the chancellor", as a convenient way to distinguish
[29]
Chancery jurisprudence from the common law.

A common criticism of Chancery practice as it developed in the early medieval

period was that it lacked fixed rules, varied greatly from Chancellor to Chancellor,
and the Chancellor was exercising an unbounded discretion. The counterargument
was that equity mitigated the rigour of the common law by looking to substance
[citation needed]
rather than to form.

The early chancellors were influenced by their training in theology and canon law,
but the law of equity they applied was not canon law, but a new kind of law
[30]
purportedly driven by conscience. Whatever it meant in the medieval era, the
word "conscience" clearly carried a subjective connotation (as it still does
[30]
today). Complaints about equity as an arbitrary exercise of conscience by
nonlawyer Chancellors became quite frequent under the chancellorship of Thomas
Wolsey (1515–1529), who "had no legal training, and delighted in putting down
[30]
lawyers".

In 1546, Chancellor Thomas Wriothesley, a nonlawyer, was accused of trying to

[31]
inject the civil law into Chancery. This was a "wild exaggeration", but as a result,
the Crown began to transition away from clergy and nonlawyers and instead
appointed only lawyers trained in the common law tradition to the position of Lord
Chancellor (although there were six more nonlawyer chancellors in the decades after
[31]
Wriothesley). The last person without training in the common law before 2016 to
serve as Lord Chancellor was Anthony Ashley Cooper, 1st Earl of Shaftesbury, who
[31]
served briefly from 1672 to 1673. (Liz Truss was appointed as Lord Chancellor
in 2016, but this was after the position had been stripped of its judicial powers by the
Constitutional Reform Act 2005, leaving the Chancellor of the High Court as the
highest judge sitting in equity in England and Wales.)
The development of a court of equity as a remedy for the rigid procedure of the
common law courts meant it was inevitable that the two systems would come into
conflict. Litigants would go "jurisdiction shopping" and often would seek an equitable
injunction prohibiting the enforcement of a common law court order. The penalty for
disobeying an equitable injunction and enforcing an unconscionable common law
[23]
judgment was imprisonment.

The 1615 conflict between common law and equity came about because of a "clash
of strong personalities" between Lord Chancellor Ellesmere and the Chief Justice of
[31]
the King's Bench, Sir Edward Coke. Chief Justice Coke began the practice of
issuing writs of habeas corpus that required the release of people imprisoned for
contempt of chancery orders. This tension reached a climax in the Earl of Oxford's
case (1615) where a judgment of Chief Justice Coke was allegedly obtained by
[32]
fraud. Chancellor Ellesmere issued an injunction from the Chancery prohibiting
the enforcement of the common law order. The two courts became locked in a
stalemate, and the matter was eventually referred to the Attorney General, Sir
Francis Bacon. Sir Francis, by authority of King James I, upheld the use of the
equitable injunction and concluded that in the event of any conflict between the
[33]
common law and equity, equity would prevail.

Chancery continued to be the subject of extensive criticism, the most famous of

which was 17th-century jurist John Selden's aphorism:
Equity is a roguish thing: for law we have a measure, know what to trust to; equity is
according to the conscience of him that is Chancellor, and as that is larger or
narrower, so is equity. 'Tis all one as if they should make the standard for the
measure we call a foot, a Chancellor's foot; what an uncertain measure would this be?
One Chancellor has a long foot, another a short foot, a third an indifferent foot: 'tis
[34]
the same thing in a Chancellor's conscience.

After 1660, Chancery cases were regularly reported, several equitable doctrines
developed, and equity started to evolve into a system of precedents like its common
[35]
law cousin. Over time, equity jurisprudence would gradually become a "body of
equitable law, as complex, doctrinal, and rule-haunted as the common law ever
[36]
was".

One indicator of equity's evolution into a coherent body of law was Lord Eldon's
response to Selden in an 1818 chancery case: "I cannot agree that the doctrines of
this court are to be changed with every succeeding judge. Nothing would inflict on
me greater pain, in quitting this place, than the recollection that I had done anything
to justify the reproach that the equity of this court varies like the Chancellor's
[35][37]
foot."

Equity's primacy over common law in England was later enshrined in the Judicature
Acts of the 1870s, which also served to fuse the courts of equity and the common
law (although emphatically not the systems themselves) into one unified court
system.

Statute of Uses 1535

edit
One area in which the Court of Chancery assumed a vital role was the enforcement
of uses, a role that the rigid framework of land law could not accommodate. This role
gave rise to the basic distinction between legal and equitable interests.
In order to avoid paying land taxes and other feudal dues, lawyers developed a
primitive form of trust called the "use" that enabled one person (who was not
required to pay tax) to hold the legal title of the land for the use of another person.
The effect of this trust was that the first person owned the land under the common
law, but the second person had a right to use the land under the law of equity.
Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in
an attempt to outlaw this practice and recover lost revenue. The Act effectively made
the beneficial owner of the land the legal owner and therefore liable for feudal dues.
The response of the lawyers to this Statute was to create the "use upon a use". The
Statute recognized only the first use, and so land owners were again able to
separate the legal and beneficial interests in their land.