Equity of nowadays. Majority of people around the world

Equity courts or courts of chancery are rarely heard of nowadays. Majority of people around the world do not know that such courts even exist. For countries with civil law system it is understandable as such courts were developed in common law system but even there most people have limited knowledge of them. However such courts exist. It is obvious that they were given more attention a few centuries ago. They may be not as popular as they used to be but they still influence peoples lives. Moreover back in the days they greatly contributed to the common law system. In this paper one`s aim would be to analyze the contribution of equity courts to a modern system and show their role in the contemporary world. This work will be structured in the following way. Firstly, one will present equity courts and look at their history concluding with their place in modern times.

First of all, one should start with answering what is equity court or chancery court. However, it is impossible to do so without going into history. Equity courts can be traced back to twelve century. They were developed in Middle ages alongside the common law system and then spread to English colonies. Its main goal was to provide another option, second chance for cases which required individualistic approach. While common law provided an effective option to deal with the majority of cases and had standardized rules equity court was much more flexible and was designed to counteract and to balance the harshness of the existing system of law. It operated on the principles  of equity (equity follows the law; equality is equity; he who comes into equity should come with clean hands; he who seeks equity must do equity; equity acts in personam; equity acts on the conscience (3)and was supposed to make fair decisions where common law could not(8). If in common law court you could minor loose, equity courts had other option such as providing an equitable remedy for both participants. Their other function was to rule over the cases where there was no law to guide the judge and to create a precedent for future. Its second name, Court of Chancery, it earned because of the person who was deciding on the cases – the Chancellor. Back in those days, King, who actually had the right to judge, delegated his power to so. The decision was at such court was only made by the Chancellor who was supposed decide not by the law but by equity. All the decisions were completely left for him to decide. Although at the beginning this was not an issue later people became concerned about such approach, as decisions were highly dependent on a single person. Although equity was the way he was supposed to rule, different people had different views and different conscience. This question started to address mainly from sixteen century(8) 

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Speaking of relations between common law and equity it is notable that however they are closely tied together one system was meant to contradict another. Thus such cases occurred. As it was mentioned before, Chancery court was argued to be biased and outcomes of similar cases could differ from chancellor to chancellor. However, equity court was highly popular. The tension was rising until Earl of Oxford`s case (ebsco3). This case appears is considered as the principal case dealing with the connection between Chancery and the Common Law. Long story short, the Lord Chancellor issued a common injunction of the Chancery prohibiting the enforcement of the common law order. The matter was referred to Attorney General Sir Francis Bacon and the King James I. It is believed that such decision was rather political than legal but later the declaration was issued where King supported Court of Chancery. In that same document, he stated that if such conflict occurs, equity should not be “lost” but should prevail over the law and this approach was later used in other cases. 

The reader may be confused and asking the question: if equity courts are so important what happened to them nowadays and where did they vanish? Such courts never disappeared but were merged with common law. It was made by two Supreme Court of Judicature Acts in 1873 and 1875 years.  Here one should mention that they also confirmed the prevalence of equity. Those acts ended the separation of those institutions in England at least on the paper. In the United States, this happened later by the Federal Rules of Civil Procedure in 1938. From that time on judges were allowed to here both types of cases but the procedure was separated and required to have two separate cases.  Fusion provoked great discussion and lead to the creation of anti-fusion and fusion school of thought. Anti-fusion school of thought believed that acts never really joined equity and Common law and they just exist alongside. Fusionist believed that this allowed to resolve issues and clashes which occurred between equity and common law.

However whichever approach made taken acts altered institutions and created the base for future. Equity has not disappeared and remains to be of vital importance to this day. In modern times the broadest definition of court of equity is the court which has jurisdiction over equity cases. This is seen differently but the most general and acceptable can be a quote of Supreme Court Justice Joseph Story, who authored Commentaries on Equity Jurisprudence, writing that “cases must occur to which the antecedent rules cannot be applied without injustice, or to which they cannot be applied at all.”(gov) Because of such broadness types of equity case differ greatly, including if needed criminal matters(1). The best way to present equity in modern proactice is to provide a comparison of two systems – law and equity. Firtly, they differ in remedies . If for the law to most common would be payments, money remedies, in equity, however, remedies are usually acts. This could be a remedy to return, give something back or to stop doing something. As equity courts are appealing to fairness money do not always can replace something that was damaged.