Equity as a gloss upon the Common Law

” Equity as a venerable group of right

and procedures to provide fairness, unhampered 

by the narrow strictures of the old common law 

or other technical requirements of the law.”

A simple introduction on the definition of equity which also includes the nature of equity, I may say. Things that need to learn and understand with regards to this subject are; the definition of equity, the nature of equity and the functions of equity in terms of the emergence of the English Legal System.

First and foremost, there is no comprehensive meaning of equity. As according to the meaning of equity given by Wikipedia , equity as in jurisdictions following the English common law, equity is the set of maxims that “reign over all the law” and “from which flow all civil laws”. Law of equity is very different from the common law where equity is more on a study of principles and rules which developed and applied by the Chancery Court. It is not a source of law that only uses the literal application as a main rule of equity, yet it is more concerned with the conduct of the parties per se in a particular circumstance.

In practice, the technical aspect to ponder where law of equity is more apparent in civil matters and it is a fused joint of substantive law principles. In Latin term “aequitas equitas” which means fairness, justice or equality. We may say that the definite and common definition of equity is fairness or justice or the quality of being fair and just. In general terms, it indicates the term of equality or justice which as well acquires its predominant authority in the principles of natural justice. Whereas, the legally meaning is that equity is defined as a body of rules which by the side of common law and it supplements the law in case of conflicts, in order to procure justice and fairness.

In essence, there are three elements as provided in the law of equity which are; natural justice, good conscience and fairness. This regard to the body of rules that developed and applied by the High Court of Chancery in England.

Technically, a system of law of equity is to supersede or supplement the common law with fair play whenever the law becomes rigid or causes hardship that leads to injustice or defective of the case and law per se, equity will mitigate the rigour or harshness of common law, which means the court will intervene when the act or omission is against the conscience. Further, equity is also functioned as to overcome the severity and deficiencies of the rules of common law.

As per Sir Nathan Wright has stated in the case of Dudley v Dudley (1705), “Equity is… a moral virtue, which qualifies, moderates, and reforms the rigour, hardness and edge of the law. It does also assist the law where it is defective and weak in the Constitution, and defends the law from crafty evasions, delusions, and also to support and protect the common law from shifts and crafty contrivances against the justice of law. Equity therefore does not destroy the law, nor create it but assists it…”

During 23th century, as referring to definition and perspective of  equity made by Aristotle, he defined equity as the idea of justice that contravenes and corrects the written law when it is in error. With this regard, equity is like a process through which a deviant man-made law that ought to be brought in harmony with the law of God and the law of reason.

“It is equity to pardon human failings and to look to the lawgiver and not to the law, to the spirit and not to the letter, to the intention and not the action, to the whole and not to the part…” – Rhetoric I.XIII. 1374



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