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Equity and Equitable Remedies William Hamilton Bryson University of Richmond, [email protected]

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Equity and Equitable Remedies William Hamilton Bryson University of Richmond, Hbryson@Richmond.Edu View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Richmond University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 1987 Equity and Equitable Remedies William Hamilton Bryson University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Legal History Commons Recommended Citation William Hamilton Bryson, Equity and Equitable Remedies in Encyclopedia of American Judicial System (Scribner 1987). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. ... EQUITY AND EQUITABLE REMEDIES W Hamilton Bryson Q.UITY is the system ofjustice that arose in the liament. Judicial restraint is a good thing, but it E court of the lord chancellor of England in can be carried too far, for there is no such thing the late fourteenth or early fifteenth century. (In as a general rule (or a statute) that cannot be order to avoid confusion, this essay will not use avoided or perverted by persons of bad inten­ the word equity to refer to the nontechnical con­ tions. Furthermore, the medieval Parliament was cepts of fairness and justice.) Equitable remedies not a very efficient legislature by modem stan­ are those remedies granted by courts of equity as dards; for one thing it met only irregularly, usu­ opposed to legal remedies, which are granted by ally being called when the king needed more courts of common law. The system of remedies money. we call equity arose to supplement and to com­ As the common-law courts became unable to plement, but not to supplant, the common law of grant new types of remedies to deal with new England. types of problems, litigants turned to the king, and the king sent them to the lord chancellor, the head of the royal secretariat, for special aid. As ENGLISH ANTECEDENTS TO these special petitions were regularly accepted MODERN EQUITY PRACTICE and decided, the chancery developed into !: law court, and the system of justice administered The common law of England in the Middle there became known as equity. Equity thus arose Ages, whether administered in the royal courts several centuries later than the common law and or the county courts, was an unwritten system of was that much more modern in terms of proce­ law that was thought to be totally comprehen­ dure and substantive law. It is to be remembered sive; it governed all situations, and it was the that chancery is a court that applies the system of duty of the courts to "discover" the law and to law called equity. A chancellor is an official who apply it to each particular case. In the thirteenth is the keeper of someone's seal; the lord chancel­ and fourteenth centuries, common-law remedies lor of Great Britain is only incidentally a judge. grew to combat all types of injuries; in some Thus, an equity judge is not usually a chancellor, cases the royal courts were granting remedies to though in the United States the term chancellqr is deal with problems formerly handled only in the sometimes used to refer ·to an equity judge ~nd county courts and, in other cases, to deal with the term chancery is used loosely to refer to an newly invented injuries. This was a period of equity court and equity jurisdiction. '"fhis article luxuriant growth for the English common law. will use the word chancery to refer only to the However, the fourteenth century saw the rise of court of the lord chancellor and not to any other Parliament as a legislative body and, by midcen­ court of equity. tury, the development of a substantial body of Equity arose in the court of chancery in order judicial precedent stating the common law. The to provide remedies when the common law result was that common-law judges were becom­ proved inadequate to do justice in a particular ing trapped by their own precedents and in time case. (From the middle of the sixteenth century became unable to change the law without tre­ onward, the court of exchequer also granted eq­ spassing upon the legislative prerogative of Par- uitable remedies.) Some of the substantive im- 545 EQUITY AND EQUITABLE REMEDIES provements of equity were the enforcement of land to secure a loan; the mortgage contract is trusts and the use of various defenses to con­ written so that if the loan is repaid, the debtor tracts. A trust, or a use, was a type of contract, gets his land back; if it is not repaid in full, the usually in reference to land, which was invented creditor keeps the land, even if only one payment after the common-law writs (which controlled is not made or if payment is made only one day the jurisdiction and procedures of the common­ late. In many cases a debtor may be in technical law courts) had become fixed and unchangeable. default only, but the common-law courts must A trust is the situation in which the common-law enforce the contract that was freely entered into ownership of property is given to a person (the by the debtor. To prevent such harsh results, trustee) to hold and manage for the benefit of penalties, and forfeitures, the courts of equity another person (the beneficiary of the trust). allow the debtor to redeem his land by making Since there was no common-law writ available to the payments late (with appropriate additional 1 enforce a trust and since the chancery clerks and interest); thus, the equity courts have created the common-law judges could not change the what is called an equity ofredemption. (To pro­ law by inventing a new one without unconstitu­ tect fair-minded creditors, the courts of equity tionally usurping the legislative power of Parlia­ allow a creditor to come into the equity court and ment, the chancellor enforced them. It was clear prove the hopeless insolvency of his debtor, and to the entire legal profession that justice re­ the equity judge will foreclose the debtor's eq­ quired the enforcement of trusts and uses. Since uity of redemption; this will give the creditor the common-law courts could (or would) not, clear title to the land being held as security so everyone agreed that equity should. Thus, the that he can sell it and recoup the amount of the beneficiary of the trust is said to be the equitable defaulted loan.) Although the general common­ owner of the property in question. The trust, law rule that contracts should be kept is well which is completely unknown in European law, is respected by society, ever'yone's sense of justice a maknificent device for managing property or will acknowledge that the equity of redemption companies in both personal and commercial set­ is a fine tuning by the courts of equity that results tings. This device has been steadily refined over in substantial justice in the individual case where the centuries to serve more and more needs of the debtor is acting in good faith but has had a society. bit of bad luck. In the area of contracts, justice required that In more recent times the courts of equity have each party receive "consideration"-that is, evolved a law of fiduciary responsibility, which something of value for the performance of his did not exist in medieval England. Thus, ad­ part of the agreement. The common-law courts ministrators of estates, guardians of mental in­ required proof of consideration "flowing" from competents, and trustees are held to higher stan­ the plaintiff to the defendant (the obligor) before dards of loyalty than are ordinary businessmen. a plaintiff (the obligee) could recover on an oral The equity jurisdiction of the chancellor's contract. However, if the contract was in writing court grew in the fifteenth century also to cure and under the defendant's seal, the written and problems in the administration ofjustice caused sealed instrument was sufficient proof for a com­ by various defects in the procedures of the old mon-law recovery, even though there was no common-law courts. One common-law rule of consideration. A sharp dealer would be able to evidence was that a party could not testify in take advantage of others by always having such court as a witness. Much has been written about an unfair bargain reduced to writing with an eye the aspect of this rule that a person cannot testify to future litigation, relying on well-established against himself, but we will consider here that a common-law precedent. The common-law person also could not testify for himself. Thus, courts could not change their law, but the court where the only witnesses to a transaction or oc­ of equity came to require the unconscionable currence were the parties thereto, the person obligee to forgo his unfair gain. The courts of injured could not prove his case in a court of equity required that all contracts be supported common law, because there was no admissible by consideration on both sides. evidence; and since the plaintiff always has the The mortgage is a common-law conveyance of burden of persuasion, the defendant would win 546 J EQUITY AND EQUITABLE REMEDIES by default. Thus, if one were assaulted in a dark died, and the jeweler had then been sued at com­ alley, one had no practical remedy at common mon law for the necklace by both the heir and the law.
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