English Common Law And Equitable Comparative Study

Common law and equity ate two legal source of Anglo-American legal system; they constitute the flame of Anglo-American legal system together with statute law. Common law was created and developed by Common law Courts about 12th century, it's a series of rules applied all over the country. Equity arose and developed based on the practices of chancellors around 14th century, it's called equity because it's base on "aequum bonum".Common law and equity have many differences, there were a great deal of researches on the problem of company of common law and equity, but mostly were in the view of macroscopically, in this essay, the author wants to change the view into microcosmic, compares their remedies only.The only remedy of common law is damages, which was characteristic of swift, convenient and widely applied in simple commodity economy time. Equity appeared while the economical structure of England tended to complication, people who suffered loss won't be satisfied with damages only, they needed the remedies were various, material and hand more pertinences. Equity arose in such situation. Common law and equity coexisted for several centuries; their remedies also competed with each other for a long period. Why was not damages replaced by equitable remedies? Why did equitable remedies were always situated be an alternate? After common law and equity synchronized in 1875, there were no distinction between Common law Courts and Chancery Court, how about the application of the two remedies? There were a variety of new forms of action arose in 21st century, how about to seek the biggest fair for people who suffered loss? All of above questions are the author plans to discuss in this essay.This essay consists of six parts, which are as follows:The preface is a concise introduce to the histories and causes of common law and equity. At the end of this part, the author points out that remedy is a very important link of the whole legal system, we can recognize the relationship of the two legal sources directly by researching of it.The first part is dealing with common law and its remedy, along with the dilemma which common law confronted after its heyday. In 1066, the Conqueror William landed England and set up Norman Dynasty, England entered feudal period, English law had its own history henceforth. The 200 years from William I to Edward I were the era of the birth and development of common law. These Kings, William I, Henry I, HenryⅡ, Edward I, impulsed and accelerated the development of common law. Partly because of these excellent dominators, common law developed in a very different way from Roman law and formed a lot of distinctive conceptions, principles and legal sense. Damages, which the only remedy of common law, was singleness but had unapproachable applicability in the simple commodity economic time, it could be applied in almost all cases. As the growing of economy, the only type of remedy couldn't satisfy with people any more, in addition the inherent defects, common law confronted a huge dilemma which it never met before. The dilemma couldn't be deal by common law only; it needed a outside force to cope with.At the beginning of the second part, the author analyzes the reasons and cause of the rise of equity and points out equity had shouldered a mission since it was born: complement common law. Thereafter, the author introduces six types of equitable remedies, including specific performance, injunction, receiver, rescission, rectification and restitution. At the end of this part, the author analyzes equity's function and station. Although equity was convenient, flexible and with skill and ease while dealing a case, although it accomplished its mission excellently and, further, promoted the development of the whole English law, although it could offer the remedies which were variously and with more pertinences, it placed a "sub-rule" position all the time. Even it defeated common law in a face-to-face controversy in 1615, it could not replace common law anyway, and instead, it absorbed the "stare decisis" principle from common law and to bea part of English case law at last.The third part is divided into two parts. The first part introduces the confluence of common law and equity in 1875, which finished the coexistence of two different procedures in theory. At the last part, the author analyzes the application of the two remedies after 1875 by two typical cases and points out though common law and equity were merged in theory, there were plenty distinctions of them in practice, especially in remedy field.The fourth part is to show the improvements and innovations of the two remedies in modern time in the form of case study. Common law is rigisent, but it did its utmost to improve its remedy application, according to the contract law cases and tort law cases, the author points out all of these improvements were effectively, however, they also slowly inevitably due to the trait of common law. On the other hand, the innovations of equitable remedies are exciting, the author instances Mareva injunction and Anton Piller order to points out equity performances it mission faithfully in modem time, it complement the slowness of common law's improvements with its convenient and flexible trait. At last, the author points out all of the improvements and innovations points to the same object: adapt themselves to new era and to seek the biggest fair for people who suffered loss.The postscript is a summary of the essay, the author restates that apprehend the relation of common law and equity by study of remedies is a novel and visual way. Then, the author points out the confluence of common law and equity made their developments swifter and healthier. At the end of this part, the author comes to a conclusion: the reason for English law's development is in phase is that the traits of common law and equity and their relationship which kept the continuity of English law and made it keep up with time.