Common Law and Equity-law studies.. - İngilizce- Zamansız Tartışma Platform

ASAKİRİ · 04-09-08, 06:05 Çevrimdışı

CONTENT

1. Historical background and definition of equity .................................. 2-4

2. Similarities and differences between Common Law and Equity…… 4-5

3. Relations between Common Law and Equity……………………….. 5-6

4. In conclusion …………………………………………………………... 6-8

5. References ……………………………………………………………… 9

Historical background and definition of equity

In understanding the beginnings of Equity that is necessary to know structure of

system of common law. (Writs). Writs were used by the clerks in the Chancellor’s office. In

definition of Writs; “was a sealed letter issued in the name of the King, and it ordered some

person, Lord of the Manor or Sheriff of county or the defendant,to do whatever the writ

specified.” “Common law did not expand to meet the urgent and growing needs of the

community. Complaints to the King and his Council regarding the inelasticity of the common

law led to the emergence of the Court of Chancery and its special field known as Equity.”

Courts law on England that have been enforced the king’s law or rules in medieval

times. In this law of courts enforcement an important and major member is Chancellor who he

member of King’s Council. Then, Chancellor was a clergyman and King’s clergy. It began to

become judicial section or body called “Court of Chancery”.
.
“Common law’s origins come from the time of Norman Conquest. New procedures

and judicial systems included into old Frankish system. Common law and equity have been

existed in these systems and they administered by the privileged power of the king.”

“Equity was administered with together Court of Chancery other common law

courts.In these courts, have been begun to take a decision unjustly. Thus, Litigants who could

not get justice in the common law courts until their joining. Litigants and aggrieveds proved

friction of court of Equity on some subjects or jurisdiction. Jurisdiction felt down to the

Chancery Court. Occasionally Courts of common law and the Chancery Court issued

controversial judgements. Thus, Equity and common law relations maintained

problematically.”

“In a general sense equity means fairness in the adjustment of conflicting interests,or

the application of principles of good conscience to settlement of controversies,i.e. natural

justice. In the special sense adopted by English lawyers,equity means that portion of natural

justice which,though capable of being enforced by the courts of common law,was originally

enforced only by the Court of Chancery.Equity as thus understood had been described as ‘a

gloss (meaning a supplement) on the common law’, filling in the gaps and making the English

legal system more complete.”

Court of Equity (Chancery) proved sometimes the Courts common were returning

contradictory verdict and their jurisdictions were occuring some controversies. Thereupon,

“the King sought the views of Sir Francis Bacon (Attorney-General) who advised that where

common law and equity conflicted,equity should prevail.Although competition between the

courts of common law and equity continued.”

Oncoming 19.century, new Lord Chancellors developed the equity and they

established the equity as case of law and sub-structure.

“Lord Eldon (Lord Chancellor in 1801-1806 and 1807-1827) further developed equity,

establishing a system of case law,so that by the beginning of the nineteenth century equity

became nearly as rigid as the common law.”

“The history of equity in the nineteenth century was notable for the delays which occured in

settling disputes, and the confusion over jurisdiction. Lord Eldon’s rule as Lord Chancellor

has been described as ‘ponderous’ (one case is reported to have lasted ten years).”

Lord Eldon has been described as ponderous and there should was some reform as

legal. For to eliminate the this ponderous,there should were some important principles.

“The latter half of the nineteenth century was also a period of judicial reform, which

cultimated in the judicature Acts,1873-5. These Acts set up a new structure of courts known

as the Supreme Court of Judicature.In addition the Acts laid down four important principles:

(a) Equity and common law should in future be administered side by side in all courts.

(b) Where there is a conflict between a rule of equity and a rule of common law with

reference to the same matter,the rule of equity should prevail.

(c) Evidence could be given in court orally.

(d) Rules of the Supreme Court of Judicature were formulated laying down procedural

matters.”

In above mentioned matters is the most important for structure of common law and

equity and also, especially initial 2 matters, other 2 matters is important but initial two matters

prevail as structure and importance.These matters have been provided equity and common

law harmony. And if equity prevail or dominate over the common law and court decisions,

conflict and disharmony conclude between common law and equity.Equity follows the law

and equity leads to way the justice.Equity completes law.Nevertheless, Equality is equity.

Moreover,there are most important differences and similarities common law and

equity.

Similarities and Differences between Common Law and Equity

There are some similarities between common law and equity. Firstly, Common law

and equity go on the doctrine of precedent. Secondly, Common law and equity have been

partly contained in statutes.A modern advocate uses this term ‘law’ and ‘equity’ that he does

not say equity is law. Equity and common law is in different sides. Equity follows the law

“Also, there are several important differences between common law and equity.

Firstly, The common law existed since time of immemorial or ancient, rules of equity

admitted and created some necessity of arouse since long process. Secondly, The common

law system is a through system which equity consists of certain rules devised to collect

particular difficulties. Thirdly, before 1875, the common law administered or exercised in the

courts of common law and Equity was administered or exercised in the Chancery Court. “

Relations between The Common Law and Equity

Numeration is very important and beneficial for understanding relations between the

common law and equity.

“1. The differentiation betweeen law and equity consists in other systems and the ius

honorarium, that improved by the praetor’s edict and played role a staminal section in the

improvement of Roman Law.In the same courts have been administered as the ius civile,

İn England law and equity, untill the Judicature Acts 1873 and maintained its effects to

1875 and it administered in separate courts.

2. Although these rules have distincts,they must not be independent and interaction.By

contrast with,Equity rules provide to complementary of common law.Also Equity is a

supplementation to the common law.

3. Moreover, teh rules of equity did not deny the rules of common law,furthermore if

common law rules had not remain alone,Equity produced a result in practice and

effect.Namely we may say there were conflict and opposed between rules of common law

and rules of equity.

4. Rules of Equity and rules of common law accepted and administered in the same

courts,but tehy still remain bodies or sections of law and administered by teh different

principles.

5. Equity is judicial law like rules of common law,for example judges decisions have

important significance in judicial law who administered equity.Some branches of

common law and branches of equity have been reshaped amendments and addendums in

systematizing Acts.

Also, the common law was built up as a complete system and was independent of any

other system.Equity, on the other hand,was developed to remedy the defects in the common

law and would be meaningless if considered in isolation because it presupposed the existence

of the common law.

In Conclusion

In first times, Equity and common law were progressing different route and their

judgements did not apply in decisions as courts.Litigants and aggrieveds people were

complaining about decisions of courts.Thus, dissatisfaction happened some deep and

important reformation. Even, judges had not apply old decisions. (previous courts decisions).

Some reformation made and developed on equity and courts with extraordinary important

regulations by the Chancellors.

In the above four matter is most important, (a) and (b) matters( 9.footnote). Firstly,

Equity and common law should be side by side and ane within the other. Thus, decisions can

give appropriately and justly. Between Court decisions conflicts eliminated by the

reformation and they became to progressing within regularity. Thus, Equity preaviled with

together the common law.

In United States, lawyers explained that there are three main restrictions on

power a court of equity. Firstly, It cannot take cognisance of any trial and it can give remedy

completely in the common law. Secondly, It cannot except in any trial against express letter

and purpose of the legislature.If legislature enacts an injustice, but it will be tangible,the court

of Chancery is not form with an amendment power is offer. Thirdly, It should not the except

in any case which it does not come in a general description and acknowledge of remedy by a

general and applicable rule.

Nowadays in United States, Federal courts and most of all courts united law and

equity in the courts generally within jurisprudence. Especially, county courts. However, the

stable differentiation between law and equity have held up its ancient capability.These

differences are not only some circumstances.Certain law case’s handling or conduct is

difficult.

Still today, some states implement courts of law and equity separately.However, U.S.

Courts united law and equity and it maintains procedures of equity courts.The procedures of

equity is more flexible than the courts of common law.Finally, results of Acts collected in

administration of both common law and equity.

Actually equity was indicator a clean gloss on the common law.In general,Equity has

one mission and it perfoms of overcoming the available conditions but equity does not mean

that destruction or collapse of strict positive law.However,in historical background of English

law equity gets the better of strict or Common law.Also, equity does not want to maintaining

its dominant.Equity operates with together The Comon Law and it performs justice and

equality at collected and separately courts.As appropriate to human nature equity follows the

law because this is a necessity for maintaining of human life on an equality with over the law

systems.Also, humankind need to to equity especially in law rules on developed and

competitive the world.

In jurisprudence,people should be utilizing of equity prenciples especially remedy and

legitimacy of court decisions in high proportion.Equity has been provided equality, remedy,

permanency of common law.

References

Fox,R,D. (1993).The law-equity distinction:Behavioral Sciences & the Lawriginal
version presented at the Annual Meeting of the American Psychological Association (1990), 11, 97-109Boston.Retrieved October 22, 2007, from http://.www.dennisfox.net/papers/balance.html#Equity

Franklin, M. (1951, June). Philosophy and Phenomenological Research. A New
Conception of the Relation Between Law and Equity
Mitchell FranklinVol. 11, No: .4. pp. 474-488

Isıktac, Y. (1992).Hukukun kaynağı olarak örf ve adet hukuku[As a source of law is
common law].Istanbul:Kazancı book.

James, S,P. (1979).Introduction to English law.London:Butterworths

Padfield, F,C. (1979).Law made simple.London:made simple books W.H.Allen

Rossi, R, C. (1993).Equity and international law.Newyork:Transnational
publishers,ınc.

Sim,R,S.&Scott,D,M,M. (1974).A level English law(fourth ed.).London:Butterworths

Smith, K.&Keenan,J,D. (1975).English law.Pitman publishing

William, G. (1991).Introduction to English law(tenth ed.).Newyorkxford university
press.

www.wikipedia.org. Retrieved December 01,2007

04-09-08, 06:05 Çevrimdışı	#1
Doçent ASAKİRİ Huzur Pınarı Genel Mesajlar: 3.145 Teşekkür etti: 1.371 Teşekkür edildi: 1.815 RepForum Gücü: 50 Forum Puanı:19871 Ruhsal Durumum:	Common Law and Equity-law studies.. CONTENT 1. Historical background and definition of equity .................................. 2-4 2. Similarities and differences between Common Law and Equity…… 4-5 3. Relations between Common Law and Equity……………………….. 5-6 4. In conclusion …………………………………………………………... 6-8 5. References ……………………………………………………………… 9 Historical background and definition of equity In understanding the beginnings of Equity that is necessary to know structure of system of common law. (Writs). Writs were used by the clerks in the Chancellor’s office. In definition of Writs; “was a sealed letter issued in the name of the King, and it ordered some person, Lord of the Manor or Sheriff of county or the defendant,to do whatever the writ specified.” “Common law did not expand to meet the urgent and growing needs of the community. Complaints to the King and his Council regarding the inelasticity of the common law led to the emergence of the Court of Chancery and its special field known as Equity.” Courts law on England that have been enforced the king’s law or rules in medieval times. In this law of courts enforcement an important and major member is Chancellor who he member of King’s Council. Then, Chancellor was a clergyman and King’s clergy. It began to become judicial section or body called “Court of Chancery”. . “Common law’s origins come from the time of Norman Conquest. New procedures and judicial systems included into old Frankish system. Common law and equity have been existed in these systems and they administered by the privileged power of the king.” “Equity was administered with together Court of Chancery other common law courts.In these courts, have been begun to take a decision unjustly. Thus, Litigants who could not get justice in the common law courts until their joining. Litigants and aggrieveds proved friction of court of Equity on some subjects or jurisdiction. Jurisdiction felt down to the Chancery Court. Occasionally Courts of common law and the Chancery Court issued controversial judgements. Thus, Equity and common law relations maintained problematically.” “In a general sense equity means fairness in the adjustment of conflicting interests,or the application of principles of good conscience to settlement of controversies,i.e. natural justice. In the special sense adopted by English lawyers,equity means that portion of natural justice which,though capable of being enforced by the courts of common law,was originally enforced only by the Court of Chancery.Equity as thus understood had been described as ‘a gloss (meaning a supplement) on the common law’, filling in the gaps and making the English legal system more complete.” Court of Equity (Chancery) proved sometimes the Courts common were returning contradictory verdict and their jurisdictions were occuring some controversies. Thereupon, “the King sought the views of Sir Francis Bacon (Attorney-General) who advised that where common law and equity conflicted,equity should prevail.Although competition between the courts of common law and equity continued.” Oncoming 19.century, new Lord Chancellors developed the equity and they established the equity as case of law and sub-structure. “Lord Eldon (Lord Chancellor in 1801-1806 and 1807-1827) further developed equity, establishing a system of case law,so that by the beginning of the nineteenth century equity became nearly as rigid as the common law.” “The history of equity in the nineteenth century was notable for the delays which occured in settling disputes, and the confusion over jurisdiction. Lord Eldon’s rule as Lord Chancellor has been described as ‘ponderous’ (one case is reported to have lasted ten years).” Lord Eldon has been described as ponderous and there should was some reform as legal. For to eliminate the this ponderous,there should were some important principles. “The latter half of the nineteenth century was also a period of judicial reform, which cultimated in the judicature Acts,1873-5. These Acts set up a new structure of courts known as the Supreme Court of Judicature.In addition the Acts laid down four important principles: (a) Equity and common law should in future be administered side by side in all courts. (b) Where there is a conflict between a rule of equity and a rule of common law with reference to the same matter,the rule of equity should prevail. (c) Evidence could be given in court orally. (d) Rules of the Supreme Court of Judicature were formulated laying down procedural matters.” In above mentioned matters is the most important for structure of common law and equity and also, especially initial 2 matters, other 2 matters is important but initial two matters prevail as structure and importance.These matters have been provided equity and common law harmony. And if equity prevail or dominate over the common law and court decisions, conflict and disharmony conclude between common law and equity.Equity follows the law and equity leads to way the justice.Equity completes law.Nevertheless, Equality is equity. Moreover,there are most important differences and similarities common law and equity. Similarities and Differences between Common Law and Equity There are some similarities between common law and equity. Firstly, Common law and equity go on the doctrine of precedent. Secondly, Common law and equity have been partly contained in statutes.A modern advocate uses this term ‘law’ and ‘equity’ that he does not say equity is law. Equity and common law is in different sides. Equity follows the law “Also, there are several important differences between common law and equity. Firstly, The common law existed since time of immemorial or ancient, rules of equity admitted and created some necessity of arouse since long process. Secondly, The common law system is a through system which equity consists of certain rules devised to collect particular difficulties. Thirdly, before 1875, the common law administered or exercised in the courts of common law and Equity was administered or exercised in the Chancery Court. “ Relations between The Common Law and Equity Numeration is very important and beneficial for understanding relations between the common law and equity. “1. The differentiation betweeen law and equity consists in other systems and the ius honorarium, that improved by the praetor’s edict and played role a staminal section in the improvement of Roman Law.In the same courts have been administered as the ius civile, İn England law and equity, untill the Judicature Acts 1873 and maintained its effects to 1875 and it administered in separate courts. 2. Although these rules have distincts,they must not be independent and interaction.By contrast with,Equity rules provide to complementary of common law.Also Equity is a supplementation to the common law. 3. Moreover, teh rules of equity did not deny the rules of common law,furthermore if common law rules had not remain alone,Equity produced a result in practice and effect.Namely we may say there were conflict and opposed between rules of common law and rules of equity. 4. Rules of Equity and rules of common law accepted and administered in the same courts,but tehy still remain bodies or sections of law and administered by teh different principles. 5. Equity is judicial law like rules of common law,for example judges decisions have important significance in judicial law who administered equity.Some branches of common law and branches of equity have been reshaped amendments and addendums in systematizing Acts. Also, the common law was built up as a complete system and was independent of any other system.Equity, on the other hand,was developed to remedy the defects in the common law and would be meaningless if considered in isolation because it presupposed the existence of the common law. In Conclusion In first times, Equity and common law were progressing different route and their judgements did not apply in decisions as courts.Litigants and aggrieveds people were complaining about decisions of courts.Thus, dissatisfaction happened some deep and important reformation. Even, judges had not apply old decisions. (previous courts decisions). Some reformation made and developed on equity and courts with extraordinary important regulations by the Chancellors. In the above four matter is most important, (a) and (b) matters( 9.footnote). Firstly, Equity and common law should be side by side and ane within the other. Thus, decisions can give appropriately and justly. Between Court decisions conflicts eliminated by the reformation and they became to progressing within regularity. Thus, Equity preaviled with together the common law. In United States, lawyers explained that there are three main restrictions on power a court of equity. Firstly, It cannot take cognisance of any trial and it can give remedy completely in the common law. Secondly, It cannot except in any trial against express letter and purpose of the legislature.If legislature enacts an injustice, but it will be tangible,the court of Chancery is not form with an amendment power is offer. Thirdly, It should not the except in any case which it does not come in a general description and acknowledge of remedy by a general and applicable rule. Nowadays in United States, Federal courts and most of all courts united law and equity in the courts generally within jurisprudence. Especially, county courts. However, the stable differentiation between law and equity have held up its ancient capability.These differences are not only some circumstances.Certain law case’s handling or conduct is difficult. Still today, some states implement courts of law and equity separately.However, U.S. Courts united law and equity and it maintains procedures of equity courts.The procedures of equity is more flexible than the courts of common law.Finally, results of Acts collected in administration of both common law and equity. Actually equity was indicator a clean gloss on the common law.In general,Equity has one mission and it perfoms of overcoming the available conditions but equity does not mean that destruction or collapse of strict positive law.However,in historical background of English law equity gets the better of strict or Common law.Also, equity does not want to maintaining its dominant.Equity operates with together The Comon Law and it performs justice and equality at collected and separately courts.As appropriate to human nature equity follows the law because this is a necessity for maintaining of human life on an equality with over the law systems.Also, humankind need to to equity especially in law rules on developed and competitive the world. In jurisprudence,people should be utilizing of equity prenciples especially remedy and legitimacy of court decisions in high proportion.Equity has been provided equality, remedy, permanency of common law. References Fox,R,D. (1993).The law-equity distinction:Behavioral Sciences & the Lawriginal version presented at the Annual Meeting of the American Psychological Association (1990), 11, 97-109Boston.Retrieved October 22, 2007, from http://.www.dennisfox.net/papers/balance.html#Equity Franklin, M. (1951, June). Philosophy and Phenomenological Research. A New Conception of the Relation Between Law and Equity Mitchell FranklinVol. 11, No: .4. pp. 474-488 Isıktac, Y. (1992).Hukukun kaynağı olarak örf ve adet hukuku[As a source of law is common law].Istanbul:Kazancı book. James, S,P. (1979).Introduction to English law.London:Butterworths Padfield, F,C. (1979).Law made simple.London:made simple books W.H.Allen Rossi, R, C. (1993).Equity and international law.Newyork:Transnational publishers,ınc. Sim,R,S.&Scott,D,M,M. (1974).A level English law(fourth ed.).London:Butterworths Smith, K.&Keenan,J,D. (1975).English law.Pitman publishing William, G. (1991).Introduction to English law(tenth ed.).Newyorkxford university press. www.wikipedia.org. Retrieved December 01,2007 (Oycan87 bu kişinin koruması ve sevgi şemsiyesi altındadır..) ---sen çekik gözlerimde büyüttüğüm çerkez düşümsün--- Yeşil Gözlüm Oya gibi, Nakış Nakış seni yüreğime işledim ışığım .

Konu Seçenekleri
Yazdırılabilir Sümü Göster Sayfayı E-Mail'le gönder