Equity (law)

Equity (English = fairness, justice; Latin: aequitas) is a legal concept from Anglo-American procedural and court constitutional law, which developed after the Norman conquest of England in 1066.

From the locally fragmented customary law of the Germanic tribes of the Saxons, Angles, Jutes and Danes arose the uniform common law (gemeines Recht), which was characterized by action law, whose enforcement in court required a certain writ and was strictly formalized. After many unsuccessful lawsuits, those seeking justice therefore increasingly turned to the king - as guarantor of justice - with petitions in order to obtain legal protection that did not conform to the principles of common law, but did conform to the dictates of morality and conscience. The King entrusted his Chancellor ("Chancellor") with the decision on these exceptional cases. In this way, from the 12th century onwards, a second jurisdiction called equity law developed with the Court of Chancery, which contrasted legal certainty through formal strictness with individual case justice.

The Lord Chancellor was not bound by either common law or his own precedents. Moreover, it was possible to base the decision on facts which were not amenable to proof under the strict rules of the common law.

Equity law was originally case-based, but in the 16th century it developed into a fixed legal system with certain rules of law (rules of equity and good conscience) standing alongside the actual case law. Of greater relevance, however, was the distinction in remedies. Whereas the common law essentially awarded damages, the defendant could be ordered to perform (specific performance) and to cease and desist, also by way of interim relief (final and interim injunctions), under equity.

Initially, there was no clear demarcation of the subject-matter jurisdiction of the two courts. A landmark decision in 1615 (Earl of Oxford's case), in which King James I ruled that the principles of equity should take precedence over the common law in cases of conflict, was decisive for the conflicts over the demarcation of the areas of jurisdiction. By the end of the 17th century, a coexistence of common law courts and courts of equity had emerged.

A trial and court reform in 1873 and 1875 merged the common law courts and the Court of Chancery into individual chambers of a new High Court of Justice, which have since considered and applied common law and equity principles.

UK civil procedure law became largely statutory when the UK joined the European Community.

Equity law and the principle of good faith, which is important in continental European law, have a common origin in elements of the Roman aequitas and both aim to overcome the formal strictness of the law in individual cases. English law, however, does not assign the requirement of a general duty to act in good faith to equity, but discusses it separately as a requirement of contract law and rejects it.