UNIT 2

THE ENGLISH COMMON LAW SYSTEM

Thursday 16/3
 HOME PAPER

READ THE ATTACHED DOCUMENT CAREFULLY AND DO AS INDICATED

BELOW:

A) GENERAL QUESTIONS ON TYPE OF TEXT AND DISTRIBUTION OF

INFORMATION:

1) What characteristics as to format, text organization and use of vocabulary give you
the clue that the attached document is a contract?

2) What are the three different portions into which the text of the agreement may be
divided?

3) In not more than three lines explain the purpose or subject matter of the agreement.

B) SPECIFIC QUESTIONS ON FORM AND LANGUAGE:

1) Explain the meaning and account for the use of the following deictic terms as used
in the text:
a) hereinafter (lines 3,4, 7 and 8)
b) thereof (line 20)
c) foregoing (line 25)
d) therefor (line 30)
e) hereunder (line 41)

2) List all doublets of legal idiom you come across and explain why they should be
interpreted as a unit of meaning.

3) Quote all words or phrases signifying the obligation or the agreement to do

something, and the right to do something.
 2
4) Quote all phrases or sentences which are mere statements offact.

5) Where in the text is there a proviso? Copy the sentence that contains such proviso
and explain why it is considered such.

6) Comment on the use of capital initials for certain words in the text.

7) Scan the text through for terms that may be suitable equivalents of the following
Spamsh terms: fa certain degree of adaptador may be necessary in some cases')

a) celebrar un contrato
b) estipula ones
c) obligarse
d) poner i informacin) en conocimiento de un tercero
e) dar cumplimiento a una obligacin
f) nterpretar
g) en pleno vigor y efecto
h) disposiciones invlidas
i) resolver una controversia

C) SPECIFIC QUESTIONS ON THE CONTENT OF THE AGREEMENT:

1) State whether the following statements are true or false. ACCOUNT FOR YOUR
ANSWER
a) Recipient may exploit the Information commercialy only if it g ves notice of such
use to Yagura.

b) If the Information given to Recipient was already in the public domain by the
time Ybgura made it available to Recipient, Recipient may pass on the Information
to any third party.

c) The Agreement contains a license to use the Information.

d) If a certain provision of the Agreement is deemed invalid, the remaining

provisions are not affected as a result
2) Answer:
a) Is there any time limit in connection with the duty of secrecy imposed upon
Recipient? Explain.
b) In the event of disagreement between the parties, can they go to court in
Argentina?

3) Contractual provisions are typically preceded by a title or heading. What heading

would you use to describe provisions No. 2, 5, 7,9 and 11?

4) Which of the provisions denotes that the parties wish to preserve the validity of the
Agreement?
 4Z
I
CONFIDENTIALITY AGREF MENT
Tils Agreement, made and entered into as of the day of , 1996 by and between
Ya^i/rcc frodju-oty f Ltd., 3-11, r- --Tokyo
10; Jipaxi (hereinafter referred to as jrvi ) and
TrimelaT, ScJ-bz, f o . Buenos Aires, Argentina (hen nailer referred to as
5 Recipient)
WHEREAS, )'CL c,-jtcl.\ owns and/or has the right to commercialy exploit tne compound
currently identified as XxT? (hereinafter referred to as Compound) and owns proprietary
data and information related thereto (hereinafter refer -ed to as Information); and
WHEREAS, Recipient desires to obtain the Informal in from Va.' wra in order to
tO determine its commercial interest in the Compound; and
WHEREAS, yo^ura . is entitled and agrees to make available to Recipient the Information
under the terms and conditions as set forth below.
NOW T: IEREFORE, the parties agree as follows.
1. N a--$ura vill provide Rec lent w!:h the Information as it considers necessary for
/5 Recipient to det line its commerc 1 interest in the Compound.
2. Recipient undertakes to treat in strict confidence any and all Informs .on received from
YcLQ'JfCo under "ilk Agreement and only to use it fc de' niJng :s nterest in 5the
Comf "nd. in particular, Recipient agrees not to exploit the Informaln commercally
"without the pr or written consent of Yob^wrxtt.
20 3. Recipient further undertakes not to pass on the Information or any part thereof to thr d
parties even under a corresponding ,secrecy agreement.
4. Recipient agrees to make the Information available only to those of its employees who
need to have access to it for the purpose of this Agreement, and to obligate such employees
correspondingly to the extent legally permis 'ble.
25 5 The foregoing obli, itions shah not apply, however, to such Information or to any part
thereof, received from V ^iyrdL..Tor wtucft Recipient proves"
a) that it was known * Recipient priortoits receipt;
b) that it was known to the public or generally available to the public prior to its receipt;
c) that it became known to the public or generally available to the public subsequent to its
30 receipt wrihoui. Rec pient being responsible therefor; or
d) receipt at any time - without any obligation to maintain secrecy -froma third party
having a bonafideright to disclose the same to Recipient.
 6. Recipient will inform yCt J-'RA^ not later than three mouths after the receipt of the
Information whether it is Interested In the Compound or not. In the event that Recipient is
35 not interested in the Compound, Recipient shall return all the Information received from
Voqura, provided that Recipient may retain one copy thereof for its record in order to
fulfill its obligations under this Agreement.
7. This Agreement shall not by implication or otherwisefeeconstrued as a grant of a license
or as an obligation to grant a license to Recipient.
8. The confidentiality obligations of Recipient and its legal successor(s) shall continue in full
force for ten (10) years following receipt of the last Information hereunder.
9. Should any clause of this Agreement be or become legally ineffective, the validity of the
Agreement as a whole shall not be affected. The parties rather undertake to replace
ineffective clauses by legally effective ones which come as close as possible to the sense of the
hs ineffective ca
l uses and the purpose of this Agreement.
10. This Agreement shall he governed by and construed in accordance with the laws of
Japan.
11. Any dispute arising out of this Agreement shall be settled by arbitration in Tokyo in
accordance with the Rules of Conciliation and Arbitration of the International Chamber of
50 Commerce.
IN WITNESS THEREOF, die parties have caused this Agreement executed by the signature
of their authorized officers.
YA GT&PL _?RI?tsW c-TS ^Ltd.

BY:
55 'C.iTitfitshi , PhJD.
Executive Director, Corporate Licensing Dept.
DATE:

PR M SLAB

oO
BY:
5- Sudreu
Director and General Manager
DATE:
 UNIT 2
NOTES ON
THE ENGLISH COMMON LAW SYSTEM
IExtractedfrom "The English Legal System", Slapper & Kelly, 7th Edition
2004 and "Learning Legal Rules" James A. Holland & Julian S. Webb)
The Nature ofLaw
One of the most obvious and most central characteristics of all societies is that
they must possess some degree of order to permit the members to interact over a
sustained period of time. Different societies, however, have different forms of
order. Some societies are highly regimented with strictly enforced social rules,
whereas other continue to function in what outsiders might consider a very
unstructured manner with apparently few strict rules being enforced. Order is
therefore necessary, but the form through which order is maintained is certainly
not universal, as many anthropological studies have shown. The most obvious
way in which law contributes to the maintenance of social order is the way in
which it deals with disorder or conflict. [The English Legal System, Slapper &
Kelly]
What is Law?
Law may be defined as a system of rules laid down by a body or person with the
power and authority to make law. In this sense, law is certainly not the same
everywhere; it will reflect different cultures and different epochs.
Categories of law
There are various ways of categorising law which initially tend to confuse the
non-lawyer and the new student of law. What follows will set out these
categorisations in their usual dual form whilst at the same time trying to
overcome the confusion inherent in such duality. The purpose of this section is to
make sure that students are aware of the fact that the same words have different
meanings depending upon the context in which they are used. [Slapper & Kelly].
Thus, law may be categorised as follows:
COMMON LAW AND CIVIL LAW
COMMON LAW AND EQUITY
COMMON LAW AND STATUTE LAW
PRIVATE AND PUBLIC LAW
CIVIL AND CRIMINAL LAW
1) COMMON LAW AND CIVIL LAW. [THE ENGLISH LEGAL SYSTEM IS A COMMON
LAW ONE AS OPOSSED TO CONTINENTAL SYSTEMS, WHICH ARE BASED ON CIVIL LAW

1
In this particular dual form these terms are used to distinguish two distinct legal
systems and approaches to law. In the Western world, there are two dominant
"traditions" which we call Civil and Common Law. The term "Common Law" is
thus used as a means of defining all those legal systems in the world whose laws
are derived from the English system.
In this sense, common law may be regarded as a "family" of legal systems. The
English legal system was exported around the world during the colonial period.
The legal systems, for example, of the USA, Australia, Canada, India, New
Zealand, Singapore, Malaysia and most of the Commonwealth countries, are all
based on English common law, though in many such systems the English
influence may coexist with elements of local customary law or even with other
legal traditions, such as Islamic Law or Hindu Law. This does not mean that all
these countries have developed uniform responses to particular legal problems.
Each country has its unique characteristics. To survive transplanting, the
Common Law has had to respond to the different needs and conditions of each
jurisdiction. This has often meant departing from the established (English) rules.
Such variation is generally seen not so much as a dilution of the Common Law,
but rather as a sign of its capacity to adapt.
What makes these different jurisdictions part of the common law legal family is
not exactly similar rules or propositions but rather a working jurisprudence. As
Justice Story declared in Van Ness v Pacard (1829, 2 Pet. At 137) in respect to
the US:
The common law of England is not taken in all respects to be that of
America:-Our ancestors brought with them its general principles, and
claimed it as their birthright: but they brought with them and adopted
only that portion which was applicable to their situation.
In the view of Chief Justice Shaw of Massachusets, in Norway Plains Co. v.
Boston & Maine Railroad (1945, 1 Gray, at 263) the flexibility of the common
law ensured its adaptation in different countries.
It is one of the great merits and advantages of the common law, that
instead of a series of detailed practical rules, established by positive
provisions, and adapted to the precise circumstances ofparticular cases,
which would become obsolete and fail, when the practice and course of
business, to which they apply, should cease or change, the common law
consists of a few broad and comprehensive principles, founded on reason,
natural justice and enlightened public policy.
Courts, legislators and lawyers in the Common Law world still share a more or
less common approach to legal reasoning, and, as Lord Lloyd put it in
Invercargill, a wilingness to learn from each other. For example, it is not that
uncommon, particularly in areas where the law is uncertain, for judges to refer to

2
decisions from several Common Law jurisdictions, thereby enabling them to
analyse a range of potential solutions to the problem.
Today we talk of two great legal families. The legal systems of continental
European countries, which were also exported around the world, gave rise to the
civil law systems. The most influential of these has been that of France, because,
by producing the Code civil, Napoleon gave to France thefirstmodern European
legal system, which was copied elsewhere. In practice, each jurisdiction may mix
their secular legal tradition with local customary or religious traditions.
[Common Law Reasoning and Institutions. W.J. Morrison, A. Gearey, K.
Malleson]
2) COMMON LAW AND EQUITY. [COMMON LAW AND EQUITY DISTINGUISH THE
TWO HISTORICAL SOURCES AND SYSTEMS OF ENGLISH LAW]. In this particular
juxtaposition, the term refers to a particular division within the English legal
system.
The traditional picture of the development of English law begins with the
customs of Anglo-Saxon society. Custom is said to have its roots in the life of the
people and reflect the social structure of that way of life. The daily conditions of
life were rather grim: most of England was covered by dense forests and the
population was largely illiterate. Hence law was local custom, largely unwritten
and understood as a set of orally transmitted rules. As a body of rules, their
contents seems to have been directed as preventing bloodshed by recognising
elementary rights to property and personal freedom and substituting
compensation of the rigours of blood feud as revenge for injury. [COMMON LAW
EMERGED IN THE PROCESS OF ESTABLISHING A SINGLE LEGAL SYSTEM
THROUGHOUT THE COUNTRY]

The common law has been romantically and inaccurately described as the law of
the common people of England. In fact, the common law emerged as the product
of a particular struggle for political power. Prior to the Norman Conquest of
England in 1066, there was no unitary, national legal system. In 1066 the
Norman French baron Wiliam defeated the Saxon King Harold at the battle of
Hastings and conquered England, becoming King Wiliam I. The emergence of
the common law represents the imposition of such a unitary system under the
auspices and control of a centralised power in the form of a sovereign king; in
that respect, it represented the assertion and affirmation of that central sovereign
power. After the Norman Conquest local laws, however slowly, gave way to a
general law of the country, which became known as the common law.
Wiliam insisted that all land was held by his grace (which still persists in the
notion of "freehold". As communications improved so did the spread of central
administration and a centrally administered "law". The fact that a central body
was attempting to develop law as a means of administering the country changed
the character of law and the legal institutions.

3
 Over time, the king's courts became the most important forum for the resolution
of disputes between citizens. The law of the king's judges became the Common
Law (Commune Ley) as distinctfromthe local customs. The judges, however,
tried to recognise "general" customs, a wise move in terms of getting acceptance
of their decisions. Where there was no general custom the decisions of these
judges came to form new law (as indeed was the case when they adopted
custom). The development of the common law was linked to procedure. An1
action could only be brought in these courts by obtaining (purchasing) a writ .
Soon, however, the forms of such writs became fixed, and only Parliament could
approve a new type of writ designed to meet a claim that could not be
accommodated within the existing writs and forms of actions. If there was no
writ to cover your precise problem, unfortunately it was very difficult for the
courts to listen to you. (This was recognised by the Latin phrase ubi remedium ibi
jus, which translated in practice as no right could be recognised in the common
law unless a writ existed that provided remedy for its breach). Such refusal to
deal with substantive injustices because they did not fall within a particular form
of action led to injustice. This created a rigid legal system and caused
considerable hardship to many individual litigants. In response a practice grew of
petitioning the king (as the "fountain of justice") for justice in the individual
case. The petitions were dealt with by the chancellor, who in this period was a
man of the church and who was regarded as the "conscience" of the king. In due
course a formal procedure for such petitions evolved, culminating in a Court of
Chancery, presided over by the Lord Chancellor, applying a system of rules
known as "equity" rather than the common law of the ordinary courts. [EQUITY
WAS DEVELOPED LATER TO SOFTEN THE FORMAL RIGOUR OF THE COMMON LAWL
The Court of Chancery was often called a "court of conscience". It is true that it
was often effective in remedying injustices, but the existence of parallel
jurisdictions brought problems and injustices of its own. Plaintiffs unable to gain
access to the common law courts could directly appeal to the sovereign, and such
please would be passed for consideration and decision to the Lord Chancellor,
who acted as the "king's conscience". Chancery developed procedures separate
from, but at least as complex as, those of the common law courts. The equity of
the Chancery Court became a set of rules almost as precise as those of the
common law. In the case of conflict between the two systems, the rules of equity
prevailed. Parliament sought to put an end to these divisions with the Judicature
Act 1873-1875, which established a unified system of courts that were charged
with applying both the common law and equity.
It is very common for students to confuse "equity" with the idea of natural
justice. Although that was the origin of the Chancery jurisdiction, it has long
since disappearedfromthe rules of equity. The rules of equity are just as capable

1
Writ a document carrying the royal seal that was, in effect, an order of the sovereign commanding the performance
of some act.

4
today as those of the common law of producing resolutions of disputes that may
be viewed as just or unjust.
Today, since the two types of rules are applied by the same courts, it may be apt
to see equity as simply another form of the law.
There are, nevertheless, certain distinctive features. First, while common law
rules are available to plaintiff as of right, equitable remedies (or remedies in
equity) are discretionary, in other words they are awarded at the will of the court
and depend on the behaviour and situation of the party claiming such remedies.
This means that, in effect, the court does not have to award an equitable remedy
where it considers that the conduct of the party seeking such an award has been
such that the party does not deserve it in the sense that they are subject to some
general conditions of availability. For example, there is no absolute right to the
specific performance of a contract. Secondly, the existence of parallel systems of
rules, the one based on formal procedures, the other based originally on the idea
of substantial justice, has allowed some judges to invoke the tension between the
two systems as a source of judicial creativity in developing the law to meet new
situations.
3) COMMON LAW AND STATUTE LAW. The phrase "common law" is also used
to denote the law applied by the courts as developed by the system of precedent
without reference to legislation passed by Parliament. This particular conjunction
follows onfromthe immediately preceding section, in that the common law here
refers to the substantive law and procedural rules that have been created by the
judiciary through the decisions in the cases they have heard. Statute law, on the
other hand, refers to law that has been created by Parliament in the form of
legislation. [COMMON LAW IS JUDGE-MADE; STATUTE LAW IS PRODUCED BY
PARLIAMENT],
4) PRIVATE LAW AND PUBLIC LAW. There are two different ways of
understanding the division between private and public law.
At one level, the division relates to the actions of the State and its officers vis--
vis the individual citizen, and the legal manner in which, and form of law
through which, such relationships are regulated: public law. In the 19th century, it
was at least possible to claim, as AV Dicey did, that there was no such thing as
public law in this distinct administrative sense and that the powers of the State
with regard to individuals were governed by the ordinary law of the land,
operating through the normal courts. Whether such a claim was accurate or not
when it was made -and it is unlikely- there certainly can be no doubt now that
public law constitutes a distinct and growing area of law in its own. The growth
of public law in this sense has mirrored the growth and increased activity of the
contemporary State, and has seen its role as seeking to regulate such activity.
Continental European legal systems developed the idea of public law into a
separate and specialized body of rules applicable only to cases involving state

5
administration. English law has not yet taken such a radical step, but in many
cases the term "public law" is loosely used to refer to constitutional and
administrative law.
There is, however, a second aspect to the division between private and public
law. One corollary of the divide is that matters located within the private sphere
are seen as purely a matter for individuals themselves to regulate, without the
interference of the State, whose role is limited to the provision of the forum for
deciding contentious issues and mechansi ms for the enforcement of such
decisions. Matters within the public sphere, however, are seen as issues relating
to the interest of the State and general public, and as such are to be protected and
prosecuted by the State.
5) CIVIL AND CRIMINAL LAW. Civil law is a form of private law and involves
the relationships between individual citizens. It is the legal mechanism through
which individuals can assert claims against others and have those rights
adjudicated and enforced. The purpose of civil law is to settle disputes between
individuals and to provide remedies; it is not concerned with punishment as such.
The role of the State in relation to civil law is to establish the general framework
of legal rules and to provide the legal institutions to operate thoserights,but the
activation of the civil law is strictly a matter for the individuals concerned.
Contract, tort and property law are generally aspects of civil law.
Criminal law, on the other hand, is an aspect of public law and relates to the
conduct which the State considers with disapproval and which it seeks to control
and/or eradicate. Criminal law involves the enforcement of particular forms of
behaviour, and the State, as the representative of society, acts positively to ensure
compliance. Thus, criminal cases are brought by the State in the name of the
Crown and cases are reported in the form of Regina v.... (Regina is simply Latin
for "queen" and case references are usually abbreviated R v.) whereas civil cases
are referred to by the names of the parties involved in the dispute, for example,
Smith v Jones. In criminal law, a prosecutor prosecutes a defendant (or the
"accused"). In civil law, a claimant sues (or "brings a claim against") the
defendant.
In distinguishing between criminal and civil actions, it has to be remembered that
the same event may giveriseto both. For example, where the driver of a car
injures someone through his reckless driving, he will be liable to be prosecuted
under the Road Traffic legislation, but at the same time, he will also be
responsible to the injured party in the civil law relating to the tort of negligence.
A crucial distinction between criminal and civil law is the level of proof required
in the different types of cases. In the criminal case, the prosecution is required to
prove that the defendant is guilty beyond reasonable doubt, whereas in a civil
case, the degree of proof is much lower and has only to be on the balance of
probabilities. This difference in the level of proof raises the possibility of

6
someone being able to succeed in a civil case, although there may not be
sufficient evidence for a criminal prosecution.
It is essential not to confuse the standard of proof with the burden of proof
which refers to the need for the person making an allegation, be it the prosecution
in a criminal case or the claimant in a civil case, to prove the facts of the case. In
certain circumstances, once the prosecution/claimant has demonstrated certain
facts, the burden of proof may shift to the defendant/respondent to provide
evidence to prove their lack of culpability.
In considering the relationship between civil law and criminal law, it is
sometimes thought that criminal law is the more important in maintaining social
order, but it is at least arguable that, in reality, the reverse is the case. For the
most part, people come in contact with the criminal law infrequently, whereas
everyone is continuously involved with civil law, even if it is only the use of
contract law to make some purchase. The criminal law of theft, for example, may
be seen as simply the cutting edge of the wider and more fundamental rights
established by general property law. In any case, there remains the fact that civil
and criminal law each has its own distinct legal system.
6) SUBSTANTIVE LAW AND PROCEDURE: The distinction between substantive
law and procedure is, in simple terms, the distinction between the rules
applicable to the merits of a dispute (substantive law) and the rules governing the
manner of a resolution of a dispute (procedure). For those who practice law the
rules of procedure are very important, but at the academic stage of legal studies
the focus is on substantive law.
The Common Law tradition vs. the Civil Law tradition
The term Civil Law describes those systems which have developed out of the
Romano-Germanic legal tradition of continental Europe. It is the Civil Law
tradition which dominates within the present European Community. Of the
fifteen Members states, only two, the Republic of Ireland and the United
Kingdom belong to the Common Law world (and the other thirteen states which
anticipate joining soon, none is a Common Law country either).
Underlying a number of practical variations there is, ultimately, a rather different
way of thinking about law within each tradition. In Civilian systems (as they are
called) one can conventionally identify a higher level of conceptualisation,
reflected in a theoretically complex "institutional basis" of Civil Law. This is
sometimes said to create a more "scientific" or rational system than the highly
pragmatic tradition of the Common Law. Civil law is said to be "deductive" in
nature because it proceedsfroman exhaustive code of propositions in accordance
which all subsequent experience must be judged. In this picture, the civil lawyers
are said to favour accessibility over certainty. They stress that the law should be
available to all, easily understandable.

7
The Civil Law tradition is chiefly based upon principles of codified law. The
assumption underlying a codified system is that it is possible to create a set of
texts containing an authoritative statement of the law, usually in the form of Civil
and Criminal Codes, or sub-divisions thereof. Although English lawyers also talk
about "codifying" legislation, the term is used to mean rather different things in
Common as opposed to Civil law systems. In the Common Law, a codifying Act
is primarily a tidying-up operation. It is a piece of legislation which brings
together all the existing law on a topic, both statute and case law, and converts it
into a single entity- the codifying Act. An often cited example is the original Sale
of Goods Act of 1893. The aim of tidying up is one which codifying Acts share
with the continental codes. However, by contrast with the continent, codification
in England has been used as a limited means of imposing legislative coherence
on a particular problematic area of law. For the English, codification has never
been the key mechanism for organising and conceptualising the rules of law that
go to make up a legal system.
The role of the common law judge is central in the Common Law tradition. The
judiciary is placed at the centre of things. Judicial decisions are seen as
constituting the written law- as a body of maxims, precedents and reported
decisions that constantly need to be rationalised and developed into a coherent
system.
The authority of the common law is found in the judgments of courts deliberately
given in causes argued and decided.

8
 SUPPLEMENTARY NOTES ON
THE ENGLISH COMMON LAW SYSTEM
{Extractedfrom "Equity & Trusts" Nutshells, Sixth Edition, Michael Haley, Sweet &
Maxwell)
AN INTRODUCTION TO EQUITY
Originally, "equity" was the name given to the branch of law that was administered by the Court
of Chancery. It developed to counter the injustice caused by the rigidity of the writ system that
operated in the common law courts. Put simply, if there was no writ, then there was no cause of
action upon which a claimant could rely. In such instances, the aggrieved party might apply to
the King for justice. The King, in turn, passed on these appeals to the Lord Chancellor. In time,
the Lord Chancellor developed his own court, the Court of Chancery. Initially, the Court of
Chancery operated in a flexible manner in the dispensation of justice. An aggrieved person
would petition the King who would refer it to his Chancellor as his right-hand man. The
Chancellor, who was an ecclesiastic, with some knowledge of Roman law and canon law, first
advised the King and his Council, but towards the end of the fifteenth century began making
decrees on his own authority. He was concerned with affording relief in hard cases. At first
Equity varied according to the Chancellor's conscience- or the size of the Chancellor's foot as
was sometimes remarked. The work of hearing petitions led to increasing judicial activity of the
Chancellor in what came to be known as the Court of Chancery. Lawyers, instead of
ecclesiastics became Chancellors and began systematically developing a body of rules of equity.
Inevitably, however, equity developed its own body of rules that had, by the nineteenth century,
become almost as technical and rigid as those at common law.
Not surprisingly, a dual system of courts proved to be expensive, cumbersome and
inconvenient. The Judicature Acts 1873-1875 addressed this issue and provided that all courts
could exercise an equitable jurisdiction alongside the common law jurisdiction. Although the
Acts merged the Court of Chancery with the common law courts, it did not fuse the two streams
of law. The Acts did establish, however, the supremacy of equity by providing that, if there is a
conflict between law and equity, the equitable rules will prevail.
Equity's impact
There are many and varies contributions to the modern law that have been made by equity. The
following provide the major examples:
(a) the trust. If property was conveyed to "A upon trust for B" the common law courts
regarded A as the absolute owner and would not recognise B's rights. Equity, however,
would enforce the trust and compel A (as trustee) to hold the property on behalf of B
(the beneficiary);
(b) the mortgagor's equitable right to redeem. Where a landowner mortgages his land
(i.e. offers the land as security for a loan) the mortgage contract will specify a
contractual date for redemption. This is the agreed date when the debt is to be paid off
(redeemed) by the borrower. At common law, the borrower had to discharge the loan by
this date or he would lose the land. Equity intervened and allowed repayment to be
made even though the contractual date had passed;
(c) estoppel. An estoppel arises in circumstances where X makes a statement, promise or
some other representation to Y and, as a result, Y acts to his detriment. Y's detrimental
reliance can trigger an estoppel that will prevent X from enforcing his strict legal rights.
Of the various categories of estoppel that exist, the most commonly found are
promissory estoppel and proprietary estoppel. Promissory estoppel can only be
employed as a defence (it is a shield and not a sword) and hinges upon there being a
promise as to future conduct (not existing fact). Proprietary estoppel requires a

1
 statement (whether in the present or future tense) concerning the land and can be used
as a cause of action (i.e. it confers a positive right to sue);
(d) new remedies. Remedies at law were limited to recovery of the property or damages.1A
wider range of 2remedies was introduced by equity. These include specific performance
and injunctions (collectively also referred to as equitable relief). A distinguishing
feature of all equitable remedies is that they are discretionary (i.e. not available as of
right) and appropriate only where the common law remedies are inadequate.
The maxims of equity
There are a number of maxims that represent the general principles of equity. These maxims
retain importance because they provide broad guidelines by which the courts exercise their
equitable jurisdiction. They should always be borne in mind because, as equitable remedies are
discretionary, they may often dictate when (and when not) a remedy will be granted. The most
important equitable maxims include:
(a) equity will not suffer a wrong without a remedy. This is not to be taken too literally
as equitable remedies are geared only to strike against unconscionable behaviour and
operate only if that behaviour constitutes a legal (as opposed to a mere moral)
wrongdoing. The law of trusts provides a good illustration where equity (but not the
common law) allows the beneficiary to enforce his rights. More modern developments
include the giving of an equity in the matrimonial home to a deserted spouse, the
evolution of promissory estoppel, the employment of the constructive trust and the
expanding of the range of injunctions;
(b) he who seeks equity must do equity. This looks to the future conduct of the claimant
and entails that, for example, if the claimant seeks to rescind (i.e. to withdraw from) a
contract, the court will ensure that the claimant acts equitably by returning any deposit
paid under the contract. Similarly, if the claimant seeks to specifically enforce a
contract when he must be prepared to perform his side of the bargain. The maxim is,
therefore, employed to ensure fairness;
(c) he who comes to equity must come with clean hands. This looks to the past conduct
of the claimant and entails that, if the claimant's conduct in relation to the dispute has
been improper, the chances are that equity will not assist him. For example, specific
performance will not be granted in relation to a contract which was brought about by
the claimant's misrepresentation or fraud or where the claimant is himself in breach of
that contract;
(d) delay defeats equity. This is sometimes called "laches" and means that a claimant who
takes too long to exercise his legal rights will not receive the assistance of equity. The
idea is that the claimant has to act expeditiously. In practice, the role of this maxim has
been subsumed by the Limitations Acts (which set out time limits within which actions
must be commenced), but it still exerts influence when deciding whether equitable
remedies should be granted;
(e) equity is equality. This maxim applies where two or more persons claim to be
interested in the same property. If their respective shares are not stated, and in the
absence of a contrary intention, equity assumes that they are to have equal shares;

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Specific performance is a court order requiring a party to a contract to perform his side of the bargain.
When granted this will be either as an alternative or in addition to damages for breach of contract. This
remedy will not be granted if damages would adequately compensate the claimant. An example of where
specific performance will be readily granted concerns contracts for the sale of land. This is because each
piece of land is considered to be unique and damages would not compensate the potential purchaser.
Injunctions are court orders prohibiting someone from doing some specified act or commanding
someone to undo some wrong or injury. A prohibitive, equitable remedy issued or granted by a court at
the suit of a party complainant directed to a party defendant in the action or to a party made a defendant
for that purpose.

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 (f) equity will not assist a volunteer. Equity will not grant specific performance of a
gratuitous promise (i.e. an agreement that is not supported by consideration). In relation
to trusts, this means that equity will assist a beneficiary only when there is a perfectly
constituted trust (i.e. once legal title to the trust property has vested in the trustee);
(g) equity will not permit a statute to be used as an engine of fraud;
(h) equity acts in personam. This means that equitable remedies are personal in that they
are exercised against specific persons. They compel or permit a person to do something
or not to de something. A necessary corollary of this principle is that equity requires
jurisdiction to grant its relief.
It is crucial to appreciate that Equity is not only a gloss on, or supplement to, the common law
that is a self-sufficient system whose rigour needed mitigating in the interests of justice and of
social and economic change.
EQUITABLE REMEDIES
Specific Performance
Specific performance is a court order requiring a party to a contract to perform his side of the
bargain. When granted this will be either as an alternative or in addition to damages for breach
of contract. This remedy will not be granted if damages would adequately compensate the
claimant. An example of where specific performance will be readily granted concerns contracts
for the sale of land. This is because each piece of land is considered to be unique and damages
would not compensate the potential purchaser.
Injunctions
Injunctions are a discretionary remedy. Damages may be awarded in lieu or in addition to an
injunction.
There are various types of injunctions each of which has been designed to achieve a different
function. These categories include:
y the prohibitory injunction. This is an injunction which forbids the party to do or to
continue to do an unlawful act;
> the mandatory injunction. This is an order that an act be undone;
y the permanent injunction. This is an injunction which is infinalsettlement of the
dispute between the parties and is issued at the completion of the court proceedings;
> the interlocutory or interim injunction. This is an injunction which is made during the
course of legal proceedings and which is effective only until the eventual trial of the
action. It is designed to restrain the defendant immediately without waiting a full court
hearing. It is issued at the pendency of the litigation for the short-term purpose of
preventing irreparable injury to the petitioner prior to the time that the court will be in a
position to either grant or deny permanent relief on the merits.
> the without notice injunction (ex parte). This is an injunction granted in an emergency
without the other side having been informed or given the opportunity to attend the
hearing of the application.

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A brief summary of the features of common law

St applies to all legal persons including the state

(traditionally there is no division between public
and private law).

The adoption of an inductive form of legal

reasoning whereby legal principles are derived
from the texts of many single judgments.

A litigation system in which the trial is the distinct

and separate climax to the litigation process.

Courtroom practice which may be subject to rigid

and technical rules.

The fact that the parties to the dispute

essentially control proceedings and that there is
an emphasis on the presentation of oral
argument by counsel. The role of the judiciary is
more reactive than proactive. Given the parties'
opportunity and responsibility for mounting their
own case, the system is more participatory.

The fact that the judiciary possesses an inherent

power to adjudicate separately from the
executive or political process. While the judiciary
may be paid by the state, they exercise a
separate power free from political interference.

The fact that the expense and effort of

determination of disputes through litigation falls
largely on the parties.