common law v equity

Common Law v Equity As in the biblical Genesis , God created Adam and Eve. In the genesis of law common law , history has created the Common Law and Equity. One of the fundamental questions of English law is the search for the opposition between these two entities. The opposition between Common Law and Equity is a matter of history as real opposition no longer exists today . These are the mutual relations of the nineteenth century XIV who made both systems what they are. Before considering the subject, some historical and legal clarification is required . From a historical point of view , the common law emerged when William the Conqueror was crowned king of England in the eleventh century . From then , the new kings will give itinerant judges mission to transcribe some edicts. These itinerant judges will develop gradually a uniform common law throughout England, this is where the system of Common Law comes . England knew a situation of multiple rights but without mentioning plurality of legal systems. It was for the king to establish his authority through the feudal system it will create .The country belongs to king and the latter granted seigneuries to the various barons who supported him during the conquest. The vassals had to plead any cause relative to their properties in front of the courts of the Lords. The lords were consulting the king, there was a meeting around the king appointed the Consilium or Curia Regis. Within the Curia Regis, there were several characteristics, the circle was restricted composed of the small board "the Curia Minor", it will become the Private Council "Privy Council" a few years later. Reigned in the Curia Regis, large assemblies also gathered all the lords "Curia Major". Members of the general council were sent to supervise the State employees in the different regions and represented the king. They were named sheriffs. The Lords performed judicial functions and perceived the tax. They were itinerant judges and watched on the occasion of their judicial tour that royal decrees were observed but also that the peace of the kingdom was maintained. On returning to the Big Council(Advise), these Lords were involved in the legislative decisions which belonged to king. The first specialized court was the Court of Exchequer who already existed in Normandy. From the 12th century, this court knows fiscal affairs which questioned the Crown but it was not yet a court because the powers were similar in power of Minister of royal Finances. The King personified the " fountain of justice ", it was thus normal to address to him to obtain justice. The King, like the Court of Appeal, could substitute himself to the Lords to return justice, either by what the Lord had not made a decision, or either the seigneurial decision was challenged. The King could solve by adopting a new law. In the majority of the cases, he gathered the Lords and held these meetings in different geographical places, "assizes". From the second half of the 12th century, the English judicial system took its shape quickly, under the influence of Henry II. In spite of the efforts of William the Conqueror, we have to admit that several legal orders continue to exist and to offer parallel recourses. From the 14th century, the birth of Equity through the implementation of the Court of the Chancellery. There were several royal courts where the center of the power was Curia Regis, where the Lords returned the justice in presence or not of the king on the occasion of their tours in the country. The Court of Exchequer was a room where the members met around a checkered table. They collected the tax and knew the disputes between the King and his subjects. In 13th century, the Pleas Rolls makes their appearance. In this court, there was a running order in which the causes were going to be heard. Other Rolls, took place, the Memoranda Rolls relative to the royal finances. The judges of this court were called the barons of the Exchequer. The abolition of this court by Judicature Acts 1873-1875 and its skills were transferred to the Division of the Chancellery of the high court of justice of the Supreme Court of the judicature. The King's court and the court of the King's bench took decisions " coram rege " that means in the presence of king. But because of the absences of the King, the lords were brought to return justice alone, the King's court sitting then on the bench of the King. The Curia regis dealed all sorts of trouble, submitted by the citizens. The Common Pleas corresponded only to the affairs which set the citizens to the King in particular when the peace of the kingdom was threatened. By 1234, appear two functions different, by convenience and by concern of efficiency, different Lords began sitting from the various authorities and in 1272, the distinction is so clear as each had his chief judge. They were abolished by the Judicature Acts and became the high court of justice of the Supreme Court of Judicature. But one of these courts stayed: the King Bench Division. Finally, concerning the Court of the common Pleas, Henry II, in 1178, indicated 5 of 18 itinerant judges so that they could deal only the causes of the citizens. In 1215, because of the prolonged absence of these judges, the barons decided to include in the Magna Carta, a division of the Common Pleas. The Magna Carta planned that the affairs which did not question directly the crown must not be heard in the presence of the King but within the frame of this court. Its skill was transferred to the division of the King's bench of the high court of justice of the supreme court of judicature. In the Magna Carta, a text asserted the personal freedoms to fight the arbitrariness related to the position of the King. Near to these royal courts, numerous jurisdictions appeared until the reforms of Judicature Acts. The ecclesiastical courts were created early, to handle disputes of the right of the family in1857. An Anglican Schism appeared then where the King became the Anglican head of the Church, however nothing changed because the right of the family remains the skill of the ecclesiastical courts. In 1857 a special jurisdiction is born " the court of the divorces ". It was abolished in 1875 and merged with the division of the successions, the divorces, the admiralty of the high court of justice. Other Courts such as reporting to the council of the King had kept a residual power and returned justice except for the classic procedures. They could seize, take the decision themselves or delegate to the chancellor, to the council or the parliament. The high court of the admiralty of which the procedure in front of the jurisdictions of Common Law presented inconveniences according to the traders, the customs facilitated the resolution of their disputes because often itinerant. On the international level, the King was interested in the development of the law and it was brought to solve disputes which set the traders of foreign countries between them or to the English traders. The procedure was expeditious or accelerated. The council of the King was used to send back the causes in front of the Court of the admiralty in the 14th century of romano-Germanic influence. The influence of this jurisdiction and the commercial courts was limited in the 18th century when the Common Law was more and more important, it becomes a division of the King's bench of the high court of justice of judicature. Finally, the Jurisdiction of the chamber studed " Star to chamber " was an emanation of the council of the King seized, to deal the civil and penal causes. In 1487 there was a separation of the civil subjects of penal cases and since 1535 a separate chamber was given to the citizen and who was in charge of educating the causes of competition. The judicial Committee of the private council under the name of Judicial Comity of the Privy Council was a late creation in 1833 during the full expansion of the British empire, it was about the court of last resort of colonies and had a number of skills as the resolution of the conflicts on the professional orders or the universities as well as the business ethics. The Courts of revision are royal courts which returned justice in presence of the King then on its behalf. The decisions seemed definitive and not subject to appeal. But as the justice is human and as the error is it also, the courts of Common Law were submitted to a supervision on the basis of errors in the official documents: the records. The records were procedures of revision whose scope was relatively restricted. The decisions made by Common Pleas could be the object of a revision in case of committed error and this in front of the court of the King's bench and the decisions made in front of the court of King's bench or the court of Exchequer were revised in front of the King or by its parliament. To finish, the Court of Appeal was an appeal procedure which was developed in front of certain jurisdictions as the high court of the admiralty, the courts of Equity and the ecclesiastical and colonial jurisdictions. The Common Law contained courts of Equity but we shall not develop this point in our introduction but rather in our parts of the take-home . After having developed from a historic point of view the Common Law, it is good to underline the importance of the procedure in the countries of Common Law. The Common Law was developed within a conquered country, which the judges " the French barons " did not speak the language, did not know the people, nor the customs which are dominant. It is not surprising that the main part of Common Law articulates around the procedure. The procedure is the historic core of the Common Law. The role of the judge was to delimitate the exercise of the procedure and the jury determin...