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Difference Between Common Law and Equity

Equity provides remedies where common law is deficient or the remedy is unsuitable. Equitable rights differ from common law rights in that equity offers remedies like injunctions, specific performance, and accounting for profits where common law offers only damages. Additionally, equitable rights acknowledge trusts and beneficiaries in a way that common law does not. While common law and equity were merged under the Judicature Act, they continue to operate separately, with equity supplementing common law.

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177 views2 pages

Difference Between Common Law and Equity

Equity provides remedies where common law is deficient or the remedy is unsuitable. Equitable rights differ from common law rights in that equity offers remedies like injunctions, specific performance, and accounting for profits where common law offers only damages. Additionally, equitable rights acknowledge trusts and beneficiaries in a way that common law does not. While common law and equity were merged under the Judicature Act, they continue to operate separately, with equity supplementing common law.

Uploaded by

Pooja Nair
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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There is a difference between common law and equity in terms of who hears cases and
passes judgment on them and the type of action they may require. The common law is normally
derived from precedent and case rulings by judges in courtrooms. Equity, on the other hand,
refers to laws that are based on court decisions but deal with judgments and justice through
equitable decisions. Despite today's similarities, these two types of cases were once handled by
two separate courts.

Equitable rights differ from common law rights in that the common law remedy has a
number of deficiencies. 2Pettit explains equity's evolution as a gloss on the common law, which
led to new remedies and rights where the common law failed. Consequently, equity offers a
remedy where common law does not, or provides a more suitable remedy than common law.
Legal and equitable rights and remedies are generally distinct from each other, according to
3
Lord Nicholls in AG v Blake. There are, for instance, equitable remedies available for
anticipatory breaches of contract and nuisances, both common law claims”. The House of Lords
allowed the equitable remedy of account of profits when damages would not have been sufficient
for a breach of contract claim.

In addition to common law remedies, equity has provided many new ones. The most
important of these are those of specific performance, injunction, rescission, and rectification.
Injunctions and decrees of specific performance compel the defendant to perform his part of the
bargain. In contrast to damages under common law, equity remedies are at the discretion of the
judge. To qualify for equitable remedies, claimants must have come to court with clean hands,
acted equitably, and not delayed seeking the intervention of equity. If damages are an adequate
remedy, then no equitable remedy is necessary.

Equitable rights differ from common law rights in their concept of trust. 4Haley and
McMurtry assert that courts of equity have used the trust concept to generate much creative
activity. Unlike the common law, it recognized the trust, provided remedies for breach of trust
against trustees, and acknowledged beneficiaries when the common law refused to acknowledge
them. Moreover, equitable rights operate in personam, while common law rights operate in rem.

1 W. S. Holdsworth (1915) Vol. 13 The Early History of Equity


2 PH Pettit, Equity and the Law of Trusts (12th edn, OUP 2012)
3 AG v Blake [2001] 1 AC 268
4 Micheal Haley and Laura McMurtry, Equity & Trusts (6th edn, Sweet and Maxwell 2020).
Thus, equity remedies are personal, as they apply to specific individuals except to bona fide
purchasers of legal estates without knowledge of prior equitable rights.

Alternatively, one could argue that equitable rights and common law rights are identical.
There is no doubt that the Judicature Act merged the administration of common law and equity,
but 5Ashburner thinks that they are two streams running alongside one another, but never mixing.
Additionally, 6Sir George Jessel MR stated in Salt v Cooper that the acts were not meant to fuse
law and equity but rather to vest in one tribunal the ability to administer both.

According to Sir Nathan Write LJ in 7Lord Dudley and Ward v Lady Dudley, state that
“equity represent a later development of law, laying an additional body of rules over the existing
common law which, in the majority of cases, provides an adequate remedy. As a result, equity
does neither destroy nor create law, but rather assists it. Due to these differences, common law
and equitable right still differ from one another. In addition, equity is used alongside common
law and provides different solutions to problems. Following are remedies and detailed
explanation on which carries the weight today.

5 R. H. K., “Ashburner's Principles of Equity. Second Edition By Denis Browne, B.A., of Lincoln's Inn, Barrister-
at-Law. London: Butterworth & Co., Ltd.1933. (1934) 5 The Cambridge Law Journal 286
6 Salt v. Cooper (1880) 16 CH D 545
7 Lord Dudley v Lady Dudley [1705] [3]

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