Женя 4. What were the advantages of Equity Law and why was it heavily criticized by many common law lawyers?

Advantages:

• New remedies.

1. specific performance.The person must do the thing they’ve agreed previously to do.

2. injunction. An order from the court, prohibiting somebody from doing something.

3. rectification. A change in a written document to reflect what it should have said in the first place.

4. rescission. Allows a contractual party to cancel the contract.

5. restitution.

• More powers (to ask litigants in person, to insist that relevant documents be disclosed).

• Morality, fairness, flexibility.

• Enforced rights not recognized by the common law.

Disadvantage. It was arbitrary, because the Chancellor relied on his view of fairness and morality.

• Conflict between equity and common law => the Earl of Oxford’s Case: where there was conflict, equity should prevail;

• Bagan to be ruled by precedent and principles => rigid.

Настя 5. Rivalry between common law courts and the Court of Chancery (+ Earl of Oxford's case 1615). What were the changes in the English court system after passage of the Judicature Acts of 1873-1875?

The Court of Chancery became popular, and caused some resentment among common lawyers, who argued that the quality of decisions is depended on the qualities of the individual Chancellor (varied with the length of the Chancellor's foot)

The common lawyers particularly resented the way in which equity could be used to restrict their own jurisdiction. Where the common law gave a litigant a right which, in the circumstances, it would be unjust to exercise, the Court of Chancery could issue a common injunction, preventing the exercise of the common law right.

Matters came to a head in 1615 in the The Earl of Oxford's Case, where conflicting judgments of the common law courts and the Court of Chancery were referred to the king for a decision; he advised that where there was conflict, equity should prevail. Had this decision not been made, equity could not fulfill its role of filling in the gaps of the common law unless it was dominant. Nevertheless, the rivalry continued for some time, but gradually abated as equity too began to be ruled by precedent and standard principles, a development related to the fact that it was becoming established practice to appoint lawyers rather than clergy to the office of Lord Chancellor. By the 19th century, equity had developed case law and recognizable principles, and was no less rigid than the common law.

The Judicature Acts of 1873—75 established the basis of the court structure we have today, provided that equity and common law could both be administered by all courts, and that there would no longer be different procedures for seeking equitable and common law remedies. Although the Court of Chancery remained as a division of the High Court, like all other courts it can now apply both common law and equity.

Настя 6. What does the declaratory theory of law by W. Blackstone presuppose?

The declaratory theory of law by W. Blackstone states that judges do not make law, but merely, by the rules of precedent, discover and declare the law that has always been.

Blackstone does not accept that precedent ever offers a choice between two or more interpretations of the law: where a bad decision is made, he states, the new one that reverses or overrules it is not a new law, nor the old decision was bad law, but a declaration that the previous decision was 'not law', in other words that it was the wrong answer. His view presupposes that there is always one right answer, to be deduced from an objective study of precedent.