Vocabulary notes:

common law	загальне право
litigants	сторона в судовому процесі
relief	допомога
Chancellor	Лорд Канцлер
special court	спеціальний суд
Court of Chancery	суд справедливості
petition	прохання, клопотання
branch of equity	гілка права справедливості
law of trusts	правові норми про довірчу власність
equitable remedy	засіб судового захисту по праву справедливості
equitable rules	безсторонні (неупереджені) правила
specific performance	реальне виконання прийнятого зобов’язання
injunction	судова заборона, заборонна норма
common law action	дії на основі норм загального права
Supreme Court of Judicature	Верховний суд Англії
maxims of equity	максими права справедливості
court rulings	судові рішення, постанови судді
to fail to give redress	не спромогтися надати відшкодування
to petition smb.	подавати прохання, клопотання, петицію, позикову заяву до суду
to harden into law	закріпити законом
to supersede	заміняти, витісняти, заміщати
to injustice	бути несправедливим до
to abolish	скасовувати
to administer law	провадити в життя закони
to achieve fairness	досягти законності
to govern the application of equity	контролювати застосування норм права справедливості
to overrule a precedent / to reject a precedent	відхиляти прецедент
irreparable damage	збиток, шкода, що не піддається точній оцінці
a spite fence	злісне ухилення
citation	повістка до суду, посилання на прецедент
contempt of court	зневага до суду

EQUITY LAW

In a general sense equity means fairness. In English law, equity means that body of rules originally enforced only by the Court of Chancery. Equity has been described as “a gloss (meaning a supplement) on the common law”, filling in the gaps and making the English legal system more complete.

Petitions from persons unable to obtain justice in the common law courts were sent to the King as “fountain of justice”. These petitions were sometimes examined by the King and Council and the relief was granted or refused. Later, due to pressure of business in the Council, the petitions were sent to the Lord Chancellor who, as Chief Secretary of State and “Keeper of the King’s Conscience”, dealt with them alone. The petitions were usually in the form of allegations that:

1. The common law was defective, e.g. the law of contract was undeveloped and inadequate to serve the growing needs of suitors.

2. The remedy of the common law courts, namely damages, was not always a satisfactory relief.

3. The defendant was too powerful; people of wealth and power in a county could overawe a court and intimidate jurors.

4. The court lacked jurisdiction to decide certain cases, e.g. where foreign merchants were suitors.

By the end of the fifteenth century the Chancellor had set up a separate court which dealt with petitions for relief. The Chancellor was not bound by the writ system or the technical and formal rules of the common law, and considered petitions on the basis of conscience and right.

At first the Chancellor used to consult the Council and sometimes the common law judges, but eventually it became customary to summon the parties to the dispute to appear before the Chancellor alone to answer “interrogatories” (specific questions relevant to the issue) and to unburden their consciences so that the truth could be ascertained and justice done.

The Court of Chancery proved popular with litigants and this caused friction with the common law courts. Jurisdiction was lost to the Chancery Court. Sometimes the courts of common law and the Chancery Court issued contradictory verdicts, and relations between the courts became difficult. The dispute came to a head under James I (1603-25) in the Earl of Oxford’s case (1616). The common law courts, headed by Chief Justice Coke, gave a judgment which was alleged to have been obtained by fraud. The Chancellor, Lord Ellesmere, issued an injunction preventing the successful party from proceeding to enforce the judgment, whereupon the dispute was referred to the King for decision. The King sought the views of Sir Francis Bacon (Attorney-General) who advised that where common law and equity conflicted, equity should prevail. Although competition between the courts of common law and equity continued, the right of the Chancellor to grant injunctions thereafter was not seriously challenged. Matters were finally resolved by the passing of the Judicature Acts, 1873-5.

Despite its early popularity, equity as administered in the Chancery was subject to criticism. Its initial flexibility led to uncertainty in the seventeenth century, and the jurist John Selden observed that “Equity varies with the length of the Chancellor’s foot”. Whatever the demerits of the common law, it was possible to estimate a probable verdict by considering similar cases already decided and the statutes enforced. Equity, which was dispensed as a matter of conscience, was unpredictable and the relief granted by one Chancellor might be refused by his successor. Between flexibility and certainty there is much tension. Flexibility was advantageous because it gave relief from the rigidity of law, but could be disadvantageous if it led to uncertainty and hardship. With the adoption of the system of precedent, equity became predictable and intelligible.

Lord Eldon (Lord Chancellor in 1801-6 and 1807-27) further developed equity, establishing a system of case law, so that by the beginning of the nineteenth century equity became nearly as rigid as the common law.

The latter half of the nineteenth century was also a period of judicial reform, which culminated in the Judicature Acts, 1873-5. These Acts set up a new structure of courts known as the Supreme Court of Judicature. In addition the Acts laid down four important principles:

1. Equity and common law should in future be administered side by side in all courts.

2. Where there is a conflict between a rule of equity and a rule of common law with reference to the same matter, the rule of equity should prevail.

3. Evidence could be given in court orally.

4. Rules of the Supreme Court of Judicature were to be formulated with regard to procedural matters.

The final result of the Acts was the fusion of administration of both common law and equity. Certain matters, e.g. trusts, originally dealt with by the Court of Chancery were assigned with other matters to the Chancery Division of the High Court. All courts could henceforward award common-law remedies, e.g. damages, and grant the special equitable remedies of which the following are the most important:

1. Injunction, an order of the court in the form of a decree compelling the defendant in a case to cease from doing certain acts.

2. Specific Performance of contracts where the common law remedy of damages is inadequate to compensate the plaintiff.

3. Rescission of Contracts.

4. Rectification.

5. Relief against Penalties, Fraud, and Undue Influence.

These remedies are at the discretion of the court unlike the common law remedy of damages which is “of right”. The discretion is exercised on equitable principles, e.g. “He who comes to equity must come with clean hands”.

Task 13. Match the following words and expressions with their Ukrainian equivalents:

I.

court of common law	судова заборона
litigant	міри покарання за правом справедливості
law of trusts	засіб судового захисту
equitable remedies	Акт про судоустрій
injunction	максими права справедливості
equitable rules	позивач
relief	норми звичаєвого права
Court of Chancery	правові норми про довірчу власність
maxims of equity	суд звичаєвого права
rules of common law	норми права справедливості
Judicature Act	канцлерський суд

II.

to achieve justice	створити Верховний суд
to set up a special court	займатися, мати справу
to fail to give redress	дійти (дістати) правосуддя
to deal with	створити спеціальний суд
to prevail	скасовувати забороняючи норми загального права
to petition smb.	бути неспроможним надати відшкодування
to abolish common injunctions	застосовувати норми права справедливості
to supersede common law principles	подавати прохання до когось
to establish the Supreme Court	переважати
administer equity	витісняти (заміняти) принципи загального права

Task 14. Find in the text the words that correspond to the following definitions and translate them into Ukrainian:

1. body of law developed by the Court of Chancery;

2. court order prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury;

3. someone involved in a lawsuit;

4. a written application, as for court action in certain legal proceedings;

5. the redress of a wrong;

6. to prove to be guiltless or blameless;

7. to put an end to, as laws, customs, or conditions of existence.

Task 15. Read the text carefully and decide if the following statements are true or false. Add some other information:

1. Common law was always able to give redress to all litigants.

2. The disappointed litigants petitioned the Supreme Court.

3. In the Middle Ages there was a single court system.

4. The King created a special court that dealt with all litigants’ petitions.

5. The Court of Chancery provided equitable relief when the common law remedy was inequitable.

6. When the common law and the laws of equity conflict the laws of equity prevail.

7. The purpose of equity is to achieve fairness.

8. Equitable maxims are the rules that govern the application of equity.

9. There are no differences between common law and equity now.

Task 16. Use the information given in the text to answer the following questions. Discuss your answers with other members of the class:

1. Why was the Court of Chancery set up?

2. What is the most important branch of equity?

3. What are equitable remedies?

4. Which rules prevail in case of conflict between rules of law and equity?

5. What is a common injunction?

6. What was the result of the Judicature Act 1873?

7. Do the rules of equity remain different from the rules of common law?

Task 17. Find English equivalents of the following sentences:

1. В середні віки суди звичаєвого права були неспроможні надавати відшкодування в тих справах, що потребували цього; пригнічені позивачі звертались (подавали прохання) до короля, який вважався “сувереном правосуддя”, за додатковим засобом судового захисту.

2. Король через канцлера, фактично, створив спеціальний суд, канцлерський суд, який займався цими проханнями.

3. У разі розбіжності між нормами звичаєвого права та права справедливості, право справедливості переважає.

4. Таким чином, справедливість діяла поза сферою дії звичаєвого права; принципи звичаєвого права теоретично залишились недоторканими (незмінними), але через такий заплутаний механізм вони витіснялися нормами права справедливості у всіх випадках “розбіжності”.

5. Така система діяла до 1875 року, коли в результаті Акту (Закону) про судоустрій 1873 року старі суди звичаєвого права та канцлерський суд були ліквідовані, а замість них був створений єдиний Верховний суд, кожна гілка якого мала всі повноваження застосувати норми як звичаєвого права, так і права справедливості.

6. Суди розробили систему правових норм, щоб контролювати застосування норм права справедливості.

7. Право справедливості базується на законі (“Справедливість йде за законом”).

8. Позивач повинен мати чисті руки.

Task 18. Read the text and pick out the main points about common law and equity. Swap the information using the following words and expressions:

To be decentralized to create a permanent royal court, the King’s Bench ;to hear civil and criminal cases; legal issue; to be applied to; regional courts; judge-made system of law; common law; rules and principles; to decide court cases; to base decisions on; legal precedents; court rulings; to overrule precedents; to be in error or outdated; law made by judges; judicial decisions; common law courts; courts of equity; remedies; disappointed litigants; to provide redress for; to administer common law and equity; maxims of equity.

* * *

Before the Norman Conquest the law in England was decentralized. Fear of the power of local barons led Henry II to create a permanent royal court in London called the King’s Bench. Judges from this court would travel the country hearing civil and criminal cases. The central court in London decided the legal issue in a case and this would be applied to the facts in the regional courts. In this way a judge-made system of law was developed which was common to most parts of the country. So the English called their system the common law.

Thus, English common law developed from the rules and principles that judges traditionally followed in deciding court cases. Judges based their decisions on legal precedents – that is, on earlier court rulings in similar cases. But judges could expand precedents that they considered to be in error or outdated. In this way, judges changed many laws over the years. So, the common law came to be law made by judges.

Thus, common law:

1. It is law, which is common to the whole country – national law in contrast to local law.

2. It is law, which is based on judicial decisions (case law) in contrast to the law, which is made by Parliament (statute law).

3. It distinguishes the common law legal systems based on precedents from civil law jurisdictions based on civil codes.

4. It comprises the rules developed by the common law courts in contrast to the rules developed by the courts of equity.

Equity was developed by the Court of Chancery. It introduced new remedies to provide redress for disappointed litigants. The common law courts were separate from the Court of Chancery until a single court was established by the Judicature Act 1873. Each branch of the Supreme Court of Judicature can administer common law and equity. However, the difference between the two is still important because of the maxims of equity. These illustrate that equity is based on justice and fairness.

Task 19. Discuss your ideas in pairs and then exchange opinions with the whole class:

1. Does your legal system contain rules of equity?

2. Was equity developed because in many situations there was no legal remedy available at common law?

3. Do the rules of equity remain different from the rules of common law?

4. You have seen that in England equity and common law are two separate bodies of legal principles, which are now administered by the same courts. What is your opinion of this system?

Task 20. Read and translate the text into Ukrainian:

EQUITY

Equity is a branch of English common law that was developed to cover limitations in the traditional civil law. In medieval England the courts had restricted powers and could not handle every case that arose. When a person could not go to the regular courts for relief, he or she would petition the king for relief, and the king would refer the matter to his chancellor, the next most important government official. In the late 15^th century the chancellor began to decide these extraordinary cases directly or through assistants called masters, and the Court of Chancery developed. The purpose of that court was to supply a remedy when the regular common-law courts could not or would not do so. The law it developed became known as equity, to distinguish it from the law applied in the regular common-law courts. This is the function of equity today. Some states apply both legal and equitable principles in the same courts; other assign judges to sit either as equity judges or as law judges.

Equity offers a wide variety of remedies; law has only one basic remedy. In cases at law the basic remedy is money damages. Sometimes, however, money is not a satisfactory remedy. Equitable remedies permit the court to order the defendant to do or not to do a given act. Orders to perform a contract (specific performance), to tear down a spite fence (mandatory injunction) and to stop excessive smoke or noise (injunction) are examples of equitable, non-monetary remedies. The penalty for refusing to obey an equitable order is a possible citation for contempt of court. Equitable principles are also applied when a contract must be reformed to reflect the true understanding of the parties and when a contract must be rescinded because it was the result of fraud.

Another application of equitable principles is enforcing imposed by relationship of trust and confidence, such as the duties of a trustee to the beneficiaries of a trust, the duties of the executor of an estate of a deceased person, and enforcement of the duties of a partner to a partnership or a director to a corporation.

There is no right to a jury trial when a case is based on equitable principles. The judge finds both the law and the facts. The reason for this is purely historical. There was no jury in the English Court of Chancery, and U.S. federal and state constitutions only guarantee jury trial in the kinds of cases that were entitled to a jury trial when the nation was founded. Therefore, even where the distinction between equity and law has been abolished, it is still necessary to determine which principles to apply in order to know whether the parties are entitled to trial by jury or not.

In suits at equity one does not have to bring suit within a specific period of time. Rather than having a specific statute of limitations, such as four years, in which to bring suit at law for damages on a breach of contract for the sale of goods, an equity suit must be brought without undue delay – a period of time that is decided by the judge or chancellor.

Task 21.Review the text: