Australia Equity remains a cornerstone of Australian private law. A string of cases in the 1980s saw the
High Court of Australia re-affirm the continuing vitality of traditional equitable doctrines. In 2009 the High Court affirmed the importance of equity and dismissed the suggestion that
unjust enrichment has explanatory power in relation to traditional equitable doctrines such as
subrogation. The state of
New South Wales is particularly well known for the strength of its Equity jurisprudence. However, it was only in 1972 with the introduction of reform to the Supreme Court Act 1970 (NSW) that empowered both the Equity and Common Law Division of the Supreme Court of NSW to grant relief in either equity or common law. In 1972 NSW also adopted one of the essential sections of the Judicature reforms, which emphasised that where there was a conflict between the common law and equity, equity would always prevail. Nevertheless, in 1975 three alumni of
Sydney Law School and judges of the NSW Supreme Court,
Roddy Meagher,
William Gummow and John Lehane produced
Equity: Doctrines & Remedies. It remains one of the most highly regarded practitioner texts in Australia and England. The work is now in its 5th edition and edited by
Dyson Heydon, former Justice of the High Court, Justice
Mark Leeming of the
New South Wales Court of Appeal, and Dr Peter Turner of
Cambridge University.
Scotland The
courts of Scotland have never recognised a division between the normal
common law and equity, and as such the
Court of Session (the supreme
civil court of
Scotland) has exercised an equitable and
inherent jurisdiction known as the . The enables the Court to provide a
legal remedy where
statute or the
common law are silent, and to prevent mistakes in procedure or practice that would lead to
injustice. The exercise of this power is limited by adherence to
precedent, and when
legislation or the common law already specify the relevant remedy. Thus, the Court cannot set aside a
statutory power, but can deal with situations where the law is silent, or where there is an omission in statute. Such an omission is sometimes termed a .
India In
India the
common law doctrine of equity had traditionally been followed even after it became independent in 1947. However, in 1963 the
Specific Relief Act was passed by the
Parliament of India following the recommendation of the
Law Commission of India and repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and made statutory rights, thereby ending the discretionary role of the courts to grant equitable reliefs. The rights codified under the 1963 Act were as under: • Recovery of possession of immovable property (ss. 5–8) • Specific performance of
contracts (ss. 9–25) • Rectification of instruments (s. 26) • Recession of contracts (ss. 27–30) • Cancellation of instruments (ss. 31–33) • Declaratory decrees (ss. 34–35) •
Injunctions (ss. 36–42) With this codification, the nature and tenure of the equitable reliefs available earlier have been modified to make them statutory rights and are also required to be pleaded specifically to be enforced. Further to the extent that these equitable reliefs have been codified into rights, they are no longer discretionary upon the courts or as the English law has it, "Chancellor's foot" but instead are enforceable rights subject to the conditions under the 1963 Act being satisfied. Nonetheless, in the event of situations not covered under the 1963 Act, the courts in India continue to exercise their inherent powers in terms of Section 151 of the
Code of Civil Procedure, 1908, which applies to all
civil courts in India. There is no such inherent powers with the criminal courts in India except with the
High Courts in terms of Section 482 of the Code of Criminal Procedure, 1973. Further, such inherent powers are vested in the
Supreme Court of India in terms of Article 142 of the
Constitution of India which confers wide powers on the Supreme Court to pass orders "as is necessary for doing complete justice in any cause of matter pending before it".
United States In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common civil remedy a court of law can award is monetary damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often, this form of relief is in practical terms more valuable to a litigant; for example, a plaintiff whose neighbor will not return his only milk cow, which had wandered onto the neighbor's property, may want that particular cow back, not just its monetary value. However, in general, a litigant cannot obtain equitable relief unless there is "no adequate remedy at law"; that is, a court will not grant an injunction unless monetary damages are an insufficient remedy for the injury in question. Law courts can also enter certain types of immediately enforceable orders, called "
writs" (such as a writ of
habeas corpus), but they are less flexible and less easily obtained than an
injunction. Another distinction is the unavailability of a jury in equity: the judge is the
trier of fact. In the American legal system, the right of
jury trial in civil cases tried in federal court is guaranteed by the
Seventh Amendment in Suits at common law, cases that traditionally would have been handled by the law courts. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and a jury is available as the fact-finder. On the other hand, if the plaintiff requests an
injunction,
declaratory judgment,
specific performance, modification of contract, or some other non-monetary relief, the claim would usually be one in equity.
Thomas Jefferson explained in 1785 that there are three main limitations on the power of a
court of equity: "If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged. That it shall not interpose in any case which does not come within a general description and admit of redress by a general and practicable rule." The US Supreme Court, however, has concluded that courts have wide discretion to fashion relief in cases of equity. The first major statement of this power came in
Willard v. Tayloe, 75 U.S. 557 (1869). The Court concluded that "relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case."
Willard v. Tayloe was for many years the leading case in
contract law regarding intent and enforcement. as well as equity. In the United States, the federal courts and most state courts have merged law and equity into courts of general jurisdiction, such as county courts. However, the substantive distinction between law and equity has retained its old vitality. This difference is not a mere technicality, because the successful handling of certain law cases is difficult or impossible unless a temporary restraining order (TRO) or preliminary injunction is issued at the outset, to restrain someone from fleeing the jurisdiction taking the only property available to satisfy a judgment, for instance. Furthermore, certain statutes like the
Employee Retirement Income Security Act specifically authorize
only equitable relief, which forces American courts to analyze in lengthy detail whether the relief demanded in particular cases brought under those statutes would have been available in equity. Equity courts were widely distrusted in the northeastern United States following the American Revolution. A serious movement for merger of law and equity began in the states in the mid-19th century, when
David Dudley Field II convinced New York State to adopt what became known as the
Field Code of 1848. The federal courts did not abandon the old law/equity separation until the promulgation of the
Federal Rules of Civil Procedure in 1938. Three states still have separate courts for law and equity:
Delaware, whose
Court of Chancery is where most cases involving
Delaware corporations (which includes a disproportionate number of multi-state corporations) are decided;
Mississippi; and
Tennessee. However, merger in some states is less than complete; some other states (such as Illinois and
New Jersey) have separate divisions for legal and equitable matters in a single court. Virginia had separate law and equity dockets (in the same court) until 2006. Besides
corporate law, which developed out of the
law of trusts, areas traditionally handled by chancery courts included
wills and
probate,
adoptions and
guardianships, and
marriage and
divorce.
Bankruptcy was also historically considered an equitable matter; although
bankruptcy in the United States is today a purely federal matter, reserved entirely to the
United States Bankruptcy Courts by the enactment of the
United States Bankruptcy Code in 1978, bankruptcy courts are still officially considered "courts of equity" and exercise equitable powers under Section 105 of the Bankruptcy Code. After US courts merged law and equity, American law courts adopted many of the procedures of equity courts. The procedures in a court of equity were much more flexible than the courts at common law. In American practice, certain devices such as
joinder,
counterclaim,
cross-claim and
interpleader originated in the courts of equity. == See also ==