common law and equity essay

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COMMON LAW AND EQUITY

The difference between common law and equity comes down to who hears a case and passes judgment on it, as well as the type of action for which such judgment may call. Common law typically refers to laws based on precedence and the rulings of judges who hear a case in a courtroom. Equity, on the other hand, refers to laws that are similarly established by court rulings but deal with judgment and justice through equitable decisions. While proceedings regarding the two are somewhat similar today, in the past they were divided into two different courts.

Both common law and equity stem from the judicial and legal history of England. These terms and methods for justice have found their way into many legal systems with roots in the laws of England, such as the US and other areas that were English colonies. It can be easiest to understand the difference between the two by first understanding what each system is.

Common law refers to laws created and upheld through the rulings of a judge or jury hearing a case. This is also sometimes called case law, and such precedents are quite important in a legal system that relies on common law. Equity, on the other hand, usually refers to judgments that deal with fairness in justice, often stemming from a sense of “natural law.”

While both types of law have roots in English legal traditions, they stem from two separate courts. English common law was established in the legal courts, which were presided over by judges who served as the source and upholders of the law. Equity, on the other hand, came from the Courts of Chancery, which were presided over by the chancellor to the presiding monarch. This essentially evolved from the rights of English citizens to appeal a common law decision to the monarch, who was the final arbiter of justice. A king would often appoint his chancellor to act in his stead.

There was initially a separation, therefore, between the common law and equity courts, though similar cases might be heard in both. In modern legal practice, the two are separated by the way in which the cases are heard and the type of decision that can be handed down. Most cases in common law are heard by a jury, with a judge as arbiter, and decisions can result in punishment or financial restitution.

Equity cases, however, are typically heard only by a judge who passes judgment on the case, which can take the form of action or cessation of action by one party. Someone who steals a computer, for example, might be ordered by a common law court to repay the value of the computer to the wronged party, which would be just but may not be fair. A court of equity, on the other hand, could order the computer be returned to the owner as a more equitable solution to the situation.

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Common Law and Equity Essay.

Gemma Louise Lang – AS law.

In very early times – before King Alfred (849-899), there was no system of justice, which applied to the whole of the country.  The population was not ruled by a single monarch, transport and communications were available to very few and no law books were available, however, the population was very small at this time, therefore meaning it was not required as much as nowadays.

In 1066, William I made changes to the old system, introducing the Curia Regis and appointing judges – common law was first introduced during this time.  The king’s representatives were sent throughout the land to check local administration and hear local cases.

Case were interpreted and customised to suit the whole country.

The Common law however, was not written down immediately, however after a period of time it was written down and later a further development was made and the ruling made by kings, were also written down.  This was a huge development for Common law in the legal system as it gave some sort of guidance with cases.

Henry II also played a major role in the development of the Common law.  Henry II made tours by judges to local villages/shires.  Henry II then divided the country into circuits and circuit judges were introduced.

Initially judges would use local customs to decide cases, yet over a period of time things began to change and the judges would discuss cases with the king at Westminster.

Eventually, the best customs were decided and became uniform, enabling the laws to be the same throughout the country.

The Common Law was based on the writ system, which could cause difficulty, as it was sometimes difficult to find writs, which fitted the exact case.

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The Common Law was praised however as time has gone on and people’s circumstances have changed it was noticed that the Common Law was rigid and as a result was unable to satisfy the growing needs of the people.

Equity was first introduced to the legal system by the Court of Chancery.  It has been described as a ‘gloss on the common law’.  It was introduced to fill in gaps of the legal system and make justice fairer.

In the beginning people sent their petitions to the King to be examined, however as pressure grew on the King it was inevitable that a court was opened to deal with the problems.

With the opening of this court it meant the Chancellor was no longer bound by the writ system or technical rules of common law.

The Lord Chancellor could base his decisions on conscience and right.  This caused friction with common law courts and in 1851 the Court of Appeal in Chancery was introduced, however the Judicature Acts 1873-1875 abolished this court and its jurisdiction transferred to the Court of Appeal.

Unlike common law, equity recognised and enforced the rights of the beneficiary – not only as against the trustee but also against any transferee of the legal interest who knew of the interest of the beneficiary.

Common law has changed throughout the years however it still fails to comply with all legal aspects of today’s population it is for this reason that equity was introduced, equity now helps the justice system work more efficiently.

Nowadays, equity is used in many situations, but is mainly used in mortgage and trust problems.

The relevance of equity today is highlighted in the promissory estoppel.  Lord Denning first suggested it in Central London Property v High Tree House LTD, 1947.  Since this case it has been decided that it would be unfair in some situations to allow one party to rely on the strict terms of a contract because they had led the other party to believe that they will not do so.

An equitable principle is used to stop one party using a contract enforcing his rights when he has given his word that he will not.

Nowadays, equity is also used often in conjunction with cases concerning the husband and wife splitting up.

In a case such as the one mentioned the wife would have an equitable interest in the matrimonial home even if it were not owned jointly.  This meant the mother could remain in the property until the children were of 16 years old.  Common law wives also have the same right.

Equitable remedies are also used in employment law.  An example of this is when employees can be prevented from disclosing trade secrets, or an injunction may be granted against a trade union to prevent an unlawful industrial action.

A relevantly recent expansion of equity is Mareva injunctions.  “Mareva Company’s Naviera v International Bulk-Carriers, 1975”.  In this case this is used where there is a =risk that the assets of one of the parties will be removed out of the UK before the case has come to trial.  A Mareva injunction freezes the assets of the parties involved.  This ensures the assets will be available at the end of the case enabling damages to be paid.

Another recent expansion to equity is the Anton Pillars Orders.  This orders the defendant to allow the plaintiff to enter his or her premises and take away documents or materials that may be relevant to the case.  This is valuable in the case of equity as it prevents s the defendants destroying what may be very valuable evidence.

This is highlighted in the case of Anton Pillars KG v Manufacturing Process LTD, 1976.

Even though many remedies have been made through equity the Courts are prepared to extend these remedies.  The principle that they are all discretionary still remains.  

Equity has already seen many changes and new areas of law have been developed, however equity and its laws and constantly reviewed and new areas are still being developed.

More recent attempts to extend equity have been resisted by the house of Lords (Scandinavian Tanker Co AB v Plota Petroleum Ecutorania, 1981), however more and more possible extensions of equity are constantly being brought before the attention of the House of Lords, enabling equity to continue to grow.

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Spatial Variations of the Activity of 137 Cs and the Contents of Heavy Metals and Petroleum Products in the Polluted Soils of the City of Elektrostal

• DEGRADATION, REHABILITATION, AND CONSERVATION OF SOILS
• Open access
• Published: 15 June 2022
• Volume 55 , pages 840–848, ( 2022 )

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• D. N. Lipatov 1 ,
• V. A. Varachenkov 1 ,
• D. V. Manakhov 1 ,
• M. M. Karpukhin 1 &
• S. V. Mamikhin 1  

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The levels of specific activity of 137 Cs and the contents of mobile forms (1 M ammonium acetate extraction) of heavy metals (Zn, Cu, Ni, Co, Cr, Pb) and petroleum products were studied in the upper soil horizon of urban landscapes of the city of Elektrostal under conditions of local radioactive and chemical contamination were studied. In the soils within a short radius (0–100 m) around the heavy engineering plant, the specific activity of 137 Cs and the contents of mobile forms of Pb, Cu, and Zn were increased. The lognormal distribution law of 137 Cs was found in the upper (0–10 cm) soil layer; five years after the radiation accident, the specific activity of 137 Cs varied from 6 to 4238 Bq/kg. The coefficients of variation increased with an increase in the degree of soil contamination in the following sequence: Co < Ni < petroleum products < Cr < 137 Cs < Zn < Pb < Cu ranging from 50 to 435%. Statistically significant direct correlation was found between the specific activity of 137 Cs and the contents of mobile forms of Pb, Cu, and Zn in the upper horizon of urban soils, and this fact indicated the spatial conjugacy of local spots of radioactive and polymetallic contamination in the studied area. It was shown that the specific activity of 137 Cs, as well as the content of heavy metals and petroleum products in the upper layer (0–10 cm) of the soils disturbed in the course of decontamination, earthwork and reclamation is reduced.

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INTRODUCTION

Contaminants migrate and accumulate in urban ecosystems under the impact of both natural and technogenic factors. The processes of technogenic migration of 137 Cs are most pronounced in radioactively contaminated territories. It was found in urboecological studies that the intensity of sedimentation of aerosol particles containing radionuclides and heavy metals is determined by the types of the surfaces of roofs, walls, roads, lawns, and parks and by their position within the urban wind field [ 12 , 26 ]. Traffic in the cities results in significant transport of dust and associated contaminants and radionuclides [ 15 , 24 ]. During decontamination measures in the areas of Chernobyl radioactive trace, not only the decrease in the level of contamination but also the possibility of secondary radioactive contamination because of the transportation of contaminated soil particles by wind or water, or anthropogenic transfer of transferring of ground were observed [ 5 , 6 ]. Rainstorm runoff and hydrological transport of dissolved and colloidal forms of 137 Cs can result in the accumulation of this radionuclide in meso- and microdepressions, where sedimentation takes place [ 10 , 16 ]. Different spatial distribution patterns of 137 Cs in soils of particular urban landscapes were found in the city of Ozersk near the nuclear fuel cycle works [ 17 ]. Natural character of 137 Cs migration in soils of Moscow forest-parks and a decrease in its specific activity in industrial areas have been revealed [ 10 ]. Determination of the mean level and parameters of spatial variations of 137 Cs in soils is one of primary tasks of radioecological monitoring of cities, including both unpolluted (background) and contaminated territories.

Emissions and discharges from numerous sources of contamination can cause the accumulation of a wide range of toxicants in urban soils: heavy metals (HMs), oil products (OPs), polycyclic aromatic hydrocarbons (PAHs), and other chemical substances. Soil contamination by several groups of toxicants is often observed in urban landscapes [ 20 , 23 ] because of the common contamination source or close pathways of the migration of different contaminants. A comprehensive analysis of contamination of urban soils by radionuclides and heavy metals has been performed in some studies [ 21 , 25 ]. The determination of possible spatial interrelationships between radioactive and chemical contaminations in urban soils is an important problem in urban ecology.

A radiation accident took place in the Elektrostal heavy engineering works (EHEW) in April 2013: a capacious source of 137 Cs entered the smelt furnace, and emission of radioactive aerosols from the aerating duct into the urban environment took place. The activity of molten source was estimated at about 1000–7000 Ci [ 14 ]. The area of contamination in the territory of the plant reached 7500 m 2 . However, radioactive aerosols affected a much larger area around the EHEW, including Krasnaya and Pervomaiskaya streets, and reached Lenin Prospect.

Geochemical evaluation of contamination of the upper soil horizon in the city of Elektrostal was carried out in 1989–1991. This survey indicated the anomalies of concentrations of wolfram, nickel, molybdenum, chromium, and other heavy metals related to accumulation of alloying constituent and impurities of non-ferrous metals in the emissions of steelmaking works [ 19 ].

The aim of our work was to determine the levels of specific activity of 137 Cs, concentrations of mobile forms of heavy metals (Zn, Cu, Ni, Co, Cr, and Pb) and oil products in the upper soil horizons in different urban landscapes of the city of Elektrostal under the conditions of local radioactive and chemical contamination.

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D. N. Lipatov, V. A. Varachenkov, D. V. Manakhov, M. M. Karpukhin & S. V. Mamikhin

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Lipatov, D.N., Varachenkov, V.A., Manakhov, D.V. et al. Spatial Variations of the Activity of 137 Cs and the Contents of Heavy Metals and Petroleum Products in the Polluted Soils of the City of Elektrostal. Eurasian Soil Sc. 55 , 840–848 (2022). https://doi.org/10.1134/S1064229322060072

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Received : 21 October 2021

Revised : 22 December 2021

Accepted : 30 December 2021

Published : 15 June 2022

Issue Date : June 2022

DOI : https://doi.org/10.1134/S1064229322060072

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