The inadequacies of common law that resulted in the development of the principles and doctrines of equity as a complimentary source of law.

Equity was developed as a result of the defects of the common law. It attempts to reduce the harshness/inadequacies of common law. The following are some of those defects:


The Writ System

A person intending to commence an action at common law had to obtain a ‘writ’ from the government department that was authorized to issue writs. A writ was a an ordered document in the King’s name and under the Seal of Crown commanding the person to whom it was addressed to appear in a specified court to answer the claim made against him by the person at whose request the writ had been issued. However, there were some injuries for which no writs were available at common law owing to the fact that, at that particular time of the common law’s growth, writs could only be issued in a limited number of cases. Where the wrongs were continuing in nature e.g. defamation, nuisance and trespass, all that the court could grant was financial compensation known as “damage”. This was inadequate. The best remedy would be an injunction order in addition to damages. Unfortunately, injunctions were unknown at common law hence aggrieved parties lack relevant remedy.


Procedural Technicalities

Common law was pegged on observance of unnecessary procedures which were too technical. Failure to observe a procedure would render a claimant to lose his claim. The procedure in the common law courts was highly technical and many good causes of action were lost due to procedural technicalities. For example, if a sued B because of the trespass of B’s mare and in his writ A described the mare as a stallion, the action would be automatically dismissed. This led to the urgent craving for a new system of procedure that would dispense justice without undue regard to technicalities.




The common law system was dilatory (i.e. delaying) certain standard defences known as “essoins” caused considerable delay before a case could be heard. For example, the hearing of a case could be automatically postponed for a year and a day if the defendant pleaded sickness as a defence even though the court had not verified the truth of the defence. The Lord Chancellor generally disallowed these defences and adopted the maxim “delay defeats equity”


Inadequate remedies

The only remedy available at common law for a civil wrong was financial compensation called damages. This might not be adequate compensation in such cases as breach of contract to sell a piece of land. However, a common law court could not order the defendant to convey the land to the plaintiff. The Lord Chancellor intervened and developed the remedy of “specific performance” for such cases. The Chancellor, in the King’s name would order the defendant to convey the land
to the plaintiff


Non-recognition of trusts

The common law did not recognize “trusts”. For example if A conveyed property to B “on trust” for C the common law courts could not compel B to use the income from the property for the benefit of C. The Lord Chancellor intervened in such cases and the overall effect of the intervention was the development of the body of principles and rules which constitute the basis of the current Law of Trusts. In particular, the Court of Chancery would compel B to use the income from the “trust property” for the benefit of C.

At common law, “trustees” continued to embezzle and misappropriate trust property of beneficiaries who lacked legal protection.


Injustice and corruption

The common law system was controlled by the rich administrators and property owners to the extent that the poor had little if not any chance of winning court cases.

The poor did therefore petition the King for fair redress of their grievances and hence the development of equity.

It should be noted that equity is “a gloss upon the common law”. It was developed to supplement the common law but not to supplant it. It does this by, as it were, filling in the gaps left by the common law and, where appropriate, providing alternative remedies to litigants for whom the remedies available at common law are inadequate.

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