Custom has been the basis of the common law, originating from the times of William the Conqueror
Custom has been defined in the following ways:
Tanistry Case (1608)
“Such usage as has obtained the force of law”
Sir Fredrick Pollock
“The common law is a customary law if, in a course of about six centuries, the undoubting belief and uniform language of everybody who had occasion to consider the matter were able to make it so.”
Coke
“… one of the main triangles of the laws of England”
Blackstone
“…the universal rule of the whole kingdom and form the common law in its stricter and more usual signification”
Today in the modern law it has a very small role, but is not completely obsolete.
Its main use is in cases where local custom and traditional practises are being challenged and where these practises are tried to be established to have such a long standing that they should be given the force of law regardless that they may be in conflict with the general common law
There is a list of criteria that a custom must fulfil in order to be regarded as conferring legally enforceable rights;
a) ‘Time immemorial’ – a statute of 1275 states that the custom must have existed since 1189, today claimants usually seek to establish that it has existed as far as living memory can go, but this may not always be sufficient
b) Reasonableness – the fundamental principles of right and wrong can not be undermined when seeking to establish a legally enforceable custom, such as customary right to commit a crime
c) Clarity and Certainty – the locality and the people to whom the rights are granted must be clearly and certainly defined
d) Locality – if custom is to be considered as granting rights it must be specified to which geographical area it specifically applies
e) Continuity – there is no need for the customary right to have been exercised continuously since 1189, but it must be shown that the right could have been exercised
f) Exercise as of right – if a custom has been exercised by permission, it can not create legal rights
g) Consistency – the local custom must be consistent with other customs in the area
h) Obligatory – if there is a specific duty imposed the custom, that duty must be obligatory
i) Statutory Conformity – if a custom is in conflict of a statute, it can not be regarded as giving legal rights
Equity
The term ‘equity’ in its ordinary meaning is natural justice, but in legal terms the meaning is very different.
f) Exercise as of right – if a custom has been exercised by permission, it can not create legal rights
g) Consistency – the local custom must be consistent with other customs in the area
h) Obligatory – if there is a specific duty imposed the custom, that duty must be obligatory
i) Statutory Conformity – if a custom is in conflict of a statute, it can not be regarded as giving legal rights
Equity
The term ‘equity’ in its ordinary meaning is natural justice, but in legal terms the meaning is very different.
In the context of law, the term ‘equity’ means a specific set of legal principles which add to those provided in the common law, but is identifiable as a specific branch of the law.
It was originally based on the ideas of natural justices, therefore acquiring its name
Equity supplements the common law providing just and practical remedies where the common law alone is not enough but restricts itself to cases where those remedies are genuinely and justly deserved
Its origins are in the Middle Ages where the courts of common law failed to give redress in certain types of cases where it was needed and therefore disappointed litigants started to petition to the King, the ‘Fountain of Justice’, for extraordinary relief
The King eventually set up the Court of Chancery through the Chancellor, King’s chief minister to deal with these petitions and eventually the rules applied by the court became law and regular part of the law of land
In the case of conflict or variance between the rules of common law and the rules of equity, equity would prevail
In 1875 the Judicature Act 1873 came into force and abolished the old courts of common law and the Court of Chancery, replacing them with the single Supreme Court of Judicature having the power to administer both common law and equity
It is important to note that the Judicature Act did not fuse common law and equity, but only their administration and therefore there is still today in operation a body of rules of equity distinct from the common law rules
These two branches of law are distinct regardless that they are implemented by the same courts
The most important branch of equity is trusts, but also remedies such as injunctions and specific performance are used
a) Injunction – offers defendants to do or not to do something
b) Specific performance – compels the party to fulfil a previous agreement
c) Rescission – Restores the parties to a contract to the position in which they were in before the signing of the contract
d) Rectification – Order altering the words of a document not expressing the true intentions of the parties to it
Equity supplements the common law providing just and practical remedies where the common law alone is not enough but restricts itself to cases where those remedies are genuinely and justly deserved
Its origins are in the Middle Ages where the courts of common law failed to give redress in certain types of cases where it was needed and therefore disappointed litigants started to petition to the King, the ‘Fountain of Justice’, for extraordinary relief
The King eventually set up the Court of Chancery through the Chancellor, King’s chief minister to deal with these petitions and eventually the rules applied by the court became law and regular part of the law of land
In the case of conflict or variance between the rules of common law and the rules of equity, equity would prevail
In 1875 the Judicature Act 1873 came into force and abolished the old courts of common law and the Court of Chancery, replacing them with the single Supreme Court of Judicature having the power to administer both common law and equity
It is important to note that the Judicature Act did not fuse common law and equity, but only their administration and therefore there is still today in operation a body of rules of equity distinct from the common law rules
These two branches of law are distinct regardless that they are implemented by the same courts
The most important branch of equity is trusts, but also remedies such as injunctions and specific performance are used
a) Injunction – offers defendants to do or not to do something
b) Specific performance – compels the party to fulfil a previous agreement
c) Rescission – Restores the parties to a contract to the position in which they were in before the signing of the contract
d) Rectification – Order altering the words of a document not expressing the true intentions of the parties to it
