Malaysian Law/Introduction/Equity

Meaning

The legal meaning of the word 'equity' is the rules developed to resolve the severity of the common law.

Origin

From the 13th century, the disappointed litigants began to petition the King as the 'Foundation of Justice'. He passed the works to the Chancellor as the 'Keeper of the King's Conscience' and the King's Chief Secretary. The Chancellor was usually a clergyman, generally a bishop, who learned the civil and canon law.

Each Chancellor would decide in a different way. It was not restricted by the Writ System. Chancery court was established in London.

Restrictions on the expansion of common law by the Provisions of Oxford 1258 and the Statute of Westminster II 1285 caused equity to rise in importance. It developed into secondary system of law, supplementing and competing with common law. In 1474 the Chancellor issued the first decree in his own name, which began the independence of the Court of Chancery form the King's Council.

Functions

It has new procedures which it was not restricted by the writ system. The Chancellor decide the cases on their own.

It has new rights which is to recognize trusts.

It has new remedies:

• specific performance: an order telling a party to perform their part of a contract
• rectification: allow a document to be changed if it does not represent the agreement made by the parties.
• recission: allow a document to be put back to its original position if the contract has misrepresentation.
• injunction: an order telling a person to stop doing a particular act.