Roman law

New Remedies

New Rights

New Procedures

Equity was not bound by the writ system and cases were heard in English instead of Latin. The Chancellor did not use juries and he concerned himself with questions of fact. He could order a party to disclose documents. The Chancellor issued subpoenas compelling the attendance of the defendant or witnesses whom he could examine on oath.

Equity created new rights by recognising trusts and giving beneficiaries rights against trustees. (A trust arises if one party gives property to trustees to hold for the use of beneficiaries.) The common law did not recognise such a device and regarded the trustees as owners.

Equity also developed the equity of redemption. At common law, under a mortgage, if the mortgagor had not repaid the loan once the legal redemption date had passed, he would lose the property but remain liable to repay the loan. Equity allowed him to keep the property if he repaid the loan with interest. This right to redeem the property is known as the equity of redemption.

Equity created new remedies:

(a) Specific performance, which is an order telling a party to perform their part of a contract. This was useful where damages were not adequate, eg, in the sale of land. Thus if the seller refused to sell after signing a contract, the buyer could obtain an order of specific performance making the seller sell the house.

(b) Rectification, which allowed a written document to be changed if it did not represent the actual agreement made by the parties.

(c) Rescission, which allowed parties to a contract to be put back in their original position in the case of a contract induced by a misrepresentation.

(d) Injunctions, usually an order to stop a person doing a particular act, like acting in breach of contract (a prohibitory injunction).

Task 7. Discuss your ideas in pairs & then exchange opinions with the whole group.

1. Does your legal system contain rules of equity?

2. Was equity developed because in many situations there was no legal remedy available at common law?

3. Do the rules of equity remain different from the rules of common law?

You have seen that in England equity and common law are two separate bodies of legal principles, which are now administered by the same courts. What is your opinion of this system?

Task 8. Read the text consulting a dictionary where necessary & pick out the main points about the sources of law in Great Britain.

Roman law in a broader sense refers not only to the legal system of ancient Rome, but also to the law that was applied throughout most of Western Europe until the end of the 18th century. In some territories like the one occupied nowadays by Germany the practical application of Roman law in the past due to the ancient Holy Roman Empire lasted even longer. For these reasons, many modern civil law systems in Europe and elsewhere are heavily influenced by Roman law. This is especially true in the field of private law. Even the English and North American Common law owes some debt to Roman law although Roman law exercised much less influence on the English legal system than on the legal systems of the continent. The influence of Roman law is shown by the wealth of legal terminology, retained by all legal systems, like stare decisis, culpa-in-contrahendo, or pacta sunt servanda, though often these were just Latin terms inherited from when 'learned' literature was all written in Latin. In contrast with Western Europe, Eastern European countries, though heavily influenced by the Byzantine Empire from which the Corpus Juris Civilis came, were not significantly influenced by the Corpus. They were, however, influenced to some degree by the Roman Farmer’s Law.

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