Green University of Bangladesh

An Assignment on
Historical Development of Equity from the Roman legal system to the modern
world

Course Title: Law of Equity, Trust & Specific Relief

Course code: LLBH 209

Presented for
Name: Aynal Haque
Designation: Lecturer
Department of Law
Green University of Bangladesh

Presented By
Name: Md. AL Nahian Bin Ratan
Student ID: 222911011
Batch: 222
Department of Law
Green University of Bangladesh
 Abstract
Equity law is a legal system, which is believed that originated in England during the 13th century. The
origins of the equity tradition can be found in Aristotle's writings (epieikeia) and Roman law (aequitas).1
Elements of Equitable concept can be found in the ancient treaties that attempted to attempt to prevent
dishonesty in upholding the strict terms of the treaty, for example, Hittite treaties with their neighbors in
the 14th and 13th centuries BC.2 Equity can be found in many communities and religions but in various
ways. Clemency was the Greek word for it. It was known as aequitas, or equality, by the Romans. It was
described as compassion in ancient Chinese law, and the notion of justice is present in Hindu philosophy.3
Istihsan is used in some Islamic schools to avoid undue hardship from the execution of the law. With the
aid of secondary research, the author of this study has made an effort to examine the Historical
Development of Equity from the Roman legal system to the modern world.

1
Titi, Catharine (2021). The Function of Equity in International Law. Oxford University Press 2021
2
G Scharzenberger, ‘Equity in International Law’ (1972) The Year Book of World Affairs 348-50
3
R Newman, ‘The Principles of Equity as a Source of World Law’ (1966)
Table of Contents
CHAPTER: ONE ........................................................................................................................................ 5
Introductory issues........................................................................................................................5
1.1 introductions: ......................................................................................................................5
1.2 Objectives of the assignment ................................................................................................5
1.3 Methodology of the assignment ............................................................................................5
1.4 Limitations of the assignment ..............................................................................................5
1.5 Aim of the study:..................................................................................................................5
CHAPTER: TWO ............................................................................................................................................. 6
Concept of Equity in Different Legal Systems (Ancient Times) ..........................................................6
2.1 Equity in Roman Law .............................................................................................................6
2.2 Equity in Greek Law...............................................................................................................6
2.3 Equity in Muslim Law ............................................................................................................6
2.3 Equity in Hindu Law ..............................................................................................................6
CHAPTER THREE .................................................................................................................................... 7
Development of Equity in England (Medieval Time) .....................................................................7
3.1 History of Chancery Court......................................................................................................7
3.2 Development of Equity .........................................................................................................7
3.3 Conflict between Chancery Courts and Common Law Courts .............................................8
3.4 Fusion of the Courts.............................................................................................................8
CHAPTER FOUR ............................................................................................................................................. 9
Equity & Modern Law ..................................................................................................................9
4.1 Role of Equity in Modern Law .............................................................................................9
CHAPTER FIVE ............................................................................................................................................. 10
Conclusion and Acknowledgement .............................................................................................. 10
5.1 Conclusion ......................................................................................................................... 10
5.2 Acknowledgement .............................................................................................................. 10
Bibliography ................................................................................................................................................ 10
 CHAPTER: ONE
Introductory issues
1.1 introductions:
The concept of Equity means a body of law that provides remedies where the common is unable
to do so. Equity developed as a supplement to the common law system, which was usually rigid
and inflexible. Due to that the Common law had become harsh and rigorous, and litigants could
not obtain justice from it. As a result, they had no choice but to approach equity jurisdiction of the
Chancellor. Which was known as the Court of Chancery. Equitable principles can be found in the
jus honorarium in Roman law.4 Roman law provided certain legal notions and principles that the
English courts accepted or modified, such as trusts, injunctions, particular performance, etc., which
had an impact on equity in English law.5

1.2 Objectives of the assignment

With the following goals in mind, this assignment was completed:
1. To briefly discuss the history of the concept of Equity.
2. To sketch out the historical development of the Equitable concept.
3. To understand the modern concept of Equity along with its history.

1.3 Methodology of the assignment

The only data gathered for this study are secondary data. By using this method, I have completed
my assignment.

1.4 Limitations of the assignment

Every assignment has some restrictions. These are the restrictions
• This study has been conducted under multiple academic tasks to do within strict
deadlines.
• This study was finished on schedule.
• This study was carried out in a particular setting, specifically in Dhaka..

1.5 Aim of the study:

Answering the question "What is the historical development of the concept of equity?"ss

4
P G Stein, ‘The influence of Roman Law on the common law, 1994’ p-168
5
https://www.academia.edu/10987107/Meaning_and_Nature_of_Equity_and_its_development_in_Roman_and_E
nglish_Common_Law - 6:53- 1/12/2023
 CHAPTER: TWO
Concept of Equity in Different Legal Systems (Ancient Times)
2.1 Equity in Roman Law
In 366 BC, the first praetor, acting as the King's representative, was appointed with the authority to amend
legislation for fairness. This led to the creation of new regulations, called edictum novum, introducing
moral principles alongside the initial civil law. Equitable principles can also be found in the jus
honorarium in Roman law. It aided by providing more convenient remedies to those who already had or
didn’t have civil law rights of action, for example; a widow of a man who died intestate leaving no blood
relatives was authorized by the praetor to claim her late husband's property despite not being his heir. The
praetor also repaired the law by providing a remedy to which someone else was entitled by law.6

2.2 Equity in Greek Law

The term Equity comes from the Latin word ‘Aequitas’ but the word equity in the Greek term ‘Epiekeia’
was first used by Greek philosophers Aristotle and Plato.7 It was after a 3 centuries later the Roman term
was used by the connotation of the Greek term. It proved that the concept of equity also existed in Ancient
Greece.

2.3 Equity in Muslim Law

The literal meaning of equity is "justice," and "equitable" implies "the just." Allah (SWT) commanded
justice in both speech and judgment. He said:

“And whenever you give your word, say the truth even if a near relative is
concerned,” (Al-Anam 6:152)

“And act justly. Indeed, Allah loves those who act justly.” (Al-Hujurat 49:9).

“And when you judge between people to judge with justice.” (An-Nisa 4:58).

Istihsan is an Islamic legal theory that permits jurists to exercise their judgment to prevent the application
of the law from causing undue hardship8, in other words, Equity.

2.3 Equity in Hindu Law

During the British administration, the ideas of equity were incorporated into Hindu law. The principles of
equity would be applied in the absence of any explicit or conflict law.9

6
JUSTICE MARGARET WHITE in EQUITY – A GENERAL PRINCIPLE OF LAW RECOGNISED BY CIVILISED NATIONS? P-105
7
John White Jr. in Equity in Greek and Roman Legal Theory, 1982, p- 1
8
The Seventh Source: The Principle of Istihsan (Discretion) (iium.edu.my) : 7:38-30/11/23
9
https://nios.ac.in/media/documents/SrSec338New/338_Introduction_To_Law_Eng/338_Introduction_To_Law_E
ng_L3.pdf - 7:48-30/11/23
 CHAPTER THREE
Development of Equity in England (Medieval Time)
3.1 History of Chancery Court
Next to the king, the Chancellor was the most significant and potent figure in the nation during the Medieval
times. "Prime Minister to the King" was the title given to him.10 Using the theoretical foundation of natural
and universal justice, he wielded those powers in the name of conscience. It gives rise to the well-known
legal phrase "rules of equity, justice, and good conscience.

The Common law was rigid and

unforgiving, making it unjust to plaintiffs.
So, they had to rely on to appeal to the
King. Over time, the King fully delegated
to the Chancellor his equity jurisdiction.
The Chancellor's authority to administer
justice on behalf of the King began in
1349 and was gradually expanded; as a
result, in 1474, the Chancery Court
became a distinct and independent body.

3.2 Development of Equity

The Common Law had taken definite shape at the time of Edward J. It was administered in the King’s
Justice on the circuit and in three different courts. King’s Justice also administered Equity to deal with hard
cases but it was not recognized as a different body of law.11 “Norman English Kings were the fountain of
justice…….. They dispensed justice under a prerogative of mercy and
equity was an essential part of their legal office”.12 A person needed to
get a writ from the Chancery Division and pay fees to begin a Common
Law action. Such writs were issued by the Chancellor. The scope of the
writs available in the 13 century was extremely limited In the Common
Law courts, "a plaintiff was often unable to obtain a remedy, even when
they should have had one"-Snell.
During the turbulent 13th century, the King, possessed extensive
discretionary powers to administer justice among his subjects. The
plaintiff had to petition the King in council praying for a remedy. By Edward III
1348, the King gave the Chancellor full authority over equity. Edward
III acknowledged and validated the same in 1349 with an order. These
petitions were addressed directly to him in the 14th century. By the end of the 15th century, the Chancellor
had heard the petitions and decided them independently of the council. He made decrees in his name. This
post was held till 1474. As pointed out by Potter “while the Chancellor inherited a jurisdiction to do justice

10
Maitland on Hanbury: Modern Equity, Chapter 1
11
Maitland on ‘Lectures on Equity’, p-5
12
Allen on ‘Law in the Making’, Chapter V
where the law gave none”.13 Gradually, around the beginning of the 18th century, general maxim principles
formed. Thus, the equitable jurisdiction of the Chancery Court came into being,14

3.3 Conflict between Chancery Courts and Common Law Courts

The historical struggle between Chancery Courts and Common Law Courts concerned the respective
jurisdictions and powers of the two categories of court. By the end of the 16th century, they were at odds
with each other due to the growing influence of the Chancery court, which used its authority to add to or
modify the "legal" principles that the royal courts had been using.

A conflict over primacy arose in the early Elizabethan era between the two courts. Under Henry VI, it had
been customary for plaintiffs in common-law courts to be prohibited from carrying out common-law judges'
rulings if the Lord Chancellor believed their claim to be "against conscience". The common-law judges had
fiercely resisted this, believing that parties to a case would swarm the Court of Chancery if the Lord
Chancellor had the authority to overrule their rulings. Throughout Elizabeth I's reign, there remained
disagreements regarding the Lord Chancellor's superior status.15

Despite the King's and the people's preference for the Chancery method, disagreements were still occurring.
As a result, the two courts came to an agreement that, although the Chancery Court and the Chancellor
would continue, they would not try to further expand on the Common Law court's territory.

3.4 Fusion of the Courts

The British Empire saw significant
industrial, international, and imperial
expansion during the 19th century,
which called for advancements in equity
to address a variety of novel issues. The
court's operations had grown
significantly, and by the time the
Chancery Court was eliminated at the
end of the third quarter of the century,
the Common Law courts and the
Chancery Court were collaborators
rather than competitors in the task of
enforcing the law. The moment had
Supreme Court of Judicature arrived for merging. The Judicature
Acts of 1873 and 1875 were therefore
passed to end the abuses of double administering justice, and both courts were combined into the Supreme
Court of Judicature, which oversaw both law and equity. As Snell notes it was a fusion of administration
rather than of principles. In other words, the principles either of law or of equity did not change but they
were now administered by one court.16

13
Butterworth’s Dictionary, Vol-2, 1969, p-173
14
B.M. Gandhi on Equity, Trust & Specific Relief, Fourth Edition
15
Courts of Chancery - History - Competition With The Common Law | Competition Common Law
(liquisearch.com) -01.21-01/12/23
16
B.M. Gandhi on Equity, Trust & Specific Relief, Fourth Edition, p-20
 CHAPTER FOUR
Equity & Modern Law
4.1 Role of Equity in Modern Law
The importance of equity in current times is reflected in new equitable remedies, such as the,
Mareva Injunctions, granted the court the authority to seize a party's assets (Mareva Compania Naviera
SA v International Bulkcarriers SA, 1980)17

Super Injunctions, permitted celebrities to maintain their privacy and stopped the media from learning a
lot about them (Ferdinand v Mirror Group Newspapers, 2010)18

The Anton Piller Orders, which permitted the court to search the defendant's property (Anton Piller KG
Vs Manufacturing Processes Ltd, 1976),19

& Contract law, Land Law, Tort Law, and Mortgages, etc.20
In modern land law, equity plays a part by offering remedies that safeguard landowners' and occupiers'
rights and interests, such as specific performance orders, injunctions, and constructive trusts.
The principle of Equity has been codified in various laws, such as the Specific Relief Act, of 1877, the
Trusts Act, of 1882, the Succession Act, the Guardian and Wards Act, the Contract Act, of 1872, and the
Transfer of Property Act, of 1882.
Additionally, equity provides concepts and guiding principles for international law and relations.21 Because
equity enables discretion and flexibility in the application of the law to many situations and contexts, it is
still applicable today.

17
Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213
18
Ferdinand v MGN [2011] EWHC 2454
19
Anton Piller KG v Manufacturing Process Ltd [1976] 1 ALL ER 779
20
Equity as a Modern Source of Law (lawteacher.net) 10:54- 2/12/23
21
https://academic.oup.com/ojls/article-abstract/37/2/435/2880109 - 1:32- 1/12/23
 CHAPTER FIVE
Conclusion and Acknowledgement
5.1 Conclusion
In summary, the development of equity from Roman law to the present day illustrates the dynamic evolution
of legal thought. Equity, which had its roots in Roman laws, developed through the English Court of
Chancery and provided flexible remedies. Equitable ideas are still essential today, improving justice
everywhere. This historical continuity highlights equity's ongoing significance in our quest for a fair and
compassionate legal framework by demonstrating how it adjusts to societal developments to secure justice
and complement legal systems.

5.2 Acknowledgement
By using the Documents review method the author of this study only gathered secondary data within the
limitations. The author of this study would like to thank Aynal Haque sir for giving support and guidance
to finish this study.

Bibliography
Books & Papers
• B.M. Gandhi, ‘Equity, Trust & Specific Relief’, Fourth Edition
• Butterworth’s Dictionary, Vol-2, 1969
• Allen on ‘Law in the Making’, Chapter V
• Maitland on ‘Lectures on Equity’
• Maitland on Hanbury: Modern Equity, Chapter 1
• John White Jr. in Equity in Greek and Roman Legal Theory, 1982,
• JUSTICE MARGARET WHITE in EQUITY – A GENERAL PRINCIPLE OF LAW RECOGNISED BY CIVILISED NATIONS?
• P G Stein, ‘The influence of Roman Law on the common law, 1994’
• Titi, Catharine (2021). The Function of Equity in International Law. Oxford University Press 2021
• G Scharzenberger, ‘Equity in International Law’ (1972) The Year Book of World Affairs 348-50
• R Newman, ‘The Principles of Equity as a Source of World Law’ (1966)
Websites
• https://academic.oup.com/ojls/article-abstract/37/2/435/2880109
• Courts of Chancery - History - Competition With The Common Law | Competition Common Law
(liquisearch.com)
• https://nios.ac.in/media/documents/SrSec338New/338_Introduction_To_Law_Eng/338_Introd
uction_To_Law_Eng_L3.pdf
• The Seventh Source: The Principle of Istihsan (Discretion) (iium.edu.my)
• https://www.academia.edu/10987107/Meaning_and_Nature_of_Equity_and_its_development
_in_Roman_and_English_Common_Law
• Equity as a Modern Source of Law (lawteacher.net)

Case
• Ferdinand v MGN [2011] EWHC 2454
• Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213
• Anton Piller KG v Manufacturing Process Ltd [1976] 1 ALL ER 779