Comparing the differences between the rules of tracing at common law and in equity

Law courts can order writs which are harder to obtain and are less flexible than injunctions which are ordered by equity courts. One understands Common Law to mean precedent or law created by decisions of the courts.

The process of following and tracing are, however, distinct. In the court of law, a jury will be present to determine the outcome of the case, while in equity court; there is only a judge present that will decide the outcome.

Common Law is a body of law based on precedent or court decisions. The plaintiff can claim any money the defendant has paid into the account, after it has been reduced to its lowest intermediate balance, if the defendant paid the money into the account with the intention of benefiting the plaintiff.

Examples in Re Diplock [18] include money used for alterations and improvements, dissipated money and money used to discharge an unsecured debt. In common law systems the outcome is often same or similar to the outcome provided in previous cases, while in equity the outcome can change depending on the circumstances of the situation.

It is designed to create order, advocating freedom while at the same time enforcing order so that people can live harmoniously with each other. Different rules apply in different situations; where the money has been mixed with the money of a trustee, where a trust fund has been mixed with another trust fund or money belonging to an innocent volunteerand where money has been transferred by mistake rather than malicious intent.

Both can be claimed if no double recovery is involved for example, a constructive trust over the property or its substitute and a personal claim to recover value lost in depreciation. The High Chancellors were church clergymen and would usually take into consideration the surrounding factors before making a decision.

The common law was developed by the English Royal Courts.

Difference Between Common Law and Equity

While proceedings regarding the two are somewhat similar today, in the past they were divided into two different courts. These terms and methods for justice have found their way into many legal systems with roots in the laws of England, such as the US and other areas that were English colonies.

Please spread the word. The reason for the above names is because Common Law, in fact, constitutes rules of law developed by the courts through its decisions.

Possession of chattels is protected through the actions of detinue, conversion and trespass, but these claims usually only result in an award of damages.

Difference between Common Law and Equity

The trust can, however, trace property transferred by the purchaser to the trustee in exchange for the trust money. In the court of law, the victim will more commonly receive the monetary value of the car, while in the court of equity the judge can tell the thief to return the property itself.

The "change of position" defence is where the defendant has received property and giving it back would change his personal circumstances. References Textbook refers to M. In a court of law, defendants can be ordered to pay monetary damages while in equity, if the complainant wants to get back what is taken from him instead of getting money, the court can order the defendant to do so.

Common Law thus has a unique capability to adapt to the changing trends in society. Equitable ownership proprietary 1 Revision: It is a body of laws which is based on customs and the judicial decisions of previous court cases or precedents rather than on statutory laws. Equity, on the other hand, is associated with the principles of fairness and equality.

There are several advantages to equitable tracing; first, it can trace property now mixed with other property. The most distinct difference between law and equity lies in the solutions that they offer.

What Is the Difference Between Common Law and Equity?

It was also in Middle Age England where the concept of equity was developed as a supplement to the strict set of rules or laws which were considered too rough when applied to certain cases. In Foskett v McKeown, [2] Lord Millett defined them by saying that "[Following and tracing] are both exercises in locating assets which may or may be taken to represent an asset belonging to the [claimants] and to which they assert ownership.

The plaintiff must prove that they had equitable title in the property. In Barlow Clowes International v Vaughan, [24] the Court of Appeal applied a similar set of principles, holding that the size of the contribution and the amount of time the money was part of the mixed fund were the factors to be considered.

The title to the money mixed.

What Is the Difference between Common Law and Equity?

In modern times, both the courts have seemed to merge in many countries to create a much fairer law system. Although the tendency is to use the two terms synonymously, there are differences between the two that are more fully explained below. What is the difference between Common Law and Equity?

This is similar to "change of position", and comes about when the defendant can show that the claimant made some false representation to him, which he acted upon to his detriment.

The recipient is good faith purchaser for value without notice of the equitable interest. He who comes to equity must come with clean hands.Equity developed more sophisticated methods for tracing property and more effective remedies for its recovery: Equity developed special rules for identifying the plaintiff’s property when it has been mixed with other property.

Equitable remedies are more flexible and effective than common law. Apr 02,  · Difference between common law and equity I have read Prue Vines' textbook but i still don't really understand the difference between common law and equity. Can someone please explain? Aug 23,  · There was initially a separation, therefore, between the common law and equity courts, though similar cases might be heard in both.

In modern legal practice, the two are separated by the way in which the cases are heard and the type of decision that can be handed down. The conflict was finally put to rest by the setting up Judicature Acts in where the Supreme Court could now administered both rules of common law and equity.

One of the major differences between common law and equitable rights lies in the deficiencies of the common law remedy. Tracing: a General Introduction 1. The subject of tracing is one that can be briefly outlined in a few propositions or one to take but some examples, it is dealt with in books on equity,3 personal property,4 restitution,5 banking law, insolvency law6 and so on.

Furthermore, the language used by commentators and Judges can obscure, rather.

Difference Between Law and Equity

Today the difference between common and civil legal tenets lies in the actual source of law. Common-law systems make refer extensively to statutes, but judicial cases are considered the most important source of law, allowing judges to pro-actively contribute to rules.

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Comparing the differences between the rules of tracing at common law and in equity
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