Talk:Equity (law)

comments
Doing a search for 'equity' bakarchodi makes me think that there is need for disambiguation page for the term. I think this would be helpful if someone would do it.

This article badly needs an outline. To begin with: the equity-law distinction should not be brought up until later in the article, after equity is positively defined and examples are given. We should know all about the equitable remedies  and defenses/axioms of equity (i.e., what equity IS) before we learn about the parallel system of law. Doing it this way will prevent the novice from becoming too confused to read the article when legalese definitions of "law" and "legal" get thrown around.

When you get to there, a separate sentence should inform the reader that "law" and "legal" are legal terms of art that discriminate between one system of law and another. It may be helpful to the reader here to point out that the two systems used to have separate courts in the UK and USA. This will give them something physical with which to ground their understanding.

Why are we doing a compare and contrast to law in the introductory section of the article? Again, saying what equity is NOT should come only after we know what equity IS.

Also, the introductory, basic section defining equity should be kept short to produce the highest quality definition of the term.

Here's my suggested outline:

I  Equity Defined - try to make it one paragraph!

II History - the section we have now is good

III Remedies and Defenses - make a list, remedies first, then defenses

IV Contrasted with Law - cut and paste this info that was confusingly scattered throughout the article introduction into its own section.

The following should go at the end, because they are not crucial to understanding equity, unlike the other parts. They also are very similar topics, really in the field of comparative law, so we should group them together.

V  Development in England VI Development in the United States VII Comparison of equity traditions in common law countries

Statute of Uses should probably go in a wiki on historical tax avoidance.

I may implement this outline myself if there are no objections. But feel free to do it yourself. Really, any-non-confusing revision would be great - this is just a suggestion. I know WE understand the article, but we read lawyers for a living.

Jake, San Diego, 4.24.2007


 * Well, how would you define equity in one paragraph? It is pretty much defined by being the body of law deriving from the Court of Chancery jurisdiction. Lawdroid (talk) 23:37, 30 January 2009 (UTC)

Isis: I didn't see that you were at work on this: thanks for letting me know. I'll stop editing this for now. -- The Anome 09:09 Dec 17, 2002 (UTC)

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Carey: I have far better text on fairness. Fairness is, amongst other things, a 10-fold categorization of the Ombudsman of Ontario, that allows decisions of the government that affect an individual, to be found wrong. The page (that went offline at the Ombudsman site): http://www.ijs.co.nz/fairness-standards.htm

That page could also be a wikipedia handbook on how to word up charges of unreasonableness and "unfairness" about decisions by other wikipedia members. 16-Jul-2003.

---

This page could use a list of Equitable Remedies. I'll work on it. Moreover, it needs to have a history section, and a section for the practice of equity in the US, because, for instance, the UK system of equities has changed.

I also feel a disambiguation page coming.

Reid 19:23, 20 Apr 2004 (UTC)


 * Is there not already a sufficient list of equitable remedies in the article with that name? Legis 12:21, 25 May 2006 (UTC)


 * Merge the remedies into this article. Not that remedies aren't independently important but that equity cannot be understood apart from its remedies.  Equity without its remedies is like a tree without wood.  Alternately, just give examples, especially specific performance and injunctions, since those are the most famous.

Jake, San Diego, 4.24.2007 —The preceding unsigned comment was added by 68.101.148.91 (talk) 18:28, 24 April 2007 (UTC).

History
The History Section seems rather sparse. Conceptually equity should be linked first to Aristotle before the development of equitable doctrine as it exists now began in the UK. The development of chancery and its eventual fusion with common law courts should be ellaborated upon. as a link to "Fusion Fallacy" which is completely inadequately explained. The various roles that equity plays should be discussed more before launching into the point about equitable vs common law remedies.

Specific performance vs. damages
If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and the American Constitution guarantees a right to a trial by jury.

This seems to contradict the example of a wandering cow given in the article. Josh Cherry 15:03, 23 Oct 2004 (UTC)


 * Nope. Anything involving damages, whether it be the award of money or property, is a remedy at law, and is not properly subject to an equitable remedy. - Sensor 00:08, 28 October 2005 (UTC)

But damages are, by definition, money. See Garner, Black's Law Dictonary 2d. Specific performance is an equitable remedy, not a legal one. The sentence above about "a specific item of property" is just wrong.


 * Yes, specific performance is an equitable remedy. But replevin (the action at law for return of a particular item of property) has traditionally been a legal rather than equitable remedy. See Bryan A. Garner, Black's Law Dictionary, 7th ed. (St. Paul: West Group, 1999), p. 1302. This is a weird exception to the legal/equitable distinction which one has to memorize for the bar exam.  --Coolcaesar 21:57, 5 November 2005 (UTC)

Equity in economics
I've just added another meaning for the term equity. I suspect it needs to rand alongside equity in law. Maybe a disambiguation page is required? (I'm new to this.)

A disambiguation page would go a long way to clearing this all up, but i dont ahve the faintest idea on how to set all that up. Oldsoul 14:36, 5 Feb 2005 (UTC)

Yes I thought it was a bit odd that Equity flys straight to the law definiton, Equity in accounting is a commonly used term. Im new to and dont know how to correct that though. Maybe ill be back. --lincs_geezer 22:53, 27 October 2005 (UTC)


 * There is a disambiguation page, but I agree that equity should go to a disambig page first. - Sensor 00:08, 28 October 2005 (UTC)

Add another lost wanderer who was looking for the "business" term to the list. If "sensor" has found a disambiguation page, it would be nice if he/she could put a link in from the top of this page, so the rest of us can get there. Is there any page on "equity" in the economics/business/accounting sense?? Lisa4edit —Preceding unsigned comment added by 71.236.23.111 (talk) 06:11, 12 April 2008 (UTC)

Note: Selected article at Portal:Law
This article was the selected article at Portal:Law from June 25, 2005 to August 27, 2005. bd2412 T 20:34, 28 December 2005 (UTC)

Dissenting opinions
Dear Jrgetsin, This is an encyclopaedia, not a judicial decision. 'Dissenting opinions' are out of place. Either edit the article to suit what you say or just leave it alone. The 'Statute of Uses' bit is rather irrelevant to the article, bordering on trivia. It could do with its own page.GSTQ 01:13, 4 August 2006 (UTC)
 * I concur. The messy history of the Statute of Uses is only minimally relevant to the larger concept of equity and should be treated in a separate article.  Indeed, it is usually not taught along with equity in civil procedure courses in the United States; it is mentioned only briefly in Wills and Trusts courses. --Coolcaesar 16:49, 4 August 2006 (UTC)
 * Agreed. This Act is not taught within the core module of Equity within English LLB. degrees.Ben stephenson (talk) 17:32, 7 February 2008 (UTC)

Statute of Uses
Can someone check the date on this? I remember it as 1536, not 1535. The Equity article says 1535, while the Statute of Uses article says 1536. I can check it tonight; I just don't have my books with me right now. Yours, Famspear 15:03, 7 August 2006 (UTC)

OK, I looked it up. The Statute of Uses was enacted in 1535 and became effective in 1536. Notation added to article. Yours, Famspear 18:32, 14 August 2006 (UTC)

Inaccuracy
Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often this form of relief is in practical terms more valuable to a litigant. A plaintiff whose neighbor will not return his only milk cow, which wandered onto the neighbor's property, for example, may want that particular cow back and not just its monetary value.

The example doesn't work. You would obtain the return of your milk cow (assuming your neighbor refused to return it) by a writ of replevin in law not in equity. A court that decrees and injunction in such a case is improperly applying the rule that equity will not provide a remedy when there is an adequate remedy at law. I think the writer is really referring to specific performance as an equitable remedy, but that applies to contracts and is not generally available for cows.

Law courts also enter orders, called "writs" (such as a writ of habeas corpus) but they are less flexible and less easily obtained than an injunction.

I beg your pardon, but I got a writ of execution yesterday and it was a darn site easier than I expect the decree of injunction I'm seeking next week will be. I think when the writer speaks of writs he or she means extraordinary writs which are a special case. And in New Hampshire, where I also practice, one still obtains an original writ to initiate a case, while technically an order (analogous to a summons), it is pretty easy to get one - you just buy it. Injunctions on the other hand are a lot of work and never what one would call "easily obtained".

--Doug.(talk • contribs) 05:20, 29 August 2007 (UTC)

And I have to add this that I just noticed: This difference is not a mere technicality, because the successful handling of certain law cases is difficult or impossible unless a temporary restraining order (TRO) or preliminary injunction is issued at the outset, to restrain someone from fleeing the jurisdiction taking the only property available to satisfy a judgment, for instance.

Again, the example would be accomplished by a writ of attachment, not a restraining order or a preliminary injunction. Sorry, I'm sure there are more. This article is very long and I only scanned the article very quickly. I'll try to come by later and make a few corrections. --Doug.(talk • contribs) 05:26, 29 August 2007 (UTC)

I've given the article a  tag for now - law doesn't seem to have it's own cleanup tag.--Doug.(talk • contribs) 05:47, 29 August 2007 (UTC)


 * I've reverted 4.157.92.172's change, because I explained my tag. Please discuss if you think the tag is unwarranted.--Doug.(talk • contribs) 19:39, 9 September 2007 (UTC)

Coke CJ
'''The article no longer contains the reference described by Josiah Rowe. (Sbutler (talk) 08:49, 17 September 2019 (UTC))'''

In the section Equity (law), the phrase "a judgment of Coke CJ" strikes me (a non-lawyer, unfamiliar with legal titles and terminology) as strange. I eventually realized that it meant "Coke, Chief Justice", but I'm not sure that meaning is readily apparent in the text (despite the reference to "The Chief Justice of the King’s Bench, Sir Edward Coke" in the preceding sentence). In fact, my first thought on coming across the phrase "Coke CJ" was that it was a remnant of vandalism which had been missed at some point, and it was only after looking through the history that I realized my error.

I assume that "Coke CJ" is meaningful to legal experts, but it looks very odd to a layman. Would it be a terrible faux pas or misrepresentation to rephrase that as "a judgment of Chief Justice Coke"? —Josiah Rowe (talk • contribs) 08:16, 4 November 2007 (UTC)

History of equity
It would be great if someone knowledgeable about the subject could integrate the section Equity (law) into Equity (law). As it is, the history section goes from the 13th century, through to the 19th, and then back to the 16th. —Josiah Rowe (talk • contribs) 08:51, 4 November 2007 (UTC)
 * I concur. The problem is that most lawyers (myself included) don't understand the history of equity prior to about 1700 very well because we don't need to (we just need to know generally why there is a division between law and equity, not all the messy convoluted details along the way). The number of real experts on ancient legal history in the world is very, very small, which is why no one has bothered to clean it up in two years.  I'm too busy practicing law as well as doing occasional research for the articles Lawyer and Attorney-at-law.--Coolcaesar (talk) 00:44, 6 September 2009 (UTC)

Jefferson quote bad
The quote given does not explain that there are three limitations. The quote explains that equity cannot override the legislature.

Thomas Jefferson explained in 1785 that there are three main limitations on the power of a court of equity: “ 	1. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged. That it shall not interpose in any case which does not come within a general description and admit of redress by a general and practicable rule.[2]

Strider22 (talk) 05:13, 24 June 2009 (UTC)

Distinction between law and equity
I am just curious but would this description work for the distinction between Law and Equity?

Equity generally deals exclusively with the issue of compelling an action or preventing an action while a Common law court may compel an action but limited in relation to government officials (police, lower courts) and something directly related to the conduct of a trial (replevin) but law courts also can deal with monetary damages which equity relief does not encompass.

From what I have read that seems like the distinction. It seems that Common Law Writs deal more with government procedure than with the ordering of certain actions between private citizens. After all I thought replevin is the temporary holding of property by a designated official as the case is being decided upon until a verdict is rendered.

Is this right and if not can someone explain it to me so I can understand it? Stamos1981 (talk) 23:47, 18 November 2008 (UTC)


 * No, you're conflating the extraordinary writs available at common law with the law v. equity distinction. They're quite distinct issues and they're hard enough to understand on their own.  You should try to understand law v. equity first, then study extraordinary writs separately, then try to understand how the whole civil procedure system fits together.  Yes, this is hard, which is why it's not until the second year of law school (or even third year for some) that it begins to make sense.--Coolcaesar (talk) 06:21, 20 November 2008 (UTC)

Requested Addition
The article to date (Sept 2009) appears to be soley a kind of U.S. Constitution point of view of "what is equity law". Equity law from England borrows from Roman law (where was the first law school) whose laws were taken from the Greeks. %95 of the Greek system for public power in equity and law stand unchanged (their idea of true democracy is currently unused). Please include.

Chinese law is much more complicated and longer standing; but also equitable in many respects.

user sven_nestle


 * That is preposterous and constitutes original research in violation of core policies No original research and Verifiability. Please provide some citations to reliable sources for those ridiculous assertions. --Coolcaesar (talk) 00:40, 6 September 2009 (UTC)

Reference for the 12 (+5) principles
These are enumberated on page 24 of the Hudson text, not pages 5-9

The reference to these will therefore be changed to reflect this. — Preceding unsigned comment added by 95.148.163.110 (talk) 09:20, 29 July 2011 (UTC)

United States
Two of the United States (both of which I am a member), Tennessee and Mississippi, have separate Chancery Court systems, which hear equitable controversies. Every county of the State has its own Chancery Court. 98.86.43.83 (talk) 20:56, 5 September 2011 (UTC)Stephen T. Hyder

St. Germain's "Doctor and Student"
'''A reference to the text now appears as an external link. (Sbutler (talk) 08:53, 17 September 2019 (UTC))'''

I'm surprised that this article doesn't mention Christopher St. Germain's Doctor and Student (1518), which was the classic common law text on equity for over 200 years.--Other Choices (talk) 08:38, 24 February 2013 (UTC)

Article name
'''Fayenatic london already reverted the article name, and it has remained so for several years. (Sbutler (talk) 08:58, 17 September 2019 (UTC))'''

The article was moved from Equity (law) to Equity (legal concept) in April 2013 by Wikidea because: To say (law) is confusing because equity is contrasted with the law.

However, "legal concept" is inadequate. Equity is a branch of law, alongside common law. I am moving the page back. – Fayenatic  L ondon 15:41, 28 November 2014 (UTC)

Definition of equity
I came to this page wanting a definition of "equity" which I can understand as a lay person. It has left me in the dark. There are multiple, better, definitions on free legal dictionaries online. The "definition" given in the first sentence -- a quotation of a legal authority, whose work is not included in the footnotes, leaves me in the dark. The first sentence, that is to say, assumes that I will already know the name of an expert on equity, before you define it. This is followed by a reference to "Chancery, the office of equity". It is very unclear how an office - do you mean in an abstract sense or otherwise - relates to an abstract legal principle. The whole introductory paragraph needs to be rewritten to define the legal concept in a way which will make sense to someone, like me, who is not a lawyer. 62.254.112.105 (talk) 15:11, 30 April 2015 (UTC)


 * The introductory paragraph has now been entirely re-written, along with other key parts of the article. (Jason264xy)  — Preceding unsigned comment added by Jason246xy (talk • contribs) 03:12, 20 March 2016 (UTC)


 * Despite having been rewritten some years ago, the article still has introductory text that fails to adequately summarise what equity is as opposed to how it fits within a series of other concepts in the arena of law, which concepts the reader should not be reasonably expected to understand. I therefore propose stating or paraphrasing a dictionary definition of equity (as in law) within the first paragraph. This should precede any mention of the origin of equity in the Court of Chancery, as that introduces the reader to additional concepts that may not yet be understood. (Sbutler (talk) 09:06, 17 September 2019 (UTC))


 * I've seen many introductory textbooks designed for nonlawyers try to boil down equity into simple terms over the years.  The current introduction is about as lucid as it is ever going to get.
 * The concept of equity as a body of law is inextricably intertwined with its lengthy history. It simply does not make sense standing on its own, because it is not a complete body of law in itself.  Equity only makes sense when one begins to understand what equity came about as a reaction against.  Look at Black's Law Dictionary's fourth definition for the term, which quotes at length from a 1931 treatise explaining that any true definition of the term is necessarily a history of the term. So what you are calling for is simply impossible. Hundreds (if not thousands) of the brightest lawyers in the world have tried and failed to find a better way of defining equity.
 * Of course, the difficult complexity of this concept imposes significant "bootstrapping" cognitive burdens on first-year law students, who have to wander around in a forest of jargon they barely understand for weeks or months until all the puzzle pieces slowly begin to fit together.
 * The complex symbiotic relationship between equity and common law is one of the main reasons for why English and American law are both so difficult to master. In turn, it imposes significant economic and societal costs by making many issues difficult to litigate without the assistance of counsel. But the reason it's still around is that equity translates into flexibility.  It's why the United States has become a global leader in complex litigation.  Courts in other countries (especially civil law countries) that lack the flexibility afforded by equitable principles have less experience with complex litigation and lack proper procedural tools for effectively managing such cases. --Coolcaesar (talk) 04:29, 18 September 2019 (UTC)
 * The more I think about it, the article needs to specifically note this point up front in the lead paragraphs that the complexity of equity is inherently irreducible and unavoidable. I'll have to get a better source besides a dictionary (such as the treatise cited by the dictionary) and add that in a few weeks. --Coolcaesar (talk) 13:44, 20 September 2019 (UTC)

External links modified
Hello fellow Wikipedians,

I have just added archive links to 3 one external links on Equity (law). Please take a moment to review my edit. If necessary, add after the link to keep me from modifying it. Alternatively, you can add to keep me off the page altogether. I made the following changes:
 * Added archive http://web.archive.org/web/20070415231402/http://oll.libertyfund.org:80/Texts/Jefferson0136/Works/Vol04/HTMLs/0054-04_Pt05_1785.html to http://oll.libertyfund.org/Texts/Jefferson0136/Works/Vol04/HTMLs/0054-04_Pt05_1785.html#hd_lf054.04.head.147
 * Added archive http://web.archive.org/web/20110804025412/http://courts.state.ar.us:80/circuitcourt/index.cfm to http://courts.state.ar.us/circuitcourt/index.cfm
 * Added archive http://web.archive.org/web/20040810135923/http://courts.state.de.us:80/Courts/Court%20of%20Chancery/ to http://courts.state.de.us/Courts/Court%20of%20Chancery

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Merger proposal
I propose we move Court of equity into Equity (law). The Court of equity article is extremely short. Additionally, its information is directly related to equity law as courts of equity which historically had jurisdiction over equity and still do in some places. — Preceding unsigned comment added by Benboy250 (talk • contribs) 01:16, 3 March 2020 (UTC)
 * Support for reasons stated by proposer. Qexigator (talk) 06:37, 3 March 2020 (UTC)

Incomprehensible
I've flagged this article as incomprehensible; after reading it, I have no idea what it's talking about. I noticed that some people discussed this a couple years ago on this talk page, and from what they've said it seems like this is a very complicated subject that's extremely hard to define, and that in order to understand the concept you have to know its history. OK, that's fair. The article itself needs to acknowledge that, though, even if it's just to say "Hey, this is a complicated concept with no simple definition." Otherwise we're going to end up with lots of confused readers (I'm sure we already have!).

I can probably at least add that disclaimer myself, provided I can find the entry in Black's Law Dictionary mentioned above (the link doesn't work). But my other issue with this article is one that requires someone with more legal knowledge than me to address: Even after reading the discussion and keeping those points in mind, I can only get a very vague idea of what equity is by reading the article — and even that took multiple re-readings of the history section. The article says something about a response to common law's inflexibility and a focus on substance rather than form, but it needs to clarify exactly how equity relates to those concepts. If anyone can help with this, then I would appreciate it very much.

Thanks,

3 kids in a trenchcoat (talk) 15:57, 14 May 2021 (UTC)


 * The introduction barely suggests what equity is. It gives some idea of how it arose and a bit of what it is not.  This is a terrible introduction.  I am dissuaded from trying to read more.  Zaslav (talk) 21:25, 4 September 2021 (UTC)

Equity in civil law jurisdictions
I am challenging the edits made by User:Jeremy V Wright on 30 April 2021 and 14 May 2021, starting with this one. No sources have been provided. It looks like User:Jeremy V Wright is confusing unrelated concepts from Greek and Roman law that merely happen to share a name (in translation) with the English legal concept of equity. If I don't see some sources soon (like within a month), I am planning to revert this back to the last good version on 30 April 2021. --Coolcaesar (talk) 16:29, 15 June 2021 (UTC)