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Law and Equity(普通法与衡平法)
(2006-03-29 21:48:30)| 分类： 精致学习 |
Law and Equity(普通法与衡平法)
The history of the distinction between law and equity begins in the developing system of law that followed the Norman conquest of England. A plaintiff who wished to have a complaint heard in the king's courts rather than the local courts had to purchase from the office of the Chancellor a writ,or royal command,that fitted the facts of his case that required the defendant to appear in court.The variety of writs available,and with it the jurisdiction of the king's courts,expanded until the second half of the thirteenth century when,under pressure from the nobility,the power to issue writs was circumscribed,the jurisdiction of the king's courts was limited,and the flexibility of the law was diminished.Nevertheless,there was a residual power in the king and his council to do justice in special cases,and he began to refer petitions for redress to the chancellor who,as the chief law member of the council,might give relief as a matter of grace' or of conscience' in cases where relief at law was inadequate.
From these beginnings there grew up for non-criminal cases a supplementary system,known as "equity"in which,by the early fifteenth century,justice was administered through a separate court,the Court of Chancery.The law courts were forced to accept this system after a notorious struggle that ended in the early seventeenth century.Among the distinctive features of a suit in equity as opposed to an action at law were the absence of a jury,a more flexible procedure,and a wider scope of review on appeal.While the law courts were generally restricted to the award of money damages as relief,equity operated on the person of the defendant and the court could ,for example,issue an injunction,forbidding specified acts in order to prevent further injury,or it could decree specific performance,ordering performance of an obligation.A defendant who disobeyed could be punished by fine or imprisonment for contempt of court until compliance.But because these equitable remedies were considered to be extraordinary,they were only available where the remedy at law could be shown to be inadequate,and money damages remained the standard kind of relief.
Equity also came to differ from law in substance as well as procedure,as may be seen from one of its most important creations,the trust.The trust concept grew out of the conveyance of property by the owner(the settlor)to a transferee(the trustee)who was to hold it for the benefit of another(the beneficiary)for the transaction to succeed,some means had to be found to compel the trustee to comply with the terms of the trust.Since equity acted upon the person,it was able to enforce the trustee's fiduciary duties by its sanctions of fine and imprisonment while at the same time recognizing the legal ownership of the trustee.Out of the beneficiary's equitable rights came the concept of equitable,as distinguished from legal,ownership.Around this new institution a whole new branch of substantive law was to grow.Today the express trust is widely used in the United States for both real and personal property,especially income-producing decurities,and trust administration has become a task for professionals with the resultant rise of corporate trustees:private express trusts are relied upon to dispose of most substantial family wealth at death;charitable express trusts are used to create large philanthropic foundations.The trust concept has also proved a useful tool in the hands of the courts:resultiong trusts,inferred from the circumstances,are used to carry out the presumed intentions of parties to transactions in property;and constructive trusts,implied as a matter of law,have become an essential device for avoiding unjust enrichment in cases of fraud and mistake.
The history of the distinction between law and equity begins in the developing system of law that followed the Norman conquest of England. A plaintiff who wished to have a complaint heard in the king's courts rather than the local courts had to purchase from the office of the Chancellor a writ,or royal command,that fitted the facts of his case that required the defendant to appear in court.The variety of writs available,and with it the jurisdiction of the king's courts,expanded until the second half of the thirteenth century when,under pressure from the nobility,the power to issue writs was circumscribed,the jurisdiction of the king's courts was limited,and the flexibility of the law was diminished.Nevertheless,there was a residual power in the king and his council to do justice in special cases,and he began to refer petitions for redress to the chancellor who,as the chief law member of the council,might give relief as a matter of grace' or of conscience' in cases where relief at law was inadequate.
From these beginnings there grew up for non-criminal cases a supplementary system,known as "equity"in which,by the early fifteenth century,justice was administered through a separate court,the Court of Chancery.The law courts were forced to accept this system after a notorious struggle that ended in the early seventeenth century.Among the distinctive features of a suit in equity as opposed to an action at law were the absence of a jury,a more flexible procedure,and a wider scope of review on appeal.While the law courts were generally restricted to the award of money damages as relief,equity operated on the person of the defendant and the court could ,for example,issue an injunction,forbidding specified acts in order to prevent further injury,or it could decree specific performance,ordering performance of an obligation.A defendant who disobeyed could be punished by fine or imprisonment for contempt of court until compliance.But because these equitable remedies were considered to be extraordinary,they were only available where the remedy at law could be shown to be inadequate,and money damages remained the standard kind of relief.
Equity also came to differ from law in substance as well as procedure,as may be seen from one of its most important creations,the trust.The trust concept grew out of the conveyance of property by the owner(the settlor)to a transferee(the trustee)who was to hold it for the benefit of another(the beneficiary)for the transaction to succeed,some means had to be found to compel the trustee to comply with the terms of the trust.Since equity acted upon the person,it was able to enforce the trustee's fiduciary duties by its sanctions of fine and imprisonment while at the same time recognizing the legal ownership of the trustee.Out of the beneficiary's equitable rights came the concept of equitable,as distinguished from legal,ownership.Around this new institution a whole new branch of substantive law was to grow.Today the express trust is widely used in the United States for both real and personal property,especially income-producing decurities,and trust administration has become a task for professionals with the resultant rise of corporate trustees:private express trusts are relied upon to dispose of most substantial family wealth at death;charitable express trusts are used to create large philanthropic foundations.The trust concept has also proved a useful tool in the hands of the courts:resultiong trusts,inferred from the circumstances,are used to carry out the presumed intentions of parties to transactions in property;and constructive trusts,implied as a matter of law,have become an essential device for avoiding unjust enrichment in cases of fraud and mistake.
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