Lex Pundit
Foundations

Equity

The law of conscience: a parallel body of doctrine built to soften the common law's rigidity, now fused with it.

The idea

Medieval common law courts could award damages, and little else, through rigid procedural forms. Petitioners who needed something different — stop this, undo that, make him keep his promise — went to the Lord Chancellor, whose Court of Chancery decided by conscience rather than writ. Over centuries those decisions hardened into their own system: equity.

Equity gave the tradition trusts, injunctions, specific performance, rescission and fiduciary duties. Since the nineteenth-century Judicature reforms, the same courts administer both law and equity — but the two remain distinct bodies of doctrine, and equitable remedies remain discretionary in a way damages are not.

An example

A seller reneges on a contract to sell a unique heritage property. Damages would not get the buyer the building — so a court orders specific performance, an equitable remedy compelling the sale itself.

In Canada

Canadian courts administer law and equity together, and Canadian equity has been notably creative — the Supreme Court's fiduciary-duty jurisprudence, including the Crown's fiduciary obligations to Indigenous peoples, is a distinctly Canadian development.