The law of law and the law of equity |

The law of law and the law of equity

OK, bear with me. Think of the law as a tree which, most times, bears the fruit of justice. Think then, if you will, of the roots of that tree as delving into the fertile soil of English common law from which the law of this nation is borrowed and derived.”What’s so common about the law?” might be your next, logical question. Or, maybe, “What the heck is common law anyway?” It is this: common law is the law sprung from those principles and rules of action relating to the government and the security of persons and property which derive their authority solely from usages and custom. Common law is also law derived from the judgments and decrees of courts, over time, recognizing and enforcing — that is to say, placing the imprimatur of the courts — upon such “common” usages and customs. What common law is not is those laws created by the enactments of legislatures.While this may seem silly today, what else the common law is not is ecclesiastical law which largely governed before the common law arose. It is law derived by purely secular, and not by church or church-affiliated courts. In this way, it is truly the law of the people as adopted, over time, by usage, custom, trial-and-error and adaptation.The common law is not some theoretic abstract, like reading how the earth was flat until the explorers discovered otherwise. The common law still lives. Think about common-law marriage, as but one example. A “common nuisance” is another. More than a pest, more even than your mother-in-law, a common nuisance is a person whose misbehavior is so egregious as to affect the rights enjoyed by other citizens of the society and, as such, is subject to sanction under common law. Common law remains viable to the point that the encoded law of California, for one, states unequivocally that “the common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.”Common law is the collected wisdom of a people and of society.Okay, back to our tree now. Growing from the roots implanted in the soil of immemorial antiquity arises, naturally, the trunk. Think of the trunk as bearing all of the solidity (and solemnity) with which our laws have been invested. Naturally, owing to its age, it is a broad trunk, resilient to attack even by the heartiest, most determined of pine beetles, sometimes known as lawyers. Attack as they will, the law thrives, prospers and survives.From the trunk expand the major branches of the law, the law of law and the law of equity. The law of “law” is that law which is laid down, ordained, or established. It is the rules established by controlling authority, or precedent, and have binding legal effect.The law of equity is what is fair. It is law administered according to what is fair, under the circumstances, as contrasted with the strictly formulated rules of common law. Equity is based on a system of rules and principles which originated in England as an alternative to the ofttimes harsh rules of common law. Equity is based upon what was fair in the particular situation instead of what would otherwise be subject to rigidly applied principles. Historically, one sought relief under this system in courts of equity rather than in courts of law.In modern legal application, equity is a system of jurisprudence collateral to, and in some respects, independent to the “law”, the objective of which is to render the administration of justice more complete. An example is in order:Let’s say you and I agree that I’ll do some work for you. I agree to paint your house and you agree to pay me for the work. We agree that you should pay me one thousand dollars for my efforts. We shake hands and I commence the work. We have a contract recognized under law. When I complete the work, I ask you to honor the contract we have formed and pay me the thou. You thumb your nose at me instead. I determine, after earnest efforts to collect the debt, that my only recourse lies with the courts. In court, I may plead “alternatively”. That is to say, I may come before the court and say two things which may seem contradictory. First, I can say “we had a contract” and “you” owe me $1,000 under the contract. This claim is a claim “under law.” The theories and theorems of contract are well established and this fits with precedent, “please have this guy pay me the money he owes me under our agreement.”Alternatively, I can “plead” before the court; “even if we didn’t have a valid contract, I did spent my time and effort for this guy and the only fair thing to do is compensate me the fair value of my efforts on his behalf.” Or, put another way, “reimburse me for the value ‘you’ have been unfairly enriched by my labor.” This sort of action is based upon a theory of quantum meruit, a claim under equity. Since, under modern legal theory, equity and law are collateral, both equitable and legal relief may be simultaneous plead where the conduct complained of merits both.Okay, to finish of this arboreal explanation, from the major branches of law and equity sprout the smaller, growing, increasingly refined sub-branches of the law, each of which, like all growing things, is subject to, and formed of, the past from which its own life sprang.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Mr. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Mr. Robbins may be reached at 970/926.4461 or at his e-mail address:, Colorado

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