Robbins: The law of equity
I suspect that when most people think of the law — if they think of it at all — they conceive of it as wearing a suit and tie, perhaps one with the buttons fastened and the knot cinched overly tight. Instead of thinking of the law as being vigorous and vital, they instead imagine it as inflexible and stiff. Like a baking recipe, maybe, when applying the law, they believe it is a pinch of this, a dash of that, and then throw the mess into the jurisprudential oven to bake for such and such a time.
And, yeah, there’s some of that.
But when folks imagine the law that way, what they are likely thinking of is the law of law.
OK, so let me ‘splain.
Like the Red Sea when Moses raised his staff, the law is parsed into two main roiling divides. And like the parted seas, it can sometimes be a little muddy in between. Imagine if you will that on your left are the curled and coiled waves of law and, heaving from the other shore, are the rollers, sprays, and whitecaps of the law of equity. Where the two collide is what we many rightly think of as “the law.”
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So what exactly are they, these two hegemons of the law?
The law of law is nurtured by two main arteries: case (or “common”) law, and legislative (or “statutory”) law.
Common law is that which is derived over time by the alchemy of precedent. It is the law that is devolved from prior judicial decisions instead of from statutes or legislative law. In a sense, it is the law of analogy; it compares the facts of a current matter to one or ones that have come before and measures the extant matter against the yardstick of prior judicial determinations. How close is this to that? How was this previously treated? What facts determined the prior matter(s) and are these facts enough like that?
Just for fun, let’s throw in a little Latin and introduce you to the term “stare decises,” the principle that cases should be decided according to consistent rules so that similar facts will yield similar results. Stare decises (the first word pronounced like Van Gogh’s “Starry, Starry Night”) lies at the heart of the common law systems.
Common law is the law of judicial precedent — judge-made law, or case law — accreted over time. The defining characteristic of the common law is that it arises from precedent. Common law courts look to the past decisions of courts to synthesize the legal principles of past cases. If a court finds that a dispute similar to the present one has been resolved in the past, the court is generally bound to follow the reasoning used in the prior decision.
If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (a “matter of first impression”), and legislative statutes (also called “positive law”) are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The opinion from a common law judge agglomerates with past decisions as precedent to bind future judges and litigants, unless overturned by subsequent developments in the statutory law by the legislature or in the case law by appeal courts.
The common law, so named because it was “common” to all the king’s courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066 and spread ultimately to the colonies where it became part of our inheritance.
Common law is the law made by the judiciary.
Legislative or statutory law is the other artery of the law of law and is law crafted and adopted by legislative action. Statutory law is the law established by an act of the legislature, signed by the executive, and in volumes. Yep, you can look that up.
So what about our subject? What about the law of equity?
In simple terms, it is doing what’s fair.
Equity is the particular body of law, with the purpose of providing legal remedies for cases wherein the common law is inflexible and cannot fairly resolve the disputed legal matter.
Think of when you were a kid and you and your playmates encountered a backyard dispute. To resolve it, you might have pled it to an older sibling or parent to resolve. It isn’t fair! What you were asking was for the so-appointed “judge” to do the right thing, to do what’s fair.
The law of equity is like that. It is law administered according to what is “equitable” under the circumstances, as contrasted with the strictly formulated rules of common law. Equity is based upon what is fair in a particular situation instead of what would otherwise be subject to rigidly applied principles.
In modern legal application, equity is a system of jurisprudence collateral to, and in some respects, independent of the law, the objective of which is to render the administration of justice more complete. An example is in order:
Let’s say I do some work for you but, oops, we failed to sign a contract. When the work is done, I ask for you to pay me for the work. You thumb your nose at me, saying, “Hey, we didn’t have a contract!”
I determine, after an earnest effort 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 at the same time which may seem contradictory. First, I can say “we had a contract, albeit that it was oral” and that you owe me payment under its terms. This claim is a claim “under law.” The theories and theorems of contract are well established and this fits with precedent.
Alternatively, I can “plead” before the court that “even if we didn’t have a valid contract, I spent my time and effort for this guy and the only decent thing to do is compensate me the fair value of my work.” 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 (literally, “as much as is deserved”), a claim subject to the equity jurisdiction of the court.
In other words, “Hey, Judge, please do what’s fair!”
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
