History of equity Origins of the common law[ edit ] After the Norman Conquest of England in the 11th century, royal justice came to be administered in three central courts:
Defects in construction Most of us will recognise a defect in construction work; steelwork may rust or a window may leak. But if the contractor is liable, common law dictates that the Employer corrects the defective work himself, and sues the contractor for his loss.
Construction Contracts Most standard forms of construction contract enshrine that simpler solution by displacing the common law rules with a contractual procedure whereby, for a period after completion of the works often called the defects liability periodthe Employer is bound to allow the Contractor access to the defect and the Contractor is bound to correct it.
If the Employer fails to allow access and instead engages others to correct the defects, he may be unable to recover from the Contractor the full cost he incurred; rather, it would be limited to what it would have cost the Contractor if access had been allowed.
Conversely, if the Contractor fails to correct defects to which he has been given access within the timescale set out in the contract or if no timescale exists, within a reasonable time, the Employer would be free to engage others and sue the Contractor for the full cost of doing so.
But is it the same under NEC3? The first bullet point is self explanatory, as is the first part of the second. The remaining part raises an interesting point; at first glance it appears to exclude defects in works the Contractor has designed on acceptance of that design by the Project Manager.
The Procedure Now we know what a Defect is, we can look at the procedure for correction. Whilst the Project Manager has extensive powers under the NEC3, the custodian of quality is the Supervisor who exercises control over investigation, notification and certification.
Control reverts to the Project Manager for acceptance of uncorrected Defects. Both the Supervisor and the Contractor have a contractual obligation to notify the other of any Defects they may discover clause In addition, until the defects date, the Supervisor may instruct the Contractor to search for a Defect clause The defects correction period is stated in the Contract Data and commences: However, in practice all Defects which the Contractor is aware of must become notified Defects pursuant to clause If the Contractor fails to notify he will be in breach of contract and, as a matter of law, will be prevented from taking advantage of his breach.
Accepting Defects Clause 44 permits either the Contractor or the Project Manager to propose to the other that notified Defects are accepted and remain uncorrected. There is also no facility for the Project Manager to make his own assessment. Uncorrected Defects These fall into two categories; the first, where the Contractor has failed to correct a Defect within the defects correction period after the Employer has provided access clause The second where the Contractor has failed to correct a Defect as the Employer has not given him access before the defects date clause In both cases, the Project Manager assesses an amount to be paid by the Contractor at the assessment date and the Works Information is treated as being changed to accept the Defect.
In the first case, the amount assessed by the Project Manager and paid by the Contractor is the cost for the Employer to correct the Defect whether later corrected or not. In the second case, the amount assessed by the Project Manager and paid by the Contractor is the cost for the Contractor to correct the Defect whether later corrected or not.
Under many standard forms such certificate is issued when all defects are corrected. However, under the NEC3, the Certificate is issued: At the later of the defects date and the end of the last defects correction period clause Introduction.
The common law courts only provided the remedy of damages, which in some cases was an inappropriate remedy. The writ system was also slow to respond to new types of action and had many "loopholes". Equity came around approximately years after the development of the common law system in England.
The courts of law during that time were filled with the enforcers of the king’s law and were trained to administer punishments that were set in stone.
Roman Dutch Common law is a bijuridical or mixed system of law similar to the common law system in Scotland and Louisiana. Roman Dutch common law jurisdictions include South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri-Lanka and Zimbabwe.
The law of equity came about to remedy the defects of the common law system. Discuss.(includes how equity came about and its remedies.
Bibliography included.). Equity can be broadly described as being just or fair, whereas the legal meaning of the term equity refers to the rules determined to mitigate the severity of the common law rules and those issues that are not be covered under the common law jurisdiction.
However problems in the common law system soon arose regarding the writ system, the inflexibility of the system, and the remedy of damages.
The court of chancery was established and it is here that equity functioned.