Task 4 . Use the information given in the text to answer the questions. Discuss your answers with the group.

1. Why was the Court of Chancery set up?

2. What did the petitions deal with?

3. What are equitable remedies?

4. Which rules prevail in case of conflict between rules of law and equity?

5. What principles were laid down after the Judicature Act 1873?

6. What was the result of the Judicature Act 1873?

7. Do the rules of equity remain different from the rules of common law?

 

Task 5 . Give the English equivalents of the following sentences.

1. В середні віки суди звичаєвого права були неспроможні надавати відшкодування в тих справах, що потребували цього; позивачі звертались (подавали прохання) до короля, який вважався “сувереном правосуддя”, за додатковим засобом судового захисту.

2. Король через канцлера, фактично, створив спеціальний суд, канцлерський суд, який займався цими проханнями.

3. У разі розбіжності між нормами звичаєвого права та права справедливості, право справедливості переважає.

4. Таким чином, принципи звичаєвого права теоретично залишились незмінними, але вони витіснялися нормами права справедливості у всіх випадках “розбіжності”.

5. Така система діяла до 1875 року, коли в результаті Акту (Закону) про судоустрій 1873 року старі суди звичаєвого права та канцлерський суд були ліквідовані, а замість них був створений єдиний Верховний суд, кожна гілка якого мала всі повноваження застосувати норми як звичаєвого права, так і права справедливості.

6. Суди розробили систему правових норм, щоб контролювати застосування норм права справедливості.

7. Право справедливості базується на законі

8. Позивач повинен мати «чисті руки».

 

Task 6 . Read the text & pick out the main points about equity.

THE DEVELOPMENT OF EQUITY

The word "equity" means fair or just in its wider sense, but its legal meaning is the rules developed to mitigate the severity of the common law.

Petitioning the King

Disappointed litigants began to petition the King as the "Fountain of Justice", the procedure being to present a petition (or bill) asking him to do justice in respect of some complaint. For a time the King in Council determined these petitions himself, but as the work increased he passed them to the Chancellor as the "Keeper of the King's Conscience".

The Chancellor was usually a clergyman, generally a bishop, and learned in the civil and canon law. The King, through his Chancellor, eventually set up a special court, the Court of Chancery, to deal with these petitions. The Chancellor supervised the Chancery where clerks (who originally worked behind a wooden screen - cancelleria - hence Chancery) issued writs, commissions and other legal documents.

The Chancellor dealt with these petitions on the basis of what was morally right. The Chancellor would give or withold relief, not according to any precedent, but according to the effect produced upon his own individual sense of right and wrong by the merits of the particular case before him.

In 1474 the Chancellor issued the first decree in his own name, which began the independence of the Court of Chancery from the King's Council.

New Procedures

Equity was not bound by the writ system and cases were heard in English instead of Latin. The Chancellor did not use juries and he concerned himself with questions of fact. He could order a party to disclose documents. The Chancellor issued subpoenas compelling the attendance of the defendant or witnesses whom he could examine on oath.

New Rights

Equity created new rights by recognising trusts and giving beneficiaries rights against trustees. (A trust arises if one party gives property to trustees to hold for the use of beneficiaries.) The common law did not recognise such a device and regarded the trustees as owners.

Equity also developed the equity of redemption. At common law, under a mortgage, if the mortgagor had not repaid the loan once the legal redemption date had passed, he would lose the property but remain liable to repay the loan. Equity allowed him to keep the property if he repaid the loan with interest. This right to redeem the property is known as the equity of redemption.

New Remedies

Equity created new remedies:

(a) Specific performance, which is an order telling a party to perform their part of a contract. This was useful where damages were not adequate, eg, in the sale of land. Thus if the seller refused to sell after signing a contract, the buyer could obtain an order of specific performance making the seller sell the house.

(b) Rectification, which allowed a written document to be changed if it did not represent the actual agreement made by the parties.

(c) Rescission, which allowed parties to a contract to be put back in their original position in the case of a contract induced by a misrepresentation.

(d) Injunctions, usually an order to stop a person doing a particular act, like acting in breach of contract (a prohibitory injunction).

Task 7 . Discuss your ideas in pairs & then exchange opinions with the whole group.

1. Does your legal system contain rules of equity?

2. Was equity developed because in many situations there was no legal remedy available at common law?

3. Do the rules of equity remain different from the rules of common law?

You have seen that in England equity and common law are two separate bodies of legal principles, which are now administered by the same courts. What is your opinion of this system?

Task 8 . Read the text consulting a dictionary where necessary & pick out the main points about the sources of law in Great Britain.

ROMAN LAW

 Roman law in a broader sense refers not only to the legal system of ancient Rome, but also to the law that was applied throughout most of Western Europe until the end of the 18th century. In some territories like the one occupied nowadays by Germany the practical application of Roman law in the past due to the ancient Holy Roman Empire lasted even longer. For these reasons, many modern civil law systems in Europe and elsewhere are heavily influenced by Roman law. This is especially true in the field of private law. Even the English and North American Common law owes some debt to Roman law although Roman law exercised much less influence on the English legal system than on the legal systems of the continent. The influence of Roman law is shown by the wealth of legal terminology, retained by all legal systems, like stare decisis, culpa-in-contrahendo, or pacta sunt servanda, though often these were just Latin terms inherited from when 'learned' literature was all written in Latin. In contrast with Western Europe, Eastern European countries, though heavily influenced by the Byzantine Empire from which the Corpus Juris Civilis came, were not significantly influenced by the Corpus. They were, however, influenced to some degree by the Roman Farmer’s Law.

Roman legal development

Before the Twelve Tables (754–449 BC), private law consisted of the old Roman civil law (jus civile Quiritium), which applied only to Roman citizens. It was closely bonded to religion and it was undeveloped with attributes of strict formalism, symbolism and conservatism, such as the highly-ritualised practice of Mancipatio, a form of sale. The jurist  Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law and without any fixed rights: all things were ruled despotically by kings". It has been suggested that the ancient roots of the Roman Law derive directly from the Etruscan religion, which puts great emphasis on rituality.

The Twelve Tables

According to traditional, semi-legendary historical accounts, during the earliest period of the Republic the laws were kept secret by the pontifices other representatives of the patrician class, and were enforced with untoward severity, especially against the plebeian class. A plebeian named Terentilius proposed in 462 BC that an official legal code should be published, so that plebeians could not be surprised and would know the law.

Patricians long opposed this request, but in 455 CB, the first Decemvirate, or board of ten men, was appointed to draw up the first ten tables. They allegedly sent an embassy to Greece to study the legislative system of Athens, known as the Solonian Constitution, but also to find out about the legislation of other Greek cities. In 450 B.C. the second decemviri started work on the last 2 tables.

The first Decemvirate completed the first ten codes in 450 BC. Here is how Livy describes their creation, "...every citizen should quietly consider each point, then talk it over with his friends, and, finally, bring forward for public discussion any additions or subtractions which seemed desirable." In 449 DC, the second Decemvirate completed the last two codes the Law of the Twelve Tables was formally promulgated. The Twelve Tables were drawn up on twelve ivory tablets (Livy says bronze) which were posted in the Roman Forum so that all Romans could read and know them.

The laws of the Twelve Tables were not a comprehensive statement of all law; they are a sequence of definitions of various private rights and procedures, similar to a bill of rights. They generally took for granted such things as the institutions of the family and various rituals for formal transactions.

For such an important document, it is somewhat surprising that the original text has been lost. The original tablets were destroyed when the Gauls under Brennus burnt Rome in 390 BC. There was no other official promulgation of them to survive, only unofficial editions.

THE CODE OF HAMMURABI

The Code of Hammurabi was one of several sets of laws in the Ancient Near East. These codes come from similar cultures in a relatively small geographical area, and they have passages which resemble each other. The code is often pointed to be a primary example of even a king not being able to change fundamental laws concerning the governing of a country which was the primitive form of what is now known as a constitution.

The Babylonians and their neighbors developed the earliest system of economics that was fixed in a legal code, using a metric of various commodities. The early law codes from Sumer could be considered the first (written) economic formula, and had many attributes still in use in the current price system today... such as codified amounts of money for business deals (interest rates), fines in money for 'wrong doing', inheritance rules, laws concerning how private property is to be taxed or divided, etc.

These are seven example laws, in their entirety, of the Code of Hammurabi, translated into English:

1. If any one ensnares another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death.

2. If any one brings an accusation against a man, and the accused goes to the river and leaps into the river, if he sinks in the river his accuser shall take possession of his house. But if the river proves that the accused is not guilty, and he escapes unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.

3. If any one brings an accusation of any crime before the elders, and does not prove what he has charged, he shall, if a capital offense is charged, be put to death.

4. If a Builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death.

5. If a man give his child to a nurse and the child dies in her hands, but the nurse unbeknown to the father and mother nurses another child, then they shall convict her of having nursed another child without the knowledge of the father and mother and her breasts shall be cut off.

6. If any one steals the minor son of another, he shall be put to death.

7. If a man takes a woman to wife, but has no intercourse with her, this woman is no wife to him.

There are 281 such laws in the Code of Hammurabi, each no more than a sentence or two. The 282 laws are bracketed by a Prologue in which Hammurabi introduces himself, and an Epilogue in which he affirms his authority and sets forth his hopes and prayers for his code of laws.

MOSAIC LAW

Another code of early law is the Code of Hebraic, or Mosaic Law¹ of about 1400 BC. The Mosaic Law or Law of Moses is the law given through Moses to the Israelite people (the original Jewish people) per the Mosaic Covenant and consigned in the Torah (or Five Books of Moses, the Pentateuch). In the Torah and the Christian Testaments, it is simply called "the Law".

Depending on context and in widening order, Mosaic law may refer to the observance of:

• The Ten Commandments, basis for the 613 Commandments
• The 613 Commandments (613 Mitzvot), basis for the Biblical law
• The Biblical law, the legal aspects of the Torah
• The Torah, the founding texts of Judaism, first part of the Tanakh

Less commonly, Mosaic law may also refer to the observance of:

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