Fusion of Law and Equity

Fusion of common law and equity courts and procedures has taken place over a period of time with the aim of adopting a more rational simplicity and removing existing difficulties and complications in common law. The first attempt at fusion was uncontroversial and happened through statute, which was the Supreme Court of Judicature Act 1873 and 1875. Fusion was an attempt to reform the law and remove inconsistencies between common law and equity, which often led to disparate results in cases that were alike and should have been treated alike but were subject to distinct principles in the parallel systems of common law and equity. The question is the extent to which substantive fusion of common law and equity should take place. This essay argues that despite there being a case for fusion of common law and equity to a degree, a substantive fusion cannot take place because to some extent there is a need to keep equity and common law separate in order to keep the systems coherent. In other words a substantive fusion will not always lead to coherency and in some instances can actually lead to the opposite of that desired result. Rather, a selective fusion approach is more desirable.

Fusion has had the result of many principles and procedures of equity becoming a part of the same system as the common law, such as, doctrine of unconscionability, and procedures of discovery, joinder, and notice pleading. In such cases, fusion was possible because there was no incompatibility between equity and common law that prevented such fusion; rather fusion led to achieving more coherency and consistency in the law leading to like cases being treated alike. However, there are cases or situations where fusion is not possible because of the incompatibilities between equity and common law that will not allow such fusion. In such situations, fusion would have the effect of equity being supplanted by common law, which is not desirable for the reasons that will be discussed presently. At this point, it may be mentioned that although principles of equity do not constitute a complete system of law, they are part of a legal tradition that is distinct from common law. Therefore, equity is distinct from common law and it serves a purpose that may not be achieved by the common law. In other words, when fusion is not possible, then it may be appropriate to consider how equity serves a purpose distinctly from the common law.

Those who may argue in favour of substantive fusion between common law and equity can say that there are needless differences in vocabularies of common law and equity as well substantive inconsistencies between the two systems that need to be done away with through a project of fusion. However, such a fusion may not always be practical or possible. Within the English private law, there are situations where common law and equity co‐exist coherently therefore, not presenting any situation that merits fusion; there are situations where common law and equity co‐exist coherently and there is no longer any need for labels of equity and common law, in which case, fusion can be done; and there are situations where the common law and equity do not co‐exist coherently and there is potential and need for fusion. As such, substantive fusion is not necessary or possible for all situations and can be done for areas where the coherent co-existence of common and equity is not possible. An example of an area where fusion is not possible was noted in the case Canson Enterprises Ltd Ltd v Boughton and Co., in which selective fusion was proposed so as to keep intact the distinctness of certain equitable concepts in equity trusts, and equitable remedies. Therefore, instead of treating all of equity to be capable of being merged with common law, the approach adopted in Canson argues against fusion where equitable rules are to be treated as distinct from common law. Continue your exploration of Fusion of Law and Equity with our related content.

If substantive instead of selective fusion takes place, there is also a possibility of increasing the incoherency of the law instead of decreasing it; this result is seen in the tort law where the use of equity has led to the creation of new principles like coming to the nuisance, which was used in Lawrence v Fen Tigers but which does not increase coherency of the law. There is also the contrary principle laid down in Sturges v Bridgman, which did not seek economic analysis and did not allow the defence of coming into nuisance. There is the case of refusal of the court to accept the principle of coming into nuisance in Miller v Jackson. These are conflicting decisions where the fusion between common law and equity presents a problem. Therefore, it can be said that fusion does not always lead to greater coherency, rather when conflicting positions in equity and common law are sought to be fused, when each serves a distinct purpose, then there is likelihood of greater incoherency in the law.

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To conclude, while selective fusion is desirable and even necessary to remove difficulties in law, it would be however, fallacious to think that all of equity can be merged with common law. It can be admitted that in certain situations support for fusion is self-evident and that in such situations, instead of history, the importance of coherence must take precedence. However, a complete fusion is not possible or desirable where equity serves distinct functions, or where the principles of equity and common law are co-existing coherently, or where fusion would have the opposite effect to coherence in law. As seen in the case of fusion of tort and equity, there are at times incoherencies resultant of the introduction of new torts making tort law or new principles that may sit uncomfortably with the existing principles. Therefore, instead of complete fusion, there should be selective fusion. Based on this much fusion has already taken place between law and equity. However, as the Canson Enterprises suggests all principles of equity are not amenable to fusion with common law.