Lecture 2 - Development of the Common Law in England

Customary Law in Pre-Norman England

The customary laws were enforced by recognition and general acceptance. There were
many different groups like the Anglo-Saxons, Celts and Jutes, so the different laws all coexisted. The Dooms, in the 9th century, brought about unification of the Anglo-Saxon laws
necessary to ensure protection. The laws started to be written down.

Following the Norman Conquest

William the Conqueror, in 1066, introduced the system of continental feudalism to disputes
concerning land. The feudal system became the basis of real property law. He also
introduced a strong central government with a central system for the administration of
justice. Latin became the official language and developed the legal language.
Henry II (1154-89) brought about more centralisation of the administration of justice, with
an institutional structure for royal judges. He introduced trial by jury, the Kings court (Curia
regis) and itinerant judges who were travelling officials sent out to investigate the conduct
of royal officials.
The Writ system came into effect. A writ is a command from a sovereign directing a person
to do something or refrain from doing something. A common law action could not be
commenced without a writ. The register of writs was the basis for the emergence of a
separate body for equity law.
Under Henry III, the emergence of parliament and the Provisions of Oxford 1258 occurred.
The model parliament included Lords and commoners. The parliament had 24 members:
half Kings council, half baron council. The new system prevented the Chancellor from
issuing any more common law writs to cover new circumstances. Therefore, dissatisfied
people petitioned for relief to the Court of Chancery. The Chancellors jurisdiction was
exercised on the basis of conscience: equity. The separate courts of equity could enforce
contracts where the common law could not.

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The Emerging English Legal System

Trial by jury was introduced under Henry II, which was then defined as a body of
neighbours.
He also established the central courts, including the Curia Regis and Court of the Kings
Bench. The Kings Bench were interested in preserving the Kings peace, and had some
concurrent civil jurisdiction with the Court of Common Pleas.

Rise of Constitutional Law in England

The Magna Carta is the origin of the Rule of Law, whereby:

No person may be charged except through the process of law

The Crown is subject to the law

The Glorious Revolution of 1688 formed the basis for the constitutional monarchy. It
changed the balance of power between the Crown and Parliament.

Equity
The trespass action in tort developed through the writs. Later the matter had to be taken to
the Chancellor. The principles of equity developed as a supplement to the common law.
Injunctions and specific performance are two examples of equity.
The common law courts and equity courts were separate.

Common Law, Equity and Statute Law

Common Law System

Rules of Common Law

Principles of Equity

Statute Law

Where there is conflict between equity and the common law, equity will prevail. However,
statute law will override both.

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Waltons Stores v Maher (1988)

Facts
Waltons had negotiated with Maher to lease a piece of land that he owned. Maher was to
demolish a building on the land and then build a new one. A draft lease was sent to
Mahers lawyer, who suggested some alterations. Mahers lawyer then informed Waltons
that the lease had to be agreed upon quickly, as Christmas was approaching and Maher
had to organise building materials before the holiday period. It was made clear that
Maher did not want to start the demolition until the lease was finalised.
The Waltons Stores solicitor sent new documents with the message: You should note
that we have not yet obtained our clients specific instructions to each amendment
requested, but we believe that the approval will be forthcoming. We shall let you know
tomorrow if any amendments are not agreed to. Maher executed the documents and
heard no more from Waltons, so he went ahead with the demolition.
Waltons decided not to go ahead with the lease, and learnt of the demolition. However,
they did not respond to Mahers letters until a week later, by which time Maher had
commenced construction of the new building.
Legal Issues
Was Waltons Stores bound to proceed, even though the documents had not been
executed properly under s 54A(1) of the Conveyancing Act 1919 (NSW)?
Ruling
The case illustrates the relationship between common law, equity and statute law. Before
the High Court, it was held that, even though there was no binding contract (as Waltons
had not signed the documents), Waltons still had an obligation to Maher. Brennan J came
to this conclusion using the principle of equitable estoppel.
In this case, the issue of contract was determined using the principles of the common law.
Statute law was used to interpret the Conveyancing Act 1919 (NSW). Finally, equity was
used to provide equitable estoppel. Note that any rules in the statute law will override
the common law and equity.
Brennan J: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff
to prove that (1) the plaintiff assumed that a particular legal relationship then existed
between the plaintiff and the defendant or expected that a particular legal relationship
would exists between them (2) the defendant has induced the plaintiff to adopt that
assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the
assumption or expectation; (4) the defendant knew or intended him to do so; (5) the
plaintiffs action or inaction will occasion detriment if the assumption or expectation is
not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by
fulfilling the assumption or expectation or otherwise.

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