LAW vs. EQUITY IN VIRGINIA (updated)

(The following was published in Archives News, Vol. 20, No. 3, Fall, 2010, by the “Friends of the Virginia State Archives,” Richmond, Virginia.  Since then, the differentiation between law and equity has been abolished in Va.)

One of the many unique qualities that are manifest in Virginia to this day is the distinction in Virginia circuit (general trial) courts between “law” and “equity,” a holdover from the English legal system. To this day, the Rules of the Supreme Court of Virginia have separate parts dedicated to law and equity procedures. In Virginia, law procedure usually allows recovery of money damages, while equity procedure allows specific relief, like injunctions.

Equity procedure in Virginia is derivative of that created around 1345 CE with the help of the early (Catholic) church in England, well before the establishment of the Anglican Church in 1534 CE. At the time, procedures in the “law” courts (controlled by the Crown) were archaic and convoluted. The only remedies usually available were the liquidation of all claims in those courts to money damages, and litigants were frequently and permanently thrown out for the most minor, technical errors in the initial papers pleading the case. Thus, there developed a strong need for some sort of “legal” relief that was unobtainable in the secular law courts.

The Lord Chancellor in England, therefore, set up a series of courts presided over by local “chancellors” to allow dissatisfied and frustrated litigants to move for relief they could not get in the law courts, like divorce and annulment of marriage, injunctions and, perhaps most importantly, specific performance of contractual obligations. However, a person could not come into the “chancery” courts unless and until he (or she?) had “clean hands,” meaning he could not get equity relief if he had also done wrong.

Obviously, the church already controlled most aspects of marriage and dissolution. Divorce procedure in Virginia is controlled by the equity rules to this day. Other types of equity (or chancery—the terms are interchangeable) relief in Virginia are the issuance of injunctions to compel or stop a particular behavior or action; restitution, to “restore” a legally injured or damaged person to the status he or she had before the injury or loss; and specific performance of contracts, especially contracts for the sale and/or purchase of real estate. As real estate is considered legally unique, it can be the subject of an equity procedure to compel its purchase or sale by a defaulting party. There may also be money damages available at law.

Today in Virginia, the circuit courts operate seamlessly as both law and equity courts. Unlike earlier times, law and equity relief can now be requested together in the same initiating papers (the pleadings), but they must be pleaded in separate “counts” (numbered paragraphs) within the pleadings. Different rules apply to stop law “actions” (statutes of limitation) and equity “causes” (doctrine of “laches”). Statutes of limitation are created by the legislature and are absolute, whereas the doctrine of laches is applied by the judges (who are sometimes still called “chancellors”) somewhat more flexibly. A standard of “fairness” is usually under consideration in such matters.

The initiating pleading in a law action is called a “Motion for Judgment,” while the initiating pleading in an equity cause is called a “Bill of Complaint.” The initiating parties are called “Plaintiffs” in law actions and “Complainants” in equity causes. The parties sued are called “Defendants” in law actions and “Respondents” in equity causes. These distinctions for the parties are not rigidly enforced.

It is the burden of the initiating party to know what kind of relief should be requested and to plead it correctly. There are still means of dismissal for incorrectly pleading a case, but it has gotten easier over time. I understand practically all other states (other than Virginia) have removed these lingering distinctions between law and equity.