This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Equity in the sense of power to do justice wherever, for any reason, justice could not be done in the ordinary course of law, may have existed at Anglo-Saxon law in the right to appeal to the king when the local courts could not do justice. It is clear from the bills in Eyre, which have been printed recently, that the king's courts actually administered equity in the thirteenth century and in the early part of the fourteenth century.1 The task of doing justice in extraordinary cases was also undertaken by the king in council; and as the chancellor was the member of council, upon whom such work ultimately devolved, the chancellor finally became a judicial officer by whom this extraordinary power of doing justice was administered. The self-limitations of the king's courts began to manifest themselves in their elimination of equity and in the gradual stiffening of their customs and remedies into strict law. The bills in Eyre disappeared and were finally forgotten; to be discovered in recent years and by their discovery, to upset many of our theories as to the essential difference between common law and equity. While very little material is yet in print upon which we can base positive statements as to the extent to which the chancellor enforced contracts at an early period, it seems to be clear that the chancellor exercised a wide discretion in compelling a defaulting promisor to act according to equity and good conscience and apparently without much regard to the form of the contract which he was asked to enforce.2 It was not necessary that the contract should fall within the classes of contract which the king's courts were enforcing. Indeed, the fact that it was not in one of such classes was one of the reasons for invoking the power of equity.
2 See for example, the cases in Bracton's Note Book, such as 152, 162, 550, 810. See the cases collected under the title, Prohibition, in Brooke's Abridgment and in Fitzherbert's Abridgment.
1 See 30 Selden Society (Select Bills in Eyre), in which many early contract cases are found, as on pp. 22, 23, 41, 45, 46, 50, 62, 117.
For quasi-contract, see p. 6 of the same volume. See also, Relation of the Equity Administered by the Common Law Judges to the Equity Administered by the Chancellor, by W. S. Holdsworth, 26 Tale Law Journal, 1.
Since so many courts recognized contracts, and enforced them, the deficiencies in the contract law of the king's courts, which will be indicated in the following sections, did not, for a considerable period of time, operate to prevent the formation or enforcement of contracts. The fact that the king's courts limited its contract actions to debt and covenant did not mean that other forms of contract were lacking at English law. Until methods of doing business changed so that there was a need for a law of contract other than the law between lord and tenant, or between merchants, there would be little pressure upon the king's courts to enforce ordinary executory contracts; and the local courts and the ecclesiastical courts were only too willing to take care of such litigation.