Equity Summary
The
origins of the law of equity date back to the period just after the Norman
conquest of England in 1066. Prior to that the only law that existed, as far as
the courts were concerned, was common law, and it strictly adhered to the
principle of Stare Decisis, a Roman legacy which established the system of
judicial precedent which is based on the principle that like cases should be
decided in like manner.
Strict
adherence to the doctrine however deprived the law of any sort of flexibility,
and it resulted in some unfair decisions, and equity, which in the normal sense
of the word means fairness, stepped in to mitigate the harshness and the
rigidity of the common law system and to make the law more flexible.
Litigants
who were denied justice started petitioning the king and the king would hear
their pleas and make a decision based on his conscious, setting aside the
common law, if he had to, in that particular instance. Equitable decisions do
not create a binding precedent.
In
time the number of cases began to increase and the king delegated the task to
the Lord Chancellor who decided each case on its merits and his decisions were
based on what was fair and just, as opposed to previous common law decisions.
That
however led to two separate adjudicating mechanisms that ran concurrently and
in order to remedy the drawbacks of having a dual court system and to create
some sort of uniformity parliament passed the Judicature Acts of 1873 and 1875.
Under
the 1873 Act the old higher courts were abolished and a new Supreme Court of
Judicature was created consisting of the High Court of Justice and the Court of
Appeal. The High Court was divided into five specialist divisional courts based
on the old central courts (King’s Bench, Common Pleas, Exchequer, and
Chancery), with the addition of the new Probate, Divorce and Admiralty
division.
Equity
was administered by the Court of Chancery and any litigant seeking an equitable
remedy post the implementation of the 1873 and 1875 acts could bring his or her
claim before the Chancery Division of the High Court.
In
order to facilitate the workings of equity, a set of rules were developed.
These rules developed organically, and they became known as equitable maxims.
They are as follows:-
1)
Equity varies with the length of the Lord Chancellor’s foot. This maxim simply
means that equity does not operate on a system of binding precedent and a court
of equity does not decide like cases in like manner but rather decides each
case on its facts, keeping in mind or taking into account what is fair and
just. Therefore there is always the possibility with regards to equitable
decisions, that even if the facts were the same in two cases, the decisions
might be different.
2)
Equity follows the law i.e. it works to mitigate and tamper the harshness of
the law. Equity does not overrule common law judgments or decisions but rather
acts in personam and equitable decisions effect only those who are party to it
and do not affect others. In Re Diplock (1948) for example, the rightful
beneficiary was entitled to trace monies that were wrongfully paid to a
charity. Despite the fact that the transfer was legal, the beneficiary had an
equitable right to it and therefore the beneficiary was allowed to trace
(tracing allows the rightful owner to recover property and monies that were
wrongly given to another or transferred without the consent of the rightful
owner) the monies.
3)
The following two maxims are concerned with priorities: -
a)
Where the equities are equal the law prevails i.e. when two parties have acted
equitably, and there is no evidence of either party acting in bad faith (mala
fide) or there is no evidence of fraud, then equity cannot provide a remedy and
the law will prevail.
b)
Where the equities are equal the first in time prevails. The second maxim is
slightly more complicated than the first. When there are two equities i.e. two
parties with equal interests than the first party that registered his or her
interest or the original equity will succeed as opposed to the later equity. It
goes back to the issue of notice and at times when there is an equitable interest
involved it is best to give notice to others that such a right or interest
exists.
4)
Equity looks at substance rather than form. Equity looks into the subject
matter and decides on the facts rather than merely complying with the legal
formalities. In Parkin v Thorold (1852) Lord Romilly (MR) recognized the fact
that equity will distinguish between what is a matter of form and what is a
matter of substance. If the court finds that by looking at the form or by
merely adhering to formalities, the substance will be defeated, then equity
will go further and look into the substance of the matter.
5)
Equity will not permit a statute to be used as an instrument of fraud. If a
court finds that by insisting that the provisions of a statute be complied with
will facilitate or permit fraud then equity will intervene on behalf of the
aggrieved party. In Banister v Banister (1948) Mrs. Banister inherited two
cottages upon the death of her husband and she sold both cottages to her
brother in law for £150 less than the market value on the promise that she
could live in the cottage that she was occupying for the rest of her life.
Upon
the completion of the sale her brother in law sought to evict her, and Mrs.
Banister claimed that she had a beneficial life interest that arose when her
brother in law gave her an oral undertaking that she could remain in the
property for life.
Her
brother in law sought to rely on s. 53 (1) (b) of the Law of Property Act 1925
which reads as follows:- “a declaration of trust respecting any land or any
interest therein must be manifested and proved by some writing signed by some
person who is able to declare such trust or by his will;”
Because
the undertaking was not evidenced in writing as per s 53 (1) (b) of the Law of
Property Act (1925) her brother in law was of the belief that he could legally
evict Mrs. Banister.
It
was held that Mrs. Bannister held the cottage on constructive trust and she
could remain there rent free for the rest of her life. A valid trust had been
created despite the fact that s. 53 (1) (b) of the Law of Property Act 1925 had
not been complied with.
6)
Equity imputes an intention to fulfill an obligation: - Where a person has an
obligation and the person acts, towards fulfilling the obligation or in
furtherance of fulfilling the obligation, whether intentionally or otherwise,
equity will deem that the person has intended to fulfill his or her obligation.
7)
Equity regards what ought to be done as done. This maxim applies to remedies
like specific performance i.e. where the courts will compel a party to perform
its stipulated duties.
In
Nutbrown v Thornton (1805) the plaintiff entered into a contract with the
defendants to purchase some machines. Subsequently the defendants refused to
deliver the machines and because the defendants were the sole vendors for that
type of machines, the plaintiff brought an action against the defendants and
sought specific performance as a remedy. The court granted specific performance
and compelled the defendants to perform their duties as stipulated by the
contract.
8)
Equity acts in personam. Equity acts against a person as opposed to acting in
rem i.e. acting against a thing or acting over something that the court does
not have jurisdiction over or acting against the world at large. Hence equity
does not interfere with common law but rather acts in tandem with it or
alongside it to ensure that justice is done. When acting in personam, the
courts generally will not interfere with land or titles abroad, or decide on
matters which do not fall within the scope, ambit or jurisdiction of the court.
9)
Equity will not suffer a wrong to be without a remedy i.e. where there is a
wrong equity will intervene to right the wrong. Equity will intervene to remedy
the defects of the common law and this maxim is in line with the Latin legal
maxim ubi jus ibi remedium (“where there is a wrong, there must be a
remedy”).
10)
He who seeks equity must do equity. As per the maxim, an applicant or a
litigant who is relying on equity must have acted equitably himself or herself
before he or she can petition a court of equity to intervene on his or her
behalf. If the applicant’s or litigant’s actions are tainted with fraud or
malice then a court of equity certainly would not intervene on his or her
behalf.
Whether
a court of equity chooses to intervene or otherwise is entirely at the
discretion of the court and a court of equity will be reluctant to intervene or
will be hesitant to intervene if it finds that the actions of the applicant or
the litigant are tainted with fraud and malice.
In
Haywood v Cope (1858), it was decided that, as per Lord Romilly MR, - the
discretion of the Court must be exercised according to fixed and settled rules;
you cannot exercise a discretion by merely considering what, as between the
parties, would be fair to be done; what one person may consider fair, another
person may consider very unfair; you must have some settled rule and principle
upon which to determine how that discretion is to be exercised.
According
to the rules and established principles (equitable maxims), mentioned above, a
court of equity will only be prepared to intervene if they find that the
applicant or the litigant has acted equitably himself or herself.
11)
He who comes to equity must come with clean hands. As per the maxim any
applicant or litigant who seeks the aid and assistance of a court of equity
must do so with clean hands i.e. his or her actions cannot be tainted with
fraud or malice and there cannot be a hidden agenda behind the scenes. He or
she cannot have acted unfairly or unjustly, oppressively or arbitrarily prior
to seeking the aid and assistance of a court of equity.
12)
Delay defeats equity. The Limitation Act 1980 lays down a limitation period
after which time the applicant or the litigant may not be successful. For
example, Section 22 and 23 of the Act read as follows: -
Section
22 Time limit for actions claiming personal estate of a deceased person.
Subject
to section 21(1) and (2) of the Act—
(a)
no action in respect of any claim to the personal estate of a deceased person
or to any share or interest in any such estate (whether under a will or on
intestacy) shall be brought after the expiration of twelve years from the date
on which the right to receive the share or interest accrued; and
(b)
no action to recover arrears of interest in respect of any legacy, or damages
in respect of such arrears, shall be brought after the expiration of six years
from the date on which the interest became due.
Actions
for an account
Section
23 Time limit in respect of actions for an account.
"An
action for an account shall not be brought after the expiration of any time
limit under this Act which is applicable to the claim which is the basis of the
duty to account"
13)
Equity will not allow a trust to fail for want of a trustee – the maxim speaks
for itself and as far as a trust is concerned, it takes precedence regardless
of whether the settlor has appointed a trustee or not and in the absence of a
trustee, whoever has legal title will be considered or regarded as a trustee or
the court will appoint someone to act as trustee and in instances where the
appointed trustee is dead, the court will step in to appoint a new trustee.
14)
Equity is equality. When there is nothing to indicate otherwise equity will
divide any funds equally among all those who are entitled to it. In Burrough v
Philcox the testator left the proceeds of his trust to any relative his child
should nominate, and his child died without nominating any relatives and when
the matter was brought before the courts it was held that the proceeds should
be divided equally among all those who are entitled to it. However, if
such a division was not possible then the proceeds would not be divided because
it is clearly not what the settlor would have intended see McPhail v Doulton.
15)
Equity will not assist a volunteer. A volunteer in this context is a person who
has not given consideration. In Currie v Misa (1875) it was held that
consideration from the perspective of the law may consist of some right,
benefit, interest or profit accruing to the party or some loss, sufferance,
detriment, or responsibility incurred by the party.
16)
Equity will not perfect an imperfect gift. With regards to gifts unless some
form of consideration has been given equity will not intervene or compel the
donor or his estate to make good on a gratuitous promise. There are however
certain exceptions to this maxim for example the rule in Strong v Bird (1874) –
where the donor intends to pass his property to another and maintains that
intention until his death but for some reason or other fails to make the
transfer during his lifetime, the property becomes vested in the intended donee
as the donor’s executor, and the vesting of the property is deemed to be or is
seen as completing the gift.
17)
Equity is a shield and not a sword. As per the maxim equity is a defensive
mechanism and not an offensive mechanism and an applicant seeks an equitable
remedy when the applicant is deprived of something the applicant is genuinely
entitled to and not otherwise for example when the doctrine of promissory
estoppel is invoked. According to the doctrine, when one party makes a promise
to another party and the second party relies on the promise and acts to his or
her detriment than that promise is a valid promise and is a promise that is
enforceable at law.
Copyright
© 2019 by Dyarne Jessica Ward
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