Custom «Critically examine equity theory for its effective application» Essay Paper

Equity, thus, is – that portion of natural justice which, through of such a nature as to admit of being judicially enforced, was omitted to be enforced by the common law courts, - as omission which was supplied by the Court of Chancery. But since the Judicature Acts have amalgamated the two separate systems of Courts for the administration of Common Law and Equity into one,- to define Equity as a body of rules administered by the Courts of Equity would, now, be unsatisfactory. Thus, it is driven to say “Equity now is that body of rules administered by the English Courts of Justice which, were it not for the operation of the Judicature Acts, would be administered to only by those Courts which would be known as Courts of Equity” (Maitland). Equity originated in the hands of the Chancellor who sat in the Chancery, as the “Keeper of the King’s conscience”, to give relief in these cases of hardship, should not be identified with morality. The history traced shows clearly that Equity was essentially an addendum to the Common Law. It provided a distinct set of rules, no doubt, but those were not meant to supersede the Common Law. As Maitland remarks, “Equity had come not to destroy the law, but to fulfil it.” Historically, the jurisdiction of Equity may be traced to the following: (a) Inflexible procedure in the Common Law; (b) Inadequacy or remedy at Common Law; (c) Absence of relief in certain cases at Common Law, owing to its defective procedure. As Maitland observes, “Equity is not a self sufficient system”. Equity presupposed the extension of common law at every point. It accepted the common law rules on any question that might arise, but added that something more was necessary, either because the common law rule was inadequate, or because it caused hardship. There was no inherent conflict between the doctrines of Equity and Law; and save for the temporary conflict between them during the period of the commonwealth, their practical working has also been harmonious.

Effective Applications of Equity Theory

As seen before equity has a haphazard origin and is not a complete system. Its working principles are embodied in the so-called theories of Equity. These principles do not cover the whole of the ground of ground of equity and tend to overlap. There can be no logical division of these theories. They represent the nectar of the experience of judicial administration of five centuries by equity courts. They did not come into existence all of a sudden and at the very outset. They are the outcome of the zeal and sincerity of the Chancellors’ conscience striving to do justice. As pointed out by Salmond, “Maxims are the proverbs of the law. They have the same merits and defects as general principles without the necessary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. False and misleading when literally read, these established formulae provide useful means for the expression of leading doctrines of law in a form which is at the same time brief and intelligible.” According to Justice Stephen, “They are rather minims than maxims, for they give not a particularly great, but a particularly small amount of information. As called rules, which while they mostly serve as good indexes to the law, are mostly bad abstracts of it.” There are twelve such maxims but the overlapping is so much so that it would not be difficult to reduce them all under the first and the last. The theories give a clue to just and reasonable interpretation. Equity, as observed by the Apex Court, is an integral part of Article 14. Interpretation of service law should be made in such a way that justice is done to the parties. 1. Equity will not suffer a wrong to be without a remedy: Where there is a right, there is a remedy. This idea is expressed in the Latin maxim ubi jus ibi remedium. In Ashby vs. White , wherein a qualified voter was not allowed to vote and who therefore sued the returning office, it was held that if the law gives a man a right, he must have “a means to vindicate and maintain it, and a remedy, if he is injured in the exercise of and enjoyment of it. It is, indeed, a vain thing to imagine a right without a remedy, for want of right the plaintiff wanted to vote was elected and that there was no precedent for such an action; and if it was allowed, that would lead to multiplicity of proceedings but the same were rejected and Lord Holt observed that “ if man will multiply injuries actions must be multiplied too, for every man that is injured ought to have his recompense. As noted by Snell ( ), it was on this maxim that the Court of Chancery based its interference to enforce uses and trusts. Where A conveyed land to B for the use of and in trust for C, and B claimed to keep the benefit of the land to himself, C had no remedy at law. But this was an abuse of confidence, which was a wrong capable of redress of a Chancery Court. In cases where some document was with the defendant and it was necessary for the plaintiff to obtain its discovery or production, a recourse to the Chancery Courts had to be made for the common law courts had no such power; consequently the wrongs at common law becoming “wrongs without remedies”. This situation was remedied by equity courts. This jurisdiction was extended to appointment of a receiver by way of equitable execution, and to action for ejectment too, excepting discovery in case of penalties and forfeitures, for equity is against these two. The Judicature Acts have now made the discovery automatic. Similarly, a mortgager was allowed in equity to sue the mortgagee for lad and for the rent thereof even though the letter was possessed of the legal estate. A trustee for the breach of a trust could be sued in equity because it was a wrong a no wrong should go un-redressed. Where a defamatory matter is published or where a document is not produced or where there is a breach of right regarding water, light, or air, there also the equity courts ordered either for arrest of granted and injunction as was suitable. 2. Equity follows the law: The theory indicates the discipline which the Chancery Courts observed while administering justice according to conscience. A case on the point is Stickland Vs. Aldridge. (1804) 9 ves 516. As regards legal estates rights and interest, equity was and is strictly bound by the rules of law and it has no discretion to deviate therefrom. At common law, where a person died intestate who owned an estate in fee-simple, leaving sons and daughters, the eldest son was entitled to the whole of the land to the exclusion of his younger brothers and sisters. This was unfair, yet no relief was granted by equity courts. But in this case it was held that if the son had induced his father not to make a will by agreeing to divide the estate with his brothers and sisters, equity would have interfered and compelled him to carry out his promised, because it would have been against conscience to allow the son to keep the benefit of a legal estate which he obtained by reason of his promise. Equity recognized and respected legal rules but the circumstance of giving a promise by the son to the father had added and element of conscience to the rule which the equity must considered, because it acts on the conscience of a person. 3. He who seeks equity must do equity. The maxim means that to obtain an equitable relief the plaintiff must himself be prepared to do equity, that is a plaintiff must recognized and submit to the right of his adversary, because, you must do unto your neighbour what you wish him to do unto you. The rule has many applications, e.g., (a) Illegal loans: In Lodge vs. National Union Investment Co. Ltd. (1907) 1 Ch 300, the facts were as follows: One B borrowed money from M by mortgaging certain securities to him. M was an unregistered money lender. Under the Money Lenders’ Act, 1900 the contract was illegal and therefore void. B sued M for return of the securities. The Court refused to make an order accept upon the terms that B should repay the money which had been advanced to him. This decision was based on the principle of the theory. (b) Doctrine of election: this position is expressed as “one cannot both approbate and reprobate”. (c) Consolidation of Mortgage: (d) Notice to redeem mortgage: (e) Wife’s equity to a settlement: 4. He who comes to equity must come with clean hands. 5. Delay defeats equity. 6. Equality is equity. 7. Equity looks to the intent rather than to the form. 8. Equity looks on that as done which ought to have been done. 9. Equity imputes an intention to fulfil obligation. 10.Equity acts in personam.