Equity XXI

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”).

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XX

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 against 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.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XIX

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 defendant refused to deliver the machines and because the defendant was the sole vendor 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.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XVIII

6) Equity imputes an intention to fulfil 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.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XVII

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.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XVI

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 they find 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.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XV

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 next. 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.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XIV

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 i.e. its decisions effect only those who are party to it and does 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.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Equity XIII

Following the passing of the Judicature Acts of 1873 – 1875, cases were decided by a single court system, on the basis that in case of conflict between common law and equity, equity will prevail.

Since the inception of equity, as an adjudicating mechanism, a series of rules had evolved to facilitate its workings and to help others, especially litigants, understand its more salient features. These rules became known as equitable maxims and below are some of the more commonly known equitable maxims:-

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 decision might be different.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading
1 2 3 45