Maxim 1

Equity will not suffer a wrong to be without a remedy

Meaning: Latin term “Ubi jus ibi remedium”. Where there is a right, there is
remedy
It means that no wrong should go undressed if it is capable of being remedied by
courts. Where there is a wrong. There is a remedy. Where there is right there is a
remedy. Aright without a remedy is a vex thing.

Recognition in Bangladesh: The Trust Act 1882, Section 9 of the Civil Procedure
Code & the Specific Relief Act in Bangladesh has incorporated the above principle.
The Civil Procedure Code entitles a civil court to entertain all kinds of suits
unless they are prohibited. The Specific Relief Act provides for equitable
remedies like specific performance of contracts, ratification of instruments,
injunction & declaratory suits.
Sec-9 and sec-151 of CPC – CIVIL courts have jurisdictions to try all suits of
civil nature unless there barred.
Specific Relief Act:-
1. Specific performance of contract
2. Rectification of instruments
3. Injunctions
4. Declaratory suit

Maxim 2
Equity follows the law

Meaning: Latin term “Acquits sequitur legem”. The equity court observed common law
while administering justice according to conscience.
Maitland says that,
“We ought not to think of common law & equity as
of two rival systems. Equity has come not to destroy the law but to fulfill it, to
supplement it, to explain it.”
Every jot & every title of law was to be bayed, but when all this had been done
yet something might be needed, something that equity would require & that was
added by equity. There goal was the same but due to historical reason they chose
different path.
Equity respected every word of law & every right at law but where the law was
defective, in those cases, equity provides equitable right & remedies.
According to Snell,
“If some important point is disregarded by common
law court, then equity interferes.”
Thus, Equity follows the law but not always.
Recognition in Bangladesh: Bangladesh has not recognized the distinction between
equitable and legal interest. Equity rules therefore in Bangladesh can not
override the specific provisions of law. As for example, every suit in Bangladesh
has to be brought within the limitation period and no judge can create can
exception to this or can prolong the time – limit. Similarly no court can confer
rights, which can be acquired only by registration of a document, on a party,
without getting the document registered.
Maxim 3
He who seeks equity must do equity

Meaning: The maxim means that to obtain an equitable relief the plaintiff must
himself be prepared to do equity.
The plaintiff must recognize & submit to the right of his adversary; you must do
unto your neighbors what you wish him to do unto you.
Recognition in Bangladesh: (1) The Contract Act, Under section 19-A of The
Contract Act contracts entered into under undue influence are voidable and
therefore a party to a contract who has the potion of getting the contract
declared void will have to return the benefits so abstained to the party form whom
he abstained it under such contract. This is but proper, because one cannot
benefit twice. One cannot opt out the liabilities form such contract.
(2) Under the Transfer of Property Act, Section 35 embodies the principle of
election which rests on the principle of “approbate & reprobate” as is known in
Scotland, meaning thereby that a men shall not be allowed to approbate &
reprobate.
Section 51 of the Transfer of Property Act
Section 30 of the Specific Relief Act 1877

Maxim 4
He who comes into equity must come with clean hands

Meaning: Equity, as it was based on good faith and conscience, demanded fairness,
uprightness and good faith not only form the defended bit also form the plaintiff.
It is therefore aptly said that, “he that hath committed an inequity”. This very
idea is expressed in this maxim but in a different terminology. It is well known
that ex turpi causa non oritur action, no cause of action forma base cause. As
said in previous maxim, he who seeks equity must do equity that is, one must be
prepared and willing to behave and to do what, according to the principle of
morality, justice and reason, is fair and just. While applying this maxim the
court believed that the behavior of the plaintiff was that not against conscience
before he came to the court for its assistance

Recognition in Bangladesh: (1) Section 23 of the Trust Act 1882

(2) Section 17, 18 & 20 of the Specific Relief Act. Where the plaintiffs is guilty
of sharp practice, fraud & undue influence as detailed under Section 18 or where
there is a contract to sell or let property by a plaintiff who has no title as
specified under Section 17, specific performance will not be granted to the
plaintiff. The jurisdiction to specific performance under Section 20 is
discretionary and the court id not bound to grant such a relief merely because it
is lawful to do so. The courts discretion is not arbitrary but sound and
reasonable, guided by judicial principle and capable of connection, by a court of
appeal.

Maxim 5
Delay defeats equities

Meaning: Latin term “Vigilanibus, non dormentibus, jura subvenient”. It means

“Equity aids the vigilant & not the indolent”. It is an undisputed axiom that
eternal vigilance ids the price of liberty if one sleeps upon his right, his right
will slip away form him.
Where an injured party has been slow to demand a remedy for a wrong, which he has
for a long time regarded with apparent indifference, the court will decline to
give him that remedy.
Recognition in Bangladesh: Article 113 of The Limitation Act 1908, which fixes a
period of three years within which a suit for specific performance should be
brought.
Section 51 of The Transfer of Act in Bangladesh embodies this doctrine.
Section 56 of the Specific Relief Act, under this section, injunction cannot be
granted
(1) The former arises out of a presumption of a contract while the latter
(Section 51, Transfer of Property Act) rests on the maxim “He who seeks equity
must do equity”).
(2) The former principle is wider than the latter one.
(3) Where the former is invoked there is no question of eviction at all and the
estoppels party has not pay compensation while the latter does not prevent
eviction but puts the evictor on equitable terms as regards compensation with an
option to sell his interest to the person sought to be evicted.

Maxim 6
Equality is equity

Meaning: Plato defines equality as “a sort of justice”. And further pointes out
that “if you cannot find any other, equality is the proper basis”. This maxim is
explained also as equity delighted in equality”, which means that as far as
possible equity would put the litigating parties on an equal level so far as their
and responsibility are concerned. The maxim expresses the object of both law and
equity in order to effectuate a distribution of property and losses, proportionate
to several claims & liabilities of the parties concerned. Equity therefore means
proportionate equality.

Justice Fry said,

“When I said quality, I don’t mean necessarily equality in it
simplest form, but which has been something called proportionate equity”.

Recognition in Bangladesh: All these four doctrine resulting form the application
of the maxim is “equality is equity” have been recognized in Bangladesh under
various enactments:
(1) The Contract Act, Section 42, illustrates tenancy in common as regards
devolution of liabilities.
(2) Section 43 illustrates that one of a number of promisors who has performed
the promise is entailed to compel the other promisors to contribute equally with
him.
(3) Section 69 & 70 illustrate the doctrine of marshalling.
(4) Transfer of Property Act, Section 56 illustrates the doctrine of
marshalling.
(5) The Trust Act, Section 27, there is contribution also as between co-trustee.
Maxim 7
Equity looks to the intent rather than the form

Meaning: As is seen before, Common Law was very rigid and inflexible. It could not
respond favorably to the demands of time. In respect of acquisition and transfer
of property, it regarded the form of a transaction to be more important than its
substance. Moreover it expected the contracting parties to rigidly observe their
agreements and to perform their stipulation to the very letter (litera acripta) of
every promise or agreement.

Recognition in Bangladesh: The principle contained in the maxim has been

recognized under Bangladeshi Law in section 55 and 74, The Contract Act.
Section, 114 and 114-A of The Transfer of Property Act.
Maxim 8
Equity looks on that as done which ought to be done

Meaning: A between two persons, where one of them has incurred an obligation and
undertaken upon himself to do something for the other, the equity courts look on
it as done and as producing the same result as if the obligation or undertaking
had been actually performed. Equity treats a contract to do a thing as if the
thing were already done, though only in favors of volunteers’. In other words, as
to the consequences and incidents of the subject matter of contract, it will be
traded as if the final acts anticipated and contemplated by the parties have been
carried out in the same manner as they ought to have been and as they might have
been carried out. Equity acts on the conscience of a person. What one has
undertaken to do, binding his conscience ought to be done and equity courts
therefore look to the acts of the person bound by his conscience and interpret
them in such a way that they amount to what ought to be done.

Recognition in Bangladesh: The principle contained in the maxi m has been

recognition in Bangladeshi law under following encasements:
Section 12 of The Specific Relief Act relating to the specific performances of
part of a contact also illustrates of the maxim.
Section 53-A of the Transfer of Property Act illustrates the doctrine of part-
performance as based on this maxim.
Section 91 of The Truest Act 1882 dealing with property acquired with notice of
existing contract is also illustrative of the application of this maxim.

Maxim 9
Equity imputes an intention to fulfill an obligation

Meaning: Equity courts came into existence to do justice. They strongly believed
that a person must be prepared to do what is right and fair. An old saying goes
“one must be just before one professes to be generous.”
Equity considered acts of parties. Thus, where a person is under an obligation
to do a certain act and he does some other act which is capable of being regarded
as an act in fulfillment of his obligation, the latter will be so regarded,
because it is right to put the most favorable construction on a man’s acts and to
presume that he be generous.
Recognition in Bangladesh: In Bangladesh, the English rule of presumption relation
to satisfaction and ad-emption has been discarded. If a testator wants to satisfy
his obligation by a subsequent gift, he must do so by express words. Section 177,
178 and 179 of the Bangladesh Succession Act make a deliberate departure from the
English doctrine of satisfaction section 177 goes.
“Where a debtor bequeaths a legacy to his creditor and it does not appear from the
will that the legacy is meant as a satisfaction of the debt the creditor shall be
entitled to the legacy as well as the debt.”
The reason for this departure is that presumption recognized in England was
objectionable in them or specifically inapplicable to Bangladesh.
Section 92 of the Bangladesh Trust Act puts into practices the principle of this
maxim. It explains that, “where a person contract to buy property to be held on
trust for certain beneficiary and buys the property accordingly, he must hold the
property for their benefit to the extent necessary to give effect to the
contract.”
Equity thus imputes an intention to fulfill an obligation.
Maxim 10
Where there is equal equity, the law shall prevail

Meaning: It means that where the claims of the two persons are equally equitable,
he who owns the legal estate in addition will be preferred.
The plain meaning of the maxim, thus, is that the person in possession of the
legal estate will get priority over any prior or subsequent equitable interests.
Thus, when both the parties are equally entitled to obtain help from courts of
equity because their equities are equal, the party who has law in his favor will
succeed.
Thus equitable interest is not as strong as legal interest and so, according to
the maxim, the law shall prevail.

Recognition of Bangladesh: Doctrine of election, Marshalling and set-off are based

on this maxim. In Bangladesh, sec.35, 48 and 81 of the T.P. Act Order 8, Rule 6 of
the CPC. Illustrate the maxim.
As there is no distinction between legal and equitable interest in Bangladesh, no
conflict exists between the two whatever exists in England. The general rule of
priority, which is enacted in sec.48 of the T.P. Act, is that when successive
transfer of the same property has been affected, the first in time shall get
priority subject to the doctrine of notice.

Maxim 11
Where the Equalities are equal, the first in time shall prevail

Meaning: Priority means the right to enforce a claim in preference to others. The
question of priority arises when two or more persons have interest in the same
property.
As expressed in Rice vs. Rice 1853, priority is the right of a party to satisfy
its own claim of interest in comparison to others.
This maxim lays down that as between persons having only equitable interests, if
their equities are in all other respects equal, priority of time gives the better
equity.

Recognition of Bangladesh: Section 48 of the Transfer of Property Act (priority of

right created by transfer) incorporates this principle. Section 78 of the same Act
explains an exception to the maxim when a prior mortgage is postponed.

Maxim 12
Equality acts in personam

Meaning: Equity court is a court of conscience. It operates in personam. Thus it

brings an individual’s conscience under its way. Its decision is merely not
concerning the right and liabilities but it also address to the parties. Thus, on
the one hand, it bind the conscience of an individual, on the other hand, the
Chancellor exercised its jurisdiction according to its conscience. The maxim
describes the procedure of equity courts. It covers a large portion of procedural
and remedial a large portion of procedural and remedial action.
Describing the extent of its application Hanbury in his modern Equity book
commented that “In a sense it comprise the whole law of equity.” While Justice
Mukharjea says,
“The rule of action in personam is really the weapon
with whish the early Chancellors sought to establish the jurisdiction in
opposition to that of the Common Law Courts.”

Recognition in Bangladesh: Some learned text writers say that no such jurisdiction
is applied here. Some other says that courts of Bangladesh have not much but
limited power of making a decree in personam. The Civil procedure code, Section 16
does not deal with the problem. It simply explains the division of jurisdiction of
the municipal courts only.