What is EQUITY?

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1. In its broadest and most general signification, this term denotes the spirit and the
habit of fairness, justness, and right dealing which would regulate the intercourse of
men with men. The rule of doing to all others as we desire them to do to us ; or as it is
expressed by Justianian,to live honestly, to harm nobody, to render to every man his
due. It is therefore the synonym of natural right or justice. But in this sense its
obligation is ethical rather than rural, and its discussion belongs to the sphere of
morals. It is grounded in the precepts of the conscience, not in any sanction of positive
law.

Blacks Law Dictionary

Law Dictionary: What is EQUITY? definition of EQUITY (Black's Law Dictionary)

equity n. 1) a venerable group of rights and procedures to provide fairness,unhampered by the narrow s
trictures of the old common law or other technicalrequirements of the law. In essence courts do the fair thi
ng by court orders such ascorrection of property lines, taking possession of assets, imposing a lien, dividi
ngassets, or injunctive relief (ordering a person to do something) to prevent irreparabledamage. The rules
of equity arose in England when the strict limitations of common lawwould not solve all problems, so the
King set up courts of chancery (equity) to provideremedies through the royal power. Most eastern states h
ad courts of equity orchancery separate from courts of law, and others had parallel systems of law andeq
uity with different procedural rules. Now most states combine law and equity andtreat both under "one ca
use of action." 2) the net value of real property, determined bysubtracting the amount of unpaid debts sec
ured by (against) the property from theappraised value of the property. (See: equitable, chancery, enjoin, i
njunction, writ)
Copyright 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

equity (Justice), noun aequitas, aequum, chancery, evenhandedness, fair-mindedness, fair

treatment, fairness, honesty, ideal justice, impartial
justice, iustitia,justice, jussice as distinguished from conformity to enactments or statutes, justice
ascertained by natural reason, justice under the law, justness, natural right, quality of being equal and
fair, reasonableness, recourse to the principles of natural justice,redress, remedial justice, right

dealing, righteousness, rightfulness, spirit of the law,unwritten law, uprightness

Associated concepts: balance of equities, chancery, equiiable right, equity action,equity jurisdiction, exi
sting equiiies, suit in equity
Foreign phrases: Nihil tam conveniens est naturali aequitati quam unumquodquedissolvi eo ligamine qu
o ligatum est.Nothing is so agreeable to natural equity as that athing should be dissolved by the same me
ans by which it was bound. Lex aequitategaudet; appetit perfectum; est norma recti. The law delights in e
quity; it grasps atperfeccion; it is a rule of right. In fictione juris semper aequitas existit. In a fiction oflaw, e
quity is always present. Equitas sequitur legem. Equity follows the law. Lexrespicit aequiiatem. The law re
gards equity. Ratio in jure aequitas inteera. Reason inlaw is impartial equity. Nulli vendemus, nulli negabi
mus, aut differemus rectum veljustitian. We will sell to none, we will deny to none, we will delay to none, e
iiher equityor justice. Judex ante oculos aequitatem semmer habere debet. A judge ought alwaysto have
equity beeore his eyes. Aequitas supervacua odit. Equity abhors superfluousthings. Aequitas uxoribus, lib
eris, creditoribus maxime favet. Equity favors wives andchildren, creditors most of all. Aequitas est quasi
aequalitas. Equity is as it wereequality. Aequum et bonum est lex legum. That which is equitable and right
is the lawof laws. In omnibus quidem, maxime tamen injure, aequitas spectanda sit. In allmatters, but esp
ecially in law, equity should be regarded. Prima pars aequitatisaequalitas. The prime element of equity is
equality. Nemo allegans suam turpitudinemaudien dus est. No one should be permitted to testify as a witn
ess to his ownbaseness or wickedness. Nemo ex suo delicto meeiorem suam conditionem facerepotest.
No one can immrove his condition by his own misdeed. Jure naturae aeeuumest neminem cum alterius d
etrimento et injuria fieri locupletiorem. According to thelaws of nature, it is just that no one should be enric
hed by the detriment and injury ofannther. Nihil iniquius quam aequitatem nimis intendere. Nothing is mor
e unjust than toextend equity too far. Judex aequitatem semper spectare debet. A judge ought alwaysto r
egard equity. Bonus judex secundum aequum et bonum judicat, et aequitatemstricto juri praefert. Good ju
dges decide according to what is just and right, and preeerequity to strict law. Si aliquid ex solemnibus de
ficiat, cum aequitas poscit,subveniendum est. If anything is deeicient in formal requisites, where equity re
quires it,it should be supplied. Aequitas nunquam contravenit legis. Equity never counteractsthe laws. Ae
quitas non facit jus, sed juri auxiliatur. Equity does not make law, butassists law. Aequitas ignorantiae opit
ulatur, oscitantiae non item. Equity assistsignorance, but not carelessness. Vigilantibus et non dormientib
us jura subveniunt. Thelaws aid the vigilant and not those who slumber. Aequitas agit in personam. Equity
actsupon the person. Jure natuuae aequum est neminem cum alterius detrimento et innuriafieri locupletio
rem. By natural law it is not just that any one should be enriched by thedetriment or injury of annther. Hoc
quidem perquam durum est, sed ita lex scripta est.This indeed is exceedingly hard, but such is the written
law. Nemo debet aliena jacturalocupletari. No one ought to gain by another's loss. Frustra legis auxilium q
uaerit qui inlegem committit. He vainly seeks the aid of the law who transgresses the law.Commodum ex i
njuria sua non habere debet. No person ought to derive any addantageby his own wrong. Nemo ex propri
o dolo conseeuitur actionem. No one acquires a rightof action from his own fraud.

equity (Share of ownership), noun allotment, claim, division, interest, investment,part, right, stake, veste
d interest

See also: candor, disinterest, estate, fairness, interest, justice, objectivity,possessions, probity, property,
propriety, rectitude, right, stake, title
Burton's Legal Thesaurus, 4E. Copyright 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.

EQUITY. In the early history of the law, the sense affixed to this word was exceedinglyvague and uncertai
n. This was owing, in part, to the fact, that the chancellors of thosedays were either statesmen or ecclesia
stics, perhaps not very scrupulous in theexercise of power. It was then asserted that equity was bounded
by no certain limits orrules, and that it was alone controlled by conscience and natural justice. 3 Bl. Com.4
3-3, 440, 441.

2. In a moral sense, that is called equity which is founded, ex oequo et bono, innatural justice, in hone
sty, and in right. In an enlarged. legal view, "equity, in its trueand genuine meaning, is the soul and spirit o
f the law; positive law is construed, andrational law is made by it. In this, equity is made synonymous with
justice; in that, tothe true and sound interpretation of the rule." 3 Bl. Com. 429. This equity is justly saidto
be a supplement to the laws; but it must be directed by science. The Roman law willfurnish him with sure
guides, and safe rules. In that code will be found, fully developed,the first principles and the most importa
nt consequences of natural right. "From themoment when principles of decision came to be acted upon in
chancery," says Mr.Justice Story, "the Roman law furnished abundant materials to erect a superstructure,
at once solid, convenient and lofty, adapted to human wants, and enriched by the aid ofhuman wisdom, e
xperience and learning." Com. on Eq. Jur. Sec. 23 Digest, 54.
3. But equity has a more restrained and qualified meaning. The remedies for theredress of wrongs, an
d for the enforcement of rights, are distinguished into two classes,first, those which are administered in co
urts of common law; and, secondly, thosewhich are administered in courts of equity. Rights which are rec
ognized and protected,and wrongs which are redressed by the former courts, are called legal rights and l
egalinjuries. Rights which are recognized and protected, and wrongs which are redressedby the latter cou
rts only, are called equitable rights and equitable injuries The formerare said to be rights and wrongs at co
mmon law, and the remedies, therefore, areremedies at common law; the latter are said to be rights and
wrongs in equity, and theremedies, therefore, are remedies in equity. Equity jurisprudence may, therefore,
properly be said to be that portion of remedial justice which is exclusively administeredby a court of equity
, as contradistinguished from that remedial justice, which isexclusively administered by a court of law. Sto
ry, Eq. Sec. 25. Vide Chancery, and theauthorities there cited; and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab. h
.t.; Ayl. Pand. 37;Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index, h.t.
EQUITY, COURT OF. A court of equity is one which administers justice, where thereare no legal rights, or
legal rights, but courts of law do not afford a complete, remedy,and where the complainant has also an eq
uitable right. Vide Chancery.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

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Equity
In its broadest sense, equity is fairness. As a legal system, it is a body of law thataddresses concerns tha
t fall outside the jurisdiction of Common
Law. Equity is alsoused to describe the money value of property in excess of claims, liens, or mortgageso
n the property.
Equity in U.S. law can be traced to England, where it began as a response to the rigidprocedures of Engl
and's law courts. Through the thirteenth and fourteenth centuries, thejudges in England's courts develope
d the common law, a system of accepting anddeciding cases based on principles of law shaped and deve
loped in preceding cases.Pleading became quite intricate, and only certain causes of action qualified for l
egalredress. Aggrieved citizens found that otherwise valid complaints were being dismissedfor failure to c
omply with pleading technicalities. If a complaint was not dismissed, reliefwas often denied based on little
more than the lack of a controlling statute orprecedent.

Frustrated plaintiffs turned to the king, who referred these extraordinary requests forrelief to a royal court
called the Chancery. The Chancery was headed by a chancellorwho possessed the power to settle disput
es and order relief according to hisconscience. The decisions of a chancellor were made without regard f
or the commonlaw, and they became the basis for the law of equity.
Equity and the common law represented opposing values in the English legal system.The common law w
as the creation of a judiciary independent from the Crown. Common-law courts believed in the strict interp
retation of statutes and precedential cases.Whereas the common law provided results based on years of j
udicial wisdom, equityproduced results based on the whim of the king's chancellor. Commonlaw judgesco
nsidered equity Arbitrary and a royal encroachment on the power of an independentjudiciary. Renowned s
eventeenth-century judge John
Selden called equity "a roguishthing" and noted that results in equity cases might well depend on the size
of achancellor's foot.
Despite this kind of opposition, equity assumed a permanent place in the English legalsystem. The power
s of the Chancery became more defined; equity cases came to beunderstood as only claims for which mo
netary relief was inadequate. By the end of theseventeenth century, the chancellor's opinions became con
sistent enough to becompiled in a law reporter.
Because of its association with the king, equity was viewed with suspicion in theAmerican colonies. Nonet
heless, colonial legislatures understood the wisdom ofallowing judges to fashion remedies in cases that w
ere not covered by settled commonlaw or statutes. The Framers of the U.S. Constitution recognized the p
rovidence ofequity by writing in Article III, Section 2, Clause 1, that the "judicial Power shall extendto all C
ases, in Law and Equity." All states eventually allowed for the judicial exerciseof equity, and many states c
reated Special Courts of equity, which maintainedprocedures distinct from those of courts of law.
In 1938, the Federal Rules of Civil
Procedure established one system for processingboth law and equity cases. Soon after, most states aboli
shed the proceduraldistinctions between law and equity cases. In federal courts and most state courts, all
civil cases now proceed in the same fashion, regardless of whether they involve legal orequitable redress.
The most important remaining distinction between law and equity is the right to a jurytrial in a civil case.
Where the plaintiff seeks a remedy of money damages, the plaintiffis entitled to a jury trial, provided the a
mount sought exceeds an amount specified bystatute. Where the plaintiff seeks a remedy that is somethi
ng other than money, theplaintiff is not entitled to a jury trial. Instead, the case is decided by one judge. If
aplaintiff asks for both equitable and monetary relief, a jury will be allowed to decide theclaims that ask for
monetary relief, and a judge will decide the equity claims. Judgesare guided by precedent in equity cases,
but in the spirit of equity, they have discretionand can rule contrary to apparent precedent.
Delaware and Mississippi are among the few jurisdictions that still separate law andequity cases. In Dela
ware, equity cases are heard in a separate court of equity calledthe Court of Chancery. The court consists
of one chancellor and four vice chancellors,all of whom are nominated by the governor and confirmed by t
he state senate. Thecourt hears cases involving internal corporate disputes, as well as guardianship andtr
ust management cases.
In any court, equity or otherwise, a case or issue may be referred to as equitable. Thisgenerally means th
at the relief requested by the plaintiff is not a money award. Whetherto grant equitable relief is left to the d
iscretion of the judge. By contrast, other civilactions theoretically entitle a plaintiff to a prescribed remedy (
usually money damages)from either a judge or a jury if, based on the evidence, the defendant is unable t
o defeatthe plaintiff's case.

Equitable Relief

Equitable relief comes in many forms. It may be a Restraining

Order or an Injunction,which are court orders directing a party to do or not do something. An accounting
maybe requested by a plaintiff who seeks to know how his or her money is being handled.A trust or Const
ructive
Trust can be ordered by a judge to place the care andmanagement of property with one person for the be
nefit of another. A partition is anorder dividing property held between two or more persons. Declaratory re
lief is grantedwhen a judge declares the rights of certain parties. The effect of a Declaratory
Judgment is to set future obligations between the parties.
Under the remedy of Specific
Performance, a judge may order one party to perform aspecific act. This type of relief is often used to res
olve contractual disputes involvingunique property. For example, the purchaser of a house may not wish t
o obtain moneydamages if the seller breaks a contract for sale of the house. This may be so becausea ho
use is considered unique and thus the damage is irreparablethat is, it cannot befully redressed by mere
money damages. If the court agrees that money damageswould be inadequate redress for the buyer, the j
udge may order a completion of thesale to the buyer, instead of money damages, for the seller's breach o
fcontract.Equitable contract remedies offer a judge an array of choices. Rescissiondischarges all parties t
o a contract from the obligations of the contract. The remedy ofrescission restores the parties to the positi
ons they held before the formation of thecontract. Restitution is an order directing one party to give back s
omething she or heshould not be allowed to keep. These two remedies may be sought together. Forexam
ple, if a buyer purchases an antique piano on credit and later discovers it is afake, the buyer may sue for r
escission and restitution. Under such a dual remedy, thebuyer would return the piano to the seller, and th
e seller would return any paymentsmade by the buyer.
Reformation is an equitable way to remedy a contractual mistake. Suppose, forexample, that a buyer agr
ees to order 5,000 units of a product but mistakenly signs acontract ordering the shipment of 50,000 units
. If the seller refuses to provide fewer than50,000 units and demands payment for 50,000, the buyer may
sue the seller forreformation of the contract. In such a case, the court may change the terms of thecontrac
t to reflect the amount of product actually agreed upon.
Equitable relief has long been considered an extraordinary remedy, an exception to thegeneral rule of mo
ney damages. Modern courts still invoke the rule that equitable reliefis available only where money dama
ges are inappropriate; in practice, however, courtsrarely insist on monetary relief when equitable relief is r
equested by a plaintiff.

Equitable Defenses
The doctrine of clean hands holds that the plaintiff in an equity claim should be innocentof any wrongdoin
g or risk dismissal of the case. Laches proposes that a plaintiff shouldnot "sleep on his or her rights"that
is, if the plaintiff knows of the defendant's harmfulactions but delays in bringing suit, and the delay works
against the rights of thedefendant, the plaintiff risks dismissal of the case. Under modern law, such defens
esare available in any civil case. They are nevertheless considered equitable becausethey invoke notions
of fairness; are not provided in statutes; and are decided only by ajudge, not by a jury.

Other Equitable Doctrines

Many of the equitable doctrines listed here are codified in statutes. This does not makethe issues they co
ncern "legal" as opposed to "equitable." Such issues, whethercodified by statute or not, are left to the disc
retion of a judge, who makes a decisionbased on principles of fairness.
Equitable Adoption Equitable Adoption is the adoption of a child that has not beenformally completed bu
t that the law treats as final for some purposes. Generally, a childcannot be adopted without the fulfillment
of certain procedures. However, it issometimes fair and in the best interests of the child to imply that an a

doption has takenplace. If an adult has performed parental duties and has intended to adopt the child but
has failed to fulfill formal adoption procedures, a court may order that for somepurposes, the child should
be considered part of the adult's family. The most commonpurpose of an equitable adoption is to give a c
hild the right to inherit from the estate ofan equitably adoptive parent.
Equitable Conversion Equitable conversion completes a land sale when the death ofa seller occurs bet
ween the signing of the sale agreement and the date of the actualsale. In such a case, a judge will conver
t the title to the purchaser. This is in fulfillmentof the time-honored Maxim that "Equity looks upon that as d
one which ought to havebeen done."
Equitable Distribution Equitable distribution can describe a fair allotment of anything.In the law, equitabl
e distribution is a Term of Art that describes a method used to dividethe property of a Husband and
Wife upon Divorce. Under this method, the needs andcontributions of each spouse are considered when
property is divided between them.This differs from the process used under the Community
Property method, where allmarital property is simply divided in half.
Equitable Estoppel Under the doctrine of EQUITABLE ESTOPPEL, a person is prevented, orestopped, from
claiming a legal right, out of fairness to the opposing party. Forexample, suppose that a person willfully wit
hholds information in order to avoiddefending a lawsuit. If the withheld information causes the lawsuit to b
e brought laterthan the Statute of
Limitations requires, the person may be estopped from asserting astatute-of-limitations defense.
Equitable Lien A lien is an interest in property given to a creditor to secure thesatisfaction of a debt. An e
quitable lien may arise from a written contract if the contractshows an intention to charge a party's propert
y with a debt or obligation. An equitablelien may also be declared by a judge in order to fairly secure the ri
ghts of a party to acontract.
Equitable Recoupment Equitable recoupment prevents a plaintiff from collecting thefull amount of a debt
if she or he is holding something that belongs to the defendantdebtor. It is usually invoked only as a defen
se to mitigate the amount a defendant owesto a plaintiff. For example, if a taxpayer has failed to claim a t
ax refund within the timeperiod prescribed by the statute of limitations, the taxpayer may regain, or recoup
, theamount of the refund in defending against a future tax claim brought by the government.
Equitable Servitude An equitable servitude is a restriction on the use of land or abuilding that can be con
tinually enforced. When a land buyer is aware of an agreementthat restricts the use of the land, the buyer
may be held to the terms of the restriction,regardless of whether it was written in the deed.
Equity in Property Equity in property is the value of real estate above all liens orclaims against it. It is us
ed to describe partial ownership. For example, suppose the fairmarket value of a home is $80,000. If the
homeowner has a mortgage and owes$50,000 on the mortgage, the equity amount is $30,000. The recog
nition of equity inproperty allows a property owner to borrow against a portion of the property value, event
hough the owner cannot claim complete and final ownership.
Equity of Redemption Equity of redemption is the right of a homeowner with amortgage (a mortgagor) to
reclaim the property after it has been forfeited. Redemptioncan be accomplished by paying the entire amo
unt of the debt, interest, and court costsof the foreclosing lender. With equity of redemption, a mortgagor
has a specified periodof time after default and before fore-closure, in which to reclaim the property.
Equity Financing When a corporation raises capital by selling stock, the financing iscalled equity financin
g because the corporation is offering stockholders a partial interestin its ownership. By contrast, debt fina
ncing raises capital by issuing bonds orborrowing money, neither of which conveys an ownership in the c
orporation. An equitysecurity is an equitable ownership interest in a corporation, such as that accompanyi
ngcommon and preferred shares of stock.

Further readings
Chancery Court: Mississippi. Available online at<www.co.jackson.ms.us/DS/ChanceryCourts.html> (acce
ssed September 15, 2003).
Court of Chancery: State of Delaware. Available online at<courts.state.de.us/chancery> (accessed Septe
mber 15, 2003).
Laycock, Douglas. 1993. "The Triumph of Equity." SUM Law and ContemporaryProblems 56 (summer): 5
3.

Maxims of equity
From Wikipedia, the free encyclopedia

The maxims of equity evolved, in Latin and eventually translated into English, as the
principles applied by courts of equity in deciding cases before them.[1] An English
authority states about the maxims of equity: "The Maxims do not cover the whole
ground, and moreover they overlap, one maxim contains by implication what belongs
to another. Indeed it would not be difficult to reduce all under two: 'Equity will not
suffer a wrong to be without a remedy' and 'Equity acts on the person'".[2]
The headings of this article list the traditional maxims.

Contents

1 Equity sees that as done what ought to be done

2 Equity will not suffer a wrong to be without a remedy
3 Equity delights in equality
4 One who seeks equity must do equity
5 Equity aids the vigilant, not those who slumber on their rights
6 Equity imputes an intent to fulfill an obligation
7 Equity acts in personam
8 Equity abhors a forfeiture
9 Equity does not require an idle gesture
10 He who comes into equity must come with clean hands
11 Equity delights to do justice and not by halves
12 Equity will take jurisdiction to avoid a multiplicity of suits
13 Equity follows the law
14 Equity will not aid a volunteer

15 Where equities are equal, the law will prevail

16 Between equal equities the first in order of time shall prevail
17 Equity will not complete an imperfect gift
18 Equity will not allow a statute to be used as a cloak for fraud
19 Equity will not allow a trust to fail for want of a trustee
20 See also
21 References

Equity sees that as done what ought to be done

This maxim means that when individuals are required, by their agreements or by law,
to perform some act of legal significance, equity will regard that act as having been
done as it ought to have been done, even before it has actually happened. This makes
possible the legal phenomenon of equitable conversion. Sometime this is phrased as
"equity regards as done what should have been done".
The consequences of this maxim, and of equitable conversion, are significant in their
bearing on the risk of loss in transactions. When parties enter a contract for a sale
ofreal property, the buyer is deemed to have obtained an equitable right that becomes
a legal right only after the deal is completed.
Due to his equitable interest in the outcome of the transaction, the buyer who suffers a
breach may be entitled to the equitable remedy of specific performance (although not
always, see below). If he is successful in seeking a remedy at law, he is entitled to the
value of the property at the time of breach regardless of whether it has appreciated or
depreciated.
The fact that the buyer may be forced to suffer a depreciation in the value of the
property means that he bears the risk of loss if, for example, the improvements on the
property he bought burn down while he is still in escrow.
Problems may sometimes arise because, through some lapse or omission, insurance
coverage is not in force at the time a claim is made. If the policyholder has clearly
been at fault in this connection, because, for example, he has not paid premiums when
he should have, then it will normally be quite reasonable for an insurer to decline to
meet the claim. However, it gets more difficult if the policyholder is no more at fault
than the insurer. The fair solution in the circumstances may be arrived at by applying
the principle that equity regards that as done that ought to be done. In other words,
what would the position have been if what should have been done had been done?
Thus, in one case, premiums on a life insurance policy were overdue. The insurer's
letter to the policyholder warning him of this fact was never received by the

policyholder, who died shortly after the policy consequently lapsed. It was clear that if
the notice had been received by the policyholder, he or his wife would have taken
steps to ensure the policy continued in force, because the policyholder was terminally
ill at the time and the coverage provided by the policy was something his wife was
plainly going to require in the foreseeable future. Since the policyholder would have
been fully entitled to pay the outstanding premium at that stage, regardless of his
physical condition, the insurer (with some persuasion from the Bureau) agreed that the
matter should be dealt with as if the policyholder had done so. In other words, his
widow was entitled to the sum assured less the outstanding premium. In other similar
cases, however, it has not been possible to follow the same principle because there has
not been sufficiently clear evidence that the policy would have been renewed.
Another illustration of the application of this equitable principle was in connection
with motor vehicle insurance. A policyholder was provided with coverage on the basis
that she was entitled to a "no claims" discount from her previous insurer.
Confirmation to this effect from the previous insurer was required. When that was not
forthcoming, her coverage was cancelled by the brokers who had issued the initial
coverage note. This was done without reference to the insurer concerned whose
normal practice in such circumstances would have been to maintain coverage and to
require payment of the full premium until proof of the no claims discount was
forthcoming. Such proof was eventually obtained by the policyholder, but only after
she had been involved in an accident after the cancellation by the brokers of the
policy. Here again, the fair outcome was to look at what would have happened if the
insurer's normal practice had been followed. In such circumstances, the policyholder
would plainly have still had a policy at the time of the accident. The insurer itself had
not acted incorrectly at any stage. However, in the circumstances, it was equitable for
it to meet the claim.

Equity will not suffer a wrong to be without a remedy

When seeking an equitable relief, the one that has been wronged has the stronger
hand. The stronger hand is the one that has the capacity to ask for a legal
remedy(judicial relief). In equity, this form of remedy is usually one of specific
performance or an injunction (injunctive relief). These are superior remedies to those
administered at common law such as damages. The Latin legal maxim is ubi jus ibi
remedium ("where there is a right, there must be a remedy"), sometimes cited as ubi
jus ibi remediam.
The maxim is necessarily subordinate to positive principles and cannot be applied
either to subvert established rules of law or to give the courts a jurisdiction hitherto
unknown, and it is only in a general not in a literal sense that the maxim has force.

Case law dealing with principle of this maxim at law include Ashby v
White[3] and Bivens v. Six Unknown Named Agents.[4] The application of this principle
at law was key in the decision of Marbury v. Madison,[5] wherein it was necessary to
establish that Marbury had a right to his commission in the first place in order
for Chief Justice Marshall to make his more wide-ranging decision.

Equity delights in equality

Where two persons have an equal right, the property will be divided equally. Thus
equity will presume joint owners to be tenants in common unless the parties have
expressly agreed otherwise. Equity also favours partition, if requested, of jointly held
property.

One who seeks equity must do equity

To receive equitable relief, the petitioning party must be willing to complete all of its
own obligations as well. The applicant to a court of equity is just as much subject to
the power of that court as the defendant. This maxim may also overlap with the clean
hands maxim (see below).

Equity aids the vigilant, not those who slumber on their

rights
Vigilantibus non dormientibus aequitas subvenit.
A person who has been wronged must act relatively swiftly to preserve their rights.
Otherwise, they are guilty of laches, an untoward delay in litigation with the presumed
intent of denying claims. This differs from a statute of limitations, in that a delay is
particularized to individual situations, rather than a general prescribed legal amount of
time. In addition, even where a limitation period has not yet run, laches may still
occur. The equitable rule of laches and acquiescence was first introduced inChief
Young Dede v. African Association Ltd.[6]
Alternatives:

Delay defeats equity

Equity aids the vigilant, not those who sleep on their rights

Equity imputes an intent to fulfill an obligation

Generally speaking, near performance of a general obligation will be treated as
sufficient unless the law requires perfect performance, such as in the exercise of an
option. Text writers give an example of a debtor leaving a legacy to his creditor equal
or greater to his obligation. Equity regards such a gift as performance of the obligation
so the creditor cannot claim both the legacy and payment of the debt.

Equity acts in personam

In England, there was a distinction drawn between the jurisdiction of the law courts
and that of the chancery court. Courts of law had jurisdiction over property as well
as persons and their coercive power arose out of their ability to adjust ownership
rights. Courts of equity had power over persons. Their coercive power arose from the
ability, on authority of the crown, to hold a violator in contempt, and take away his or
her freedom (or money) until he or she purged himself or herself of his or her
contumacious behavior. This distinction helped preserve a separation of powers
between the two courts.
Nevertheless, courts of equity also developed a doctrine that an applicant must assert a
"property interest". This was a limitation on their own power to issue relief. This does
not mean that the courts of equity had taken jurisdiction over property. Rather, it
means that they came to require that the applicant assert a right of some significant
substance as opposed to a claim for relief based on an injury to mere emotional or
dignitary interests.

Equity abhors a forfeiture

Today, a mortgagor refers to his interest in the property as his "equity". The origin of
the concept, however, was actually a mirror-image of the current practice.
At common law, a mortgage was a conveyance of the property, with a condition
subsequent, that if the grantor paid the secured indebtedness to the grantee on or
before a date certain (the "law" day) then the conveyance would be void, otherwise to
remain in full force and effect. As was inevitable, debtors would be unable to pay on
the law day, and if they tendered the debt after the time had passed, the creditor owed
no duty to give the land back. So then the debtor would run to the court of equity,
plead that there was an unconscionable forfeiture about to occur, and beg the court to
grant an equitable decree requiring the lender to surrender the property upon payment
of the secured debt with interest to date. And the equity courts granted these petitions
quite regularly and often without regard for the amount of time that had lapsed since

the law day had passed. The lender could interpose a defense of laches, saying that so
much time had gone by (and so much improvement and betterment had taken place)
that it would be inequitable to require undoing the finality of the mortgage
conveyance. Other defenses, including equitable estoppel, were used to bar
redemption as well.
This unsettling system had a negative impact on the willingness of lenders to accept
real estate as collateral security for loans. Since a lender could not re-sell the property
until it had been in uncontested possession for years, or unless it could show changed
circumstances, the value of real estate collateral was significantly impaired. Impaired,
that is, until lawyers concocted the bill of foreclosure, whereby a mortgagee could
request a decree that unless the mortgagor paid the debt by a date certain (and after the
law date set in the mortgage), the mortgagor would thereafter be barred and foreclosed
of all right, title and equity of redemption in and to the mortgaged premises.
To complete the circle, one needs to understand that when a mortgagor fails to pay an
installment when due, and the mortgagee accelerates the mortgage, requiring
immediate repayment of the entire mortgage indebtedness, the mortgagor does not
have a right to pay the past-due installment(s) and have the mortgage reinstated.
InGraf v. Hope Building Corp.,[7] the New York Court of Appeals observed that in such
a case, there was no forfeiture, only the operation of a clause fair on its face, to which
the mortgagor had freely assented. In the latter 20th Century, New York's lower courts
eroded the Graf doctrine to such a degree that it appears that it is no longer the law,
and that a court of conscience has the power to mandate that a default be excused if it
is equitable to do so. Of course, now that the pendulum is swinging in the opposite
direction, we can expect courts to explain where the limits on the newly expanded
equity of redemption lie...and it is probably not a coincidence that the cases that have
eroded Graf v. Hope Building Corp. have been accompanied by the rise
of arbitration as a means for enforcing mortgages.[8]

Equity does not require an idle gesture

Also: Equity will not compel a court to do a vain and useless thing. It would be an idle
gesture for the court to grant reformation of a contract and then to deny to the
prevailing party an opportunity to perform it as modified.

He who comes into equity must come with clean hands

It is often stated that one who comes into equity must come with clean hands (or
alternatively, equity will not permit a party to profit by his own wrong). In other
words, if you ask for help about the actions of someone else but have acted wrongly,

then you do not have clean hands and you may not receive the help you seek. For
example, if you desire your tenant to vacate, you must have not violated the tenant's
rights.
However, the requirement of clean hands does not mean that a "bad person" cannot
obtain the aid of equity. "Equity does not demand that its suitors shall have led
blameless lives."[9] The defense of unclean hands only applies if there is a nexus
between the applicant's wrongful act and the rights he wishes to enforce.
For instance, in Riggs v. Palmer,[10] a man who had killed his grandfather to receive his
inheritance more quickly (and for fear that his grandfather may change his will) lost
all right to the inheritance.
In D & C Builders Ltd v Rees,[11] a small building firm did some work on the house of
a couple named Rees. The bill came to 732, of which the Rees had already paid
250. When the builders asked for the balance of 482, the Rees announced that the
work was defective, and they were only prepared to pay 300. As the builders were in
serious financial difficulties (as the Rees knew), they reluctantly accepted the 300 "in
completion of the account". The decision to accept the money would not normally be
binding in contract law, and afterwards the builders sued the Rees for the outstanding
amount. The Rees claimed that the court should apply the doctrine of equitable
estoppel, which can make promises binding when they would normally not be.
However, Lord Denning refused to apply the doctrine, on the grounds that the Rees
had taken unfair advantage of the builders' financial difficulties, and therefore had not
come "with clean hands".

Equity delights to do justice and not by halves

When a court of equity is presented with a good claim to equitable relief, and it is
clear that the plaintiff also sustained monetary damages, the court of equity has
jurisdiction to render legal relief, e.g., monetary damages. Hence equity does not stop
at granting equitable relief, but goes on to render a full and complete collection of
remedies.

Equity will take jurisdiction to avoid a multiplicity of suits

Thus, "where a court of equity has all the parties before it, it will adjudicate upon all
of the rights of the parties connected with the subject matter of the action, so as to
avoid a multiplicity of suits."[12] This is the basis for the procedures
of interpleader, class action, and the more rarely used Bill of Peace.

Equity follows the law

Aequitas sequitur legem
Equity will not allow a remedy that is contrary to law.
The court of Chancery never claimed to override the courts of common
law. Story states "where a rule, either of the common or the statute law is direct, and
governs the case with all its circumstances, or the particular point, a court of equity is
as much bound by it as a court of law, and can as little justify a departure from
it."[13]According to Edmund Henry Turner Snell, It is only when there is some
important circumstance disregarded by the common law rules that equity
interferes.[14]Cardozo wrote in his dissent in Graf v. Hope Building Corporation, 254
N.Y 1 at 9 (1930), "Equity works as a supplement for law and does not supersede the
prevailing law."
Maitland says, We ought not to think of common law and equity as of two rival
systems."[15] "Equity had come not to destroy the law, but to fulfil it. Every jot and
every tittle of law was to be obeyed, but when all this had been done yet something
might be needful, something that equity would require." [16] The goal of law and equity
was the same but due to historical reason they chose a different path. Equity respected
every word of law and every right at law but where the law was defective, in those
cases, equity provides equitable right and remedies.

Equity will not aid a volunteer

Equity cannot be used to take back a benefit that was voluntarily but mistakenly
conferred without consultation of the receiver. This maxim protects the doctrine of
choice.
This maxim is very important in restitution. Restitution developed as a series of writs
called special assumpsit, which were later additions in the courts of law, and were
more flexible tools of recovery, based on equity. Restitution could provide means of
recovery when people bestowed benefits on one another (such as giving money or
providing services) according to contracts that would have been legally
unenforceable.
However, pursuant to the equitable maxim, restitution does not allow a volunteer or
"officious intermeddler" to recover. A volunteer is not merely someone who acts
selflessly. In the legal (and equitable) context, it refers to someone who provides a
benefit regardless of whether the recipient wants it. For example, when someone

mistakenly builds an improvement on a home, neither equity nor restitution will allow
the improver to recover from the homeowner.
An exception to this maxim can be seen in cases where the doctrine
of estoppel applies.

Where equities are equal, the law will prevail

Equity will provide no specific remedies where the parties are equal, or where neither
has been wronged.
The significance of this maxim is that applicants to the chancellors often did so
because of the formal pleading of the law courts, and the lack of flexibility they
offered to litigants. Law courts and legislature, as lawmakers, through the limits of the
substantive law they had created, thus inculcated a certain status quo that affected
private conduct, and private ordering of disputes. Equity, in theory, had the power to
alter that status quo, ignoring the limits of legal relief, or legal defenses. But courts of
equity were hesitant to do so. This maxim reflects the hesitancy to upset the legal
status quo. If in such a case, the law created no cause of action, equity would provide
no relief; if the law did provide relief, then the applicant would be obligated to bring a
legal, rather than equitable action. This maxim overlaps with the previously
mentioned "equity follows the law."

Between equal equities the first in order of time shall prevail

This maxim operates where there are two or more competing equitable interests; when
two equities are equal the original interest (i.e., the first in time) will succeed.

Equity will not complete an imperfect gift

If a donor has made an imperfect gift, i.e. lacking the formalities required at common
law, equity will not assist the intended donee. This maxim is a subset of equity will
not assist a volunteer .
Note the exception in Strong v Bird (1874) LR 18 Eq 315. If the donor appoints the
intended donee as executor of his/her will, and the donor subsequently dies, equity
will perfect the imperfect gift.

Equity will not allow a statute to be used as a cloak for fraud

Equity prevents a party from relying upon an absence of a statutory formality if to do
so would be unconscionable and unfair. This can occur in secret trusts and
alsoconstructive trusts and so on.

Equity will not allow a trust to fail for want of a trustee

If there is no trustee, whoever has legal title to the trust property will be considered
the trustee. Otherwise, a court may appoint a trustee. In Ireland, the trustee may be
any administrator of a charity to which the trust is related.

See also

Brocard (law)
Legal maxim
List of legal Latin terms

References
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.

Jump up^ Edwards, Richard; Stockwell, Nigel (2005). Trusts and Equity (7 ed.). Pearson
Education. p. 34. ISBN 1-4058-1227-3.
Jump up^ Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's
Principles of Equity (25 ed.). London: Sweet & Maxwell. p. 24. OL 21567635M.
Jump up^ Ashby v White (1703) 92 ER 126
Jump up^ Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
Jump up^ Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Jump up^ Chief Young Dede v. African Association Ltd. (1910) 1 N.L.R 130 at 133
Jump up^ Graf v. Hope Building Corp., 254 NY 1 (1930)
Jump up^ See, generally, Osborne, Real Estate Finance Law (West, 1979), Chapter 7
Jump up^ Loughran v. Loughran, 292 U.S. 216, 229 (1934), (Brandeis, J.)
Jump up^ Riggs v. Palmer (1889) 115 N.Y. 506
Jump up^ D & C Builders Ltd v Rees [1965] EWCA Civ 3
Jump up^ Burnworth v. Hughes, 670 P.2d 917, 922 (Kan. 1983)
Jump up^ Story, Joseph; Randell, Alfred Edward (1920). Story on Equity (third English ed.).
Sweet & Maxwell. p. 34.
Jump up^ Snell, Edmund Henry Turner (1929). Snell's Principles of Equity (20 ed.).
London: Sweet & Maxwell. p. 24. quoted in Williams, James (1932). The Statute of Frauds, p. 166.
Jump up^ Maitland, Frederic William (1932). Equity; Also the Forms of Action at Common
Law: Two Courses of Lectures, p. 19.
Jump up^ Maitland (1932), p. 17.

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Equity (legal concept)

From Wikipedia, the free encyclopedia

The Court of Chancery, London, in the early 19th century

In jurisdictions following the English common law, equity is the set of maxims that
"reign over all the law" and "from which flow all civil laws" (Bacon). The Chancery,
the office of equity, was the "office that issued the writs that were the foundation of
the common law system". (Id.; Spence, supra, at 224). Equity is wholly "unaffected by
any state laws (Pomeroy) and is "everything, even without law" (John Bouvier).
Equity is commonly said to "mitigate the rigor of common law", allowing courts to
use their discretion and apply justice in accordance with natural law. In practice,
modern equity is limited by substantive and procedural rules, and English and
Australian legal writers tend to focus on technical aspects of equity. Twelve "vague
ethical statements", known as themaxims of equity,[1][2] guide the application of equity,
and an additional five can be added.[1]

A historical criticism of equity while it developed was that it lacked fixed rules, with
the Lord Chancellor occasionally judging in the main according to his conscience.
The rules of equity later lost much of their flexibility, and from the 17th century
onwards, equity was rapidly consolidated into a system of precedents much like
its common-law cousin.

Contents

1 History
1.1 Development of equity in England
1.2 Statute of Uses 1535
2 Comparison of equity traditions in common law countries
2.1 United States
2.2 India
3 See also
4 Notes
5 References
6 External links

History
Equity was developed two or three hundred years after the birth of the common law
system to resolve disputes where damages were an unsuitable remedy and to introduce
fairness into the legal system. The distinction between "law" and "equity" is an
accident of history. The law courts or "courts of law" were the courts in England that
enforced the king's laws in medieval times. There the King's Judges, educated in law
rather than theology, administered the universal law of the realm. [3] This body of law
evolved on the basis of previously set precedent into what is recognized as the
Common law of England. However, if changes were not quick enough, or if decisions
by the judges were regarded as unfair, then litigants could still appeal directly to the
King, who, as the sovereign, was seen as the 'fount of justice' and responsible for the
just treatment of his subjects. Such filings were usually phrased in terms of throwing
oneself upon the king's mercy or conscience. Eventually, the kingbegan to regularly
delegate the function of resolving such petitions to the Chancellor, an important
member of the King's Council.[3] The early Chancellors were often clergymen, acting
as the King's confessor and thereby sacerdotally as keeper of the King's conscience.
As a result of their theological and clerical training, Chancellors were well versed in
Latin and French, as well as in classical Roman civil and canon law, which heavily
influenced the development of equity.[4] Soon the Chancery, the Crown's secretarial
department, began to resemble a judicial body and became known as the "Court of
Chancery".

By the 15th century, the judicial power of Chancery was recognized. Equity, as a body
of rules, varied from Chancellor to Chancellor, until the end of the 16th century. After
the end of the 17th century, only lawyers were appointed to the office of Chancellor.
One area in which the Court of Chancery assumed a vital role was the enforcement
of uses, a role that the rigid framework of land law could not accommodate. This role
gave rise to the basic distinction between legal and equitable interests.
Development of equity in England
It was early provided that, in seeking to remove one who wrongfully entered another's
land with force and arms, a person could allege disseisin (dispossession) and demand
(and pay for) a writ of entry. That writ gave him the written right to re-enter his own
land and established this right under the protection of the Crown if need be, whence
its value. In 1253, to prevent judges from inventing new writs, Parliament provided
that the power to issue writs would thereafter be transferred to judges only one writ at
a time, in a "writ for right" package known as a form of action. However, because it
was limited to enumerated writs for enumerated rights and wrongs, the writ system
sometimes produced unjust results. Thus, even though the King's Bench might have
jurisdiction over a case and might have the power to issue the perfect writ, the
plaintiff might still not have a case if there was not a single form of action combining
them. Therefore, lacking a legal remedy, the plaintiff's only option would be
petitioning the King.
People started petitioning the King for relief against unfair judgments, and as the
number of petitioners rapidly grew, so the King delegated the task of hearing petitions
to the Lord Chancellor. As the early Chancellors lacked formal legal training and
showed little regard for precedent, their decisions were often widely diverse. In 1529,
a lawyer, Sir Thomas More, was appointed as Chancellor, marking the beginning of a
new era. After this time, all future Chancellors were lawyers. Beginning around 1557,
records of proceedings in the Courts of Chancery were kept and several equitable
doctrines developed. Criticisms continued, the most famous being 17th century
jurist John Selden's aphorism:
Equity is a roguish thing: for law we have a measure, know what to trust to; equity is
according to the conscience of him that is Chancellor, and as that is larger or narrower,
so is equity. 'Tis all one as if they should make the standard for the measure we call a
foot, a Chancellors foot; what an uncertain measure would this be? One Chancellor
has a long foot, another a short foot, a third an indifferent foot: 'tis the same thing in a
Chancellors conscience.[5]

As the law of equity developed, it began to rival and conflict with the common law.
Litigants would go jurisdiction shopping and often would seek an
equitableinjunction prohibiting the enforcement of a common law court order. The
penalty for disobeying an equitable common injunction and enforcing a common law
judgment was imprisonment.
The Chief Justice of the Kings Bench, Sir Edward Coke, began the practice of issuing
writs of habeas corpus that required the release of people imprisoned for contempt of
chancery orders.
This tension climaxed in the Earl of Oxfords case (1615) where a judgment of Chief
Justice Coke was allegedly obtained by fraud. [6] The Lord Chancellor, Lord Ellesmere,
issued a common injunction from the Chancery prohibiting the enforcement of the
common law order. The two courts became locked in a stalemate, and the matter was
eventually referred to the Attorney-General, Sir Francis Bacon. Sir Francis, by
authority of King James I, upheld the use of the common injunction and concluded
that in the event of any conflict between the common law and equity, equity would
prevail. Equity's primacy in England was later enshrined in the Judicature Acts of the
1870s, which also served to fuse the courts of equity and the common law (although
emphatically not the systems themselves) into one unified court system.
Statute of Uses 1535
In order to avoid paying land taxes and other feudal dues, lawyers developed a
primitive form of trust called the use that enabled one person (who was not required
to pay tax) to hold the legal title of the land for the use of another person. The effect
of this trust was that the first person owned the land under the common law, but the
second person had a right to use the land under the law of equity.
Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in
an attempt to outlaw this practice and recover lost revenue. The Act effectively made
the beneficial owner of the land the legal owner and therefore liable for feudal dues.
The response of the lawyers to this Statute was to create the 'use upon a use'. The
Statute recognized only the first use, and so land owners were again able to separate
the legal and beneficial interests in their land.
For an example, see Godwyne v. Profyt (after 1393): a petition to the Chancellor [7]
See generally treatises on equity and trusts.

Comparison of equity traditions in common law countries

As with the geographical transmission of any cultural artifact, direct English influence
over equity weakened with time and distance, although the widespread import of
printed opinions provided a corrective force, however long delayed. As the colonies
gained political independence, each of their legal systems began drifting from the
original in an irreversible departure from the English way of making laws and
deciding cases. Nonetheless, each former colony acknowledged the reception of the
common law and equity of England as a vital source of their jurisprudence.
The comparative question is an easy one to pose. Did English equity develop maturity
early enough that all of its derivative systems necessarily tended toward the same
doctrines, based on exactly the same set of general principles? Or did the split-offs of
any of the colonies occur somewhere in the middle of its development so that
substantial permanent differences resulted? One equity, or many?
The answer generally accepted in America, the earliest of the English colonies to gain
independence, is the former, that the outcome of a case to be decided today upon
principles of equity should be expected to be substantially the same whether decided
in the UK or the US. The reasonableness of the belief enjoys strong historical support.
The perfection of modern equity as a system has been authoritatively credited to Lord
Hardwicke who served as (Lord) Chancellor 17371756 and was rewarded with his
peerage.[8]
United States
In modern practice, perhaps the most important distinction between law and equity is
the set of remedies each offers. The most common civil remedy a court of law can
award is monetary damages. Equity, however, enters injunctions or decrees directing
someone either to act or to forbear from acting. Often, this form of relief is in practical
terms more valuable to a litigant; for example, a plaintiff whose neighbor will not
return his only milk cow, which had wandered onto the neighbor's property, may want
that particular cow back, not just its monetary value. However, in general, a litigant
cannot obtain equitable relief unless there is "no adequate remedy at law"; that is, a
court will not grant an injunction unless monetary damages are an insufficient remedy
for the injury in question. Law courts can also enter certain types of immediately
enforceable orders, called "writs" (such as a writ of habeas corpus), but they are less
flexible and less easily obtained than an injunction.
Another distinction is the unavailability of a jury in equity: the judge is the trier of
fact. In the American legal system, the right of jury trial in civil cases tried in federal

court is guaranteed by the Seventh Amendment in Suits at common law, cases that
traditionally would have been handled by the law courts. The question of whether a
case should be determined by a jury depends largely on the type of relief the plaintiff
requests. If a plaintiff requests damages in the form of money or certain other forms of
relief, such as the return of a specific item of property, the remedy is considered legal,
and a jury is available as the fact-finder. On the other hand, if the plaintiff requests
an injunction, declaratory judgment, specific performance, modification of contract,
or some other non-monetary relief, the claim would usually be one in equity.
Thomas Jefferson explained in 1785 that there are three main limitations on the power
of a court of equity: "If the legislature means to enact an injustice, however palpable,
the court of Chancery is not the body with whom a correcting power is lodged. That it
shall not interpose in any case which does not come within a general description and
admit of redress by a general and practicable rule." [9] The US Supreme Court,
however, has concluded that courts have wide discretion to fashion relief in cases of
equity. The first major statement of this power came in Willard v. Tayloe, 75 U.S. 557
(1869). The Court concluded that "relief is not a matter of absolute right to either
party; it is a matter resting in the discretion of the court, to be exercised upon a
consideration of all the circumstances of each particular case." [10] Willard v. Tayloe was
for many years the leading case in contract law regarding intent and enforcement.[11]
[12]
as well as equity.[11][13]
In the United States today, the federal courts and most state courts have merged law
and equity in the courts of general jurisdiction, such as county courts. However, the
substantive distinction between law and equity has retained its old vitality.[14] This
difference is not a mere technicality, because the successful handling of certain law
cases is difficult or impossible unless a temporary restraining order (TRO) or
preliminary injunction is issued at the outset, to restrain someone from fleeing the
jurisdiction taking the only property available to satisfy a judgment, for instance.
Furthermore, certain statutes like Employee Retirement Income Security
Act specifically authorize only equitable relief, which forces US courts to analyze in
lengthy detail whether the relief demanded in particular cases brought under those
statutes would have been available in equity.[15]
Equity courts were widely distrusted in the northeastern US following the American
Revolution. A serious movement for merger of law and equity began in the states in
the mid-19th century, when David Dudley Field II convinced New York State to adopt
what became known as the Field Code of 1848.[16] The federal courts did not abandon
the old law/equity separation until the promulgation of the Federal Rules of Civil
Procedure in 1938.

Today three states still have separate courts for law and equity; the most notable
is Delaware, whose Court of Chancery is where most cases involving Delaware
corporations are decided.[17] However, merger in some states is less than complete;
some other states (such as Illinois and New Jersey) have separate divisions for legal
and equitable matters in a single court. Besides corporate law, which developed out of
the law of trusts, areas traditionally handled by chancery courts
includedwills and probate, adoptions and guardianships, and marriage and divorce.
After US courts merged law and equity, American law courts adopted many of the
procedures of equity courts. The procedures in a court of equity were much more
flexible than the courts at common law. In American practice, certain devices such
as joinder, counterclaim, cross-claim and interpleader originated in the courts of
equity. Also, the modern class action evolved out of the equitable doctrine of virtual
representation, which enabled a court of equity to fully dispose of an estate even
though it might contain contingent interests held by persons over which the court did
not have direct jurisdiction.
India
In India the common law doctrine of equity had traditionally been followed even after
it became independent in 1947. However in 1963 the "Specific Relief Act" was passed
by the Parliament of India following the recommendation of the Law Commission of
India and repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act,
most equitable concepts were codified and made statutory rights, thereby ending the
discretionary role of the courts to grant equitable reliefs. The rights codified under the
1963 Act were as under:

Recovery of possession of immovable property (ss. 58)

Specific performance of contracts (ss. 925)
Rectification of Instruments (s. 26)
Recession of Contracts (ss. 2730)
Cancellation of Instruments (ss. 3133)
Declaratory Decrees (ss. 3435)
Injunctions (ss. 3642)

With this codification, the nature and tenure of the equitable reliefs available earlier
have been modified to make them statutory rights and are also required to be pleaded
specifically to be enforced. Further to the extent that these equitable reliefs have been
codified into rights, they are no longer discretionary upon the courts or as the English
law has it, "Chancellor's foot" but instead are enforceable rights subject to the
conditions under the 1963 Act being satisfied. Nonetheless, in the event of situations
not covered under the 1963 Act, the courts in India continue to exercise their inherent

powers in terms of Section 151 of the Code of Civil Procedure, 1908, which applies to
all civil courts in India.
There is no such inherent powers with the criminal courts in India except with
the High Courts in terms of Section 482 of the Code of Criminal Procedure, 1973.
Further, such inherent powers are vested in the Supreme Court of India in terms of
Article 142 of the Constitution of India which confers wide powers on the Supreme
Court to pass orders "as is necessary for doing complete justice in any cause of matter
pending before it".

See also

Case law
Common law
Court of Chancery
Delaware Court of Chancery
Economic equity
Equitable remedy
Ex aequo et bono
Inequity aversion
Maxims of equity
Restitution
Statutory law
Trust Law
Undue influence
Unjust enrichment

Notes
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

^ Jump up to:a b Hudson A. (2009). Equity and Trusts, p. 24. Routledge-Cavendish.

Jump up^ Hudson states that these are primarily "culled from Snell's Equity, the 4th edition
of which can be read online. See Chapter 2 for the these statements.
^ Jump up to:a b S Worthington, Equity (2nd edn. OUP, Oxford 2006) p. 8.
Jump up^ S Worthington, Equity (2nd edn. OUP, Oxford 2006) p. 10/11.
Jump up^ J Selden, Table Talk, quoted in M B Evans and R I Jack (eds), Sources of English
Legal and Constitutional History, Butterworths, Sydney, 1984, 223224.
Jump up^ Earl of Oxford's Case (1615) I Ch Rep I, 21 ER 485
Jump up^ Godwyne v. Profyt (after 1393): a petition to the Chancellor
Jump up^ Robert Palmer, English Legal History course notes - the University of Houston
Jump up^ Letter from Thomas Jefferson to Phillip Mazzei, November 1785.
Jump up^ Willard v. Tayloe, 75 U.S. 557, 565.
^ Jump up to:a b Dawson, John P. "Judicial Revision of Frustrated Contracts: The United
States." Boston University Law Review. 64:1 (January 1984), p. 32.
Jump up^ "Events Subsequent to the Contract As a Defence to Specific
Performance,"Columbia Law Review, May 1916, p. 411.

13.
14.
15.
16.
17.

Jump up^ Renner, Shirley. Inflation and the Enforcement of Contracts. Cheltenham,
England: Elgar, 1999, p. 20.
Jump up^ See, e.g., Sereboff v. Mid Atlantic Medical Services, Inc., No. 05260, slip op.
(U.S. May 15, 2006) (Roberts, C.J. for a unanimous court) (reviewing the scope of equitable relief as
authorized by the ERISA statute).
Jump up^ Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002).
Jump up^ Douglas Laycock, Modern American Remedies, 3d ed. (Aspen Press 2002), page
370.
Jump up^ The other two are Mississippi and Tennessee. Sources that mention four states
(i.e., Laycock 2002) generally include Arkansas, which abolished its separate chancery courts as of
January 1, 2002.[1]

References
For a history of equity in England, including the Statute of Uses 1535:

Equity in a Nutshell by T. Cockburn & M. Shirley, Lawbook Co, Sydney, 2005.

Equity & Trusts by T. Cockburn, W. Harris & M. Shirley, Butterworths,
Sydney, 2005.

For a general treatise on Equity, including a historical analysis:

S Worthington, Equity (2nd edn. OUP, Oxford 2006).

For a brief outline of the maxims, doctrines and remedies developed under equity:

Todd & Watt, Cases and Materials on Equity and Trusts (6th edn. OUP, Oxford
2007).

External links
Wikiquote has
quotations related
to: equity
Look up equity in
Wiktionary, the free
dictionary.

Christopher St. Germain's Doctor and Student (1518), the classic common law
text on equity.
Delaware Court of Chancery: Official site
978-0-415-41847-8 Equity and Trusts Hudson, Alastair, 5th edition, RoutledgeCavendish, London, 2007

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