Describe about the Equity is Present to Provide Reasonable Help When the Common Law Fails to Provide a Solution?
The word equity has numerous meanings and to various people it is a symbol of fairness or justice. The origin of equity can be traced to the deficiencies of the common law. Beyond question, common law had flaws where any solution is unavailable or where there was an availability of a remedy but it was not fit for the plaintiff loss. Moreover, the common law was studded with formality. If two parties engage in a verbal contract in case of common law, common law under no circumstances will spot the contract not provide any remedy to it. This was one of the major flaws because whatever be the circumstances. In many cases equity stepped up and provided remedies irrespective of the fact that there was a lack of formality. The main role of equity in the past 50 years has been a support to the common law. Equity always provides a remedy on the contrary the common law gave nothing or provided a better solution as compared to the common law. Equity even interfered with the common law so as to ensure that the required common law was completely enforceable. In simple terms it can be said that equity worked hand in hand with the common law. Therefore different solution to the problems. The equitable maxim gives a well defined set of principles which can be said to be a big boost to the entire human community. This has really influenced the development of equity. The further discussion will give a clear cut explanation of the maxims, explaining the importance, as well as detail description of the areas where it can be implemented. Over the last 50 years there has been immense change in the law of equity. This can be well justified by the maxim, for example, ‘where the equities are same, the first in time happens’, and the impact on happenings, as well as interest which are conflicting in nature and the maxim ‘ equity behave in personam’ its impact on the working of the law outside the judgement. The whole structure has been implemented with the aim of providing maximum benefit. The statement ‘ flexible when law appears to be dominant, discretionary when law appears to be obligatory and humane in its concern for justice rather than rights clearly signifies the development of equity over the past 50 years. As a matter of fact, equity entails discretionary features both in terms of application and even its extent which have a deep impact on the issue related to domestic, as well as international law. By and by equitable principles came out as a support to the Roman, as well as English common law which are done in order to enhance or correct the body of civil law.
The maxim of equity can be well described from the statement and the well defined principles which are laid down so as to control the manner of the operation of the equity principles. This helps to project the features of equity and in particular contrary to the common law which has a flexible nature, impactful considering the need of the particular person and more focussed to consider the manner in which the parties operates, as well as worthiness. As a matter of fact it cannot be said that there is a definite list of the maxims: various evidences provides examples and some operates with a view to eliminate the term in total in support of a strong show of the manner of equity. Various maxims came into picture with the gradual passage of time and this has been done considering the problem of the parties. At times the common law is unable to provide a clear cut answer to the problem and hence needs additional support which is found in the equity principles. In totality, the maxims are implemented only when there is a real need by the court and are deemed to be appropriate: no maxim can be said to be in the nature of a complete supporting rule and for particular maxim it can be said that it is possible to trace as many instances. The function of the maxims was clearly stated in the case of Tinsley v Milligan [1993] 3 All ER 65 indicated in Chapter 10. In the court a flexible manner was undertaken that one who knocks the gate of law must do with a clear conscience comes on the contrary in the House of Lords it was rejected. Here it was stated that such a flexible manner would lead to a public conscience and uncertainty.
In the last 50 years there has been tremendous development in the law of equity. All developments and amendments in the current scenario indicate that the equity is well stabilized to provide great room for improvement. Equity follows the laws. It is not opposite or in contrast to the common law but, helps to provide additional support and remedy which is not available in case of the common law. The equity and the common law when considers together provides a better aspect of the scenario. This clearly provides a clear cut explanation of the link between the common law and the equity. This is complex in nature but the traditional rule cannot be avoided. It was explained in ‘Doctor and Student’ 1523 by Christopher St German was to arouse as well as avoid the rigour the of the low and this clearly implies that the equity will come into consideration and override the common law if justice if really concerned about it. This maxim provides a good explanation of equity. This states that whenever and wherever possible, equity will come into consideration and will ensure the regulations are in connection with the law. Equity overrides the common and is of common happening but it needs to be focussed that in many cases the equity supports but never contradict with the common law. The common law is in its own place and equity principles never override it. But, there are various shortfalls which are present in the common law and considering that equity principles are always a success. It leads to proper settlement as the maxims are flexible in nature and not strict on the persons. Therefore, the very concept of equity has gained a huge importance. The common law does not lay stress on many principles which are left unnoticed. In this scenario the parties to contract are unable to get proper justice. This can be easily settled with the help of equity principles. Hence, in the case of trust, the interest of the beneficiary is taken into consideration.
It is to be noted that when the equities are same, the prevalence of law happens. On teh contrary when equities shows a similar nature, the first in time happens.
The maxim which are discussed above are related to priorities. As a matter of fact, the general rule which one expects is that interest takes impact in the manner of creation but when it comes to equitable interest; it may suffer defeat if a purchaser who is bona fide takes the position of a subsequent legal estate without any note of the equitable one. Hence the position enhances the deliverance of notice and to those level maxims has been impacted by the legal process of what comprises the notice.
Equity is even applied within the law by the international tribunal which is a major landmark and is done in order to provide just and fair view. Equity principles have a far reaching impact and this is why it has gained paramount importance over a period of time. The interpretations can be properly dealt with the help of equity principles. This implies that when a law is interpreted in one manner, then equity can be implemented and utilized in another to consider the interpretation which serves to meet the aims of the law. In other words equity is also used nothing is stated by the law and is silent on the matter to attract the case within the law which ensures that the state can ponder in a manner which can be utilized in a just and fair manner. When equity is used in a manner which is general in nature the judges of the International Court hardly expresses in that manner. Moreover, the various function of equity is also taken in a granted way such as estoppels and another principle he who knocks the gate of equity must comes with a genuine hand are essential part of international law and therefore it needs no further saying than their importance to the case which is near. This can be said to be an approach off equity which is meant to provide equitable doctrine common to civilized nations without taking the support of particular legal system. The legal system is properly aided with the help of equity principles. The solutions are better fetched with the help of such equity principles.
During the past 50 years there has been immense development in the law and equity. The modern equity has come a long way. For example equity will not end up in a wrong without any solution. This maxim provides that equity won’t give way for the errors of the common law to keep the worthy plaintiff from getting remedy. It can therefore, be said that equity is in tune with the law. There are innumerable examples of the progress of the equitable doctrines and remedies which are done in order to surpass the result which is unjust in nature and arises from the legal enforcement of rights. The noteworthy part can be said to be trust: legal owner can enforce the available rights in contrast to the individual for whose advantage the property is hold as agreed would probably lead to injustice and hence presence of equity recognizes the rights of owner who is beneficial in nature. Even the concept of specific performance and utilization of injunctions are some glaring examples of equity.
Equity is humane in its concern for justice which is well established by the maxim ‘Equality is Equity’. It is very much humane in its view which is explained by the fact that when there is an absence of any matter or evidence, equity vouches towards the adoption of equal division to which innumerable persons are associated. This was seen in the case of Burrough v Philcox. The testator left the estates to particular relatives or to them whom his child will nominate and the child ended up in a failure to nominate. It was held by the court that the funds were allocated to the trust for every relative in equivalent manner.
The general method of equity was to follow the common law unless there is a great dearth for it. Equity is present in order to recognize, as well as protect those estates in land and especially those interests that were considered and protected by the common law. Where the law is obligatory, the equity remedies are discretionary in nature. In reality a common law remedy can be claimed as a right. If there is a breach of contract which is provided by the victim he can demand for damages. But, the equitable remedy is completely at the discretion of the court.
Equity is flexible where the law is strict is well explained by the maxim that Equity considers the substance more than it lay stress on the form. The court of equity makes a difference in all cases between the fact that which belongs to the matter of substance and which lies under mater of form and if it traces stressing on the substance form then ultimately the substance will get a defeat, it considers it inequitable to enable an individual to vouch for such a form and hence elimminate the substance. This maxim was well explained in Parkin v Thorold (1852) 16 Beav 59. It must be focussed that it gives an implication that the formalities are not needed; however it is a common parlance that equity does not enforce or take into consideration equitable interest where formalities are needed by the statute. This maxim can be said to be in the manner of principle which is general in nature and which projects that equity is flexible and less worried considering the forms as compared to the common law. Equity and its principles are designed in a manner which is directed towards well being and provide ease to the parties. This has done a lot of good over the past 50 years. Equity never permits a statute to be used as a tool of cheat. Similar incident occurred in the case of Rochefoucauld v Boustead (1897).
The above explanation clearly indicates that Equity Is Present To Provide Reasonable Help When The Common Law Fails To Provide A Solution. In general sense one can say that under certain scenario common law fails to provide a justification and hence, the role of the equity comes to the forefront. On the contrary the remedy of equity is discretionary in nature and the court will give a green signal if it clear that the plaintiff is not worthy. Here the maxim ‘one who craves for equity perform equity which was held in the case study of Haywood v Cope (1858) 25. It is essential that the court discretion should be availed in a manner which meets the fixed and settled rules. Hence, a person who vouches for a remedy from the equitable principle remedy must be well ensured to act in an equitable manner and even the court may ask him to do so. The general observance from the equity principle and maxim is that over the past 50 years it has provided immense support to the common law and has salvage many parties who looked for solution. The maxims have been a major asset for the equity and this has given a new lease of life to the ones who wants justice. Law is sometimes strict and does not take into consideration many forms which go unnoticed and hence a correct decision cannot be framed. In this scenario equity provides a far sighted impact and solves the problem. Modern equity has vastly benefited the masses as the solutions are easy to achieve. Over the 50 years it has been noticed that the maxims were applied in cases over and over again so as to provide justice. Hence, the maxims and the principles have been evolved catering to the need of various people. The court may not take into consideration certain assumptions but when it comes to equity one can get justice. This has been a major landmark and this has led to a strong support to the common law. With the advent of equity the common law turned out to be more pronounced and there is less room for error. As discussed above the principles of equity are laid in a manner which provides maximum benefit to the common people and are not harsh on the people. It is discretionary and humane in nature which has led to immense success and popularity of the principles. It needs to be noted that with the aid of equity principles innumerable solutions has been achieved and this has led to popularity of the principles even considering the fact that the common law has been in force.
Primary Sources
Cases
Tinsley v Milligan [1993] 3 All ER 65, which is considered in detail in Chapter 10 (see page 262).
Burrough v Philcox, discussed in Chapter 5 at page 125.
Haywood v Cope (1858) 25 Beav 140
Rochefoucauld v Boustead [1897] 1 Ch 196
P H Pettit, ‘He who comes into equity must come with clean hands’ [1990] Conv 416
Books
D P O’Connell, International Law (Stevens, 1965) Vol 1, 5. See also Y Makonnen, ‘Western Attitudes to International Equity’ (1972-3) 42-43 Annuaire de l’Association des Auditeurs de l’Academie de Droit International de la Haye 82
D Walker, The Oxford Companion to Law (Clarendon Press, 1980) 424 discussed by S Rosenne ‘The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law’ in Bloed & Van Dijk (eds) Forty Years of the International Court of Justice (Europa Instituut, 1988) 85.
Edwards, Richard; Stockwell, Nigel (2005, Trusts and Equity 7 ed.) 34
Henry R. Gibson, A.M., LL.D (Suits in Chancery: Setting forth the Principles, Pleadins, Practice, Proofs and Processes of The Jurisprudence of Equity, 1907)
J Martin (Hanbury and Martin’s Modern Equity (19th edn Sweet, Maxwell 2012) 1024
J Martinez, ‘Towards an International Judicial System’ (2003) 56 Stanford Law Review 429, 461.
J Martinez, ‘Towards an International Judicial System’ (56 Stanford Law Review 429,2003) 461.
J I Charney, ‘Book Review’ (1995) 89 American Journal of International Law 458, 459.
M O Hudson, The Permanent Court of International Justice: a Treatise (The Macmillan Company, 1934) 528.
Maitland, Frederic William . (Equity; Also the Forms of Action at Common Law: Two Courses of Lectures,1932) 19.
P van Dijk, ‘Equity: a Recognized Manifestation of International Law?’ in M Bos and W Heere (eds) International Law and its Sources (Kluwer Law and Taxation, 1989) 1, 11.
R Newman, ‘The Principles of Equity as a Source of World Law’ (1966) 1 Israel Law Review 616- 7 cited in C Rossi, Equity in International Law: A Legal Realist Approach to International Decision Making (Transitional Publishers, 1993) 22
R P Meagher, J D Heydon & M J Leeming (eds) Meagher, Gummow and Lehane Equity Doctrines and Remedies (Butterworths, 4th ed, 2002)
Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (25 ed Snell’s Principles of Equity, 1960) 24
Story, Joseph; Randell, Alfred Edward (Story on Equity, Sweet & Maxwell, 1960) 34.
G Scharzenberger, ‘Equity in International Law’ (1972) The Year Book of World Affairs 348-50. Also note S E Finer, The History of Government Vol 1: Ancient Monarchies and Empires (Oxford University Press, 1997). Psalm 98 praises the Lord because ‘You have established equity, justice and right’: J Gelineau, ‘Introduction’ in The Psalms: A New Translation (Collins, 1963) 171
W E Holder and G A Brennan, The International Legal System (Butterworths, 1972) 97. Also note L D M Nelson, ‘The Roles of Equity in the Delimitation of Maritime Boundaries’ (1990) American Journal of International Law 837, 839-40.
Tinsley v Milligan [1993] 3 All ER 65, which is considered in detail in Chapter 10 (see page 262).
P H Pettit, ‘He who comes into equity must come with clean hands’ [1990] Conv 416
M O Hudson, The Permanent Court of International Justice: a Treatise (The Macmillan Company,
1934) 528.
R P Meagher, J D Heydon & M J Leeming (eds) Meagher, Gummow and Lehane Equity Doctrines
and Remedies (Butterworths, 4th ed, 2002)
D Walker, The Oxford Companion to Law (Clarendon Press, 1980) 424 discussed by S Rosenne ‘The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law’ in Bloed & Van Dijk (eds) Forty Years of the International Court of Justice (Europa Instituut, 1988) 85.
J Martinez, ‘Towards an International Judicial System’ (2003) 56 Stanford Law Review 429, 461.
P van Dijk, ‘Equity: a Recognized Manifestation of International Law?’ in M Bos and W Heere
(eds) International Law and its Sources (Kluwer Law and Taxation, 1989) 1, 11.
Burrough v Philcox, discussed in Chapter 5 at page 125.
Parkin v Thorold (1852) 16 Beav 59
R Newman, ‘The Principles of Equity as a Source of World Law’ (1966) 1 Israel Law Review 616- 7 cited in C Rossi, Equity in International Law: A Legal Realist Approach to International Decision Making (Transitional Publishers, 1993) 22
Rochefoucauld v Boustead [1897] 1 Ch 196 in chapter 4
Haywood v Cope (1858) 25 Beav 140
D P O’Connell, International Law (Stevens, 1965) Vol 1, 5. See also Y Makonnen, ‘Western Attitudes to International Equity’ (1972-3) 42-43 Annuaire de l’Association des Auditeurs de l’Academie de Droit International de la Haye 82.
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