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Equity

Equity originated as a separate body of laws from common law that was administered in different courts by the Lord Chancellor to provide equitable relief where common law courts provided no remedy. While the Court of Chancery has now been merged into the High Court, equitable principles still prevail where there is a conflict between common law and equity. Key maxims of equity include that it acts against specific persons, follows but can depart from common law, attempts equality between parties, and requires plaintiffs to do equity themselves with clean hands. Equitable interests are actual property rights such as under a trust, while mere equities are procedural rights ancillary to property rights that qualify them, with equitable interests taking priority over mere equities.

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Adam 'Fez' Ferris
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2K views

Equity

Equity originated as a separate body of laws from common law that was administered in different courts by the Lord Chancellor to provide equitable relief where common law courts provided no remedy. While the Court of Chancery has now been merged into the High Court, equitable principles still prevail where there is a conflict between common law and equity. Key maxims of equity include that it acts against specific persons, follows but can depart from common law, attempts equality between parties, and requires plaintiffs to do equity themselves with clean hands. Equitable interests are actual property rights such as under a trust, while mere equities are procedural rights ancillary to property rights that qualify them, with equitable interests taking priority over mere equities.

Uploaded by

Adam 'Fez' Ferris
Copyright
© Attribution Non-Commercial (BY-NC)
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Download as DOCX, PDF, TXT or read online on Scribd
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Equity

Equity is described by Cowel as being of two sorts, and these of contrary effects; for the one abridges
and takes from the letter of the law, the other enlarges and adds thereto.

Equity, in the sense in which it is distinguished from the common law, consisted originally in a body
of rules and procedure which grew up separately from the common law and which were
administered in different courts. The common law courts might provide no remedy for a plaintiff,
and it became customary for suitors to apply to the chancellor, who as ‘keeper of the king’s
conscience’ would give equitable relief. From the time of Edward II, or earlier, the Chancellor and his
officials, later the Court of Chancery, issued writs and exercised jurisdiction which did not, override
the common law but which was intended to remedy its imperfections.

The court of chancery has now become the chancery division of the High Court and for convenience
certain matters of equitable jurisdiction are still assigned to it, but by s 36 of the 1925 Judiciature Act
both law and equity are to be administered in all divisions of the High Court and in the Court of
Appeal. But where there is any conflict between the rules of common law and the rules of equity,
the latter are to prevail.

A few of the ‘maxims’ of equity may be briefly states as follows

1) Equity acts in Personam.

Ie. Against a specific person rather than against property, and so compels performance of contracts,
trusts etc.

2) Equity follows the law

That is, does not depart unnecessarily from common law principles

3) Equity delights in equality

Ie. Attempts to adjudicate fairly or equally between the parties

4) He who seeks equity, must do equity

Or a plaintiff must himself be prepared to see justice done. Similarly

5) He who comes into equity must come with clean hands

And not have been guilty of improper conduct in regard to the subject matter of litigation.

Equitable interests

There are 2 reasons why the distinction between equitable and legal property rights remains
important.
Firstly, the way in which estates and other interests in land are generated or transferred depends on
this. Generally more formality is required to do this with a legal interest

Secondly, legal property rights tend to be more durable than equitable rights.

The Queen v London Borough of Tower Hamlets ex parte Von Goetz – Establishes equitable interests
with strength, implying as Kevin Gray put it, “it is quite possible to hold an equitable fee simple
absolute in possession or an equitable term.

An equitable interest is an actual right of property, such as an interest under a trust. A mere equity is
not a right of property but a right, usually of a procedural nature, which is ancillary to some right of
property, and which limits or qualifies it in some way. It can either refer to a) a personal right
(e.g. A deserted wife's equitable right to stay in her home of which the legal title is held
by the husband), or b) a property right A mere equity can be a property right, but it will
be one which is inferior to other equitable rights (Philips v Philips). For example, the
right to rescind a contract of sale formed as result of fraud is a property right. But it will
not affect an equitable estate in land (even if the estate was acquired after the Right to
Rescission). This is one of the exceptions to the "first in time rule" regarding priorities
(see bona fide purchase in competing property rights).

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