• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • 6
    CommentGo Back
Download
 
Maxim 1Equity will not suffer a wrong to be without a remedyMeaning: Latin term “Ubi jus ibi remedium”. Where there is a right, there isremedyIt means that no wrong should go undressed if it is capable of being remedied bycourts. Where there is a wrong. There is a remedy. Where there is right there is aremedy. Aright without a remedy is a vex thing.Recognition in Bangladesh: The Trust Act 1882, Section 9 of the Civil ProcedureCode & the Specific Relief Act in Bangladesh has incorporated the above principle.The Civil Procedure Code entitles a civil court to entertain all kinds of suitsunless they are prohibited. The Specific Relief Act provides for equitableremedies 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 ofcivil nature unless there barred.Specific Relief Act:-1.Specific performance of contract2.Rectification of instruments3.Injunctions4.Declaratory suitMaxim 2Equity follows the lawMeaning: Latin term “Acquits sequitur legem”. The equity court observed common lawwhile administering justice according to conscience.Maitland says that,“We ought not to think of common law & equity asof two rival systems. Equity has come not to destroy the law but to fulfill it, tosupplement it, to explain it.”Every jot & every title of law was to be bayed, but when all this had been doneyet something might be needed, something that equity would require & that wasadded by equity. There goal was the same but due to historical reason they chosedifferent path.Equity respected every word of law & every right at law but where the law wasdefective, in those cases, equity provides equitable right & remedies.According to Snell,“If some important point is disregarded by commonlaw court, then equity interferes.”Thus, Equity follows the law but not always.Recognition in Bangladesh: Bangladesh has not recognized the distinction betweenequitable and legal interest. Equity rules therefore in Bangladesh can notoverride the specific provisions of law. As for example, every suit in Bangladeshhas to be brought within the limitation period and no judge can create canexception to this or can prolong the time – limit. Similarly no court can conferrights, which can be acquired only by registration of a document, on a party,without getting the document registered.Maxim 3He who seeks equity must do equityMeaning: The maxim means that to obtain an equitable relief the plaintiff musthimself be prepared to do equity.The plaintiff must recognize & submit to the right of his adversary; you must dounto your neighbors what you wish him to do unto you.
 
Recognition in Bangladesh: (1) The Contract Act, Under section 19-A of TheContract Act contracts entered into under undue influence are voidable andtherefore a party to a contract who has the potion of getting the contractdeclared void will have to return the benefits so abstained to the party form whomhe abstained it under such contract. This is but proper, because one cannotbenefit twice. One cannot opt out the liabilities form such contract.(2) Under the Transfer of Property Act, Section 35 embodies the principle ofelection which rests on the principle of “approbate & reprobate” as is known inScotland, meaning thereby that a men shall not be allowed to approbate &reprobate.Section 51 of the Transfer of Property ActSection 30 of the Specific Relief Act 1877Maxim 4He who comes into equity must come with clean handsMeaning: 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 veryidea is expressed in this maxim but in a different terminology. It is well knownthat ex turpi causa non oritur action, no cause of action forma base cause. Assaid in previous maxim, he who seeks equity must do equity that is, one must beprepared and willing to behave and to do what, according to the principle ofmorality, justice and reason, is fair and just. While applying this maxim thecourt believed that the behavior of the plaintiff was that not against consciencebefore he came to the court for its assistanceRecognition in Bangladesh: (1) Section 23 of the Trust Act 1882(2) Section 17, 18 & 20 of the Specific Relief Act. Where the plaintiffs is guiltyof sharp practice, fraud & undue influence as detailed under Section 18 or wherethere is a contract to sell or let property by a plaintiff who has no title asspecified under Section 17, specific performance will not be granted to theplaintiff. The jurisdiction to specific performance under Section 20 isdiscretionary and the court id not bound to grant such a relief merely because itis lawful to do so. The courts discretion is not arbitrary but sound andreasonable, guided by judicial principle and capable of connection, by a court ofappeal.Maxim 5Delay defeats equitiesMeaning: Latin term “Vigilanibus, non dormentibus, jura subvenient”. It means“Equity aids the vigilant & not the indolent”. It is an undisputed axiom thateternal vigilance ids the price of liberty if one sleeps upon his right, his rightwill slip away form him.Where an injured party has been slow to demand a remedy for a wrong, which he hasfor a long time regarded with apparent indifference, the court will decline togive him that remedy.Recognition in Bangladesh: Article 113 of The Limitation Act 1908, which fixes aperiod of three years within which a suit for specific performance should bebrought.Section 51 of The Transfer of Act in Bangladesh embodies this doctrine.
 
Section 56 of the Specific Relief Act, under this section, injunction cannot begranted(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 equitymust 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 theestoppels party has not pay compensation while the latter does not preventeviction but puts the evictor on equitable terms as regards compensation with anoption to sell his interest to the person sought to be evicted.Maxim 6Equality is equityMeaning: Plato defines equality as “a sort of justice”. And further pointes outthat “if you cannot find any other, equality is the proper basis”. This maxim isexplained also as equity delighted in equality”, which means that as far aspossible equity would put the litigating parties on an equal level so far as theirand responsibility are concerned. The maxim expresses the object of both law andequity in order to effectuate a distribution of property and losses, proportionateto several claims & liabilities of the parties concerned. Equity therefore meansproportionate equality.Justice Fry said,“When I said quality, I don’t mean necessarily equality in itsimplest form, but which has been something called proportionate equity”.Recognition in Bangladesh: All these four doctrine resulting form the applicationof the maxim is “equality is equity” have been recognized in Bangladesh undervarious enactments:(1) The Contract Act, Section 42, illustrates tenancy in common as regardsdevolution of liabilities.(2)Section 43 illustrates that one of a number of promisors who has performedthe promise is entailed to compel the other promisors to contribute equally withhim.(3)Section 69 & 70 illustrate the doctrine of marshalling.(4)Transfer of Property Act, Section 56 illustrates the doctrine ofmarshalling.(5)The Trust Act, Section 27, there is contribution also as between co-trustee.Maxim 7Equity looks to the intent rather than the formMeaning: As is seen before, Common Law was very rigid and inflexible. It could notrespond favorably to the demands of time. In respect of acquisition and transferof property, it regarded the form of a transaction to be more important than itssubstance. Moreover it expected the contracting parties to rigidly observe theiragreements and to perform their stipulation to the very letter (litera acripta) ofevery promise or agreement.Recognition in Bangladesh: The principle contained in the maxim has beenrecognized under Bangladeshi Law in section 55 and 74, The Contract Act.Section, 114 and 114-A of The Transfer of Property Act.
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
Naveen Marasinghe

great analysis...thanks for the upload!

reply08 / 29 / 2010
You must be to leave a comment.
Submit
Characters: ...