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Equity of Maxim

Equity of Maxim

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Published by: RedfieldHasArrived on Mar 17, 2009
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Maxim 1 Equity will not suffer a wrong to be without a remedy Meaning: Latin term “Ubi jus ibi remedium”

. Where there is a right, there is remedy It means that no wrong should go undressed if it is capable of being remedied by courts. Where there is a wrong. There is a remedy. Where there is right there is a remedy. Aright without a remedy is a vex thing. Recognition in Bangladesh: The Trust Act 1882, Section 9 of the Civil Procedure Code & the Specific Relief Act in Bangladesh has incorporated the above principle. The Civil Procedure Code entitles a civil court to entertain all kinds of suits unless they are prohibited. The Specific Relief Act provides for equitable remedies like specific performance of contracts, ratification of instruments, injunction & declaratory suits. Sec-9 and sec-151 of CPC – CIVIL courts have jurisdictions to try all suits of civil nature unless there barred. Specific Relief Act:1. Specific performance of contract 2. Rectification of instruments 3. Injunctions 4. Declaratory suit

Maxim 2 Equity follows the law Meaning: Latin term “Acquits sequitur legem”. The equity court observed common law while administering justice according to conscience. Maitland says that, “We ought not to think of common law & equity as of two rival systems. Equity has come not to destroy the law but to fulfill it, to supplement it, to explain it.” Every jot & every title of law was to be bayed, but when all this had been done yet something might be needed, something that equity would require & that was added by equity. There goal was the same but due to historical reason they chose different path. Equity respected every word of law & every right at law but where the law was defective, in those cases, equity provides equitable right & remedies. According to Snell, “If some important point is disregarded by common law court, then equity interferes.” Thus, Equity follows the law but not always. Recognition in Bangladesh: Bangladesh has not recognized the distinction between equitable and legal interest. Equity rules therefore in Bangladesh can not override the specific provisions of law. As for example, every suit in Bangladesh has to be brought within the limitation period and no judge can create can exception to this or can prolong the time – limit. Similarly no court can confer rights, which can be acquired only by registration of a document, on a party, without getting the document registered. Maxim 3 He who seeks equity must do equity Meaning: The maxim means that to obtain an equitable relief the plaintiff must himself be prepared to do equity. The plaintiff must recognize & submit to the right of his adversary; you must do unto your neighbors what you wish him to do unto you.

Recognition in Bangladesh: (1) The Contract Act, Under section 19-A of The Contract Act contracts entered into under undue influence are voidable and therefore a party to a contract who has the potion of getting the contract declared void will have to return the benefits so abstained to the party form whom he abstained it under such contract. This is but proper, because one cannot benefit twice. One cannot opt out the liabilities form such contract. (2) Under the Transfer of Property Act, Section 35 embodies the principle of election which rests on the principle of “approbate & reprobate” as is known in Scotland, meaning thereby that a men shall not be allowed to approbate & reprobate. Section 51 of the Transfer of Property Act Section 30 of the Specific Relief Act 1877

Maxim 4 He who comes into equity must come with clean hands Meaning: Equity, as it was based on good faith and conscience, demanded fairness, uprightness and good faith not only form the defended bit also form the plaintiff. It is therefore aptly said that, “he that hath committed an inequity”. This very idea is expressed in this maxim but in a different terminology. It is well known that ex turpi causa non oritur action, no cause of action forma base cause. As said in previous maxim, he who seeks equity must do equity that is, one must be prepared and willing to behave and to do what, according to the principle of morality, justice and reason, is fair and just. While applying this maxim the court believed that the behavior of the plaintiff was that not against conscience before he came to the court for its assistance Recognition in Bangladesh: (1) Section 23 of the Trust Act 1882 (2) Section 17, 18 & 20 of the Specific Relief Act. Where the plaintiffs is guilty of sharp practice, fraud & undue influence as detailed under Section 18 or where there is a contract to sell or let property by a plaintiff who has no title as specified under Section 17, specific performance will not be granted to the plaintiff. The jurisdiction to specific performance under Section 20 is discretionary and the court id not bound to grant such a relief merely because it is lawful to do so. The courts discretion is not arbitrary but sound and reasonable, guided by judicial principle and capable of connection, by a court of appeal.

Maxim 5 Delay defeats equities Meaning: Latin term “Vigilanibus, non dormentibus, jura subvenient”. It means “Equity aids the vigilant & not the indolent”. It is an undisputed axiom that eternal vigilance ids the price of liberty if one sleeps upon his right, his right will slip away form him. Where an injured party has been slow to demand a remedy for a wrong, which he has for a long time regarded with apparent indifference, the court will decline to give him that remedy. Recognition in Bangladesh: Article 113 of The Limitation Act 1908, which fixes a period of three years within which a suit for specific performance should be brought. Section 51 of The Transfer of Act in Bangladesh embodies this doctrine.

Section 56 of the Specific Relief Act, under this section, injunction cannot be granted (1) The former arises out of a presumption of a contract while the latter (Section 51, Transfer of Property Act) rests on the maxim “He who seeks equity must do equity”). (2) The former principle is wider than the latter one. (3) Where the former is invoked there is no question of eviction at all and the estoppels party has not pay compensation while the latter does not prevent eviction but puts the evictor on equitable terms as regards compensation with an option to sell his interest to the person sought to be evicted. Maxim 6 Equality is equity Meaning: Plato defines equality as “a sort of justice”. And further pointes out that “if you cannot find any other, equality is the proper basis”. This maxim is explained also as equity delighted in equality”, which means that as far as possible equity would put the litigating parties on an equal level so far as their and responsibility are concerned. The maxim expresses the object of both law and equity in order to effectuate a distribution of property and losses, proportionate to several claims & liabilities of the parties concerned. Equity therefore means proportionate equality. Justice Fry said, “When I said quality, I don’t mean necessarily equality in it simplest form, but which has been something called proportionate equity”. Recognition in Bangladesh: All these four doctrine resulting form the application of the maxim is “equality is equity” have been recognized in Bangladesh under various enactments: (1) The Contract Act, Section 42, illustrates tenancy in common as regards devolution of liabilities. (2) Section 43 illustrates that one of a number of promisors who has performed the promise is entailed to compel the other promisors to contribute equally with him. (3) Section 69 & 70 illustrate the doctrine of marshalling. (4) Transfer of Property Act, Section 56 illustrates the doctrine of marshalling. (5) The Trust Act, Section 27, there is contribution also as between co-trustee. Maxim 7 Equity looks to the intent rather than the form Meaning: As is seen before, Common Law was very rigid and inflexible. It could not respond favorably to the demands of time. In respect of acquisition and transfer of property, it regarded the form of a transaction to be more important than its substance. Moreover it expected the contracting parties to rigidly observe their agreements and to perform their stipulation to the very letter (litera acripta) of every promise or agreement. Recognition in Bangladesh: The principle contained in the maxim has been recognized under Bangladeshi Law in section 55 and 74, The Contract Act. Section, 114 and 114-A of The Transfer of Property Act.

Maxim 8 Equity looks on that as done which ought to be done Meaning: A between two persons, where one of them has incurred an obligation and undertaken upon himself to do something for the other, the equity courts look on it as done and as producing the same result as if the obligation or undertaking had been actually performed. Equity treats a contract to do a thing as if the thing were already done, though only in favors of volunteers’. In other words, as to the consequences and incidents of the subject matter of contract, it will be traded as if the final acts anticipated and contemplated by the parties have been carried out in the same manner as they ought to have been and as they might have been carried out. Equity acts on the conscience of a person. What one has undertaken to do, binding his conscience ought to be done and equity courts therefore look to the acts of the person bound by his conscience and interpret them in such a way that they amount to what ought to be done. Recognition in Bangladesh: The principle contained in the maxi m has been recognition in Bangladeshi law under following encasements: Section 12 of The Specific Relief Act relating to the specific performances of part of a contact also illustrates of the maxim. Section 53-A of the Transfer of Property Act illustrates the doctrine of partperformance as based on this maxim. Section 91 of The Truest Act 1882 dealing with property acquired with notice of existing contract is also illustrative of the application of this maxim. Maxim 9 Equity imputes an intention to fulfill an obligation Meaning: Equity courts came into existence to do justice. They strongly believed that a person must be prepared to do what is right and fair. An old saying goes “one must be just before one professes to be generous.” Equity considered acts of parties. Thus, where a person is under an obligation to do a certain act and he does some other act which is capable of being regarded as an act in fulfillment of his obligation, the latter will be so regarded, because it is right to put the most favorable construction on a man’s acts and to presume that he be generous. Recognition in Bangladesh: In Bangladesh, the English rule of presumption relation to satisfaction and ad-emption has been discarded. If a testator wants to satisfy his obligation by a subsequent gift, he must do so by express words. Section 177, 178 and 179 of the Bangladesh Succession Act make a deliberate departure from the English doctrine of satisfaction section 177 goes. “Where a debtor bequeaths a legacy to his creditor and it does not appear from the will that the legacy is meant as a satisfaction of the debt the creditor shall be entitled to the legacy as well as the debt.” The reason for this departure is that presumption recognized in England was objectionable in them or specifically inapplicable to Bangladesh. Section 92 of the Bangladesh Trust Act puts into practices the principle of this maxim. It explains that, “where a person contract to buy property to be held on trust for certain beneficiary and buys the property accordingly, he must hold the property for their benefit to the extent necessary to give effect to the contract.” Equity thus imputes an intention to fulfill an obligation.

Maxim 10 Where there is equal equity, the law shall prevail Meaning: It means that where the claims of the two persons are equally equitable, he who owns the legal estate in addition will be preferred. The plain meaning of the maxim, thus, is that the person in possession of the legal estate will get priority over any prior or subsequent equitable interests. Thus, when both the parties are equally entitled to obtain help from courts of equity because their equities are equal, the party who has law in his favor will succeed. Thus equitable interest is not as strong as legal interest and so, according to the maxim, the law shall prevail. Recognition of Bangladesh: Doctrine of election, Marshalling and set-off are based on this maxim. In Bangladesh, sec.35, 48 and 81 of the T.P. Act Order 8, Rule 6 of the CPC. Illustrate the maxim. As there is no distinction between legal and equitable interest in Bangladesh, no conflict exists between the two whatever exists in England. The general rule of priority, which is enacted in sec.48 of the T.P. Act, is that when successive transfer of the same property has been affected, the first in time shall get priority subject to the doctrine of notice.

Maxim 11 Where the Equalities are equal, the first in time shall prevail Meaning: Priority means the right to enforce a claim in preference to others. The question of priority arises when two or more persons have interest in the same property. As expressed in Rice vs. Rice 1853, priority is the right of a party to satisfy its own claim of interest in comparison to others. This maxim lays down that as between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity. Recognition of Bangladesh: Section 48 of the Transfer of Property Act (priority of right created by transfer) incorporates this principle. Section 78 of the same Act explains an exception to the maxim when a prior mortgage is postponed.

Maxim 12 Equality acts in personam Meaning: Equity court is a court of conscience. It operates in personam. Thus it brings an individual’s conscience under its way. Its decision is merely not concerning the right and liabilities but it also address to the parties. Thus, on the one hand, it bind the conscience of an individual, on the other hand, the Chancellor exercised its jurisdiction according to its conscience. The maxim describes the procedure of equity courts. It covers a large portion of procedural

and remedial a large portion of procedural and remedial action. Describing the extent of its application Hanbury in his modern Equity book commented that “In a sense it comprise the whole law of equity.” While Justice Mukharjea says, “The rule of action in personam is really the weapon with whish the early Chancellors sought to establish the jurisdiction in opposition to that of the Common Law Courts.” Recognition in Bangladesh: Some learned text writers say that no such jurisdiction is applied here. Some other says that courts of Bangladesh have not much but limited power of making a decree in personam. The Civil procedure code, Section 16 does not deal with the problem. It simply explains the division of jurisdiction of the municipal courts only.

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