LLb 20503 Intro to Equity_ 2018/19 9/27/2018

LLB 20503 LEARNING OUTCOMES

LAW & EQUITY
OBJECTIVES OF THIS TOPIC –
To study the definition of equity
To understand the nature of equity
To identify the functions of equity in the development of
the English legal system
Topic 1: INTRODUCTION & NATURE OF
EQUITY
SEM 1 2018/19

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INTRODUCTION INTRODUCTION
Law of equity originated from a source which is very different
Concepts/
principles from the common law.
A study of the principles and rules developed & applied by the
Chancery Court.

Equity It is more concern with the conduct of parties in each situation
rather than just with the literal application of the law.
More philosophical in nature.
Its practical application is more evident in civil matters and
Remedies integrated with the substantive law principles.

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LLb 20503 Intro to Equity_ 2018/19
WHAT IS EQUITY?
No standard or comprehensive definition
From Latin term “aequitas equitas” = fairness or
justice/equality
Popular definition – fairness/justice or the quality of being fair
& just
Generally, it connotes equality or justice and derives its
authority in the principles of natural justice
Legally - body of rules which exists by the side of common
law & supersedes the law in case of conflicts of law with justice
and fair play.
LLB 20503 MURSHAMSHUL K MUSA (C) FUHA UNISZA
FUNCTIONS OF EQUITY
As a gloss upon the common law to overcome the severity and deficiencies
of the common law rules; to ensure justice is carried out in the Courts.
Developed in responses to the rigid technical procedures of the common law
- to supplement and mitigate the harshness of it.
Sir Nathan Wright in then case of DUDLEY v DUDLEY (1705) Prec. Ch. 241
described it as :-
 “Equity is …. a moral virtue, which qualifies, moderates, and
reforms the rigour, hardness and edge of the law, … it does also assist the
law where it is defective and weak in the constitution …. and defends the
law from crafty evasions, delusions, and … to support and protect the
common law from shifts and crafty contrivances against the justice of law.
Equity therefore does not destroy the law, nor create it but assist it…”
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WHAT IS..?
Equity includes elements of natural justice, good conscience and
fairness.
Technically : the body of rules developed and applied by the
High Court of Chancery in England. -“the body of principles
developed by the Court of Chancery prior to 1873 as since
modified by courts administering that jurisdiction”
Encyclopedia Britannica: a system of law/ legal principles which
have superseded or supplemented the Common law in case of
conflicts with natural justice .
Function: when law becomes rigid and causes hardship, injustice or
defective; the Court will intervene when the acts/omission is
“against the conscience”
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EQUITY IN ANCIENT TIMES
Aristotle, 23 centuries ago, defined equity as - that idea
of justice which contravenes and corrects the written law
when it is in error. He regarded equity as the process
through which a deviant man-made law is brought in
harmony with the law of God or the law of reason.
To him, equity is more of judicial discretion which modifies
the administration of law than trying to supersede it.
Early European civil law which was under the influence of
Roman Law identifies equity as similar to justice.
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ARISTOTLE DEFINES EQUITY… DIFFERENCES WITH COMMON LAW

“it is equity to pardon human failings, and to look to To best understand the differences, learn through
the lawgiver and not to the law; to the spirit and not
to the letter; to the intention and not to the action; to historical event.
the whole and not to the part …”
Basic differences lies in :
 Rhetoric I.XIII.1374a. -
“what creates the problem is that the equitable is just, The source/origin of each legal rules
but not the legally just but a correction of legal The set of remedies that each has to offer
justice. The reason is that all law is universal but about
some things it is not possible to make a universal The subject matter of each legal rules
statement which shall be correct.”
Ethics (v.x)

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MAIN REFERENCES
RE -CAP
Equity & Equitable Remedies in Malaysia, 2016, by
Zuraidah Ali, Sh Zubaidah Syed Abdul Kader, Nor
Though initially the term equity starts as a vague Asiah Mohamad, Hamimah Hamzah, Lexis Nexis
concept involving fairness and justice and doing Equity & Trusts in Malaysia, 2nd Edition, 2013 by
what is right according to good conscience – these Mohsin Hingun & Wan Azlan Ahmad, Sweet &
equitable concepts have developed into solid Maxwell
principles which are applied in today’s legal Specific Relief Act 1950
justice system.
Any text book on Equity & Trusts either from UK or
E.G. - Concept of trust, estoppel. Australia – Scott Atkins
Articles in legal journals – Lexis Nexis, CLJ,
universities legal journals
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REFERENCES
EQUITY & TRUSTS IN MALAYSIA, 2ND EDITION – Chap 1.
R. EDWARDS & NIGEL STOCKWELL – TRUSTS & EQUITY
(BLACKSTONE) – Chap. 1.
SNELL’S ON EQUITY – Chap. 1
PETTIT (6th ed) – EQUITY & LAW OF TRUSTS – Chap. 1
HANBURY & MAUDSLEY – MODERN EQUITY – Chap. 1.

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