LAWS OF EQUITY PROJECT

TOPIC: DEFINTION, NATURE AND

SCOPE OF EQUITY

IN PARTIAL FULFILLMENT OF FIVE YEARS

B.A. LLB. CURRICULUM

ARMY INSTITUTE OF LAW

2016-2021

SUBMITTED TO: SUBMITTED BY:

PROF. ANMOL BAJWA LOKENDRA SINGH

ROLL NO.: 1605

5TH YEAR [10TH SEM.]

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 TABLE OF CONTENTS
ACKNOWLEDGEMENT ........................................................................................................... 3

INTRODUCTION ..................................................................................................................... 4

DEFINITION .......................................................................................................................... 4

NATURE ................................................................................................................................ 5

SCOPE ................................................................................................................................... 7

CONCLUSION ...................................................................................................................... 10

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 ACKNOWLEDGEMENT
I would like to express my gratitude to the Interpretation of Statutes
Subject Teacher, Prof. Anmol Bajwa for her kind co-operation and
encouragement which helped us in completion of this project.

It would not have been possible without the kind support and help of
many individuals and this institution. I would like to extend my sincere
thanks to all of them.

I am highly indebted to Punjabi University and Army Institute of Law

for their supervision as well as for providing necessary information
regarding the project and also for their support in completing the project.

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INTRODUCTION

Equity is a Latin word which means fairness, justice. It is a system of law originating in the
English chancery and comprising a settled and formal body of substantive and procedural rules
and doctrines that supplement, aid, or override common and statutory law.

Equity is based on a judicial assessment of fairness as opposed to the strict and rigid rule of
common law. For centuries, the common law was referred to as the law, in contrast with equity.

The typical Court of Equity (also known as Court of Chancery) decision would prevent a person
from enforcing a common law court judgment. The kings delegated this special judicial review
power over common law court rulings to a judge called chancellor, the court the Chancery.
Later, this was too much work for a single judge and more judges were appointed, called
chancellors. The term Chancellor is still in use in England today and now refers to the British
minister of justice. Thus, a new branch of law developed known as equity, with their decisions
eventually gaining precedence over those of the common law courts.

DEFINITION OF EQUITY BY VARIOUS JURISTS

1. Mainland: “Equity now is that body of rules administered by English Courts of justice
which were if not for the operation of the judicature Acts, would be administered only by those
courts which would be known as Courts of Equity.”

2. Aristotle: “There is a set of rules which have the force of laws, i.e a set of codified dicta
that govern the community.”

3. Sir Henry Maine: "A body of rules existing side by side of the original common law,
founded on distinct principles and claiming incidentally to supersede the common law by virtue
of a superior sanctity inherent in those principles."

Therefore,

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Equity: ‘modification of common law: the system of jurisprudence that supplements common
and statutory law, when those bodies of law are inadequate in the attainment of justice; justice
tempered by ethics: justice applied in conformity with the law, but influenced at the same time
by principles of ethics and fair play; and fair claim: a claim that is judged to be just and fair.’

NATURE OF EQUITY

The nature and scope of equity says that equity must preliminary mean right doing, or justice in
the purely ethical meaning of that word. In England equity has acquired an entirely specialized
meaning. It includes technically only certain rules which were developed in the court of
chancery. The basis for its creation may have been the desire to do right thing between men
according to the moral law of time, but it was always limited and has now become a fix body of
principles of the common law.

 Describing the nature of Equity, Lord Cowper in Dudley v. Dudley1 said that:

“… equity … qualifies, moderates and reforms the rigour, harshness and edge of the law. The
office of equity is to support and protect the common law from shifts and crafty contrivances
against the justice and the law. Equity therefore does not destroy the law, nor create it, but assist
it. - e.g specific performance may be ordered when common law damages are inadequate.
Contract for sale of rare ming dynasty vase, seller changed mind. Or in real estate no plot of land
is the same. Court of equity prevails over common law and may provide specific performance
rather than a monetary compensation.

 Equity supplements the general law by intervening in cases where the CL is in some respect
deficient.

It is no longer possible to claim redress simply upon moral grounds; it is necessary to show some
principles recognized by the system of Equity before a remedy can be granted.

1
Prec Ch 241 at 244 (1705); 24 ER 118 at 119.
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 Firstly, equity has enforced rights which the common law Courts failed to enforce;
 Secondly, equity has developed additional remedies to the common law for the enforcement
of common law rights.
 Lastly, the procedure in the Common law Courts was defected, especially is not compelling
or even allowing a defendant to give evidence and in limiting the enquiry to the action.

Equity and its functions are discussed in the case of Tinsley v Milligan2; this case consisted of
two women who jointly shared a home under one name, thus allowing the other to claim
benefits, during conflict the legal owner of the home decided to evict her partner. Upon this the
other woman stated she had equitable interest within the property, the case was disallowed due to
the fraudulent use of their relationship,. the claimant categorised afoul of the aphorism “he who
comes to equity must come with clean hands”, this decision was later reversed in the Court of
Appeal, although they agreed with the proverb however the facts presented before them
permitted them to decide that this wasn’t an affront and endorsed her claim.

The House of Lords rejected this supple approach and argued that it would lead to great
uncertainty in dealing with something as difficult as to enumerate public ethics. From this it is
made apparent that the courts have no flexibility in conjunction with this maxim, therefore ought
to persist to pertain it to refute any unconscionable plaintiff relief.

An example of an equitable doctrine which has developed considerably, is proprietary estoppel,

this is visible in the case of Dillwyn v Llewellyn3, quintessentially where encouragement and
acquiescence is visible equity will arbitrate and regulate the privileges of parties, an example of
this can be seen in Inwards v Baker4, in this a son was encouraged by his father to build a
bungalow on his father’s land, in promise that his son would retain land once the father passed
away, in actuality after his father passed away his beneficiaries asserted right to the land, the
Court of Appeal said that the son could continue living there as the father be estopped from
fallaciously commencing promise due to the son acting upon his father’s reliance.

2
1 AC 340 (1994).
3
EWHC Ch J67 (1862).
4
2 WLR 212 (1965).
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This doctrines flexibility can be seen in coincide with Gillett v Holt5 in which a fee was
awarded, however the case of Matharu v Matharu 6 the right to remain on land was the overall
outcome, with the courts main issues being satisfying the claimant whilst upholding justice.

SCOPE OF EQUITY

Penn v. Lord Baltimore7 & Baker v. Archer-Shee8

(i) Equity will not suffer a wrong without a remedy – equity gives you remedies where cl is
unable to e.g ming vase Equitable remedies evolved to meet the deficiencies in the common law.

Example: At common law, a borrower forfeited mortgaged land if there was a failure to repay the
loan in full on the due date. Equity then responded to this by recognising the equity or
redemption, which allowed the borrower to reclaim the land when the loan was repaid, even if
repayment occurred after the due date.

(ii) Equity follows the law – it begins after law, it needs the law to supplement it.

It recognises legal interests e.g trusts Reflects the fact that equity’s primary role is as a curative
supplement to the deficiencies of the common law, not as a rival system. Equity recognises
common law rights, estates, interests and titles and does not say that such common law interests
are not valid.

(iii) He who seeks equity must do equity - Plaintiffs in equity must fulfil their legal and equitable
obligations before seeking a remedy – equity’s version of the golden rule ‘do unto others as you
would be done by’.

Example: Verduci v Golotta9 – a mortgage that was entered into as a result of undue influence
could be set aside in equity, but only on the condition that the borrower repaid the sum borrowed
together with reasonable interest.

5
3 WLR 815 (2000).
6
CA 29 June (1994).
7
(1750).
8
(1927).
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(iv) He who comes to equity must come with clean hands

A plaintiff in equity must not be guilty of some improper conduct, or else relief will be denied.
Equity is not solely concerned with preventing unconscientious conduct by a defendant, but also
requires conscientious behaviour by the plaintiff.

(v) Equity aids the vigilant and not the tardy (delay defeats equity)

In seeking equitable relief, a plaintiff must act promptly and diligently. Equity will not allow
defendants to remain for too long in position of not knowing whether equitable relief will be
ordered against them, it would be unconscientious to do so.

(vi) Equality is equity

Equity’s aim is to distribute profits and losses in proportion to the claims and liabilities of the
parties concerned.

(vii) Equity will not assist a volunteer

“Like other maxims of equity, it is not a specific rule or principle of law. It is a summary
statement of a broad theme which underlines equitable concepts and principles. Its precise scope
is necessarily illdefined and somewhat uncertain.” Corin v. Patton10. A volunteer is a person
who has not given valuable consideration – consideration need not be paid or executed

(viii) Equity looks to the intent rather than to the form

Example: A failure to complete a contract on the date stipulated, time not being of the essence by
express provision or implication, will not result in a breach justifying termination. Equity will
permit completion to take place within reasonable time after the stipulated date.

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(1997).
10
169 CLR 540 (1990).
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(ix) Equity looks on that as done which ought to be done

Most often in contract law and is the basis of specific performance. – the agreement is
specifically enforceable and thus this is why this maxim exists.

(x) Equity acts in personam – the cl acts in rem = if there is a common law breach someone’s
property is at risk.

But in equity Penelaw v Baltimore11 – it recognises personal rights – it binds the conscience of
the parties, but now it also acts in rem (proprietary rights) Shows that equity is chiefly concerned
with rectifying the morally blameworthy conduct of the defendant himself. In equity, remedies
are attached to the person of the defendant (not the property e.g. the defendants assets).

Developments in areas of equitable remedies in coincidence with injunctions can be seen in the
case of Anton Pillar KG v Manufacturing Processes Ltd 12 in which a search order was
developed thus allowing a claimant to enter the defendant’s premises allowing the person to
search and seize property with a risk of it being destroyed before trial, this continues to be
developed and is still used today. Equity at times faces setbacks but continually seems to be
refined, when new principles are developed and judges rationalise they do so with equitable
principles within the forefront of their minds.

11
(1833).
12
1 All ER 779 (1976).
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 CONCLUSION
So, we can say that-

 The general rule is that equity follows the law and the equitable interests have in general
the same incidents and attributes as have corresponding legal interests. They devolve and
can be settled, mortgaged and disposed of precisely in the same way as legal interests.
 Equity follows the law and as such a legal estate or interest takes procedure over the
equitable estate or interests. That is, in case of conflict between equity and law, the law
prevails.
 An equitable right arises when a right vested in one person by the law should, in the view
of equity, be, a matter of conscience, vested in another.

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