The high court has recently affirmed the importance of equity and dismissed the suggestion that unjust enrichment has explanatory power in relation to traditional equitable doctrines such as. In general, the leading cases on equitable doctrines and remedies are very old. Equity definition is justice according to natural law or right. Doctrine definition, a particular principle, position, or policy taught or advocated, as of a religion or government. Full text of the doctrine of equity a commentary on the law. Equity body of cases, maxims, doctrines, rules and remedies which derive ultimately from specific jurisdiction by that court 1. Pdf development of the principles of equity in the. This thesis will consider the role and definition of conscience and unconscionability in english equity. A transfer of future property for consideration operates as a contract to be performed in future. A study in tie relationsiiip between common law and equity in contractual mistake the starting point for this study is the recent case of solle v. Section 25 of the judicature act 1873 provided that. He who comes to equity must come with clean hands, he who seeks equity must be prepared to do equity or equity does not aid the indolent but the vigilant.
How equity conquered common law now the federal rules and adjudication of civil disputes are under attack. Free practical law trialto access this resource, sign up for a free trial. Essien sources of law in ghana 249 ascertainment of the content of customary law has been helped also by text writers conversant with customary law. Doctrine of basic structure the basic structure doctrine is an indian judicial principle that. Apr 10, 2006 equity in contracts can be seen in the fields of restitution, unjust enrichment, mistake and estoppel. The doctrine of equity is a principle of interjurisdictional water allocation developed by the u. Equity also possesses a technical meaning that may be divided into two categories, that is the general juristic concept and the technical juridical concept all of which supplement each other and affect the administration of justice 1 i. Principles, practice and procedure by geoff lindsay sc, 25 november 2003 revised 20 september 2007 topic page i introduction 2 4 ii an historical perspective of equity 417 ii.
Doctrines and remedies of which heydon j is a current editor, the presence of gummow and heydon jj on the high court, the presence of meagher ja on the nsw court of appeal. Equity might be described as softening or correcting the common law. Equity remains a cornerstone of australian private law. Definition a rule or principle of law, especially whenestablished by precedent. Ii a history of equity a introduction understanding the history of equity is an important guide to analysing its application in case law. States relations doctrine of the equality of states. In order to advance a claim in equity, the seeker of equity must first establish facts under which the law of equity applies. The application of equitable doctrines by the courts in east. The court of chancery applied the doctrines andmaxims interchangeably. Development of equity law and distinction from common law the peculiar nature of equity is only in part due to its historical development.
Maxims of equity are legal maxims that serve as a set of general principles or rules which are. In law, the term equity refers to a particular set of remedies and associated procedures involved with civil law. Mar 16, 2011 c subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in england on the 12th august,1897, and the procedure and practice observed in courts of justice in england at that date. A set of general principles which are said togovern the way in which equity operates, illustratingthe qualities of equity. One understands common law to mean precedent or law created by decisions of the courts. Synopsis equity in simple terms means whatever is just or right in mans being with fellow man. Equity is used in two main ways in the laws of commonwealth africa. However it was in 1963 that the specific relief act was passed by the parliament of india following the recommendation of the law commission of india and repealing the earlier specific relief act of 1877. The critical premise is that the surviving equitable remedies and equitable doctrines should not be. Among the key targets are discovery abuse,7 expense and delay, excessive judicial power and discretion, excessive court. The views presented in this paper are those of the. But without knowing their full meaning and implications, we liberally use them in formal contexts.
While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur. Among the key targets are discovery abuse,7 expense and. That an heir acquiring an incumbrance should be allowed no more but what he really paid, or, which comes to the same, that he should be bound to communicate eases, is a proposition more agreeable to the principles of equity. Equitable maxims and doctrinesby janice mcmullen, deputy district judge and civil recorder on the north eastern circuit, with practical law dispute resolutionrelated contentan overview of the most common equitable maxims and doctrines. In this paper i will explore whether equity is such a general principle. A doctrine is a belief, principle or position usually upheld by authorities like courts. Although the granting of equitable relief is discretionary, it is not arbitrary. Equity, on the other hand, is associated with the principles of fairness and equality. Smiths recent work on equity, which emphasizes the affinity and similarity in equitable doctrines. History illustrates the values that shape equity s application and future development. Principles of equity and contracts by shaswata dutta ssrn. Although particular principles pierced the contract law to a different degree, the author concludes there is a common denominator under the three doctrines. The international court of justice has decided or given advisory opinions in over. A study in the relationship between common law and equity.
Supreme court in response to interstate water conflicts. English law before the introduction of the principle of equity was mainly governed by. History illustrates the values that shape equitys application and future development. Nov 19, 2014 the maxims of equity evolved, in latin and eventually translated into english, as the principles applied by courts of equity in deciding cases before them. This note explains what each equitable maxim means and how it is applied by the courts. The question of principles of natural justice arise only in the following relationships. As far as indian judiciary is concerned, there are many doctrines.
The views presented in this paper are those of the author and do not necessarily represent the views of odi. Whilst conscience is at the heart of equity, surprisingly little has been written, either academically or juridically, about how equity uses and defines unconscionability. Powers of a court of equity founded on the principle of utility. Many of you may be familiar with the doctrine of basic structure. Renata petrylait can the doctrine of equitable estoppel be applied against a government. In india the common law doctrine of equity had traditionally been followed even after it became independent in 1947. Equity is also used to describe the money value of property in excess of claims, liens, or mortgages on the property. This maxim means that when individuals are required, by their agreements or by law, to perform some act of legal significance, equity will regard that act as having been done as it ought to have.
The doctrine of equity was created to fill in the gaps of common law by providing more flexible remedies, unlike common law which only provide damages such as injunction, specific performance, equitable estoppel etc. Difference between common law and equity compare the. Equitable remedies and doctrines flashcards quizlet. Com the maxims of equity maxims of equity are principles developed by the english court of chancery and other courts who have administered equity. It is the preeminent publication on equity in both australia and england. The researcher would like to look into the nature of equity to bring about a relationship between equity and contracts. History shows how equity s doctrines and remedies have evolved, revealing broad trends and. Nevertheless, courts of equity also developed a doctrine that an applicant must assert a property interest. Equality of constitutional right and power is the condition of all the states of the union, old and new. Doctrines and remedies is a scholarly legal text originally composed by three australian judges, roderick meagher, william gummow and john lehane. The new constitutional order changes this position by making the general principles of international law part of the kenyan law.
The doctrine of laches is limited by cap 22 and the maxim is that equity follows delay defeats equities, or, equity. The function of equity is to restrain or restrict the exercise of legal rights and powers in particular cases, whenever it would be unconscionable for them to be exercised to the full. Although the granting of equitable relief is discretionary, it. This was a limitation on their own power to issue relief. History shows how equitys doctrines and remedies have evolved, revealing broad trends and. This chapter examines the utility of equitable maxims, the operation of equitable doctrines, and the award of equitable remedies. The maxims of equity explained linkedin slideshare.
The fusion fallacy exists to the extent that the judicature act itself does not permit the fusion of equity and common law jurisdiction, but was purposed merely for procedural and administrative matters. The english doctrine of delay and laches showing negligence in seeking relief in a court of equity can not be imported into the bangladeshi law in view of article 1 of the limitation act, 1908, which fixes a period of one year previously three years within which a suit for specific performance should be brought. This is the law of england, and it is the law of scotland with regard to heirs who take the benefit of in. Encyclopedia of the great plains doctrine of equity. However, this did not fuse the principles of common law and equity, which still. They are not rules that must be rigorously applied but malleable principles intended to serve the ends of fairness and justice. Johnson, 1852 equity pleading and procedure 760 pages. We often hear the terms principles of natural justice and principle of equity. Abstract one of the most remarkedupon achievements of the first restatement of the law of restitution was the consolidation into a single treatment of all of the law that concerned the reporters, whether it came from common law or equity. Doctrine definition is a principle or position or the body of principles in a branch of knowledge or system of belief. This does not mean that the courts of equity had taken jurisdiction over property. Originally developed by the old court of chancery in constructive competition with the common law courts, equity is now applied by the unified supreme court of england and wales. A string of cases in the 1980s saw the high court of australia reaffirm the continuing vitality of traditional equitable doctrines.
Equity refers to the doctrines and remedies developed in the. That body struck out from this section, as reported by the. Insofar as equitable assignments are concerned no equitable estate is recognized in bangladesh. The development of equity and the good person philosophy. It is also necessary to understand that equitable principles are distinctive from, but not necessarily incompatible with, those of common law discuss. In this article, we will be dealing all important indian judicial doctrines. It is a doctrine of necessity because of the juxtaposition of the legal theory allowing each state to develop its own form of water law against the physical reality that streams flow from. Humer that, the doctrine of part performance works on the principle of equity and it considers something as done which ought to have been done. Other equitable doctrines legal definition of other equitable. Indian judicial doctrines principles of constitutional law.
There, the broad facts were that after making struc tural alterations in a certain flat the defendant let it to the plaintiff. In the subsequent chapters the researcher intends to analyze the role of the principle of equity in contracts. Sep 25, 2007 many of the doctrines of english equity have taken statutory form in bangladesh. Undue influence, unconscionable conduct and estoppel.
The difference between the position of equity in the older constitutional dispensation and the current one is that. Certain instances of the doctrines application are argued as easing the uncompromising contract law. Maxims of equity are legal maxims that serve as a set of general principles or rules which are said to govern the way in which equity operates. These equitable doctrines and procedures are distinguished from legal ones.
This article is concerned with the application of the doctrines of equity by the courts in east africa. Once a rule in equity had become fully established in practice, it became part of the fixed rules of common law. One must also understand the doctrine of specific performance would also be looked into as it is major area in the case of contracts where equity plays a significant role. Comparative analysis of impact of equity doctrines on. They tend to illustrate the qualities of equity, in contrast to the common law, as a more flexible, responsive approach to the needs of the individual, inclined to take into account the parties conduct and worthiness. Customary law was not applicable if it was repugnant to natural justice, equity and good conscience. For a brief outline of the maxims, doctrines and remedies developed under equity. Equity only governed by the maxims where it is based on the principles of fairness and conscience and are not as strict as common law. Since the terms common law and equity represent two branches or avenues of law not created by legislation, we should get to know the difference between common law and equity. Principles, practice and procedure by geoff lindsay sc, 25 november 2003 revised 20 september 2007 topic page i introduction 2 4.
Where there is conflict between common law and the law of equity, the law of equity prevails. Full text of the doctrine of equity a commentary on the law as administered by the court of chancery see other formats. John adams, james reily ludlow, john macminn collins. It is a doctrine of necessity because of the juxtaposition of the legal theory allowing each state to develop its own form of water law against the physical reality that. The maxims do not cover the whole ground, and moreover they overlap, one maxim contains by implication what belongs to. Learn vocabulary, terms, and more with flashcards, games, and other study tools. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of. This meant that the borderline between common law and equity was flexible. Difference between the english law and the rule contained in section 53a the important points of difference between the english equitable doctrine and the rule contained in this section are. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of common law. Doctrine of equity court of chancery equity law free 30day.