Understanding the Law
October 5, 2012

Some time ago I gave you a short history of the common law and equity. This week I will focus some more on equity. You would recall that equity was introduced by the Court of Chancery in England to soften the harshness of the common law. Equity is discretionary. Perhaps the most important distinction between law and equity is the set of remedies that it offers. A court of law would offer monetary awards, but the court of equity would offer injunction and it would direct persons to act or not to act in a particular way.{{more}} However, equitable relief can only be obtained when there is no adequate relief in law. It nonetheless mitigates the rigours of the common law, allowing the court to use its discretion. It allows the court to apply justice in accordance with natural law. The principles have been used quite often in contract, trust and probate matters.

Equity is known for certain maxims that are in essence, general principles governing the operation of equity. But it is not every court will use them. The court prefers to use them in broad generalization and may use any one when it is appropriate to do so. The maxims are not always seen as a binding rule and may be applied. I now bring you some of the most popular maxims and in some cases explanations are offered.

1. Equity follows the law.

2. Equity will not permit a statute to be used as an instrument of fraud.

3. Where the equities are equal, the law prevails. Where the equities are equal the first in time prevails.

4. Equity looks to the substance rather than the form.

5. Equity will not suffer a wrong to be without a remedy.

6. Equity imputes an intention to fulfill an obligation.

7. He who comes to equity must come with clean hands.

8. Equality is equity.

9. Equity will not allow a trust to fail for want of a trustee.

10. Equity will not assist a volunteer.

11. He who seeks equity must do equity.

Equity follows the law

Equity sometimes appears to overcome the effect of the common law, but where possible equity will ensure that its rules are in line with the common law. Equity would come to the rescue of persons in the common law to soften its rigours, but it most often supplements it rather than contradict it.

Equity will not permit a statute to be used as an instrument of fraud.

Equity will not ignore a statute’s requirements, but it could be applied where it would be unconscionable to allow a party to rely on the law to the detriment of another. An old case of Bannister v Bannister [1948] 2 All ER 133 illustrates this. In that case the defendant negotiated to sell two cottages to the plaintiff. The defendant orally agreed to allow the plaintiff to live in one of the cottages rent-free. Because of that arrangement he only paid 200 pounds for the cottage that had a market value of 400 pounds. He afterwards tried to evict her because this agreement was not given in writings in accordance with the Law of property Act 1925 s 53 (1)(b). The Court of Appeal agreed that the oral contract was enforceable and that the plaintiff was a constructive trustee.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com