JAI NARAIN VYAS UNIVESITY

FACULTY OF LAW
JODHPUR

SESSION 2020-21
TOPIC= MAXIMS OF EQUITY
SUBJECT = EQUITY, TRUST AND FIDUCIARY
RELATION

SUBMITTED BY= SUBMITTED TO =

DILIP KUMAR JANI MAHIMA RATHORE MAM’M

BA LLB 5TH SEM FACULTY OF EQUITY

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my

guide Ms. MAHIMA RATHORE for her exemplary guidance, monitoring and
constant encouragement throughout the course of this project. The blessing, help
and guidance given by her from time to time shall carry me a long way in the
journey of knowledge on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to the staff of the
library for their cordial support, valuable information and guidance, which helped
me in completing this task through various stages.

I am obliged to staff members of JNVU, Jodhpur for the valuable information

provided by them in their respective fields. I am grateful for their cooperation
during my venture.

Through the medium of this project in the subject of Specific Contracts, I have
tried my best in giving the reader a full analysis of a Contract of Indemnity and a
Contract of Guarantee, their various aspects & relevant cases. I sincerely hope
that after going through my work on this topic, one will be enlightened on the
subject.

 Lastly, I thank everyone for their constant encouragement without which this
Herculean task would not be possible.

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-DILIP KUMAR JANI

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 INDEX
1 Introduction
2 Equity in India
3 Roles of maxims
4 equity will not suffer a wrong to be without a remedy
6 equity follows the law
7 Equity sees that as done what ought to be done
8 Equity who sees equity must do equity
9 Equity delights in equality[Acequitas est quasi aequalitas]
11 He who comes into equity must come with clean hands
12 Equity aids the vigilant not the indolent[vegelantus non-
dormientibus aequitas subvenit]
13 Equity impules an intent to fulfil an obligation
14 Equity delights to de justice and not by halves
15 Equity regards substances rather that form
16 Bibliography

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EQUITY

INTRODUCTION

Equity is a legal system for obtaining fair result when existing laws do not
provide a solution. Equity is the set of legal principles that supplement strict
rules of laws where their applications would operate harsly.

According to Osborn-

It is the primarily fairness or natural justice

According to plato-

Equity is a necessary elements supplementary to the imperfect generalization of

legal rules

According to Aristotle-

Described equality as external and immutable blackstone defines equity as the

soul and spirit of all laws.

Equity in india

In india the common law doctrine of equality had traditionaly been followed
even after it became independent in 1947

Equity is that arrangement of equity which was regulated by the High Court of
Chancery in England in the activity of its exceptional purview. ... Each obvious
meaning of value must, along these lines, be, to a more prominent or less
degree, a history. Bispham, Principles of Equity, at 1, 2. "Before William the
victor, there were the old Anglo-Saxon courts. They used to sit in the outdoors
gatherings of freeman. Gradually these society courts were supplanted by
vagrant judges named by the crown or by the ruler's court (curia Regis).
William the champion rolled out a few improvements and designated a central
legal to direct the trials of suits. This prompted the inception of custom-based
law tribunals all through the England. The hardship caused by the ruler was
evacuated by the 'Magna Carta' which gave that 'the regular requests might
never again take after the lord .During the period the legal authorities turned

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into the Court of Exchequer and authorities were identified with the instances of
incomes and later augmented using lawful fictions. Gradually the chancellor
managing the Court of Exchequer wound up plainly individual consultant and
illustrative of the crown. The court proceeded with its procedure until the point
that new demonstration came into the power on second November 1875,
solidifying it into the "incomparable court of judicature"

Important Developments In Equity :

Because of the deficiencies of the customary law courts, individuals requested

of the King through his Chancellor. This formed into a full legitimate
framework, and the Chancellor, as petitions expanded, set up the Court of
Chancery (1474), the tenets of which moved toward becoming value. The Earl
of Oxford's Case 1615 , which chose that if value and the custom-based law
were in strife, value would win (systematized in the Judicature Act 1873 and as
of now contained in the Supreme Court Act 1981). In the mid-nineteenth
century, the strategy of the Court of Chancery (disclosure of records and orders)
was made accessible in the custom-based law courts.

ROLES OF MAXIMS

Maxims of equity are not a rigid set of rules but are rather, general principles
which can be deviated from in specific cases.

Snell’s equity an English treatise takes the view that the maxim do
not cover whole ground and moreover they overlap, one maxim cantains by
implication what belongs what belongs to another.

Total there many maxims of equity and out of these we are going to discuss
the important maxims out of that and these are as follows,

1 equity will not suffer a wrong to be without a remedy

2 equity follows the law

3 Equity sees that as done what ought to be done

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4 Equity who sees equity must do equity

5 Equity delights in equality[Acequitas est quasi aequalitas]

6 He who comes into equity must come with clean hands

7 Equity aids the vigilant not the indolent[vegelantus non-dormientibus aequitas

subvenit]

8 Equity impules an intent to fulfil an obligation

9 Equity delights to de justice and not by halves

10 Equity regards substances rather that form

1 Equity will not suffer a wrong to be without a remedy

[ ubi jus ibi remedium]
Meaning
Where there is right there is remedy. This idea is expressed in the maxims of
“ubi jus ibi remedium” which means where there is right there is remedy.

The maxims imports that where the common law confers a right it
gives also a remedy or right of action for interference with or infrigment of that
right.

Application and cases-

1 Asbhy vs White

Where a qualified voter was not allowed to caste the vote instead of being the
qualified voterand who therefor sued the returning officer, it was held that if law
gives right it must also give the remedy

Limitation of maxim

1 if there is a breach of moral rights only

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2 if the right and remedy both were in within the jurisdiction of common law
courts.

2 Equity follows the law

Meaning – Aequitas Sequitur Legem

The maxim indicates the discipline which the chancery courts observed while
administering justice according to conscience. Legal maxim “aequitas sequitur
legem” means the more fully that “Equiy will not allow a remedy that is
contrary to law”

According to Edmund Hennry Turner Snell

It is only when there is some important circumstances disregarded by the

common law rules that equity interferes.

Limitation

1 where a rule of law did not specifically and clearly apply

2 where even by analog the rule of law did not apply

3 Equity sees that as done what ought to be done

Meaning

This maxims that when individual are required by their agreement or by law to
perform some act of legal significance, equity will regard that act as having
been done as it ought to have been done even therefor it has actually happened
this makes possible the legal phenomenon of equitable conversion.

Equity regards as done what should have done. Due to equitable

interest in the outcome of the transaction the buyer who suffer a breach may be
entitled to the equitable remedy of specific performance.

If he is successful in seeking remedy at law. He is entitled to the values of

properly at time of breach regardless of whether it has appreciated or
depreciated.

4 He who seeks equity must do equity

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The maxims “he who seeks equity must de equity” explains that the law of
equity requires everyone who comes to get relief to be willing to conced
recognize and admit equitable rights of defendant while deciding any case the
courts of equity to both of the parties against each other

Purpose of maxims:-

By putting the maxims the very purpose of the law is to guide the court of
equity in the right way it demands the remedy seeker to acts conscientiously as
he expects other to act in an equitable ways.

Cases

Lodge vs National Union Investment Company

Plaintiff borrowed money from the defendant an unrecognized money under

money lender act 1900. The plaintiff sued defendant for demanding back his
securities and payment. The defendant then took defence that the plaintiff is
seeking an equitable remedy so he should do equity. The defendant was willing
to give back plaintiffs money if plaintiff pays back the loan taken.

Application of maxims:-

1 Doctrine of election

2 Doctrine of consolidation of mortgages

3 Doctrine of notice

4 Doctrine of set-off

5 Equity delights in equality [Acequitas est quasi aequalitas]

Where two persons have an equal right the property will be divided equally.
Thus equity will presume joint owners to be tenants in common unless the
parties have expressly agreed otherwise equity also follows favours partition if
requested of jointly held property.

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6 He who comes into equity must come with clean hands:-

Meaning

Equity demands fairness not only from the defendant but also from the plaintiff
it is therefore a said that:- he that hath commited an inequality, shall not have
equality. While applying maxims the court believed that behaviour of the
plaintiff was not against conscience before he come to the court.

Application

1 specific performance

If plaintiff has been guilty of under advantages the court of equity will refuses
the specific performance of the court.

2 Illegality

Where parties to an illegal agreement appear before the court of equity for
division of their respective shares towards the property obtained.

3 Fraud

In case of fraud, equity will not grant relief to party who has committed fraud.

4 Benami Transaction

Real owner is not allowed to recover property.

7 Equity aids the vigilant not the indolent [vegelantus non-dormientibus

aequitas subveint]

A person who has been wronged must act relatively swiftly to preserve their
rights. Otherwise they are guilty of laches an untoward delay in litigation with
the presumed intent of denying claims.

Cases:-
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Chief Young dede vs African association ltd.

- Delays defects equality

- Equity aids the vigilant, not those who sleeps on their rights

8 equity delights to do justice and not by halves.

When a court of equity is presented with good claim to equitable relief and it is
clear that the plaintiff also sustained monetary damages the court of equity has
jurisdiction to render legal relief that is monetary damages.

Hence equity does not stop at granting equitable relief but goes on
render a full and complete collection of remedies.

Maxims were originally quoted in Latin, and many of the Latin phrases continu
e to be familiar to lawyers in the early 2000s. The maxims were not written dow
n in an organized code or enacted by legislatures, but they have been handed do
wn through generations of judges. As a result, the wording of a maxim may var
y from case to case. For example, it is a general rule that equity does not aid a 
party at fault. This maxim has been variously expressed:
No one is entitled to the aid of a court of equity when that aid has become neces
sary through his or her own fault.
Equity does not relieve a person of the consequences of his or her own carelessn
ess.
A court of equity will not assist a person in extricating himself or herself from t
he circumstances that he or she has created.
Equity will not grant relief from a self-created hardship.

9 Equity imputes an intent to fulfill an obligation

Generally speaking near performance of an general obligation will be treated as

sufficient unless the law requires perfect performance such as in the exercises of
an option.

Cases

Lechmere v Lady Lechmere

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An example of this is Lechmere v Lady Lechmere, in which a Lord bound
himself to purchase land for an agreed sum, that would then pass through death
to his wife. Upon his passing, it was discovered that he had failed to uphold his
requirement during the lifetime of their marriage, by purchasing other lands that
now fell within the residue of his estate, and required a successor in title other
than his son. Through the application of this maxim, the court allowed the
transfer to his wife for the amount agreed, and thus his obligations were deemed
satisfied, as was expressed within the judgment which read:

“[W]herever a thing is to be done either upon a condition, or within a time

certain, yet if a recompence can be made which agrees in substance, though
perhaps not in every formal circumstance, such a recompence shall be good, and
shall go in satisfaction of the thing covenanted to be done.”

10 Equity regards substances rather than form

Equity will not permit justice to be withheld just because of a technically

formalities that frustrate justice will be disregarded and a better approach found
for each case. Equity enforce the spirit rather than the letter of law alone

This is a fairly descriptive maxim that serves to keep focus on

legal proceedings in such a way that holds the principle of fairness above that of
policy or written codes of conduct. This is not to say that where statute dictates
a course of action, equity will seek to ignore that; in fact, under those terms, the
black letter of legislation will always win the day.

BIBLIOGRAPHY

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1 Equity and Trust – Alaster Hudson
2 www.wikipidia.com
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