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Equitable Jurisdiction The Nature of Equity Equity & Trust I
Equitable Jurisdiction The Nature of Equity Equity & Trust I
NATURE OF EQUITY]
Introduction
Right in personam and right in
rem
Maxims of Equity
Conclusion
EQUITABLE JURISDICTION[THE
NATURE OF EQUITY]
Introduction:
The term 'equity' has many meanings even when it is used in legal language.
It is not always easy to differentiate between these different meanings but
often this is crucial. Consider some of them as: Equity as fairness or justice -
a basic doctrine that the established law or legal rules of a system ought to be
applied in such a way as to do justice or to achieve fairness; Similarly equity
is sometimes referred to as if it were a doctrine of morality or of natural
justice, embodying some basic requirement that the law is ultimately required
to do or to achieve justice in legal disputes notwithstanding the particular
legal rules expressed in statutes or in the common law; Equity as indicating a
general body of legal doctrine which emerged in England through the
practices of the Equity or Chancery Courts; Similarly equity will sometimes
be referred to in a jurisdictional sense as if it referred just to those special
types of cases which will be heard by a specialist equity court. You will
frequently read of equity as distinct from common law being used in just this
way.
EQUITABLE JURISDICTION[THE
NATURE OF EQUITY]
Introduction: (Continuation)
Equity as indicating those circumstances where a court exercising
equitable jurisdiction feels it has a duty to intervene and to provide
certain special remedies or to remedy the operation of the common law.
For example, the court might say something like 'the plaintiff in this case
has sufficient equity to permit the court to intervene'. Equity as indicating
some sort of property or other interest which is not quite the same as a
legal or common law interest in property - but regarded as enforceable in
the equity courts. Hence, some forms of property are called equitable
property. An interest of a beneficiary under a trust or an interest in a
partnership are examples of equitable proprietary interests. Equity as
meaning simply the right to an equitable remedy such as an injunction to
restrain a breach of some wrong or an order for specific performance of a
contract (an order which requires that the contract be carried out).
EQUITABLE JURISDICTION[THE
NATURE OF EQUITY]
Introduction: (Continuation)
Apart from the definitional aspect of equity as part of its nature, reference could also
be made to the following points:
(1) Equity as a body of law: The application of equitable justice has gradually resulted in
the evolution of tangible equitable principles which embellish the common law by
alleviating the deficiencies of the absolute law. Thus, the most common legal
understanding of ‘equity’ today is not an intangible sense of justice, but rather a
discernable body of law, developed by the early Courts of Chancery and administered
by the modern Courts of Justice.
(2) Equity corrects the law: In its discretionary capacity, equity operates to correct the
law, not to overwhelm it. The jurisdictional foundation of equity is, as Aristotle notes,
corrective rather than distributive; it prescribes relief against the proscriptive operation
of common law.
(3) Form and substance: Whilst equitable principles were intended to alleviate deficiencies
of the common law, they still give effect to the spirit of the law. Equity is not obliged
to follow the letter of the law, where the universality of this ‘letter’ produces injustice,
equitable principles follow the ‘reason and spirit’, so that deficiencies arising from a
strict literal interpretation can be corrected.
EQUITABLE JURISDICTION[THE
NATURE OF EQUITY]
Introduction: (Continuation)
Apart from the definitional aspect of equity as part of its nature,
reference could also be made to the following points:
(1) Standard of conduct: Equity does not apply defined rules, it
evaluates specific conduct, this requires flexibility and discretion.
Most equitable principles are based upon discretionary standards
of conduct rather than definitive rules; these standards usually
stem from the basic precepts of good faith, honesty and
generosity, and in this sense are rational in nature. The concept of
‘unconscionability’ is a good example to cite here i.e. abusing a
position or relationship of trust or confidence; exploiting a
recognised vulnerability or weakness).
EQUITABLE JURISDICTION[THE
NATURE OF EQUITY]
Conclusion:
The nature of equity embodies the general principles which
evolved in the Court of Chancery. For example, the maxims
of equity are not rules which must be rigorously applied in
every case, but are more in the nature of general guidelines
illustrating the way in which equitable jurisdiction is
exercised. A few examples of their operation must suffice,
but they should be borne in mind when considering the
various rules and doctrines of equity.