The Role of Equity in Tort Law (Preliminary Research)

Divisha Hassanandani 79B (B.A. LL. B, 1st Year)

Equity finds its root in the Latin word ‘aequus’ which means just and egalitarian. It is a
system of law that originated in the English Chancery and is heavily dependent on precedent.
Equity is unavoidable in the legal world as humans and laws are errant.

Equity in India has its origins in the ancient Hindu period, where the smriti karas believe that
decisions of law shouldn’t solely be based on scriptures but also take into account principles
based on reason. Those principles are qualified with equity.

Though, other than in a few cases where equitable relief was made available, historically
equity hasn’t been as pervasive in Tort as it has been in property law and contract law. This
seems paradoxical given that equity focuses on wrongful conduct and the provision of a
redressal mechanism through the courts. One of the loosely defined functions of equity is to
supplement the law in cases where it fails to solve disputes on the same level as to where they
arose. As Aristotle said, equity corrects ‘law where law is defective because of its generality.’

We distinguish three scenarios at the intersection of equity and tort:

(i) tort law itself contains a second-order element to deal with problems such as coming to the
nuisance;

(ii) equity helps overcome an inadequacy of tort law, such as by reformulating privity, which
is then incorporated into tort law going forward; and

(iii) equity maintains a limited but open-ended capacity to neutralise the inadequacies of tort
law, especially those that involve hard to anticipate manipulation of rules.

There has been an increase in the intersection of law and equity, more so in torts. This has led
to a revaluation of existing torts and the introduction of new ones. But it should be kept in
mind the alteration to the already existing torts is beneficial only when a degree of open-
endedness is necessary to deal with conflicting interests.