EQUITY & TRUST

LAW501

PERSONAL INFO

MOHD HARIS BIN ABDUL

RANI
0193296291
haris_rani@yahoo.com

CLASS RULES

SYLLABUS

PART ONE
EQUITY

1.ORIGIN & DEVELOPMENT IN

ENGLAND
2.RECEPTION OF EQUITY IN
MALAYSIA (LAW & COURTS)
3.DOCTRINES OF EQUITY
4.MAXIMS OF EQUITY (CONCEPTS
AND APPLICATIONS)
5.EQUITABLE REMEDIES (SPECIFIC
RELIEF ACT 1950)

1.ORIGIN & DEVELOPMENT

IN ENGLAND

2. RECEPTION OF EQUITY
IN MALAYSIA (LAW &
COURTS)

3. DOCTRINES OF EQUITY

Doctrine of Equity:
a doctrine that permits judges to make decisions based
on fairness, equality, moral rights, and natural law.
Questions of WHY?

Example: Paper Chase

4. MAXIMS OF EQUITY
(CONCEPTS AND
APPLICATIONS)

Maxim is tools that is developed as to derive to the

Doctrine of Equity (HOW) ; giving fairness, equality,
moral rights, and natural law.
HeWho Seeks Equity Must Do Equity
A Dirty Dog Will Not Have Justice By The Court

5. EQUITABLE REMEDIES
(SPECIFIC RELIEF ACT
1950)

Equitable remedies are Maxim is tools that is

developed as to derive to the Doctrine of Equity
(WHAT); giving fairness, equality, moral rights,
and natural law.

Doctrine
Maxim
Principle
Law (Act)

Disputing
Parties

TEST OF KNOWLEDGE
LAW OF EQUITY & TRUST

What Is Equity And Why Do I Have To Learn Equity?

What Is Trust And Why Do I Have To Learn Trust?
Why Both Are Significant In Todays World?

the sale of a rare samurai sword. Helwa later

refused to complete the sale even though
Mira has already arranged to display the
sword in an art exhibition at the Japanese
embassy.
Explain to Mira on the availability of
equitable remedies that would favour her.
Jan 2013 Pt. A question 2 (6 marks)

What are YourRights ?

People have to know their scope ofrights
and freedom granted to them by
government and must be able to demand for
their rights whenever injustice takes place.

Law protects basic individual rights and freedom

such as liberty, equality and freedom of speech.
It prevents individuals in powerful position from
taking an unfair advantage of other people.

Law ensures a safe and peaceful society, in

which individual rights are preserved. Certain
governments have cruel laws, where police and
armies arrests and punishes people without a
trial in the court.

Law applies to every persons, public authorities,

governmental departments, private bodies,
profit making organizations as well as nongovernmental organizations

Where does it come from?

You have learn that

Unwritten laws are laws which are not contained
in any statutes and can be found in
casedecisions. This is known as the common
law or case law .In situations where there is no
law governing a particular circumstance,
Malaysian case law may apply. If there is no
Malaysian case law, English case law can be
applied. Thereare instances where Australian,
Indian, and Singaporean cases are used
aspersuasive authorities.

Unwritten laws are laws that are not enacted

and not found in any constitution. It comprises
of English law (Common Law and Equity),
judicial decisions and customs. Common Law is
a major part of many States, especially
Commonwealth countries. It is mainly made up
of non statutory laws, which are the precedents
derived from judgments given on real cases by
judges.

Common Law is a major part of many States,

especially Commonwealth countries. It is mainly
made up of non statutory laws, which are the
precedents derived from judgments given on
real cases by judges.

Law of Equity resolves disputes between

persons by referring to principles of fairness,
equality and justness. In these cases, nothing
was done against the law by the parties to
dispute, but their rights are in conflict. Thus, it is
different from law; both the Statutory Law
enacted by Parliament and State Legislatives
and Common Law which consists of precedents
and opinions given on real cases by judges.

Equity-Was introduced to reduce the harshness

of common law. It originated from the English
Law in the Church of Roman Catholics. It was
developed out of the need to provide the
plaintiff with relief where the strict common law
rules granted as an unsatisfactory remedy or no
remedy at all.

Equity is an England Legal

Concept same as Common Law!

How come it is applicable in

Malaysia as one source of law?

Section 3(1)(a) Civil Law Act 1956 states that

courts in Peninsular Malaysia should apply
Common Law and the Law ofEquity as
administered
in
England
on
7th
April1956.Section 3(1)(b) and Section 3(1)(c) of
Civil Law Act 1956 states that courts in Sabah
and Sarawak should apply common law and law
ofequity together with the statutes of general
application asadministered in England on 1st
December 1951 and 12thDecember 1949
accordingly

Why?

In pursuit of
justice

Section 3(1)(a) Civil Law Act 1956 states that

courts in Peninsular Malaysia should apply
Common Law and the Law ofEquity as
administered
in
England
on
7th
April1956.Section 3(1)(b) and Section 3(1)(c) of
Civil Law Act 1956 states that courts in Sabah
and Sarawak should apply common law and law
ofequity together with the statutes of general
application asadministered in England on 1st
December 1951 and 12thDecember 1949
accordingly

But it is notstated that the Common Law and

Law of Equity in Malaysia should remain unmodified and follow the same law as
administered in England.

Common law and law of equity in Malaysia

should be developed and amended according to
the local needs. In addition, these two laws
should also take into account ofchanges in
these laws in England.

Malaysian government can set their own scope

for the amended or repealedCommon Law and
Law of Equity in Malaysia

Smith Kline & French Laboratories Ltd. v.

Salim (Malaysia) Sdn. Bhd.
It was held that thecourts have the authority to
put asideany Common Law or Law
ofEquitywhich cannot beapplied in Malaysia. In
the case

Jamil bin Harun v. Yang Kamsiah & Another,

It was decided that courts have theauthority to
decide whether to follow English Law (common
law and law ofequity) or Federal law,
considering the circumstances and the scope
the written law permits to do so.In the case

Karpal Singh v. Public Prosecutor,

It was held that the criminal offences in Malaysia
were provided by Criminal Procedure Code of
Malaysia andtherefore, there is no allowance for
English law to apply. There are
certainboundaries as to the application
ofCommon Law and Law ofEquityin Malaysia.

Equity

In
definition

Aequitas (genitive aequitatis) is the

Latin concept of justice, equality,
conformity, symmetry, or fairness. It is
the origin of the English word "equity".
In ancient Rome, it could refer to either
the legal concept of equity, or fairness
between individuals.

Cicero defined aequitas as "tripartite":

the first, he said, pertained to the gods
above (ad superos deos) and is
equivalent to pietas, religious
obligation; the second, to the Manes,
the underworld spirits or spirits of the
dead, and was sanctitas, that which is
sacred; and the third pertaining to
human beings (homines) was iustitia,

During the Roman Empire, Aequitas as a

divine personification was part of the
religious propaganda of the emperor,
under the name Aequitas Augusti, which
also appeared on coins. She is depicted
on coins holding a cornucopiae and a
balance scale (libra), which was more
often a symbol of "honest measure" to
the Romans than of justice.

1 a: justice according to natural law or

right;specifically: freedom from bias or favoritism
b: something that isequitable

2 a: a system of law originating in the English

chancery and comprising a settled and formal body of
legal and procedural rules and doctrines that
supplement, aid, or override common and statute law
and are designed to protect rights and enforce duties
fixed by substantive law
b: trial or remedial justice under or by the rules and
doctrines of equity
c: a body of legal doctrines and rules developed to
enlarge, supplement, or override a narrow rigid system
of law

In history

In jurisdictions following theEnglishcommon

law,equityis the set of maxims that "reign
over all the law" and "from which flow all civil
laws" (Bacon). The Chancery, the office of
equity, was the "office that issued the writs that
were the foundation of the common law
system".

Equity is wholly unaffected by any state laws

and is everything, even without law.
Equity is commonly said to "mitigate the rigor of
common law", allowing courts to use their
discretion and applyjusticein accordance
withnatural law. In practice, modern equity is
limited bysubstantiveandproceduralrules, and
English and Australian legal writers tend to focus
on technical aspects of equity.

Twelve "vague ethical statements", known as

themaxims of equity, guide the application of
equity, and an additional five can be added.
A historical criticism of equity while it developed
was that it lacked fixed rules, with theLord
Chancelloroccasionally judging in the main
according to his conscience. The rules of equity
later lost much of their flexibility, and from the
17th century onwards, equity was rapidly
consolidated into a system of precedents much

KING

Chancellor

Circuit
Judges

Circuit
Judges
Circuit
Judges

Reasons:
Rigidity of Courts
Inadequate System of Compensations
Unavailability of possible successful suits
Abuse of Power
Writ System Unobtainable writ

KING

Chancellor

Circuit
Judges

Circuit
Judges
Circuit
Judges

Lord Chancellor
Keeper of the King's Conscience

Chris Grayling
Conservative
Lord High Chancellor
2012 - date

7.2.1478 6 July
1535
SirThomas More,
one of the most
famous early Lord
Chancellors, served
and was executed
under KingHenry
VIII.

Formerly, the Lord Chancellor was almost always

achurchman, as during theMiddle Agesthe
clergy were amongst the few literate men of the
realm. The Lord Chancellor performed multiple
functionshe was the Keeper of the Great Seal,
the chief royal chaplain, and adviser in both
spiritual and temporal matters. Thus, the
position emerged as one of the most important
ones in government. He was only outranked in
government by theJusticiar(now obsolete)..

As one of the King's ministers, the Lord

Chancellor attended the Curia Regis, or Royal
Court, Royal Council or King's Court. If a bishop,
the Lord Chancellor received a writ of summons;
if an ecclesiastic of a lower degree, or if a
layman, he attended without any summons. The
Curia Regis would later evolve into Parliament,
the Lord Chancellor becoming the prolocutor
(chair person) of its upper house, the House of
Lords. As was confirmed by a statute passed
during the reign of Henry VIII, a Lord Chancellor

Court of equity

A chancery court, equity court or court of equity

is a court that is authorized to apply principles of
equity, as opposed to law, to cases brought
before it.
These courts began with petitions to the Lord
Chancellor of England. Equity courts "handled
lawsuits and petitions requesting remedies other
than damages, such as writs, injunctions, and
specific performance". Most were eventually
"merged with courts of law".

Court of Chancery
(High Court of Chancery)

TheCourt of Chancerywas acourt of

equityinEngland and Walesthat followed a set
of loose rules to avoid the slow pace of change
and possible harshness (or "inequity") of
thecommon law.

The Chancery had jurisdiction over all matters of

equity, includingtrusts,land law, the
administration of the estates of lunatics and the
guardianship of infants.

A chancery court, equity court or court of equity

is a court that is authorized to apply principles of
equity, as opposed to law, to cases brought
before it.
These courts began with petitions to the Lord
Chancellor of England. Equity courts "handled
lawsuits and petitions requesting remedies other
than damages, such as writs, injunctions, and
specific performance". Most were eventually
"merged with courts of law".

The Lord Chancellor's judicial duties also evolved

through his role in theCuria Regis. Petitions for
justice were normally addressed to the King and
theCuria, but in 1280,Edward Iinstructed his
justices to examine and deal with petitions
themselves as theCourt of King's Bench.

Important petitions were to be sent to the Lord

Chancellor for his decision; the more significant
of these were also to be brought to the King's
attention. By the reign ofEdward III, this
chancellery function developed into a separate
tribunal for the Lord Chancellor. In this body,
which became known as theHigh Court of
Chancery, the Lord Chancellor would determine
cases according to fairness (or "equity") instead
of according to the strict principles ofcommon
law.

Exclusive Chancery Court

Renaissance Chancery Court

Maxims of equity

Themaxims ofequityevolved, inLatinand

eventually translated intoEnglish, as the
principles applied bycourts of equityin deciding
cases before them.An English authority states
about the maxims of equity: "The Maxims do not
cover the whole ground, and moreover they
overlap, one maxim contains by implication
what belongs to another.

1 Equity sees that as done what ought to

be done
2 Equity will not suffer a wrong to be
without a remedy
3 Equity delights in equality
4 One who seeks equity must do equity
5 Equity aids the vigilant, not those who
slumber on their
rights
6 Equity imputes an intent to fulfill an
obligation
7 Equity acts in personam
8 Equity abhors a forfeiture

11 Equity delights to do justice and not by

halves
12 Equity will take jurisdiction to avoid a
multiplicity of
suits
13 Equity follows the law
14 Equity will not aid a volunteer
15 Where equities are equal, the law will
prevail
16 Between equal equities the first in
order of time shall prevail
17 Equity will not complete an imperfect
gift
18 Equity will not allow a statute to be

InIndiathecommon lawdoctrine of equity had

traditionally been followed even after it became
independent in 1947. However in 1963
the"Specific Relief Act"was passed by the
Parliament of Indiafollowing the
recommendation of theLaw Commission of
Indiaand repealing the earlier "Specific Relief
Act" of 1877. Under the 1963 Act, most
equitable concepts were codified and made
statutory rights, thereby ending the
discretionary role of the courts to grant
equitable reliefs. The rights codified under the

Equitable remedy

Equitable remedies are distinguished from

"legal" remedies (which are available to a
successful claimant as of right) by the
discretion of the court to grant them. In
common law jurisdictions, there are a
variety of equitable remedies, but the
principal remedies are:

Injunction
Specific performance
Account of profits
Rescission
Declaratory relief
Rectification
Equitable estoppel
Constructive trusts
Subrogation
Equitable lien
Equitablecompensation
Appointment or removal offiduciary

Specific Relief Act 1950

the sale of a rare samurai sword. Helwa later

refused to complete the sale even though
Mira has already arranged to display the
sword in an art exhibition at the Japanese
embassy.
Explain to Mira on the availability of
equitable remedies that would favour her.
Jan 2013 Pt. A question 2 (6 marks)

Past Years Questions

Replacement Class

Thank You