NAME STEWARD OIGO
REG NO. EN264-0770/2015
SCHOOL: COETEC
DEPARTMENT: BEED
UNIT ENGINEERS IN THE SOCIETY
UNIT CODE: EBE 2507
Law of Equity and the maxims of equity
A. Law of Equity.
Legal meaning of Equity means rules developed to mitigate the severity of constraints of the
common law. Equity was developed around 15 century a time where there were problems with
common laws. A litigant asserting some equitable right or remedy must show that his claim has
“an ancestry founded in history and in the practice and precedents of the court administering
equity jurisdiction.
B. The maxims of equity
The maxims of equity may equally be described as a set of general principles used to govern the
operation of equity. In contrast to the common law, they tend to explain the qualities of equity, as
more flexible, responsive to the needs of the individual and more inclined in taking account of
the parties’ conduct and worthiness. Application of maxims equity is only adopted when the
court feels it suitable: none of the maxims is in the nature of a binding rule and for each maxim it
is possible to find as many instances of it not having been applied as instances where it has been.
There are a series of maxims that embody the general principles of equity. So we could say that
they are guidelines that illustrate the way in which the equitable jurisdiction is observed.
In the case of Tinsley v Milligan [1993], the role of maxim was discussed. A flexible approach
was taken in the court of Appeal to the application of the maxim, ‘he who comes to equity must
come with clean hands’, but in the House of Lords, this was rejected. Depending upon such an
‘imponderable factor’ as public conscience, such a flexible approach would lead to great
uncertainty.
Some of the maxims and reference case laws include,
1. Equity follows the law.
It attempts to indicate the relationship between common law and equity, which is a complex one.
The traditional role of equity, as stated in ‘Doctor and Student’ 1523 by Christopher St German
was ‘to temper and mitigate the rigor of the law’, which implies that equity would intervene and
overrule the common law if justice required it. This maxim indicates that, where possible, equity
will ensure that its own rules are in line with the common law ones.
Equally, the courts will in appropriate cases allow the common law effects to stand. For instance,
in the case of Re Diplock [1948] 2 All ER 318 it was argued that, where money had been
distributed to charities under the provision of a will which subsequently turned out to be invalid,
the charities should be allowed to retain it.
2. Where the equities are equal, the law prevails. Where the equities are equal, the first in
time prevails
These two maxims are concerned with priorities, that is to say which of various interests prevails
in the event of a conflict. The general rule, as one might expect, is that interests take effect in
order of their creation, but, as regards equitable interests
3. Equity looks to the substance rather than the form
Courts of Equity make a distinction in all cases between that which is matter of substance and
that which is matter of form; and if it finds that by insisting on the form, the substance will be
defeated, it holds it inequitable to allow a person to insist on such form, and thereby defeat the
substance.
4. Equity imputes an intention to fulfi l an obligation
This is the basis of the equitable doctrines of performance and satisfaction and simply means that
where a person has undertaken an obligation his later conduct will, if possible, be interpreted as
fulfilment of that obligation.
5. Equity will not suffer a wrong to be without a remedy
This maxim indicates that equity will not allow the technical defects of the common law to
prevent worthy plaintiffs from obtaining redress. It could be seen, therefore, as the opposite of
the maxim that equity follows the law. There are numerous examples of the development of
equitable doctrines and remedies intended to override the unjust result arising from the
enforcement of legal rights.
6. He who comes to equity must come with clean hands
The rather picturesque language of this maxim means that a party seeking an equitable remedy
must not himself be guilty of unconscionable conduct. The court may therefore consider the past
conduct of the claimant. Most cases concern illegal or fraudulent behavior on the part of the
claimant, and it is not clear to what extent the maxim is applicable outside such behavior.
7. Equality is equity
In the absence of any evidence to the contrary, equity will tend towards the adoption of equal
division of any fund to which several persons are entitled. For instance, Burrough v Philcox, The
testator having left his estate to certain relatives or such of them as his child should nominate,
and the child having failed to nominate, the court held that the funds were held on trust for all the
relatives in equal shares. There is even some authority for the proposition that, upon failure of an
express trust for uncertainty of beneficial share, the property is to be held on trust for all the
beneficiaries equally.
In conclusion, the equitable maxims provide a set of general principles which can be said to have
influenced the development of equity. Maxims of equity examines varying amounts of detail and
identifying many of the particular areas of the law which have been affected, and which are dealt
with. These include, for example, the maxim ‘where the equities are equal the first in time
prevails’, and its effect on priorities and conflicting interests, and the maxims equity acts in
personam’ and its effect on the operation of the law outside the jurisdiction.
