Nov 19, 2014 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 used as a cloak for fraud. Equity follows the law maximlaw of equityprinciple of equity. Abstract one of the most remarkedupon achievements of the first restatement of the law of restitution was the consolidation into a single treatment of all of the law that concerned the reporters, whether it came from common law or equity. Courts will firstly apply common law and if this is not fair then an equitable remedy will be provided. This maxim, also expressed as aequitas sequitur legem, means more fully that equity will not allow a remedy that is contrary to law. They tend to illustrate the qualities of equity, in contrast to the common law, as a more flexible, responsive approach to the needs of the individual, inclined to take into account the parties conduct and worthiness. Perhaps the resilience of equity in new south wales owes much to the succession of equity practitioners who taught the subject at what was, between 1890 and 1971, the states only university law school at the university of sydney. The characteristics of equity law maxims of equity. The purpose of equity is to support the common law and carry it into practical effect. May 20, 2016 equity follows appropriaterules of law, such as the rules of evidence and pretrial discovery. Equity has no clash with law neither it overrides the provisions of law,nor it is the enemy of law. Equity follows the law project free download as word doc. In modernday england and wales, this maxim no longer applies.
I have heard this maxim incorrectly invoked for the proposition that equity may not act unless there is a specific law, or that equity is inferior to the law. This phrase means that courts, although exercising equity jurisdiction, are nevertheless bound by the constitution and statutes. The case for promoting equity in developing countries 19 4. In most cases, equity will follow recognised legal rules. Equity follows the law this maxim shows the discipline the chancery courts observed while administrating justice according to conscience. The result is that equity is bound by the established principles of law. These equitable doctrines and procedures are distinguished from legal ones. Sir hiram stevens maxim, 18401916, was born near sangerville, maine. Equity follows the law this principle was established to state that equity works alongside the law as opposed to the idea that it competes with the rules set out in the legal system. Equity focuses on what is morally right from wrong within the eyes of the law, whereas the law states what is. Pdf aspect of equity in latin legal maxims and the nigerian. This means that equity is more concerned with what societies do as being morally incorrect, rather than the thought process, their conscience, which follows. Generally it is assumed that aparty who does most of what is required in a business contract and does it in a reasonable way, should notbe penalized for the violation of a. Com the maxims of equity maxims of equity are principles developed by the english court of chancery and other courts who have administered equity jurisdiction, including the law of trusts.
Equity will not suffer a wrong to be without a remedy. This maxim means that a party who sues in equity can recover the precise thing that he or she seeks rather. It may mean that equity adopts and follows the rules of law in all cases to which those rules may in terms be applicable. Equity follows the law but not slavishly, nor always he who seeks equity must do equity future conduct is fair between the parties, usually interlocutory injunction. Introduction the term equity is often misunderstood and, as a consequence, often misapplied by courts when asked to grant an equitable remedy. Since equity must follow the law, where the law prohibits a remedy, equity may not do so. It is said that equity is not a body of jurisprudence acting against the law but rather a supplement to law. By the end of 14th century, common law had become static and ceased to respond to changed social conditions. This maxim embodies the principle that a claimant seeking equitable relief, must act in an honourable and honest manner.
Aug 06, 2016 equity has no clash with law neither it overrides the provisions of law,nor it is the enemy of law. Equity does not replace or violate the law, but it backs it up and supplements it. Equity follows the law is one of the most misunderstood and misapplied maxims. The equity does not come to destroy the law but to fulfill it, to explain it. In this maxim is found one of the most fundamental characteristics of equity jurisprudence. It usually, applies in relatively defined circumstance, where there is a compelling reason, not to depart from the law. There, the broad facts were that after making struc tural alterations in a. This maxim means that a party who sues in equity can recover the precise thing that he or she seeks rather than monetary damages as a substitute for it. A critical analysis legal and equitable features compete on a level playing field, largely commingled and sometimes indistinguishable. The maxim is, in truth, operative only within a very narrow range. Neither will equity disregard a contract provision that was fairly bargained. A saying that means that the rules of equity follow what the law prescribes even though there may be no specific laws that govern matters of equity. The words by the judge of the new york supreme court in graf v hope building co.
Maxims of equity are legal maxims that serve as a set of general principles or rules which are said to govern the way in which equity operates. Equity follows appropriate rules of law, such as the rules of evidence and pretrial discovery. They were often expressed in latin but are translated into english. Equity abhors a forfeiture does notovercome the maxim that equity follows the law. Cases concerning equity and the courts of equity 15501660. Law is the body of rules which are regulated by the government and enforced by the courts while equity is a set of rules which follows the natural law and fairness. They were often expressed in latin but are translated. Equity has no clash with law neither it overrides the provisions of law. The equity principles as administered in england were never intended to create a new law but were introduced for the purpose of assisting and giving effect to the general laws of the realm.
Equity follows the law project equity law precedent. For centuries, the common law was referred to as the law, in contrast with equity. In equity, this form of remedy is usually one of specific performance or an injunction injunctive relief. The following classes of cases have not been included.
Principle of equity maxim prepared by farah muner 2. Definition of equity follows the law law dictionary. In a publication to celebrate the law schools centenary in 1990 gummow j attributed much to the fact. Learn vocabulary, terms, and more with flashcards, games, and other study tools.
Equity follows the law in the majority of circumstances. Difference between law and equity difference between. This maxim means that a party who sues in equity can recover the precise thing that he or she seeks ratherthan monetary damages as a substitute for it. The law, by authorising the husbands possession of the wifes estate, intends no more but to give him the enjoyment of it for life, without waste, con. In law, the term equity refers to a particular set of remedies and associated procedures involved with civil law. Expressed as aequistas sequitur legem means more fully that equity will not allow a remedy that is contrary to law.
In abroad jurispmdential sense, equity means the power to do justice. How equity conquered common law now the federal rules and adjudication of civil disputes are under attack. Equity was created to supplement the common law, and for this purpose only. It is a well known rule that equity follows the analogies of law. As to the most common criticism of equity, these words of the english jurist, john selden 15841654. In jurisdictions following the english common law system, equity is the body of law which was developed in the english court of chancery and which is now administered concurrently with the common law for much of its history, the english common law was principally developed and administered in the central royal courts. When the equities are equal, the first in time prevails. It is well known that equity follows the analogies of law. While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur. What follows are several definitions from the 1856 edition of bouviers law dictionary which illustrate the relationship and differences between. This maxim sets out that equity is not in place to overrule judgements in common law but rather to make sure that parties dont suffer an injustice. Pdf over the centuries, law practitioners have developed various. In jurisdictions following the english common law system, equity is the body of law which was developed in the english court of chancery and which is now administered concurrently with the common law. Sep 02, 2016 equity follows the law this principle was established to state that equity works alongside the law as opposed to the idea that it competes with the rules set out in the legal system.
This affirms that our courts are primarily courts of law and, only in the absence, obscurity or. In a court of law, defendants can be ordered to pay monetary damages while in equity, if the complainant wants to get back what is taken from him instead of getting money, the. Equity is based on a judicial assessment of fairness as opposed to the strict and rigid rule of common law. Equity follows the law in this maxim is found one of the most fundamental characteristics of equity jurisprudence.
This maxim means that a party who sues in equity can recover the precise thing that he or she seeks rather than monetary damages as a. He who seeks equity must do equity the person who seeks an equitable remedy should be prepared to be fair and equitable to the defending party. Frequently the equity judge had to determine a common law right before an equitable remedy could be granted. It might be said that equity is addition and not subtraction. Equity follows appropriate rules of law, such as the rules of evidence and pretrial. What do you understand by this phrase, and what are its basic implications. A study in the relationship between common law and equity. Equity follows the law introduction before delving into the concept of the aforementioned maxim, ones understanding as to the definition ofa maxim.
When law is so unpredictable that it ceases to function as a guide to behavior, it is no longer law. For remedies offered by this area of law, such as injunctions and specific performance, see equitable remedy. A study in tie relationsiiip between common law and equity in contractual mistake the starting point for this study is the recent case of solle v. A fundamental maxim, frequently stated, is that equity follows the law. Equity always follows the rules of law and it does not play the its act against the law. These are superior remedies to those administered at common law such as damages. Equity assists the diligent means that if there is a time delay in bringing a claim, a remedy may not be awarded because of the delay.