WHAT IS EQUITY ?
Equity is not a word that can be said to have a precise meaning. The original idea of it synonymous with fairness and justice. Equity is the
feeling of fairness and justice.
Illustration - if A (a man) by fraud takes the signature of an old man on a document by saying to the old man that the documents relates to some
insurance policy. But in real that document were property documents
which relates to old man.
Here if only law is concerned then we can say that property is transferred
to person A.
But if rules and principles of equity is applied then justice will be
delivered to the old men.
According to Aristotle "Equity is the correction of the law where it is
defective on account of its generality."
Equity is based on conscience and shows the principles of natural
justice.
HISTORICAL BACKGROUND
By the middle of the 13th Century the common law administered
in England, was in part Customary Law and in part Statutory Law.On
account of the narrowness, extreme rigidity the Common Law, gave
either inadequate remedy or no remedy at all. No provisions were made for matters of natural justice. In such cases a petition was made to the King-in- Council to exercise his
extraordinary judicial powers. A custom developed of referring
these petitions that the 'Chancellor', who was the Chief of the King's
Secretaries. It was in dealing with these petitions that the 'Chancellor
began his judicial functions and the 'Court of Chancery' was
established besides the Court of Common Law.
The 'Chancellor' acted according to his judicial conscience or the
principles of natural justice. The principles and rules thus arising
through the administration of justice in Courts of Chancery were called
'Equity' in contradistinction to Common Law.
Upto 1873 there remained two separate systems of Courts namely,
Common Law Court and Chancery Court, but in 1873 both the Courts
were amalgamated by Act of judicature and the new Courts were
assigned with the power of enforcing all the rights and remedies legal
as well as equitable.
Definition by Different Authors
According to Aristotle "Equity is the correction of the law where it is
defective on account of its generality."
Blackstone defines Equity as the "soul and spirit of all law: positive law
is constituted and natural law is made by it.
O Snell says that "Equity may be defined as portion of natural justice
which for historical reason was not enforced by common law courts an
omission which was supplied by court of chancery."
Sir Henry maine "has defined equity as any body of rules, the primary
source of which was neither customary nor written law but the imperative
dictates of conscience and which had been set forth and developed in
court of chancery.
Summary : Taking into consideration the above definitions this
becomes quite clear that 'Equity', now is that body of rules administered
by the English Courts of Justice which, before the operation of the
Judicature Act of 1873, were administered only by those courts which
were known as Courts of Equity.
We can further describe that-
i) Equity is founded on principles of natural justice;
ii) It is the body of rules and principles which exist side by side of the
original Civil Law;
iii) It does not supersede the existing law, but is a supplementary
addition to such law.
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.There are 12
maxims of equity:-
1. Equity will not suffer a wrong without a remedy.
2. Equity follows the law.
3. Where there is equal equity, the law shall prevail.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities.
8. Equality is equity.
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be done.
11. Equity imputes an intention to fulfil an obligation.
12. Equity acts in personam.