American International University-Bangladesh

Faculty of Arts and Social Sciences

Critically analyse the application of 12 equity maxim in the laws of

Subject name : LAW OF EQUITY AND TRUST

Section : A

Program : LLB

Submitted by : Md. Zidan

ID : 21-45673-3

Submission date : 27-Feb-2023

Submitted to : SADMAN RIZWAN APURBO

Lecturer

Department of Law,

Faculty of Arts and Social Science,

American International University-Bangladesh

• Equity will not suffer a wrong to be without a remedy.

• Equity follows the law

• He who seeks equity must do equity

• He who comes into equity must come with clean hands

• Delay defeats equities

• Equality is equity but equity is not equality.

• Equity looks to the intent rather than to the form

• Equity looks on that as done which ought to be done

• Equity imputes an intention to fulfil an obligation.

• Where there is equal equity, the law shall prevail

• Where the Equalities are equal, the first in time shall prevail

• Equity acts in personam

Equity will not suffer a wrong to be without a remedy:

Equity intercedes to ensure that a fair result is reached; essentially provides a remedy in a situation where
there is none but justice demands there should be some [Link] example, in the context of a
contract, it maybe perfectly recognized at common law in that is has satisfied all the common law
requirements as to form. However, if such a contract has been entered into on grounds of fraud, mistake
or undo influence to escape contractual liability. Then equity can put the contract to an end by the remedy
of recession.
The Trusts Act, Section 9 of the Civil Procedure Code and the Specific Relief Act have incorporated the
above principles. The Civil Procedure Code entitles a civil court to entertain all kinds of suits unless they
are prohibited. The Specific Relief Act provides for equitable remedies like specific performance of
contracts, rectification of instruments, injunctions and declaratory [Link] can be said that the writ
provisions in the Constitution, the Administrative Law and the Public Interest Litigation devices have
now extended the scope and effective working of this maxim.

Equity follows the law:

Follows the law, but not slavishly and all the time. If equity truly exists to supplement the law, its remit
cannot be wider than the reach of the law. Equity is bound to follow statutes in all cases but doesn’t mean
it comes secondary to the law. Equity developed as a response to the defects of the common law, however
it did not aim to override the common law. If there is conflict exists between the two, equity prevails.
Principles of equity have always overruled the common law rules, as the Earl of Oxford case
demonstrated with James I intervention, however the common law in itself takes priority.

Bangladesh has not recognised the well-known distinction between legal and equitable interests. Equity
rules in Bangladesh, therefore, cannot override the specific provisions of law. As for example, every suit
in Bangladesh has to be brought within the limitation period and no judge can create an exception to this
or can prolong the time-limit or stop the rule from taking effect on principles of equity. Similarly no court
can confer rights which can be acquired only by registration of a document, on a party, without getting
the document registered.

He who seeks equity must do equity;

Anyone claiming the aid of equity will not be aided unless they have acted fairly themselves. The
claimant will not receive the support of the court if they’ve acted in an unfair manner themselves. With
injunctions for example, they will only be awarded if the claimant themselves agree to carry out their own
obligations.

Originated in equity, first pressed into service by Calcutta High Court in 1880 and thereafter by the
Supreme Court in 1951 and onwards till today the doctrine has been applied in various cases and fields,
especially in the field of public law.

He who comes to equity must come with clean hands;

Means you cannot act hypocritically so as to uphold an equitable relief if you are not acting in an
equitable manner ownself. ‘’clean hands’’ approach An example of person with no clean hands is Lee v
Haley where the claimants sought an injunction to protect their coal business. It was denied by the Court
of Appeal on the basis of fraudulent.

The principle established in Overton v. Banister discussed earlier that an infant's receipt for money
though ineffectual to discharge a debt, albeit as he obtained the same by misrepresentation, he cannot set
up a defence of the invalidity of the receipt given by him, has been incorporated in Section 23 of the
Trusts Act.

Similarly, a plaintiffs unfair conduct will disentitle him to an equitable relief of specific performance of
the contract under Sections 17, 18 and 20 of the Specific Relief Act, 1963. Where the plaintiff is guilty of
sharp practices, fraud and undue influence as detailed under Section 18 or where there is a contract to sell
or let property by a plaintiff who has no title as specified under Section 17, specific performance will not
be granted to the plaintiff. The jurisdiction 10 specific performance under Section 20 is discretionary and
the court is not bound to grant such a relief merely because it is lawful to do so. The court's discretion is
not arbitrary but sound and reasonable, guided by judicial principles and capable of correction, by a court
of appeal.

Delay defeats equity;

’Equity aids the vigilant and not the indolent’’ time is important and equity may choose not to protect
rights due to lapse of time. Smith v Clay is an example illustrating that if too much time has lapsed
between the facts and the proceedings, then any respective rights will not be upheld; known as ‘’laches’’
i.e. unreasonable delay. Nelson v Rye demonstrates that such an approach should be taken to calculate
where the balance of good conscience lies in the light of such delay.

As declared by Suhrawardy, J.. in Jadunath case?, "The English doctrine of delay and laches showing
negligence in seeking relief in a court of equity cannot be imported into the Indian law in view of Article
113 of the Limitation Act, which fixes a period of three years within which a suit for specific performance
should be brought." The law of limitation may harshly affect a particular party, but it has to be applied
with all its rigour when the statute so prescribes and the courts have no power to extend the period
limitation on equitable grounds. Thus equity cannot be the basis for extending the period of limitation. "
However, a party should not be penalised for failing to adopt legal proceedings when the facts have been
willfully concealed from him.

Equality is equity but equity is not equality

Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been
sometimes called proportionate equity.”

application of the maxim "equality is equity" have been recognised In Contract Act, Section 42, illustrates
tenancy in common asregards devolution of [Link] 43 illustrates that one of a number of joint
promisors who has performed the promise is entitled to compel the other promisors to contribute equally
with [Link] 69 and 70 illustrate the doctrine of [Link] 146 and 147 explain that
co-sureties are liable to contributeequally. Under the Transfer of Property Act, Section 56 illustrates the
doctrine of [Link] 82 speaks about contribution to mortgage debt by co-mortgagors. Section
330 of the Indian Succession Act incorporates and illustrates the principle of rateable distribution of
assets explaining that the legacies abate rateably. Under the Indian Trusts Act, Section 27, there is
contribution also as between co-trustees. Section 73 of the Civil Procedure Code. Section 45 of the
Transfer of Property Act also illustrates the incorporation and application of this principle.

Equity looks to the intent rather than to the form;

Intention is always considered and prioritised over form; doesn’t matter if form wasn’t met, it will be the
intention that is contemplate. Courts seek to give effect to the substance of transactions as opposed to the
mere surface appearance of it; Springer v Lee made it clear that any unnecessary formalities will be
ignored.

The principle contained in the maxim has been recognised under Sections 55 and 74, Contract Act and
Sections 114 and 114-A, Transfer of Property Act.

As provided by Section 55, if time is the essence of the contract, and it is not performed within the
stipulated time, the contract or a part of it which is unperformed would be voidable at the instance of the
promise. If time is not of the essence of the contract, it will not become voidable but entitles the promise
to damages. Moreover, when performance is accepted at a time other than the stipulated one in the
contract, the promise is not entitled to [Link] Section 74 of the Contract Act, only a reasonable
compensation can be claimed by the party complaining of a breach of contract, in spite of their agreement
to the contrary. Where no actual damage is proved to have been caused by the breach, there also this right
of reasonable compensation is given.
Equity looks on that as done which ought to be done;

If someone undertakes an obligation for the other, equity courts look on it as done and as producing the
same results as if the obligation had been actually performed. Equity courts therefore look to the acts of
the person bound by his conscience and interpret and construe them in such a way that they amount to
what ought to be done.

i) The Transfer of Property Act- A Contracts to sell a land to B. While the contract is still in force, he
sells that land to C, who has notice of the contract. B may enforce the contract against C to the same
extent as against A.

ii) The Specific Relief Act- Section 12 relating to the specific performance of part of a contract also
illustrates the application of the maxim.

iii) The Trust Act- Where a person acquires property with notice that another person has entered into an
existing contract affecting that property, the former must hold the property for the benefit of the latter.

Equity imputes an intention to fulfil an obligation;

The law of Equity considers, estimates and construes the acts of parties thus where a person isunder an
obligation to do certain act and he does some other act which is capable of beingregarded as an act in
fulfillment of his obligation; the latter will be considered as done inperformance of the former.

Sections 177, 178 and 179 of the Succession Act make a deliberate departure from the English doctrine
of satisfaction. As the first section goes: "Where a debtor bequeaths a legacy to his creditor and it does
not appear from the will that the legacy is meant as a satisfaction of the debt, the creditor shall be entitled
to the legacy as well as the debt."This departure is on grounds suggested by the Law Commissioners in
their report that presumptions recognised in England are objectionable in themselves or specifically
inapplicable to Bangladesh

Where there is equal equity, the law shall prevail

When two parties want the same thing and the court cannot in good conscience say that one has a better
right to the item than the other, the court will leave it where it is. For example, a company that had been
collecting sales tax and turning it over to the state government found that it had overtaxed and overpaid
by 2 percent. It applied for a refund, but the state refused. The court upheld the state on the ground that
the money really belonged to the customers of the company. Since the company had no better right to the
money than the state, the court left the money with the state.
Where the equities are equal, the first in time shall prevail;

Where two claimants have equally strong cases, the person who acquired their rights first will be the one
to prevail; first in time is the first in right. In reflection of the commercial element of equity, time is of the
essence. Whoever acquired their rights first will be in the favourable view of equity

Equity acts in personam;

This is a maxim that governs how equity is administered in [Link] act in personam means it acts upon a
person”s [Link] is as opposed to acting in rem which is a characteristic of common law where it
acts upon the property that is subject to the [Link] stated in the Earl of Oxford case,in case of a conflict
between equity and common law,equity shall [Link] Ellesmere insisted that Equity was not in
competition with common law,rather,it acted upon the conscience of the parties to a [Link] James I
held the same view.

According to opinions no such jurisdiction is recognised by Bangladeshi courts while according to some,
the courts in Bangladesh have but limited powers of making a decree in [Link] opinions are thus
divided. The Civil Procedure Code, Section 16 does not deal with this problem; it explains the division of
jurisdiction of the municipal courts only. Till now we have no such decisions bearing directly on this
issue. Similarly where lands abroad have been acquired by fraud of a party residing in England, a suit to
set aside the transaction will be entertained by the court of equity in England. It will also entertain a suit
to enforce express tuses affecting land situate in a foreign country or for preservation or protection of the
rust fund situate in a foreign country if the trustee resides in England, but has Equity looks on that as done
which ought to be done no jurisdiction to interfere with administration of a trust which has to be
conducted in a foreign territory.