Date of submission
Equity can be described in several ways but according to many people, it is often a symbol of fairness and justice. However, we can trace the origin of equity to the basis of common law considering that common law had flaws. In this regard, equity can be traced back to the 13th century which was brought about by the various claims that were presented for governing. As equity developed, it brought about changes with common law this is where Litigants used equity for their advantage to seek equitable injunction which would be used to enforce the common law order (Pont & Chalmers, 2007). As a result, we can presume equity did evolve out of necessity which would bring about the perpetuation of smooth operations of the common law. If two parties do engage in verbal contract under the common law, then based on the common law then the contract spot will not provide any remedy. As a result, this brought about changes on the common law which saw rise to the equity law. The universality of common law proved to be problematic in the early centuries which was attributed to the fact of the creation of laws that were common to all (Pont & Chalmers, 2007). As a matter of fact, the incidents of jury intimidation in the common law courts proved to be potential in bringing justice system into disrepute. Despite the many terminologies associated with equity, in legal terms it will be used to describe rules that are developed in the mitigation of the severity or constraints of the common law. The important aspect of equity was that it was developed based on common law but as a separate legal authority.
History of Equity
Though equity and common law were integrated together following the 1873 and 1875 Acts, the decision to integrate common law and equity law has been fraught with controversy. The law of equity has changed substantially in the last 50 years. This can be well supported by maxims such as ‘when the equity are all the same, the first in time happens’ and the impact on occurrences, as well as conflicting interests, and the maxim ‘equity behave in persona’ and its influence on the working of the law outside of the decision. The entire building was designed with the goal of delivering the most possible advantage (Cope, 2007). The phrase “flexible when law appears to be dominating, flexible when law appears to be compulsory, and compassionate in its commitment for justice rather than rights” effectively represents the evolution of equity during the last 50 years. Indeed, equity contains discretionary aspects in terms of administration and even extent, which have a significant impact on issues of domestic and international law. By and large, equitable principles emerged as a foundation for Roman and English common law, which are done to enhance or amend the body of law (Cope, 2007).
Judges will be more answerable to parliament if they did not have the ability to deviate from Common Law through the application of Equity. The disparities between instances would disappear if Equitable and Conventional Law were combined. In each scenario, a combination of equitable and common law would be applied, and the same judgment would be reached. Although Equitable and Common Law have merged the courts in which they apply, substantive law has not yet been fused. On a substantive level, there is a strong case against combining the two. Many claim that the Judicature Acts were simply intended to combine the administrative features of Equity and Legal Systems. Those who advocate for a meaningful merger are frequently accused of falling victim to the ‘fusion fallacy.’ Where the purposes of justice and social and economic transformation have arisen, equity has frequently supplemented Common Law. The concept of equity’s trust and modern mortgage law will not exist if equity had not intervened. Although it may appear that day of equity creating legal ideas fairly advanced has passed, equity may be required again one day (Cope, 2007).
Maxims of Equity
Where the purposes of justice and social and economic transformation have arisen, equity has frequently supplemented Common Law. If it weren’t for equity’s interference, the trust idea and modern mortgage law would not exist. Although it may appear that the day during equity creating legal concepts outside their time passes, it is possible that one day justice may be required again. This maxim expresses a key element of equitable jurisdiction: it states that justice will intervene to safeguard a recognized right that is not enforceable at legal system for some reason. Injunctions such as injunctions and particular performance were developed as a result of this maxim’s basis. However, it does not guarantee that equity will provide a remedy in all cases of apparent injustice. Indeed, Wylie has called the maxim a “grossly erroneous characterization of modern equities methodology.” Equity may now just come to the aid of one who can establish that a recognized valid legal right has been violated or is in danger of being violated, since the maxim has become progressively institutionalized and based on precedent (Pont & Chalmers, 2007).
Although equity remedies are granted without the need of legislation to enforce them, the goals of equity remedies are similar to those of common law in many ways. The goal of a common law lawsuit is to recompense the defendant for any financial losses sustained as a result of a tort done to them. The courts use equity to handle situations in which renumeration may not be acceptable. An injunction may protect the plaintiff from incurring future monetary losses. An example would be an interdict prohibiting someone from constructing a business on land close to the plaintiff (Pont & Chalmers, 2007). If the plant is permitted to be erected, the plaintiff’s property value may suffer as a result. Likewise, a judgment against a trustee forbidding him from acting with the trust’s assets in a particular way may protect the beneficiaries from monetary loss on them inherit (Pont & Chalmers, 2007).
Whereas the concepts of equitable remedies differ greatly from those of legal system remedies, it is not completely incompatible with them. One of their shared goals is to restore natural justice, either through cash reward, where no other option would suffice, or through equitable remedies, or both. As a result, the conclusion can be attracted that equity and common law remedies are cooperating to define natural justice for the plaintiff, and that, while they use different methods to achieve that goal, the final outcome is that the plaintiff has a better chance of receiving the grant best suited to their situation (Pont & Chalmers, 2007). It was decided, with the establishment of ‘Maxims,’ that certain mantra must be fulfilled before applying Equity. ‘He who goes to equity should come with clean hands,’ which means that applicants who have not acted in good faith will be denied equitable relief.
Whereas the concepts of equitable remedies differ greatly from those of legal system remedies, it are not completely incompatible with them. One of their shared goals is to restore natural justice, either through cash reward, where no other option would suffice, or through equitable remedies, or both. As a result, the conclusion can be attracted that equity and common law remedies are cooperating to define natural justice for the plaintiff, and that, while they use different methods to achieve that goal, the final outcome is that the plaintiff has a better chance of receiving the grant best suited to their situation. It was decided, with the establishment of ‘Maxims,’ that certain mantra must be fulfilled before applying Equity. ‘He who goes to equity should come with clean hands,’ which means that applicants who have not acted in good faith will be denied equitable relief (Cope, 2007).
During the medieval time, litigants who believe they have been wrongfully judged by the Common Judicial process may petition the King, who then moves the matter to the Chancellor. The Lord Chancellor is not a centralized judge, but rather the custodian of the Great Seal, the one who certifies writs, and the one authorized to deliver royal writs on behalf of the Crown. This was the Lord Chancellor’s responsibility to invite convicts so that they could explain their actions in front of him (Pont & Chalmers, 2007). The Chancellor may act even after the common law judgment has been rendered to guarantee that the plaintiff does not do anything to undermine the Common Law statutes (Hudson, 2001). The grounds offered and the judgment taken by the King’s council, such as the Lord Chancellor, to grant a defendant a new trial evolved into a distinct legal system known as Equity. However, it soon became clear that Common Law adjudicators despised the Lord Chancellor’s power to issue injunctive relief for offenders to avoid the pain of jail since they saw this as bending the rules of commons. In the Lord of Oxford’s case in 1615, the Lord Chancellor’s right to issue injunctions was contested by the Lords Coke and the Lord Chief Justice, but was settled by King James I by determining that ‘whenever equity disagreed with common law, justice would triumph. (Cope, 2007)’
Because of the inequalities generated by the requires a dedicated of statutory laws, the system of Trust evolved from the system of Equity, which was used to manage ‘commercial, public, and private property.’ The building of trust has a substantial historical origin that dates back to the period of the knights in Europe in the 13th century. English noblemen who participated in the crusade also owned lands under the feudal state, and they were away for the majority of the time, requiring them to leave their lands behind to trusted people or trustees who will care for their characteristics, but the utmost property rights still continue to stay with the initial landowner as the benefactor (Pont & Chalmers, 2007).
There are three types of trust: express trusts, resultant or implicit trusts, and constructive trusts. The nature of these trusts is determined by their origination; express trust is produced by ‘explicit intention,’ resultant trust from a ‘implied intention,’ and constructive trust is placed on someone to protect him or her from actions of ‘unconscionable assertions of ownership over property.’ In modern trust, explicit trusts exist in ‘trust funds,’ where the ‘settlor’ has total power over the trust fund and chooses trustees to maintain trusts for beneficiaries, which are created specifically by the settlor (Pont & Chalmers, 2007). The courts, on the other hand, impose resultant and constructive trusts. Resulting trusts are those in which parties have not created express trusts; they exist in two circumstances: ‘automatic resulting trusts,’ in which a settlor generates a trust but the commissioners have still not identified beneficiaries for the trust; and ‘purchase price resulting trusts,’ in which if two acquire a public land, the equity court will provide them with an equitable interest that is only proportional to how much they contributed in order to acquire the property. Finally, constructive trust is those established by the equitable court to ‘construe’ a defendant into being a trustee of a certain property, so barring that person from engaging in unconscionable behavior (Pont & Chalmers, 2007).
The Role of Equity and Trust
People are considered to be scared of disorder and want order; it is in this purpose that equity handles the world’s chaos by giving ‘flexible claims’ and ‘remedies.’ Equity prevents a respondent from acting unconscionably, specifically with regard to trustees dealing with beneficiary’s property, a claimant’s fear that a defendant may move his or her characteristics out of the authority before a trial begins, and if a plaintiff failure to make his or her role in the established contract (Cope, 2007). In other words, equity courts assure that any respondent will operate in order to be consistent and observe the trust made with the complaint, and that he or she may resist from taking away his or her ownership of the profit, according to Hudson (Cope, 2007).
The fundamental precepts of Equity were established in the 17th century to outline how the court dealt with conflicts. The first maxim is that “Equity will not tolerate a wrong without the need for a remedy,” which means that equity can always choose to correct injustices even if a writ did not exist under common law. The next interpretation is that “Equity follows the law,” which states that equity only acted as a supplement to the common law and additional remedies whenever the common law was insufficient or won’t serve justice to every party (Cope, 2007). Furthermore, equity assures that a claimant may not make a claim in which he or she has not operated in a conscientious manner. Furthermore, when there is no clear distinction as to the merits of the claimant’s arguments, the court will always refer to “Equality is equity,” which contends that accusers must be treated equally as a last resort if it cannot be determined which of the complainants has a larger share of the property. Another equity maxim is that “Equity helps the alert and not the tardy,” which means that litigants will be denied relief if they do not file or establish a request for equitable aid within the specified time frame. The maxim “Equity looks to the intent rather than the form” understands equity as focusing on the operation or intent of a trust rather than the wording or appearance of a deed or evidence exists to support; another maxim is that “Equity looks to the intent rather than the form (Pont & Chalmers, 2007).”
In common law, the legal action is recognized first, followed by a remedy; in equity, the remedy is identified first, and then it strives to explain how the court’s conscious is affected. The standards must be followed under common law or else common law deems nothing to have occurred; this is why common law only permits a limited number of remedies (Cope, 2007). However, equality focuses on a person’s awareness of a problem, which is reflected in the variety of treatments that it offers. Once a common law legal action is established, a party does have the right to claim damages; nevertheless, in order to pursue equitable relief, the court must provide a remedy within equity. Equitable remedies are thought to be adaptable, as they offer a wide range of solutions depending on the situation (Pont & Chalmers, 2007). One series of circumstances could possibly give rise to many equitable remedies, such as a remedial trust deed as a result of a breach of fiduciary duty, an account of profits, or even an injunction. Notably, the remedy chosen by the court may be restricted in providing adequate justice for a problem. According the Court Amendment Act 1858 (UK)18, equitable recompense may be utilized where a party has experienced an equitable injustice. Notably, as indicated in the statute, this may be replaced for or supplemented by a need to enhance for specific property or perhaps an injunction. This monetary award has no resemblance to damages under common law because it is exclusively an equitable remedy granted when a party has incurred from an equity wrong (Cope, 2007).
To conclusion the claim that the procedure of equity is venerated in compared to the procedure of common law giving remedies, can be deemed valid. Although, as stated in an equity maxim ‘equity follows the common law’, yet this does not obligate equity to give a remedy when legal system damages are not found to be sufficient in an issue. Equity was created to protect parties from unjust judgements due to numerous reasons, these grounds may be infringed by common law judgments which is where justice has the capacity to step in and guarantee a party is provided a fair judgment and remedy for their problem (Pont & Chalmers, 2007). Furthermore, as noted there are various variations between common law system but they both serve a distinct function within law, yet it must be recognized that equity did emerge originally from law and should only be searched out appropriately when applicable. Equity functioned as a tool for people to accomplish justice even while legal court prevented them of attaining fairness. Equity had become a means of calming conflicts in the easiest way, in such circumstances as asset disputes to be addressed in discretion measures which will guarantee that both complaint and dependent will behave in conscience (Cope, 2007). It is now apparent that Australia’s fairness and trusts legislation primarily embrace the test of ‘unconstitutionality’ which concentrates on analysis. the purpose the plaintiff and alleged perpetrator party and so that it can be made damn sure that the both sides will not delete one ‘s share of characteristics through the assistance of constructive trusts. Through equity and trust, the constraints of the common law were resolved and it has been demonstrated that the precise execution of legal laws may not always work for most societal challenges. Most correctly recognized is the fact that Society today is continually growing and now has placed greater pressure on the Provincial governments as ever than before (Pont & Chalmers, 2007). Despite the awareness that the legal court of Australia may were unable to give an accommodation between the legislature and the government sector, such that the citizen’s trust eroded which caused most persons to seek justice in non-governmental groups. However, a beneficial result of the trust and equity development in Australia has been the implementation of Retirement and Pension schemes, which offered employees the ability to invest in trust funds and profit from this plan. However, there is still an argument that this may have a detrimental impact of fair connections among workers and employers as the employees are forced to pay to these trust funds. Nonetheless, equality and trust still retain important factors in the Australian culture which have greatly given justice beyond specific court judgements (Cope, 2007).
Cope, M. (2007). Equitable Obligations: Duties, Defences and Remedies. Lawbook Company.Pont, G. E., & Chalmers, D. R. (2007). Equity and Trusts in Australia. Lawbook Company.