Equity and Trust

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  • Topic: Equity, Common law, Equitable remedy
  • Pages : 12 (4043 words )
  • Download(s) : 92
  • Published : April 12, 2013
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Introduction

The equitable maxims provide a set of general principles which can be said to have influenced the development of equity. This gives an overview of a selection of these maxims, examining them in varying amounts of detail and identifying many of the particular areas of the law which have been affected, and which are dealt with later in the book. 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 maxim ‘equity acts in personam’ and its effect on the operation of the law outside the jurisdiction. This maxim means that when individuals are required, by their agreements or by law, to perform some act of legal significance, equity will regard that act as having been done as it ought to have been done, even before it has actually happened. This makes possible the legal phenomenon of equitable conversion. Sometime this is phrased as "equity regards as done what should have been done". The consequences of this maxim, and of equitable conversion, are significant in their bearing on the risk of loss in transactions. When parties enter a contract for a sale of real property, the buyer is deemed to have obtained an equitable right that becomes a legal right only after the deal is completed.

MAXIMS OF EQUITY DEFINITION

A set of general principles which are said togovern the way in which equity operates, illustratingthe qualities of equity.• In contrast to the common law, maxims are moreflexible, responsive to the needs of the individualand more inclined to take account of the parties’conduct and worthiness.• None of the maxims is in the nature of a bindingrule. Where there is a right there is a remedy. This idea is expressed in the Latin Maxim ubi jus ibi remedium. It means that no wrong should go unredressed if it is capable of being remedied by courts. This maxim indicates the width of the scope and the basis of on which the structure of equity rests. This maxim imports that where the common law confers a right, it gives also a remedy or right of action for interference with or infringement of that right. The maxims of equity evolved, in Latin and eventually translated into English, as the principles applied by courts of equity in deciding cases before them.[1] An English authority states about the maxims of equity: "The Maxims do not cover the whole ground, and moreover they overlap, one maxim contains by implication what belongs to another. Indeed it would not be difficult to reduce all under two: 'Equity will not suffer a wrong to be without a remedy' and 'Equity acts on the person'"

The Traditional Maxims

Equity regards as done what ought to be done

This maxim means that when individuals are required, by their agreements or by law, to perform some act of legal significance, equity will regard that act as having been done as it ought to have been done, even before it has actually happened. This makes possible the legal phenomenon of equitable conversion. Sometime this is phrased as "equity regards as done what should have been done". The consequences of this maxim, and of equitable conversion, are significant in their bearing on the risk of loss in transactions. When parties enter a contract for a sale of real property, the buyer is deemed to have obtained an equitable right that becomes a legal right only after the deal is completed. Due to his equitable interest in the outcome of the transaction, the buyer who suffers a breach may be entitled to the equitable remedy of specific performance (although not always, see below). If he is successful in seeking a remedy at law, he is entitled to the value of the property at the time of breach regardless of whether it has appreciated or depreciated. The fact that the buyer may be forced to suffer a depreciation in the value of the property means that he bears the risk of loss if, for example, the improvements on...
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