Maxims of Equity

the branch of law that governs trusts is based on a series of fundamental principles or maxims which are listed below.

Someone the more relevant maxims in relation to this fraud are as follows

He who seeks equity must do equity

This maxim looks to the plaintiff’s future conduct. If the plaintiff seeks equitable relief he must be prepared to act fairly towards the person against whom it is sought. 1

He who comes to equity must come with clean hands

In contrast, this maxim looks to the past conduct of the plaintiff.

An applicant for an equitable remedy will not receive that remedy where he or she has not acted equitably him or herself.

A court of Equity will not act in favour of someone who has committed an illegal act 2.

Equity acts in personam

This is a key feature of equity, which is important in relation to constructive trusts and trustees de son tort.

Lord Selbourne stated in Ewing v Orr Ewing (No. 1)3.

“The courts of Equity in England are, and always have been, courts of conscience, operating in personam and not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not .. within their jurisdiction.”

A Trust operates on the conscience of the legal owner of property

The most significant of the equitable doctrines is the trust, under which a beneficiary is able to assert equitable rights to particular property and thus control the way in which the common law owner of that property is entitled to deal with it.This principle is in line with the earliest reported cases on equity which were concerned to “correct men’s consciences”4

Maxims of Equity

 
  • Equity will not suffer a wrong without a remedy
  • Equity follows the law
  • Where there is equal equity, the law shall prevail
  • Where the equities are equal, the first in time shall prevail
  • Delay defeats equities
  • He who seeks equity must do equity
  • He who comes to equity must come with clean hands
  • Equality is equity
  • Equity looks to intent rather than form
  • Equity looks on as done that which ought to have been done
  • Equity imputes an intention to fulfil an obligation
  • Equity act in personam
  • Alister Hudson in Equity and Trusts (5th Edition) also includes:

  • Equity will not permit statute or common law to be used as an engine for fraud
  • Equity will not permit a person who is trustee of property to take a benefit from that property qua trustee
  • Equity will not assist a volunteer
  • Equity abhors a vacuum
  • A Trust operates on the conscience of the legal owner of property

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    Clean Hands #1

    Clean hands #2

    Notes

    (1) Lodge v National Union Investments Co Ltd [1907] 1 Ch 300.; Solle v Buther [1950] 1 KB 671; Chappell v Times Newspapers Ltd [1975] 1 WLR 482

    (2) FAI Insurances Ltd V Pioneer Concrete Services Ltd [1987] 15 NSWLR 552 at 559;Jones v Lenthal (1669) 1 Ch Cas 154; Enroy v Nicholas (1733) 2 Eq Ca Abr 488; Quadrant Visual Communications v Hutchison Telephone [1993] BCLC 442.

    (3) Ewing v Orr Ewing (No. 1) (1883) 9 App Cas 34,40.

    (4) Earl of Oxford’s Case (1615) 1 Ch Rep 1, per Lord Ellesmere


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    This tab updated on 15 March 2015