880932
Description
Flashcards by ladyamaya86, updated more than 1 year ago
|
Created by ladyamaya86
almost 10 years ago
|
|
| Question | Answer |
| Equitable Maxims General guiding rules governing how equity operates, without being a binding rule. | Maxims are more flexible than the common law Responsive to the needs of the individual - taking into account conduct and worthiness. |
| Equity follows the law. | Indicates relationship between common law and equity. Implies that equity would intervene if justice required it. However it will not attempt to overrule common law judgments. It ensures that equitable rules are in line with common law principles. |
| Equity regards as done that which ought to be done. | Where one party has an obligation to do something for another (but has yet to do so), equity will look on it as done with the same result as it being done. Acts as a person's conscience. Looks to the acts of a person. Walsh v Lonsdale (1882) |
| Equity acts in personam. | It is the nature of equitable remedies that they generally operate against the 'person' of the defendant. Judgement is made against individual. This maxim is helpful in regard to properties held abroad. |
| Equity acts in personam. | Limitations: 1. Defendant has to be within the court's jurisdiction. 2. The order must not violate the legal rules of another country. 3. The order given must be capable of being executed without the intervention of a foreign court. |
| Equity will not suffer a wrong without a remedy. | Restatement of the legal term 'Ubi jus, ibi remedium' - where there is a right, there is a remedy. It means that equity will not allow the technical defects of the common law to prevent plaintiffs from obtaining redress. Cleaver v Mutual Reserve Fund Life Assoc. (1892) D&C Builders v Rees (1966) Argyll v Argyll (1965) |
| He who seeks equity must do equity. | A claimant who seeks equitable relief must be prepared to act fairly towards opponent. Court will look at claimant's future conduct. Chappell v Times Newspaper (1975) |
| Equality is equity. | Equity will not play favourites. If there is a dispute over property in which more than one party has a beneficial interest, it will be divided equally. Does not apply if there is evidence that the property should be divided another way, for example. Midland Bank v Cooke (1995) |
| Equity will not permit a statute to be used as an instrument of fraud. | Equity will not ignore statutory requirements but will do so only where it would be unconscionable to allow a party to rely on it to another's detriment. Bannister v Bannister (1948) |
| Equity looks to the substance rather than the form. | Court of equity finds that by insisting on the form, substance will be defeated. 'Looks to the spirit, not the letter' Opposite of common law. Parkin v Thorold (1852) Street v Mountford (1985) |
| Equity imputes an intention to fulfil an obligation. | Where the claimant is under an obligation to do one thing, but does another, his action may be treated as close enough to the required act. Sowden v Sowden (1785) |
| Delay defeats equity. | Where an injured party has been slow to demand a remedy for a wrong, the court will decline to give him that remedy. Lindsay Petroleum v Hurd (1874) |
| He who comes to equity must come with clean hands. | A party seeking an equitable remedy must not himself be guilty of unconscionable conduct. Cross v Cross (1983) Dering v Earl of Winchelsea (1787) Tinsley v Milligan (1993) |
| Where the equities are equal, the law prevails. | It means that where the claims of two persons are equally equitable, he who owns the legal estate in addition will be preferred. The plain meaning of the maxim, is that the person in possession of the legal estate will get priority over any prior or subsequent equitable interests. |
| Where the equities are equal, the first in time shall prevail. | Priority means the right to enforce a claim in preference to others. The question of priority arises when two or more persons have interest in the same property. As expressed in Rice vs. Rice 1853, priority is the right of a party to satisfy its own claim of interest in comparison to others. |
| Equity will not assist a volunteer. | A volunteer in this context is a person who has not given consideration for a bargain. It means that equity will not grant rights to someone who has merely received a gift. A volunteer has not done anything in return for the gift, like pay for it or do anything for the donor. Part of 'equity will not perfect an imperfect gift'. |
| Equity will not perfect an imperfect gift. | Unless consideration is given, an undertaking to give something is unenforceable, being a mere gratuitous promise. Therefore, unless property in the thing promised has been transferred, the intended donee can do nothing to enforce it. Likewise, where there is a gratuitous promise to create a trust the property must have been vested in the trustees for the trust to be enforceable. Strong v Bird (1874) Re Stewart (1908) Re Ralli’s Will Trusts [1963] see diagram in http://catalogue.pearsoned.co.uk/assets/hip/gb/uploads/M02_EDWA3458_10_SE_C02.pdf |
Want to create your own Flashcards for free with GoConqr? Learn more.