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Equity & Trust - Module I-1

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41 views14 pages

Equity & Trust - Module I-1

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muffin muffin
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© © All Rights Reserved
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AMITY LAW SCHOOL

Amity Law School


Semester: IX
Course: Equity & Trust
Course Code: LAW 543

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AMITY LAW SCHOOL

Module I: Concept & Historical


Development

• Concept of Equity
• History and development of Equity in
England
• Indian Legal System and Equitable
principles

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AMITY LAW SCHOOL

CONCEPT OF EQUITY

 Equity is a Latin word which means fairness, justice

 The term Equity is Derived from the Roman term ‘aequitas’ which

means equalization or levelling. Thus, Equity is that which levels down

any arbitrary preferences or denial of justice.

 Equity is founded on the principles of natural justice

 According to Osborne, “equity is primarily fairness or natural justice”.

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AMITY LAW SCHOOL

DEFINITIONS
 Henry Levery Ulman: “Equity is a body of rules, the primary source of
which was neither custom nor written law but the imperative details of
conscience and which had been set forth and developed in the Court of
Chancery.”

 Blackstone: “Equity is the soul and spirit of all laws… it is synonymous


with justice”

 Aristotle: “Equity is the correction of the law which is defective on


account of its generality”

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AMITY LAW SCHOOL

HISTORICAL DEVELOPMENT OF EQUITY IN


ENGLAND
 13th century: Three Courts in England, namely, Court of
King’s Bench, the Court of Common Pleas and the
Exchequer.

 Law developed and administered by these three courts was


the Common Law and the Statutory Law.

 The Exchequer was headed by a Chancellor, called King’s


Prime Minister.
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AMITY LAW SCHOOL

• The body of rules and principles developed by the


Lord Chancellors became known as equity because
they were based on the concepts of fairness and
justice.
• The Court of Chancellor was recognized as Court of
Chancery (Court of equity).
• The Court of Chancery was in effect developed as a
court of conscience to counteract the defects that
existed in the common law system.

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AMITY LAW SCHOOL

• Flexibility, simple procedures, and equitable


remedies made the court of equity (The
Chancery) popular among the people.

• The court of equity developed four main


remedies known as injunctions, specific
performance, rescission, and rectification

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AMITY LAW SCHOOL

• The rules of equity varied from Chancellor to


Chancellor until the end of the 16th century.

• However, as gradually Courts of Chancery


began keeping the records of court
proceeding, it led to the development of
equitable doctrines (maxims/principles of
equity).

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AMITY LAW SCHOOL

• In the Earl of Oxford’s Case (1615) the Court of Chancery


issued a common injunction prohibiting the enforcement
of a common law order. The matter was referred to the
Attorney General Sir Francis Bacon when no resolution
could be reached between the two courts.

• Sir Francis upheld the common injunction and stated that


‘in the event of any conflict between the common law and
the law of equity, equity would prevail’.

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AMITY LAW SCHOOL

DEVELOPMENT OF EQUITY UNDER INDIAN LEGAL


SYSTEM

• Principles of equity have over the time developed and


found their place under various statutory enactments in
India. Some of the significant statutory recognitions of
equity are as follows:

• The Indian Contract Act, 1872


• The Specific Relief Act, 1963
• The Indian Trust act, 1882
• The Transfer of Property Act, 1882

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AMITY LAW SCHOOL

The Indian Contract Act, 1872


•The equitable doctrines featuring in the Indian Contract Act
are mainly:
the doctrine of penalties and forfeiture,

stipulations as to time in a contract,

equitable relief on the ground of misrepresentation,

fraud, and undue influence.

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AMITY LAW SCHOOL

The Specific Relief Act, 1963

•Under the Specific Relief Act, most of the equitable concepts have
been codified and made statutory rights, thereby ending the
discretionary role of the courts to grant equitable reliefs. These rights
are in the form of,
recovery of possession of immovable property,
Specific performance of contracts,
Rectification of Instruments,
Recession of Contracts,
Cancellation of Instruments,
Declaratory Decrees and Injunctions
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AMITY LAW SCHOOL

 The Indian Trust act, 1882


• The rules administered by the English Courts of equity under
the head of justice, equity and good conscience are contained
in the Indian Trust Act.
• The concept of trust itself has originated from equity and
justice.
• The Indian Trust Act, 1882 and its provision is the primary
recognition of principles of equity as originated by the
Chancery Courts.
• Note: Provisions of The Indian Trust Act, 1882 to be discussed in
the last module.
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AMITY LAW SCHOOL

 The Transfer of Property Act, 1882


• The principles of equity under TPA have been embodied in
the form of:
• English doctrine of part performance under section 53A,

• Doctrine of priority under Section 48

• Equity of redemption under Section 60 and

• Doctrine of Election under Section 35 of the Act of 1882.


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