8-Equality Is Equity

EQUALITY IS EQUITY
Equity delighteth in Equality
1- INTRODUCTION
Plato defines equality as ‘a sort of justice’ and further points out that
“Equality is as sort of justice. If you cannot find any other, equality is
the proper basis.”
PLATO
The idea aequitas or equality is the every basis of equity, not only in Rome
but also in England.
The English Court of Chancery incorporated into the Equity jurisprudence
of English Law, the concept of acquitas i.e. the notion of equality and
impartiality as conceived by the Roman jurists.
This maxim is explained also as “equity delighteth in equality”, which

means that as far as possible equity would put the litigating parties on an
equal level so far as their rights and responsibilities are concerned,
although strict rules of law may give one party an advantage over the
other.
2. DEFINITION OF MAXIMS
According to Walker D.M

“Maxims are short, pithy formulations of broad and general
principles of common sense and justice”.
Page3
According to SNELL
“These are not to be taken as positive laws of equity which will be
applied literally and relentlessly in their full width, but rather as trends or
principles which can be discerned in many of the detailed rules which
equity has established.”
3. EVOLUTION OF MAXIMS
Generally, the maxims of equity evolved from time to time and especially
began to formulate in the time of Lord Nottingham during (1673-82). Lord
Nottingham is also known as father of modern English equity.
4. MEANING AND EXPLANATION OF THE MAXIM
To appreciate the maxim it is necessary to view the attitude of the

common law to legal rights.
The doctrine of equality operated more effectually in a court of equity than
a court of law, and was exemplified in many departments or equity
jurisprudence.
“It has long been a principle of equity that in the absence of sufficient
reasons for any other basis of division, those who are entitled to property
should have the certainty and fairness of equal division.” SNELL
5. PROPORTIONATE EQUITY
“The maxim that ‘equality is equity’ expresses in a general way object both
of law and equity, namely to effect a distribution of property and losses
proportionate to the several claims or to the several liabilities of the
persons concerned. For equality in this connection does not mean literal
equality, but proportionate equality. Halsbury
“When I say equality, I do not necessarily mean the equality in its simplest
form, but which has been sometimes called proportionate equity.”
JUSTICE FRY Page3
6. CASE LAW ILLUSTRATION
PETIT Vs SMITH (1695) 1 PWms 7
In this landmark and time tested case regarding this maxim, it was held
that “Equity Delight in Equality”
7. INSTANCES OF APPLICATION OF THIS MAXIM
a). Presumption of Tenancy in Common & dislike for Joint

Tenancy
Joint tenancy is a tenancy with two or more co-owners who take

identical interests simultaneously by the same instrument and with
the same right of possession.
Equity disliked joint tenancy and productive of injustice and
inequality (carries risk and danger). Because if one of joint tenants
died then survivor tenants inherited the property and the legal heirs
of the deceased tenant do not inherit the property.
i). Joint Purchase in Un-equal Shares
Where property is jointly purchased with co-purchasers, A and B
providing money in unequal shares and A dies, B becomes entitled
to the whole of the property at law.
But in equity B was treated as holding A’s share in trust for A’s
representative proportionately to the purchase money advanced.
ii). Joint Loan on Mortgage
In case of loan on mortgage, advanced by A and B jointly to C,
either in equal or in unequal shares, the surviving mortgagee is to
hold the same in trust for the representative of the deceased
mortgagee proportionately to the money advanced. Here also the
presumption of joint tenancy at law was repelled. Page3
iii). Purchase by Partners
The principle of joint tenancy does not apply as between partners in
a business and this is for the benefit of business so that the growth
of commerce may be fostered.
The Latin expression for this is ‘inter mercatores locum non
habet pro beneficio commercili’, which explains that the right
survivorship (jus accrescendi) has no place among merchants.
b). Equal Distribution of Joint Funds or Joint Purchases

Where the husband and wife who operate a joint bank account;
each spouse may deposit or take out money. Upon divorce, the
maxim applies. They share 50-50. The authority is that equity does
not want to concern itself with the activities of a husband and wife
to go into the bedroom and make deep inquiries. Hence, equal
division. If children are involved, that may be considered.
Another illustration: copyright. You have a situation where you’ve
two people and the author bequeaths the script to one person and
the copyright to another person. One cannot utilize the manuscript
without the copyright. Each requires the other. Where that is
situation, the proceeds will be divided equally between the two. The
case that illustrates this is Re Dickens 1935 Ch 267
c). Contribution b/w Co-trustees, Co-sureties and Co-contractors

Where a creditor has a simple claim against several debtors, he
may realize his claim from any one of them. The debtor who was
compelled to pay the whole of the claim had no remedy against the
others at common law……
Equity in order to set right the injustice and in order to treat all the
debtors on the basis of equality, gave the debtor a right to Page3
contribution from the rest, thus pressing the burden equally on all.
With co-sureties and co-contractors, the same rule is applied.
d). Marshalling of Assets
Equity on the principle of equal treatment to equals so marshaled

(or arranged) funds that no cause of injustice could arise.
Where there are two creditors of the same debtor, one creditor
having a right to resort to two funds of the debtor for payment of his
debt and the other, a right to resort to one fund only, the court will
so ‘marshal’ or arrange the funds that both creditors are paid as far
as possible. Well Vs Smith (1885) 30 Ch D 192
8. RECOGNITION IN PAKISTAN
a. Contract Act
42, 43, 69, 70, 146, 147
b. The Transfer of Property Act
Section 56, 82
c. The Trust Act
Section 27
d. The Code of Civil Procedure
Section 73
9. CONCLUSION
Page3

8-Equality Is Equity

Uploaded by

Copyright:

Available Formats

8-Equality Is Equity

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

8-Equality Is Equity

Uploaded by

Copyright:

Available Formats

EQUALITY IS EQUITY

Equity delighteth in Equality

This maxim is explained also as “equity delighteth in equality”, which

According to Walker D.M

4. MEANING AND EXPLANATION OF THE MAXIM

To appreciate the maxim it is necessary to view the attitude of the

6. CASE LAW ILLUSTRATION

PETIT Vs SMITH (1695) 1 PWms 7

a). Presumption of Tenancy in Common & dislike for Joint

Joint tenancy is a tenancy with two or more co-owners who take

b). Equal Distribution of Joint Funds or Joint Purchases

c). Contribution b/w Co-trustees, Co-sureties and Co-contractors

d). Marshalling of Assets

Equity on the principle of equal treatment to equals so marshaled

42, 43, 69, 70, 146, 147

b. The Transfer of Property Act

c. The Trust Act

d. The Code of Civil Procedure

You might also like