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Definitions:
Common law:
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1: The un codified law other than statuary law is known as common
law.(1)
2: The law which based on customs and early decisions of the court.(2)
3: The common law is a body of law based on customs and general
principles embodied in case law which serves as precedents
and is applied to situation not covered by statue.(3)
Elaboration:
When we studied all the above mentioned definitions at once then we can
easily understand the gist of common law system that is to say common
law is something different from equity and where the precedents and
customs are presumed to be the primary source of law and the decisions
are based on these source of law and there is any proper justification to
show that common law accepts any rule of equity, natural rights, moral
rights and conscience for adjudicating the cases which normally filed in
the common law. The precedents are also binds on the future cases of
same nature that is to say the doctrine of stare decisis were and are
largely diluted with the particular case. Subsequently these customs were
written and gave a frame of Writ system
Equity law:
1:The rectification of formal justice (4)
2: All those rules which are developed to mitigate the severity or the
constrains of common law (5)
3: A system of law design to furnish remedies for wrongs which were
not legally recognized under the common law of England or for which no
adequate remedy was provided by common law.(6)
Elaboration:
All these three definition shows that there were some deficiencies in the
common law system and to strengthen and solidify the common law
equity was emerged as Aristotles definition indicates that as well as both
other definition does the same and tells that equity didnt developed to
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destroy the law but to supplement the law and to fulfil the deficiencies like
in adequate remedies. The definition clearly indicates us that when it
comes to remove the deficiencies it also developed its own rights and
remedies to supplement and not to destroy the law.
Result:
Defined and elaborated search showed that even equity was not came to
destroy the law but it grounded its administration in the orbit of law
impliedly and secretly, and well existed. Therefore we cannot deny the
fact that where two bodies of law existed consequently there were bound
to be occasions where there is a conflict. But that was the conflict which
brings a creativity in the system of law named as Supreme court of
judicature. So we can say that conflict were there but every conflict
results in best reforms.
Because
Creativity comes from a conflict of ideas (Donatella Versace) (7)
Some conflicts were implied like in the source of law of both
administration of justice and both frequently and usually counter attack
each other in arguments. There were also implied conflict in rights and
especially in the remedies emerged in the result of emergence of equity
court. The conflict which is our subject of study is the one which was
express in nature and that we will discuss with reference of cases in detail.
Conflict between Equity and Law:
As I told earlier that nonetheless, in a legal system where two body of law
existed, there were bound to be occasions where there is a conflict. The
conflict arose in the sixteenth century as the chancellor extended and
consolidated his jurisdiction, and the dispute centred on what became
known as common injunctions issued by the chancellor, who contended
that, even though a judgement was technically good, he was entitle to set
it aside where it had been obtain by oppression, wrong and bad
conscience. By a common injunction, he would restrain parties to an
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action at common law either from proceeding with their action at law, or
having obtained judgement, from enforcing it. The rule was laid down in
Neath v Rydley that where any matter was properly traceable at
common law, common law could prohibit the chancery from interfering. In
fact in Courtney v Glinvil coke threaten to imprison any party to a suit,
who after losing at common law, appealed to the chancellor for relief.
The another conflict which I found the criticism of common law to the
sources of equity court that is the equity courts has no strict rule and their
judgements where made through conscious therefore the common law
criticise on them that the flexibility given by the equity court in deciding
cases and on moral principles and conscious so no one can know how and
where the justification of his case comes which create unpredictability in
the mind of people which results in uncertainty of law in the mind of
people.
There was another implied conflict in between the equity and common law
as to the new rights brought by equity law e.g. equitable tittle in case of
trust and equitable redemption in case of mortgage, because these rights
endanger the custom of England that in case of trust the person who
holds the legal tittle is presumed to be the legal owner and if refuses there
is only compensation for the beneficiary. But the equitable tittle which is
introduced by equity law challenge the custom of England and the
common law presumed that they are degrading our law.
There were also conflict between the common law and equity law as to
the jurisdiction (8) of the court. As study discover that the equity courts had
three jurisdiction that were conclusive/exclusive, concurrent and
auxiliary jurisdiction of equity court, there were no such dispute in the
conclusive and auxiliary jurisdiction but many of the conflict seems to be
in concurrent jurisdiction as both of them had jurisdiction to hear the case.
The conflict reached climax in earl of oxfords case (9) where the
defendant forcefully ejected the plaintiff from a land (i.e. plaintiff) had
built and in an action for wrongfully ejectment, the court found in the
favour of defendant. The plaintiff brought the action in the court of
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chancery and it granted an injunction restraining the defendant from
ejecting the plaintiff from the house he had built upon. According to Lord
Ellesmere, he that builds the house must live in it and argued that equity
and good conscious found in favour of the plaintiff. This didnt enjoy the
pleasure of coke, the then the chief justice of the king bench, who
protested that the chancellor should stop frustrating the rules of common
law.
The dispute finally came to a head under James I, when coke was chief
justice and Ellesmere Lord Chancellor. It was implicit in the ruling that if in
any situation there was a direct clash between the two systems; the rule
of equity would prevail.
Later on this principle was incorporated in the judicature act (10). And
judicature act was passed due to the above conflicts in which both
administration of justice were fused.
Equity and application in Pakistan:
As we know that when people of England got inadequate remedy from the
common law they start petitioning the king and when the cases were
few the king start deciding the cases. By the passage of time he delegate
the cases to his chancellors for adjudication, and in the beginning the
chancellors were decide cases in a delegated capacity and in 1474 for the
first time the chancellor pass the decree in his own name and that was the
emergence of equity and after that they formulated different maxims for
the standardization of law. So our application of equity in Pakistan
revolves around these maxims.
The maxims which were formulated by the equity courts were:
1. Equity will not suffer a wrong without a remedy.
2. Equity follows the law.
3. Where there is equal equity, the law shall prevail.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities.
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8. Equality is equity.
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be done.
11. Equity imputes an intention to fulfil an obligation.
12. Equity acts in personam.
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agreeing to divide the estate with his brothers and sisters, equity would
have interfered and compelled him to carry out his promise, because it
would have been against conscience to allow the son to keep the benefit
of a legal estate which he obtained by reason of his promise. (15)
Recognition in Pakistan:
Recognized under limitation act.
For instance if someone is going to conceal some facts through which a
person deprived from his property when the bar comes, then there will be
no bar on the concealment of fact(16)
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obtained it under such contract. This is but proper because one
cant benefit twice.(18)
2) Under the transfer of property act embodies the principle of election
which rest on the principle of approbate and reprobate(19)
3) This maxim is illustrated also in specific relief act(20) and also in trust
act(21)
4) Precedent of India that was Clerk v Ruthnavaloo is recognized in
Pakistan, in which it was decided that equitable set off can be
pleaded.(22)
Conclusion:
The equitable maxims provide a set of general principles which can be
said to have influenced the development of equity. This assignment 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. From the research about the recognition of
these maxims in Pakistan shows that all the maxims which were
formulated by the equity is incorporated and is working and applying in
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Pakistan. These maxims helps a lot in the standardization of law and to
achieve more and more justice for righteous litigant.
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20) Under Section 30 and 33 specific relief act
21) Under Section 62 and 86 of trust act
22) Under Order 8 rule 6 Civil Procedure Code (CPC)
23) Under section 23 of trust act
24) Under section 17 18 and 20 specific relief act
25) In Article 113 of limitation act
26) Under section 51 of transfer of property
27) Under section 114 of transfer of property
28) Under section 177,178 and 179 of succession Act
Note(some of the section may be vary from Pakistani law act, as some of
them taken from Indian writer but it will not defeat any provision as our
law is same)
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Bibliography:
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