WRITTEN BY : BASIT ALI

EQUITY AND LEGAL MAXIM

WHAT IS EQUITY:
Equity means fair and just or it is also regarded as “specific body of law which supplements the
common law”. And where the common law fails their equity comes.
MEANING:
Equity mean the inner conscience. Equity brings positivity into the personality of a person and is
uncodified (unwritten) law or set/body of rules. In short equity provide a feeling to the law for
justification.
THE ORIGIN OF EQUTY:
The origin of equity came into existence in 11th and 12th century. Equity is a system of law
historically developed in the Court of Chancery. It was developed to solve deficiencies of the
common law. Generally people used to file an appeal at king’s bench. Kings hand over the
appeals to the exchequer (also known as chancery court) to administer them. The chancellor was
also known as Bishop. The Chancellor recognized the inability of the common law to deal with
social and economic changes taking place in society. It’s a system developed along side common law
that provide remedy when common law cannot. It’s still a source of remedies such as equitable
claim, equitable remedy, equitable relief and equitable title etc.
From the beginning king was the ultimate source of law. There was always possibility to petition
the king for relief. Being a king he could grant any relief he saw fit in the name of “fairness and
justice”. Soon the king tired of this duty and passed the task along to his chancellor of
Exchequer. Court’s of equity could not change a common law court ruling. Chancellor has power
to investigate. This includes hearing oral evidence from the parties. If someone did not follow
the law, then Chancellor can order bank to hand over deed and cease enforcing common law
judgment or equitable remedies which were provided. King’s administrative office, consisting
of;
i. King’s bench.
ii. Common place.
iii. Exchequer (also known as chancery court).
THE NEED OF EQUITY:
Writ needed to get into common law court. Different writs for different types of legal claims. If
new type of case came along, chancellor could issue a new writ. And a specific name was given
to the new writs. In 1258 chancellor was told by king he could no longer issue new writs. The
new types of cases had to fit into existing writs.
RESULT OF 1258 REFORMS:
Cases that did not fit into the existing were brought to the king (chancellor) for relief. In Other
cases that did not fit well were placed under existing writs; often leads to unfair result/ justice.
These two writs were brought to the chancellor. Chancellor could then grant a relief.
THE MERGING OF EQUITY AND COMMON LAW:
IN UNITED STATES:
While many states originally had their own courts of equity, other simply merged equity into
their common law court system.
IN ENGLAND:

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Judicature act of 1875 merged the equity and common law system. There is still a chancery
court, but it is not a separate court of equity.
IN 1529:
In 1529 chancellor (bishop) office was given to the lawyers because they had knowledge
regarding it.
EQUITY TODAY:
Today equities are;
 Provides judges with additional sources of remedies.
 Will only be used when the common law remedy of damages is inadequate.
 The remedies available are firmly established by precedent or statute.
 In rare cases also provides arties with sustentative right. E.g., trust.
EXAMPLES OF EQUITABLE REMEDIES:
Following are the examples of equitable remedies;
 Injunction.
 Specific performance.
 Rescission.
 Estoppel.

achievement performed by Englishmen in the field of jurisprudence I cannot think that we

should have any better answer to give than this, namely the development from century to
century of the trust idea.’
THE LAW OF EQUITY AND TRUSTS
INTRODUCTION TO EQUITY
Maitland said in 1936, ‘’if we were asked what is the greatest and most distinctive
achievement performed by Englishmen in the field of jurisprudence I cannot think that we
should have any better answer to give than this, namely the development from century to
century of the trust idea.’

MAXIMS
INTRODUCTION:
An established principle. The concept of equity is contained in twelve principles of equity
(equitable principles) known as legal maxims of equity. Equity is a legal system for obtaining a
fair result when existing laws do not provide Solution.
LEGAL DEFINITION OF EQUITY:

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In its broadest sense, equity is fairness. As a legal system, it is a body of law that addresses
concerns that fall outside the jurisdiction of Common Law.
OR:
Morality, fairness and a rule of natural justice.
The 12 Equitable Maxims
The twelve equitable maxims are:
i. Equity will not suffer a wrong without a remedy (ubi jus ibi remedium).
ii. Equity follows the law.
iii. Where there is equal equity, the law shall prevail.
iv. He who seeks equity must do equity.
v. He who comes into equity must come with clean hands.
vi. Delay defeats equity
vii. Equality is equity.
viii. Equity looks to the intent rather than the form.
ix. Equity looks on that as done which ought to be done.
x. Equity imputes an intention to fulfil an obligation.
xi. Equity acts in personam.

MAXIM NO: 01
UBI JUS IBI REMEDIUM ( EQUITY WILL NOT SUFFER A WRONG WITHOUT A
REMEDY)
INTRODUCTION:
Equity courts are the courts of natural justice. Whenever a right is infringed, a remedy is
available. There is always a remedy for a wrong. Only rights recognized by law can be enforced
by the court, Ubi Jus ibi Remedium is the crux of the whole jurisdiction of equity. It expresses
that every right will be enforced. Ubi Jus ibi Remedium covers entire equitable jurisdiction. It
explains that where there is a right there is a remedy, rights and remedies co-exist one cannot not
exist without the other.
MEANING:
Equity will not suffer a wrong to be without a remedy means no wrong should be allowed to
remain unredressed if it is capable of being remedied by the court of justice.
IMPORTANCE OF UBI JUS IBI REMEDIUM:
The maxim ubi Jus ibi remedium led the chancellor to intervene in the administration of justice
in order to give a relief by common law inadequate and to help the litigant by offering facilities
in evidence and the procedure which ordinary courts did not secure.
CONDITIONS:
i. If a party has destroyed, lost or waived his right to an equitable remedy by his own act
this maxim will not apply.
ii. It will not apply if there is a moral infringement being incapable of enforcement.
iii. Where there is a breach of moral right because equity helps only where there is breach of
legal right.

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 iv. Where there is jurisdiction of common law courts.
v. Where there is negligence of plaintiff.
LIMITATION:
Following are limitations of the maxim.
i. Where right and remedy both within the jurisdiction of common law.
ii. Acts of state the courts are not authorized to question the acts of state.
CASE LAW:
Ashby Vs. White 13 End P. 253
When law clothes a man with a right, it also gives ways to have it rights and remedies co-exist
and mere attribution of legal rights without a redress is meaningless.
“The case refers to the fact that Mr. Ashby wanted to cast vote in favor of his desired candidate
but was somehow unjustly refrained by Mr. White to cast vote. Later once the result of the
election were declared it was found out that the candidate in whose favor Mr. Ashby wanted to
cast vote, had actually won the election. Nevertheless Mr. Ashby filed suit against Mr. White.
The defense council took the plea that since no damage has been caused to Mr. Ashby, the suit
may very kindly be dismissed.
The court held that the right of Mr. Ashby does not depend on the measure of damage but on the
violation of legal right and since the right to vote has been violated the court would not hesitate
to award remedy how nominal it may be”
POSITION IN PAKISTAN:
The maxim ubi Jus ibi remedium is applicable in Pakistan. The specific performance of the
contract, ratification of instrument, rescission of contract, cancellation of instrument are
examples. The civil procedure code entitles a civil court to entertain all kinds of suits unless they
are prohibited.
CONCLUSION:
To conclude I can say that the basic idea ubi jus ibi remedium is that no wrong should be
unredressed if it is capable of being remedied by the court. Where a common law confers a right
it also gives a remedy or right of action, but it has some limitation it does not provide remedy for
all wrongs.
MAXIM NO : 02
EQUITY FOLLOWS THE LAW (AQUITAS SEQUITAR LEGEM)
INTRODUCTION:
Equity has no clash with law neither it overrides the provisions of law. It adopts and follows the
basic rules of law. It’s a supplement to law. It is a well-known rule that equity follows the
analogies of law. The equity came not to destroy the law but to fulfill it, to supplement it, to
explain it. Equity respects every word of law.
MEANING:
Equity is intended to supplement the law and not to supersede it.
EXPLANATION:
The discretion of the court is to be governed by the rules of law and equity, which are not
oppose, but each, in turn, to be obey to the other, this discretion, in some cases, follows the law.
Maxim contemplates (think) the policy of equity and its principles that in all cases where the
principles of law are clear on the subject, the court of chancery has no jurisdiction to apply the
principles of equity. It will, in such situation will simply follow the common law.
APPLICATION:

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It has application in the following two aspects.
1)-. As to legal estates, rights and interest:
As regards legal estates, right and interests, equity was and is strictly bound by the rules of law.
Equity does not allow an unfair use to be made of legal rights so equity follows the in regard to
the rule of law.
2)-. As to equitable rights and interest:
In many cases equity acts by analogy to the rules of law in relation to equitable titles and estates.
Equitable estates are guided by the rules of decent as legal estate.
IMPORTANT ASPECTS OF MAXIM:
Following are two important aspect of this maxim.
i. Equity adopts and follows the rules of law in all cases where applicable.
ii. Equity follows the analogy of law.
EXCEPTIONS:
Following are the two exceptions.
i. Where a rule of law did not specifically apply.
ii. Where even by analogy the rule of law did not apply.
CONCLUSION:
To conclude I can say that equity always follows the law in the sense of obeying it and
conforming to its general rules and policy whether contained in common law or statue law. The
rules of equity cannot override the specific provisions of law.

MAXIM NO: 03
WHERE EQUITIES ARE EQUAL,LAW SHALL PREVAIL
INTRODUCTION:
This maxim means that “when the conflicting interests of two or more parties are supported by
equitable pleas of equal value, equity being unable to prefer one to the other would allow the
conflicting equities to cancel out and leave law to take its course”.
EXPLANATION:
Where one thing follows two claimants on the base of equal equity, equity shall follow the law
and legal right shall be preceded. Law provides relief to those who claims on the base of legal
right. According to this maxim if legal right is equal to equitable rights, legal right shall remain
there. It means the person bearing legal right shall precede however equity is under law.
EXAMPLE:
For instance, if A sells to B land, over which C has a right of way, B takes the land subject to C’s
right, although he was ignorant of the right at the time of purchase. But the rule is different as
regards equitable rights. It is well established rule that a purchase for valuable consideration
without notice of prior equitable right, obtaining the legal estate at the time of his purchase, is
entitled to priority in equity as well as at law. In such a case equity follows the law, the
purchaser’s conscience not being in any was affected by the equity
APPLICATION:
This maxim has certain applications such as;
i. When both the contestants are equally entitled to obtain help from courts of equity
(because their equities are equal), the party who has law in his favor will succeed.

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 ii. It may be noted that the doctrine of Election, Marshaling, and Set Off are based on the
maxim under discussion.
iii. This maxim is used where equitable and legal rights conflict and precedence go to legal
right. Equities must be equal by there should be conflict of legal and equitable rights. It
does not apply where priority of time in case of equity is determinant factor in relief.
iv. Section 78 of Transfer of Property Act is based on this maxim. It enacts that “where
though the fraud, misrepresentation, or gross neglect of a prior mortgagee, another person
has been induced to advance money on the security of the mortgaged property, the prior
mortgagee shall be postponed to the subsequent mortgagee.
v. Section 53 of Transfer of Property Act is also based upon this maxim. It enacts that
“every transfer of immovable property made with intent to defeat or delay the creditors of
the transferor shall be voidable at the option of any creditor so defeated or delayed.
EXCEPTION:
This maxim has two exceptions as follows:
i. Prior equitable and subsequent legal right: Where interest in legal property comes
subsequently, cannot attain precedence. Person, who acquires equitable right in the
presence of legal right, he procures breach of duty.
ii. Equal equities without legal right: Where there are equal equities but legal right lacks,
this maxim shall not apply.
APPLICATION IN PAKISTAN:
There are three different mortgages executed in respect of the same property to X, Y, & Z
respectively. The mortgagor executed on different date and none of the parties have the notice of
the prior mortgage. In such as case the first mortgagee has to legal estate. According to maxim
where equities are equal the first in time shall prevail, the mortgages rank in order of time. If C,
by paying off A’s mortgage, obtains the legal estate, i.e., obtains conveyance of A’s estate and an
assignment of his securities, he is entitled to precedence over B and also to the first mortgage.
But in case the first mortgagee has not the legal estate, the third mortgagee acquires not property
over the second mortgagee even if he made the payment to the first mortgagee.

MAXIM NO: 04
HE WHO SEEKS EQUITY MUST DO EQUITY
INTRODUCTION:
In this context equitable principles states that if a person wants the other to perform his duty for
the completion of his right, he must in return be ready and willing to perform duty which he
owes to that other. And the court of equity will not give him relief until he is ready and willing to
perform his part of the obligation.
The right is not like privilege of a person, it corresponds with duty from the other. Rights and
duties are reciprocal, and the right of one person may be the duty of the other and vice versa.
MEANING:
The maxim means that to obtain an equitable relief the plaintiff must himself be prepared to do
‘equity’, that is, a plaintiff must recognize and submit to the right of his adversary.
APPLICATION AND CASES:
This maxim has application in the following doctrines-
i) Illegal loans

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 ii) Doctrine of Election
iii) Consolidation of mortgages
iv) Notice to redeem mortgage
v) Wife’s equity to settlement
vi) Equitable estoppel
vii) Restitution of benefits on cancellation of transaction
viii) Set-off
EXPLANATION:
i. loans: In Lodge v. National Union Investment Co. Ltd., the facts were as follows. One B
borrowed money from M by mortgaging certain securities to him. M was a unregistered
money-lender. Under the Money-lenders’ Act, 1900, the contract was illegal and
therefore void. B sued M for return of the securities. The court refused to make an order
except upon the terms that B should repay the money which had been advanced to him.
ii. Doctrine of election: Where a donor A gives his own property to B and in the same
instrument purports to give B’s property to C, B will be put to an election, either accept
the benefit granted to him by the donor and give away his own property to C or retain his
own property and refuse to accept the property of A on condition. But B cannot retain his
property and at the same time take the property of A.
iii. Consolidation of mortgages: Where a person has become entitled to two mortgages
from the same mortgagor, he may consolidate these mortgages and refuse to permit the
mortgagee to exercise his equitable right to redeem one mortgage unless the other is
redeemed. The right of consolidation now exists in England but after the enactment of the
Law of Property Act, 1925, it can exist only by express reservation in one of the
mortgage deeds.
iv. Notice to redeem mortgage: Notice to a mortgagor to redeem one’s mortgage is an
equitable right of the mortgagor.
v. Wife’s equity to a settlement: There was a time when woman’s property was merged
with that of her husband. She had no property of her own. Equity court imposed on the
husband that he must make a reasonable provision for his wife and her children. But,
now, Under the Law Reform (Married Women and Tort feasors) Act, 1935, married
women has full right on her property and it is not consolidated with her husband’s
property.
vi. Equitable estoppel: A promissory estoppel arises where a party has expressly or
impliedly, by conduct or by negligence, made a statement of fact, or so conducted
himself, that another would reasonably understand that he made a promise thereon, then
the party who made such promise has to carry out his promise.
vii. Restitution of benefits on cancellation of transaction: It is proper justice to return the
benefits of a contract which was voidable, and, equity enforced this principles in cases
where it granted relief of rescission of a contract. A party cannot be allowed to take
advantage of his own wrong.
viii. Set-off: Where there have been mutual credits, mutual debts or other natural dealings
between the debtor and any creditor, the sum due from one party is to be set-off against
any sum due from the other party, and only the balance of the account is to be claimed or
paid on either side respectively.

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LIMITATION:
Following are the limitation of such maxim;
i) The demand for an equitable relief must arise from a suit that is pending.
ii) This maxim is applicable to a party who seeks an equitable relief.
RECOGNITION:
i) Under sec 19-A of the Contract Act, 1872 if a contract becomes voidable and the
party who entered into the contract voids the contract, he has return the benefit of the
contract.
ii) Sec 35 of the Transfer of Property Act embodies the principle of election.
iii) Sec 51 and 54 of the Transfer of Property Act.
iv) In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized.
EXCEPTIONS:
Following are exceptions to this doctrine.
i. State legislature: It cannot apply against state legislature.
ii. Acts of parliament: It cannot apply against the acts of parliament.
iii. Contrary to law: Where an act is contrary to law. It has no application.
iv. Statutory prohibition: Where there is statutory prohibition it cannot apply.
v. Matter of government policies: It cannot apply against the matters of government
policies.
vi. Factor of fraud: If there is factor of fraud in a case, it will not apply.
CONCLUSION:
To conclude I can say that the court of equity being a court of conscience has to look not a only
the benefits of the plaintiff but also to the interest of the defendant and grant relief to the plaintiff
only on the condition that he is prepared to give to the defendant what the latter deserves. The
basis of the doctrine is the interposition of equity.

MAXIM NO: 05
HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS
INTRODUCTION:
Equitable rights are based on the principles of justice/honesty and morality so the person
demanding equitable right must himself be fair and honest so as to avail an equitable remedy.
“He who has committed inequity, shall have no equity”. The character of the person is one of
the important ingredients for the grant of equitable remedies
MEANING:
Equity demands fairness not only from the defendant but also from the plaintiff. It is therefore
said that “he that hath committed an inequity, shall not have equity.” While applying this maxim
the court believed that the behavior of the plaintiff was not against conscience before he came to
the court.
APPLICATION:
This maxim has application on the following cases.
i. Specific performance: If the plaintiff has been guilty of undue advantage the court of
equity will refuse the specific performance of a contract.
ii. Illegality: Where the parties to in illegal agreement appear before the court of equity for
division of their respective shares towards the property obtained. It is revealed before the
court that they had looted it at the road so equity refused to give any relief to any party.

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 iii. Fraud: In case of fraud, equity will not grant relief to a party who has committed fraud.
iv. Benami Transaction: Real owner is not allowed to recover the property.
v. Misrepresentation: Where a minor fraudulently concealing his age and obtained a sum
from his trustee which he was entitled to only at the age of majority. He was refused to
get the assistance from the court of equity.
LIMITATION:
General or total conduct of the plaintiff is not to be considered. It will be seen whether he was of
clean hands in the same suit he brought or not. Brandies J. in Loughran v. Loughran said that
“Equity does not demand that its suitors shall have led blameless lives.”
EXCEPTION:
Following are the exceptions;
i) If the transaction is an against public policy
ii) If the party repents for his conduct before his unjust plans are carried out.
RECOGNITION:
i) Section 23 of the Indian Trust Act- An infant cannot setup a defence of the invalidity
of the receipt given by him.
ii) Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiff’s unfair conduct will
be entitle him to an equitable relief of specific performance of the contract.
CONCLUSION:
To conclude I can say that, he who committed inequity shall not have equity. A court of equity
declines to interfere in a case where the conduct of this plaintiff in regard to the subject matter of
the litigation has been improper. A person who wants the equity his hands should not be spotted
with injustice.
MAXIM NO: 06
DELAY DEFEATS EQUITY (EQUITY AIDS THE VIGILANT,NOT THE INDOLENT)
INTRODUCTION:
If there is an unreasonable delay in bringing proceedings the case may be disallowed in equity.
In civil administration of justice claims are regulated by the period of limitation, and once the
period of limitation is passed, the suitor claimant thereafter is not entitled to enforce his claim in
the court of law. These may be used as defenses in relation to equity cases.
MEANING:
A Latin term in this regard is “Vigilantisms, non dormentibus, jura subvenient.” Which means
“Equity aids the vigilant and not the indolent”. So, if one sleeps on his rights, his rights will slip
away from him. Legal claims are barred by statutes of limitation and equitable claims may be
barred not only by limitation law but also by unreasonable delay, called laches.
EXPLANATION:
In civil administration of justice claims are regulated by the period of limitation, and once the
period of limitation is passed, the suitor claimant thereafter is not entitled to enforce his claim in
the court of law. In such a situation the state as a matter of policy or otherwise prescribes a
period of time within which a claimant may file his claim, otherwise his right will be barred by
the period of limitation.
APPLICATION:
To cases which are governed by statutes of limitation either expressly or by analogy the maxim
will not apply. Such cases fall into three categories-
i) Those equitable claims to which the statute applies expressly.

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 ii) To which the statute applies by analogy.
iii) Equitable claims which are covered by ordinary rules of laches.
LIMITATION:
This maxim does not apply when-
i) Where the law of limitation expressly applies
ii) Where it applies by analogy, and
iii) Where the law of limitation does not apply but the cases are governed by ordinary
rules of laches.
DOCTRINE OF LACHES:
Delay which is sufficient to prevent a party from exercising its rights and obtaining relief from
court of law is called laches. Laches is a plaintiff’s unreasonable delay is a weapon of defence by
the defendant against the plaintiff.
GROUNDS FOR THE APPLICATINN OF THE PRINCIPLES OF LACHES:
Following are the grounds;
i. Whether there was an unreasonable delay on the part of the defendant?
ii. Whether the delay has resulted in the loss of evidence?
iii. Whether the delay induced the defendant to alter his position?
iv. Loss of witnesses could be occurred in Case of death?
EXAMPLE:
The plaintiff allowed his land to be occupied by the defendant and this was accepted by him even
beyond the period of limitation. On a suit of the land it was decided that as the period of
limitation to recover possession had expired, no relief could be granted.

EXCEPTIONS TO THE MAXIM :

Following are the exceptions to the Maxim :
i. Where the law of Limitation expressly applies.
ii. Where it apply by analogy, and
iii. Where the law of limitation does not Apply but the cases are governed by Ordinary rules
of latches.
RECOGNITION:
Article 113 of the Limitation Act, 1908, which fixes a period of one year (previously three years)
within which a suit for specific performance should be brought.
Section 51 of the Transfer of Property Act embodies this doctrine but with a difference.
RECOGNITION IN PAKISTAN :
It has Very limited scope in the presence of Limitation act 1939
CASE LAW: Allcard vs skinner 1887 36 ch D 145.

MAXIM NO: 07
EQUALITY IS EQUITY (EQUITY DELIGHTETH IN EQUALITY)
INTRODUCTION:
Equity always tries to put the litigating parties on a an equal level so for as their rights and
liabilities are concerned. Equity acts in such manner that no party gets an under advantage over
the other party. Benefits and burden of common interests and obligation cannot be imposed upon
and pressed against anyone.

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PLATO defined that’ If you cannot find any other, equality is the proper basis.”
MEANING:
“Equality is equity” is also expressed “Equity delightenth in equality which means that as for as
possible equity would put the litigating parties at equal level. So far as their rights and
responsibilities are concerned.
EXPLANATION:
This maxim states that where there is more than one co-sharer in the same right or interest, and if
there is no other way of settling disputes between the co-sharers, than the only principle that can
and best settle the disputes between the claimants, is to distribute rights among the claimants on
the principle of equality. The principle contained in the maxim has universal acceptance of
treating joint owners upon the basis of equality in terms of distribution of rights and interests.
WHEN THERE ARE MORE THAN ONE OWNER IN SAME RIGHT WITHOUT DIVISION:
If there is more than one owner in the same right without division, all of them must be
considered as joint tenant because;
i. There is a unity of title among all of them
ii. There is a unity of interests among all of them
iii. There is a unity of possession among all of them and
iv. There is a unity of time with respect to the acquisition of rights among all of them.
APPLICATION:
This maxim has application on the following matters.
i. Joint tenancy: Equity dislikes joint tenancy. Joint tenancy means joint ownership
regarding the rights of survivor ship.
ii. Equal distribution: Whenever property is to be distributed between the right claimant
court will equally distribute, if there is no basis for division.
iii. Contribution: When a creditor has a single claim against several person he has the
option of realizing the best form any one of them and by common law, the debtor who
had been compelled to pay debt in full had no remedy against his co-debtor, but in equity
has could claim contribution from the latter so that the burden.
iv. Abatement of legacies: If legacies are general, they are liable to a proportionate
reduction in assets proving insufficient to pay to the legacies in full.
v. Power of appointment: Where donee of a powers, in the nature of the trust fails to
exercise his power the court of equity on the principle of equality will carry the same into
effect, so that it may not fail, and distribute the property equally among the persons
concerned.
RECOGNITION IN PAKISTAN:
The doctrine of equality is equity has been recognized in Pakistan under various enactments.
Sec 42, 69, 70, 146, 145 of contract act
Sec 56 and 82 of Transfer Of Property Act
CONCLUSION:
To conclude I can say that, equity always tries to keep the parties at same position. A party
cannot get any undue advantage over the other. The doctrine of equality, however, operated more
effectually in a court of equity than in a court of law. In the distribution of property, the highest
equity is to make an equality between the parties standing in the same relation.

MAXIM NO: 08

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 EQUITY LOOKS TO THE INTENT RATHER THAN TO THE FORM
INTRODUCTION:
This maxim is characteristic of the greater freedom of action of the equity courts, as compared
with the common law courts, and of their efforts to do substantial justice rather than enforce
technical rules.
MEANING:
Common law was very rigid and inflexible. It could not respond favorably to the demand of
time. It regarded the form of a transaction to be more important than its substance. It looked to
the very letter of the agreement and not the intention behind it. On the other hand, Equity looks
to the spirit not to the letter, it looks to the intention of parties and not to the words.
APPLICATION:
In case of sale of land, if a party fails to complete it within the fixed for it, he is at Common Law,
in breach of the contract, but equity does not take this rigid attitude. It allows a reasonable time
to the party to complete it.
The application can be seen in the following instances-
i) Relief against penalties and forfeitures
ii) Relief in regard to precatory trust
iii) Relief in regard to mortgages, the doctrine of equity of redemption and the doctrine of
clogs on redemption
iv) Attitude in regard to statute of frauds.
EXPLANATION:
Relief against penalties and forfeitures-
Common Law courts insisted on the literal form of the contract that if the contract is breached,
certain amount must be given as compensation, though the actual loss is not that much. Equity
interpret the purpose and intent of the contract itself. The principal object of the contract is to
perform it and not the compensation. The compensation is a subsidiary matter.
Precatory trust-
A trust is created with- (1) an intention on his part to create a trust thereby, (2) the purpose of the
trust, (3) the beneficiary, and (4) the trust property. Where an author uses words such as ‘I hope’,
‘I request’ or ‘I recommend’ the first condition is missing. In cases where subsequent ingredients
are found, in early days, it was held by the equity courts that he had the intention. This view is in
use now but not as liberally as before.
Relief in regard to mortgages-
The mortgagor has a right to obtain his property back by payment of the debt and that is his right
of redemption. The mortgagor’s right of redemption is guarded by courts and this has been
expressed in a well-known legal maxim, “Once a mortgage, always a mortgage, and nothing but
a mortgage”.
RECOGNITION OR APPLICATION IN PAKISTAN:
i) Sec 55 of the Contract Act- If time is the essence of the contract, and it is not
performed within the stipulated time, the contract or part of it which is unperformed
would be voidable. If time is not the essence, the contract will not be voidable but
entitles the promisee to damages.
ii) Section 74 of the Contract Act- only a reasonable compensation can be claimed.
iii) Sec 114-A of the Transfer of Property Act- Forfeiture clauses in a lease.

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CONCLUSION:
To conclude it is said that, equity always tries to get the actual intention of the contract not the
mere appearance which conceals the real intention.

MAXIM NO : 09
EQUITY REGARDS THAT AS DONE WHICH OUGHT TO HAVE BEEN DONE
INTRODUCTION:
Common law was very rigid and inflexible. This maxim means that when individuals are
required, by their agreements or by law to have done some act of legal significance, Equity will
regard it as having been done as it ought to have, even before it has actually happened. Equity
looks to the spirit not to the letter, it looks to the intention of parties and not to the words.
Sometime this is phrased as “equity regards as done what should have been done.”
MEANING:
If someone undertakes an obligation for the other, equity courts look on it as done and as
producing the same results as if the obligation had been actually performed. Equity courts
therefore look to the acts of the person bound by his conscience and interpret and construe them
in such a way that they amount to what ought to be done.
ESSENTIAL OF THE MAXIM:
The essentials requirements to put the maxim in action are enlisted below;
i. There should be a contract to transfer legal title.
ii. There must be a substantial evidence to prove the existence of that contract.
iii. This contract should be capable to enforce;
iv. The suit must be brought by the parties within the specific time;
v. The title so sought to obtain must have legal support.
SCOPE OF THE MAXIM:
The scope of this maxim is limited because it recognizes the right of performance of an
agreement between the parties to the contract only. The maxim is applicable only to the
contractual obligations; favoring the person who is entitled to get enforced a contract against a
person who is under an obligation to perform it.
EXAMMPLE:
If A makes T trustee leaving 50,000 RUPEES to purchase a land for the use of B. T does not
purchase the land and by the time, B dies leaving all immovable property to X and all movable
property to Y. Now, who should get the 50,000 rupees? Equity in such cases would definitely
regard the purchase of land which ought to have been made as made. The money thus goes to X.
APPLICATION:
The working of this maxim can be seen-
i. The doctrine of conversion
ii. Executory contracts
iii. Doctrine of part performance
Doctrine of conversion;
Doctrine of conversion can convert the money into immovable property and immovable property
into money.
Executory contracts-
Assignment of future property:

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When an assignment of property was made for consideration equity treated it as a contract to
assign. When the property came into existence in such a contract it was treated as a complete
assignment.
Agreement for a transfer:
An agreement for lease could be treated as a lease in equity.
Doctrine of part performance:
Under the equitable doctrine of part performance contracts pertaining to land were allowed to be
formed by oral evidence where one of the parties did acts of pats performance.
RECOGNITION IN PAKISTAN:
i. The Transfer of Property Act- A Contracts to sell Sultanpur to B. While the contract is
still in force, he sells Sultanpur to C, who has notice of the contract. B may enforce the
contract against C to the same extent as against A.
ii. The Specific Relief Act- Section 12 relating to the specific performance of part of a
contract also illustrates the application of the maxim.
iii. The Trust Act- Where a person acquires property with notice that another person has
entered into an existing contract affecting that property, the former must hold the
property for the benefit of the latter.

MAXIM NO: 10
EQUITY IMPUTES AN INTENTION TO FULFILL AN OBLIGATION
Meaning
Equity considered and estimated acts of parties. Thus where a person is under an obligation to do
a certain act, and he does some other act which is capable of being regarded as an act in
fulfillment of his obligation. In other words a person is presumed to do what he is bound to do.
Application and cases
Following are the applications;
i. Doctrine of performance and satisfaction
ii. Ademption
iii. Doctrine of presumption of advancement
iv. Relief against defective execution of power of appointment
i) Doctrine of performance and satisfaction- Satisfaction is the donation of a thing with it is to
be taken in extinguishment of some prior claim of donee. This maxim is helpful where the
presumed intention of the testator is to be found out; where the intention is express the maxim
has no application.
ii) Ademption- Ademption is a transfer of property which operates as a complete substitution for
a gift previously made by the will of the donor.
iii) Presumption of advancement- When a purchase or transfer of property without
consideration is made by a father or a person in loco parentis, to or in the name of a child, a
presumption arises. And the presumption is that it was for the benefit of the child. Such
presumption, is known as ‘advancement’. The doctrine applies to cases of parent and child,
husband and wife, of mother and child and even to illegitimate child, but not to a man and his
mistress.
iv) Relief against defective execution of power of appointment- A power is an authority
vested in a person to deal with or dispose of property not his own. A power may be legal or
equitable.
CONCLUSION

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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.

MAXIM NO: 11
EQUITY ACTS IN PERSONAM

 In PERSONAM means against person

 In REM means against or involving a thing
MEANNG:
The principle contained in the maxim states the principle that equitable principles are principles
of conscience, which holds primarily the conscience of a person to comply with the obligation.
EXPLANATION:
Its decrees directed the individual to comply with the obligation. The decisions regarding the
rights and properties in dispute were compiled through the individual /parties relating the issue at
controversy. It is the nature of the equitable remedies that they generally operates against the
person of the defendant. Judgment is made against individual.
LIMITATION:
Following are the limitation of such maxim;
i. The defendant has to be within the jurisdiction of the court.
ii. Th order must not violate the legal rules of another country.
iii. The order given must be capable of being executed without intervention of a foreign
court.
PURPOSES:
The maxim broadly served to purposes.
i. Avoiding clash of jurisdiction with courts of common law and their procedure primarily
because the procedure of the courts of common law operated in rem, upon the subject
matter/thing in dispute
ii. By applying the principles of fair justice and honesty which directs the individual to
comply with the promises/undertakings and directions of the courts.
CONCLUSION:
As equity’s jurisdiction is primarily over the parties and not the subject matter, it was than
immaterial whether the property in dispute was within or outside the jurisdiction of the courts of
equity or may not even be within the reach of courts. But if the defendant was found within
jurisdiction, equity courts may order him personally to comply with its orders.
The non-compliance of the orders of the court by the defendant was regarded as disrespect to the
court, and contempt proceedings be initiated against him in order to conform to the decision of
the court.

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THE END

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