Humor is undoubtedly one of the best ways to memorize
arcane language. Thus, as I hearken back wistfully to the halcyon days of
the law, I recall that Aristotle defined equity as a "better sort of
justice which corrects legal justice where the latter errs through being
expressed in a universal form and not taking account of particular
cases." Aristotle, Ethics, book 5, c. 10. That pretty much says it all.
So, for those cold and rainy mornings when you must follow another attorney’s
call into the chancery division, please keep the following in mind:
1 Equity suffers no wrong to be without a remedy.
Not only does this maxim provide the foundation for equitable
jurisdiction, but also for personal vengeance.
2 Equity decrees only the right and just, and never
that which would work injustice to the parties. Ideally, this is
what all forms of law should do.
3 Equity regards that as done which ought to be done.
Don’t we all.
4 Equity looks to substance rather than form.
Courts of equity will disregard titles and peer into the inner workings of
a transaction to discover the truth of the matter. This maxim is also
important to remember when billing the client.
5 Equality is equity. However, some people are
more equal than others.
6 Where equities are equal the first in time prevails.
Very rarely do two parties have the same equitable rights, but when they
do the first to the finish line prevails. One wonders if this maxim is the
antecedent or progeny of the often-touted tortoise-hare war.
7 Equity follows the law. Most prison inmates
also claim to have followed the law.
8 Where equities are equal the law prevails.
Basically, the holder of an equitable right must show that he/she prevails
over the holder of a legal right.
9 Equity acts in personam. Try as you might,
you simply cannot enjoin your computer from crashing.
10 Equity aids the vigilant, not those who slumber on
their rights. This is the obvious result of trying to find that
lost set of car keys.
11 He who comes into equity must come with clean hands.
As the most hygienic of all the maxims, the Freudian implications are
staggering.
12 He who seeks equity must do equity. A close
relative of the clean hands doctrine, only law professors fully understand
the family relation.
13 Equity will not permit to be done indirectly what
cannot be done directly. A law professor of mine also expressed
this maxim as "equity will not go around a corner to violate
itself." I have no objections to that.
14 Equity will not do, nor require to be done, that
which is vain or useless. And you thought judicial economy was
first propounded in that now forgotten civil procedure case.
15 Equity will not use a cannon to kill a mouse.
Res ipsa loquitur.
Naturally, this is not an exhaustive list. Phraseology is
an issue as everyone has invariably more colorful expressions, but I wanted
to write the maxims in a relatively useful form. So the next time you are on
your way to court or at a cocktail party, feel free to chuckle and spout off
that equity will not use a cannon to kill a mouse.
