The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

Equity Maxims
By Aaron H. Reinke, J.D.

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.

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