.gif "Equality Is Equity")
Meaning:
Plato defines equality as “a sort of justice” and
further points out that “If you cannot find any other, equality is the proper
basis.” This maxim is explained also as “equity delighted 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. In
interpreting the words and enforcing the rules of law, equity so acts that no
party gets an undue advantage over the other or is put to unjustified loss. In Steel vs. Dixon, Justice Fry said,
“When I say equality, I don’t mean necessarily equality in its simplest form,
but which has been sometimes called proportionate equity.”
Application and Cases:
The application of this maxim can be discerned from the following:1) Equity’s dislike for joint tenancy and presumption of tenancy-in-common: Just as one person can hold property, so two, three, or several persons can hold it, and that is called co-ownership or ownership in the community. Three types of such ownership are recognized under English law, joint tenancy, tenancy-in-common, and coparcenary.
When property is given to two or more persons without words or severance, i.e., to A and B, or to A and B jointly, it is held concurrently with the other. Against strangers, all such holders are regarded as one individual.
The main incidents of joint tenancy can be described as unity of possession, unity of interests, unity of time, and unity of title. Every joint tenant is possessed of the joint property by every part and by the whole. They have a single title and their possession is not adverse inter se. The interest of each joint tenant originates from the same act, the estate of each begins at the same time and the extent and nature of interest of each joint tenant is the same as that of other.
But the most damaging incidence attached to this system was the principle of the right of survivorship resulting in the right of joint tenants to have their interests in the joint property increased by inheriting the interests of deceased joint tenants until the last survivor inherits the entire property. For example, where property is given to A, B, and C jointly, and where A dies, his interest goes to B and C, and where B dies, his entire interest goes to C, who becomes the absolute owner. Thus common law and the feudal lords had to deal with only one person and one title.
Insofar as tenancy-in-common is concerned, there is no principle of survivorship; each tenant is an exclusive owner of his share; their shares also need not be equal and the only unity is the unity of possession; the rest of the unities being absent. In the previous example, therefore, when any tenant dies, his interest will not increase his co-sharer’s interest, but it would go to the heirs of the deceased. Equity therefore disliked joint tenancy and severed it in the slightest. Thus tenancy in common in equity existed not only at Common Law but also in certain other cases where the intention to create the same could be inferred or discerned.
2) Equal distribution of joint funds or joint purchases: A very interesting example is cited by Snell in connection with the copyright of Charles Dickens’s work (Life of Christ) wherein this maxim is applied. In this case, the author bequeathed the manuscript of a work to A and the copyright to B. The publication was possible only by using the manuscript. Prima facie, the proceeds of the sale of the copyright will be divided equally between A and B.
3) Contribution between co-trustees, co-sureties, and co-contractors: Where a creditor has a simple claim against several debtors, he may realize his claim from any of them. The debtor who was thus compelled to pay the whole of the claim had no remedy against the others at Common Law. This provided an undesired impetus to the creditor to select his own victim and upon motives of mere caprice and partialism to make a common or joint burden a gross personal oppression. But equity, to set right justice and to treat all the debtors based on equality, giving the debtor a right to contribute from the rest, thus pressing the burden equally on all. With co-sureties and co-contractors, the same rule is applied.
4) Rateable distribution of legacies: The principle is that while the testator bequeaths, he presumes that he has sufficient assets to answer all the legacies, but in cases where in fact it is not so, he is presumed to have meant that the deficiency must be borne by all the legatees pari passu or on an equal footing.
5) Power to appoint: Powers are of two types i.e. general and special power of appointment. A power given by deed or will which empowers the donee of the power to appoint any person including himself to take an interest in the property is a general power of appointment, and a power which empowers the donee to appoint any member of a specified class of persons to take an interest in the property is a special power of appointment.
6) Marshalling of assets: In the case of Well vs. Smith, it has been explained that where there are two creditors of the same debtor, one creditor has 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. This arrangement has been made on the principle of Aldrich vs. Cooper which states that it shall not depend upon the will of one creditor to disappoint another.
[The Information Used in this Article is Extracted from the Book of B.M. Gandhi]
No comments:
Post a Comment