Legal Basis of Equity

The Scottish courts have never recognised a separation between normal common law and equity and, as such, the Court of Session has exercised just and inherent jurisdiction and has called it the nobile officium. [29] The nobile officium allows the Court to appeal when the law or common law is silent and to avoid procedural or procedural errors that would lead to injustice. The exercise of this power is limited by compliance with precedent and where legislation or common law already provides for the appropriate remedy. Thus, the Court cannot override a statutory power, but can deal with situations where the law is silent or where there is a loophole. Such an omission is sometimes called casus improvisus. [30] [31] In India, the common law doctrine of justice was traditionally followed even after its independence in 1947. In 1963, however, the Specific Remedial Measures Act was passed by the Parliament of India on the recommendation of the Law Commission of India and the previous Specific Remedial Measures Act of 1877 was repealed. Under the 1963 Act, most concepts of equity were codified and became legal rights, ending the courts` discretion to award equitable remedies. The rights codified by the 1963 Act were as follows: But not all the just principles of England are equally and fully applicable to the courts of Bangladesh. For example, the doctrine of satisfaction and the abolition of just principles are not recognized by Bangladeshi courts. But it is true that these principles have made a great contribution to the field of legal development by eliminating the gaps, harshness and complexity of the common law. [18] It remains to be seen how the concepts of mercy and grace affect the nature of law and justice.

It could be argued that mercy and grace allow (or even require) exceptions to the law that are intrinsically just, since “mercy triumphs over judgment.” [6] The Court of Chancery was a court of equity in England and Wales, following a series of flexible rules to avoid the slow pace of change and the potential harshness of the common law. A right without recourse is irrelevant. In order to give effect to a law that lends itself to judicial application, but which could not be applied at common law because of a technical defect, the Court of Chancery developed the maxim “equity will suffer no injustice to be without recourse.” Although much of the English Fairness Act has made its way into all of Bangladesh`s rules or regulations, this does not mean that no provision is omitted. Only a few provisions have been omitted, such as the Ademption and Satisfaction of the Equity Law of England, which are not accepted by the Parliament of Bangladesh. But on the other hand, there is no difference between legal and just rights and interests. The right to repatriation is not a fair title in Bangladesh, here it is a legal title. [22] In the case of the sale of a property, the buyer is entitled to adequate property under English equity, but is not allowed to apple in Bangladesh. [23] The type of banami transaction in Bangladesh is completely different from that in England. In order to ensure adequate justice, inherent powers have been conferred on Bangladeshi courts under section 151 of the Code of Civil Procedure. [24] The rise of the Court of Chancery.

From the fourteenth century, the Chancellor, secretary to the king, was responsible for issuing legal orders to plaintiffs who wished to bring an action before one of the ordinary courts. Gradually, the Registrar began to take it upon himself to resolve disputes for which no legal action was available at common law. This was done under the theory that the Chancellor (as the King`s representative) reserved the right to decide cases which were not expressly addressed to one of the common law courts. Thus, the preparation of special documents to deal with cases in the Chancellery (the Court of Chancery) became known as the “extraordinary” competence of the Registrar. The number of cases handled by the chancellor exploded as more and more people sought these new lawsuits as an alternative to redress in the common law courts. The struggle for supremacy. One of the most important powers exercised by the Chancellor was the ability to prevent the victorious party in a common law trial from enforcing his verdict. In other words, the loser could bring an action on equity to prevent the execution of the judgment of the common law courts. The Chancellor did not annul the judgment, but stated that, for personal reasons of the parties, the execution of the judgment would be unfair. Henry VIII issued the Statute of Use in 1535 (which came into effect in 1536) to prohibit this practice and recover lost revenues.

The law effectively made the beneficial owner of the land the rightful owner and thus feudal rights. This scripture can be interpreted in several ways that indicate the legitimacy of Jesus` actions. The law of the Sabbath forbids all “work” [see Ex. 20:8–11]. Since Jesus and his disciples did not harvest grain in a professional sense, their actions were not “work” within the meaning of the law. Rabbinic interpretations of the Sabbath law prescribed many rules to avoid “work,” but these were not necessarily exact interpretations of the law. Some commentators assume that Jesus completely abrogated the law of the Sabbath. In any event, his actions do not appear to be based on any form of exception, but were based on an understanding of the law that was better than the legal understanding of his critics. So if the actions are unequal in the sense that justice is worse on the side of the person who is otherwise entitled to priority, that is, he is guilty of something unscrupulous or unjust, he would lose his priority. In the United States today, federal courts and most state courts have merged law and equity into courts of general jurisdiction, such as county courts. However, the fundamental distinction between law and equity has retained its former vitality. [37] This difference is not a mere formality, since the successful processing of some cases is difficult, if not impossible, unless an injunction or injunction is issued at the outset to prevent a person from escaping his or her jurisdiction, for example by taking the only available property to comply with a judgment.

In addition, some laws, such as the Employee Retirement Income Security Act, expressly allow only equitable remedies, requiring U.S. courts to analyze in detail whether the relief required in certain cases filed under these laws would have been available on an equitable basis. [38] Equity financing When a company raises capital by selling shares, the financing is called equity financing because the company offers shareholders a partial interest in its assets. In contrast, debt financing raises capital by issuing bonds or raising funds, none of which transfer ownership of the business. An equity security is an appropriate interest in a corporation, such as associated common and preferred shares. Justice in American law dates back to England, where it began in response to the rigid procedures of English courts. During the thirteenth and fourteenth centuries, judges of the English courts developed common law, a system of accepting and deciding cases on the basis of legal principles formed and developed in earlier cases. The plea became quite complicated and only certain means could be appealed. Aggrieved citizens noted that otherwise legitimate complaints had been rejected for non-compliance with pleading formalities. If a complaint was not dismissed, the exemption was often denied due to the absence of a law or precedent for control.

The clean hands doctrine states that in an equitable claim, the plaintiff must be innocent of any wrongdoing or risk dismissing the case. Laches suggests that a plaintiff should not “sleep on his rights” — that is, if the plaintiff is aware of the defendant`s prejudicial actions, but has delays in filing the complaint and the delay violates the defendant`s rights, the plaintiff risks dismissing the proceeding.