Principles of Equity and Contracts

20 Pages Posted: 10 Apr 2006

See all articles by Shaswata Dutta

Shaswata Dutta

National University of Juridical Sciences

Date Written: April 7, 2006

Abstract

English law before the introduction of the principle of equity was mainly governed by Common Law (Commune Ley). Blackstone defined Common Law as the municipal law of England or the rule of civil conduct prescribed to the inhabitants of the kingdom. But this system of common law had certain flaws as it did not provide for any remedy in many cases where one was required. This thus paved the requirement for the emergence of the principles of equity and the decisions were given in good conscience.

Equity which means equalization or leveling down any arbitrary preferences or denial of justice is derived from a Roman term 'aequitas'. According to Sir Henry Mane, equity is "fresh body of rules by the side of the original founded on distinct principles and claiming to supercede the law by virtue of a superior sanctity inherent in those principles."

Equity is aimed at preventing a defendant from acting unconscionably (literally, contrary to conscience) in circumstances otherwise where the common law would have allowed to do so. In layman's language it can be said to interfering to protect some underlying right of the victim either because of a contract with the shyster, or because the shyster has control over some property which is rightfully theirs or because one may feel that the actions of the shyster may affect the victim in the future in some way or the other.

Though equity was faced with conflict with the laws in England in the earlier stages, it always had always played a major role in the Law of Contracts. Equity in contracts can be seen in the fields of restitution, unjust enrichment, mistake and estoppel.

In the subsequent chapters the researcher intends to analyze the role of the Principle of Equity in Contracts. The researcher would like to look into the nature of equity to bring about a relationship between equity and contracts.

One must also understand the doctrine of Specific Performance would also be looked into as it is major area in the case of Contracts where equity plays a significant role. The researcher would look into the Contracts where Specific Performance is available and those where it is not available.

Though this project aims to cover most of the field areas under the abovementioned topic it has certain limitations. The researcher during his research would not concentrate on the history of equity and its origin. It would concentrate majorly on mistake, unjust enrichment and Specific Performance. He would not go into a great depth and analyze the equity in the Indian Contract Act. Neither would he look into the issue of Quasi-Contracts which include the principles of equity in it. As this is mostly a critical analysis the researcher would not like to venture much into the Indian cases rather he would look mostly into the English Law to analyze this relationship. The researcher would also like to point out the fact that the topics that he would be covering are in themselves a separate area where extensive research has been done on. Given the time and space restraint the researcher would be unable to cover all these areas to the extent they have been discussed in by various jurists.

The researcher would give a sincere effort in order to explain to its readers the importance of the Principle of equity in Contract Law and apologizes for any unintended error that may be caused the course of this project.

HYPOTHESIS

The researcher intends to provide the readers with a critical analysis of the Principles of Equity and their application in the Law of Contracts. The researcher does feel that the Contract law which have certain loopholes and their advantage are taken by a certain party whereas the other suffers. The researcher thus hypothesizes that the Contract Law would have been insufficient if these principles were not applied.

Keywords: Equity

Suggested Citation

Dutta, Shaswata, Principles of Equity and Contracts (April 7, 2006). Available at SSRN: https://ssrn.com/abstract=895862 or http://dx.doi.org/10.2139/ssrn.895862

Shaswata Dutta (Contact Author)

National University of Juridical Sciences ( email )

12, LB Block, Sector III
Salt Lake City
Kolkata, Kolkata 700 064
India

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