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Two Maxims of Equity

Published online by Cambridge University Press:  16 January 2009

Simon Gardner
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Extract

It is a commonplace that statements of legal doctrine sound both more determinate and more authoritative than they necessarily are. And this must be especially true of the maxims of equity,1 which possess a peculiarly Delphic quality, wrapped as they are in metaphor, grandly unqualified, and acknowledging no authority but transcendent wisdom. Therein may have lain their particular usefulness to the law.2 But therein too lies a worry. For it follows that reasoning based on a maxim especially facilitates the introduction of unarticulated valuejudgments; and indeed that such reasoning carries an unusually high risk of actual error, as the judges themselves miss their way.

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Shorter Articles
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The Cambridge Law Journal , Volume 54 , Issue 1 , March 1995 , pp. 60 - 68
Copyright
Copyright © Cambridge Law Journal and Contributors 1995

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References

1 On the maxims generally, see Baker, P.V. and Langan, P.St.J., Snell's Equity, 29th ed. (London 1990),Google Scholar ch. 3; Meagher, R.P., , W.M.C. Gummow and Lehane, J.R.F., Equity—Doctrines and Remedies, 3rd ed. (Sydney 1992),Google Scholar ch. 3; Jackson, P., “The Maxims of Equity Revisited”, in Goldstein, S. (ed.), Equity and Contemporary Legal Developments (Jerusalem 1992), pp. 72Google Scholar et seq.

2 See especially R. Pound, “On Certain Maxims of Equity”, in Winfield, PH. and McNair, AD. (eds.), Cambridge Legal Essays (Cambridge 1926), pp. 259Google Scholar et seq. Pound suggests that the maxims greatly assisted in the development of equity in the United States, where it was regarded with suspicion. Their (frequently spurious) antiquity and so authority enabled the results to appear astrue law, rather than as the personal opinions of individual judges, whilst in practice their lack of determinacy gave scope for judicial innovation.

3 [1994] 1 A.C. 342. Noted, A.J. Oakley, [1994] C.L.J. 31; P. Watts, (1994) 110 L.Q.R. 178; A.Jones, [1994] Conv. 156; T. Allen, (1995) 58 M.L.R. 87.

4 (1890)45Ch.D. 1.

5 See [1994] 1 A.C. 324, 336F–G.

6 A.J. Oakley, [1994] C.L.J. 31, 32–33.

7 For this suggestion, see P. Watts, (1994) 110 L.Q.R. 178, 180.

8 [1994] I A.C. 324, 331E.

9 [1994] 1 A.C. 324, 337E. His Lordship omits to cite other writings on the subject, at least some of which controvert his reasoning and conclusion. See P.B.H. Birks, “Adjudication and Interpretation in the Common Law: a Century of Change”, (1994) 14 L.S. 156, 170.

10 P.J. Millett, [1993] R.L.R. 7.

11 See [1994] 1 A.C. 324, 331E; cf. Millett, he. cit. at p. 23 et seq.

12 hoc. cit. at p. 20.

13 This point is made by R. Goode, “Property and Unjust Enrichment”, in Burrows, A. (ed.), Essays on the Law of Restitution (Oxford 1991), ch. 9: see especially at p. 231.Google Scholar

14 See especially Birks, P.B.H., An Introduction to the Law of Restitution (Oxford 1985),Google Scholar ch. XI.

15 See especially Lord GofT of Chieveley and Jones, G., The Law of Restitution, 4th ed. (London 1993), 73–75, 93–102Google Scholar. See too Paciocco, D.M., “The Remedial Constructive Trust: A Principled Basis for Priorities Over Creditors”, (1989) 68Google Scholar Can.Bar.Rev. 315; Sherwin, E.L., “Constructive Trusts in Bankruptcy”, [1989] U. 111. L.R. 297.Google Scholar

16 Cf. Goode, loc. cit., and Milieu, loc. cil.

17 In addition to the decision under discussion, see his Lordship's opinion in Space Investments Ltd. v. Canadian Imperial Bank of Commerce Trust Co. (Bahamas) Ltd. [1986] 1 W.L.R. 1072 and Lord Napier and Ettrick v. Hunter [1993] A.C. 713. Compare the different approach of Lord Mustill in Re Goldcorp Exchange Ltd. (in receivership) [1994] 3 W.L.R. 199; noted, McKendrick, E., (1994) 110Google Scholar L.Q.R. 509,513.

18 [1994] 2 W.L.R. 429. Noted, N.P. Gravells, (1994) 110 L.Q.R. 346; L. Tee, [1994] C.L.J. 446; J.Snape, [1994] Conv. 477.

19 “ (1848) 2 Ph. 774.

20 Haywood v. Brunswick Permanent Benefit Building Society (1881) 8 Q.B.D. 403; Austerberry v. Oldham Corporation (1885) 29 Ch.D. 750.

21 [1994] 2 W.L.R. 429, 432F.

22 [1994] 2 W.L.R. 429, 433B.

23 See Re Nisbet and Potts' Contract [1905] 1 Ch. 391.

24 [1994] 2 W.L.R. 429, 432G.

25 Maitland, F.W., Lectures on Equity (Cambridge 1909);Google Scholarsee 2nd ed., by Brunyate, J.W. (Cambridge 1936), pp. 17Google Scholar elseq.

26 Other proponents are catalogued by Hohfeld, W.N., Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven 1923), pp. 120–121, 155Google Scholar. Most famous amongst them was Langdell. Comparison of the dates of the various writings suggests that Maitland was not the inventor of the idea.

27 The crucial passage is not completely clear. The alternative is that Maitland was discussing whether equity challenges the common law over what is to be the “genuine law”, in which case his argument runs directly into Hohfeld's criticism: see below.

28 Op.cit.,chs. III and IV.

29 Op. cit.,p. 121.

30 The Earl of Oxford's Case (1615) 1 Ch. Rep. 1. This determination comes down to us as the rule that, in case of conflict between equity and the common law (i.e. where there is what Hohfeld calls a contradiction), equity shall prevail. Unfortunately, this rule has sometimes been invoked where no such conflict truly exist, with strange results. For example, in Re Pryce [1917] 1 Ch. 234, Eve J. held that the common law should not give its accustomed damages under a covenant in favour of a volunteer, following what he took to be equity's position, that volunteers should be remediless. But that is not equity's position: equity merely withholds its own remedy of specific performance from volunteers, leaving them to their remedy at law. So there is no conflict as regards the availability of damages, and therefore no reason for the common law rule not to be maintained. (It could still be argued, of course, that as a matter of policy equity ought to take the position assumed by Eve J., and bar the legal remedy, at any rate in this context.)

31 Cf note 1 above. To modern eyes, there is an exception, in the proposition, which is recognised as a maxim, that “equity will not suffer a wrong to be without a remedy”. Historically, however, and with a specific reading of “wrong”, this may have functioned as maxims properly do. See Meagher, R.P., Gummow, W.M.C. and Lehane, J.R.F., Equity—Doctrines and Remedies, 3rd ed. (Sydney 1992), paras. 302–304.Google Scholar

32 However, the range of possibilities is conventionally regarded as circumscribed by the limited battery of remedies at equity's disposal, both for the negation of any relevant common law rule (the jurisprudence of “common injunctions”) and for the delivery of equity's own answer. See S. Gardner, “Equity, Estate Contracts and the Judicature Acts: Walsh v. Lonsdale Revisited”, (1987) 7 O.J.L.S. 60, 81 etseq.

33 The assumption that to hold a purchaser to a positive covenant must involve personal enforcement, and cannot rest upon nemo dat, may be questionable. In principle, why should the law not enablea covenantor to change the bundle of ownership rights which he transmits to his successor by adding an obligation as well as by subtracting a right?

34 His Lordship does not consider the possibility that the common law also objects to the creation of new rights operating by nemo dat (i.e. new rights in rem). That possibility, which by his Lordship's reasoning would render invalid the established law of restrictive covenants, seems at least as plausible as the proposition that the common law is keen to maintain the privity rule.

35 [1994] 2 W.L.R. 429.

36 Though Lord Templeman refers to them briefly: [1994] 2 W.L.R. 429, 436c–E.

37 See generally Law Com. No. 127, The Law of Positive and Restrictive Covenants (1984). Note also the Report of the Committee on Positive Covenants Affecting Land (Chairman, Lord Wilberforce) (Cmnd. 2719, 1965).

38 Though somewhat surprising, given the century-old clear law that they are ineffective, it seems that positive covenants are no rarity: that at issue in Rhone v. Stephens [1994] 2 W.L.R. 429 itself was created as recently as 1960.