Equity Jurisprudence – the legal science of applying the principles of fairness that supersede otherwise literal translation of common or statutory law

    This page is continued from the Legal Precepts adopted into U.S. law (from Europe) through the Constitution:

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equity jurisprudence:
(1826)

1. The legal science treating the rules, principles, and maxims that govern the decisions of a court of equity.

2. The cases and controversies that are considered proper subjects of equity.

3. The nature and form of the remedies that equity grants. [1]

1. That portion of our system of jurisprudence traditionally expounded and administered by courts of equity27 Am J2d Eq § 1.

It remains a distinct part of the system, notwithstanding in many jurisdictions legal and equitable remedies have been commingled in one form of civil action and a court of general jurisdiction may hear both law and equity cases.  27 Am J2d Eq § 4.  

equity:
n. (14c)

1. A term having a variety of meanings.  The mitigating principles, by the application of which substantial justice may be attained in particular cases wherein the prescribed or customary forms of ordinary law seem to be inadequate.  A complex system of established law and jurisprudence.  The standing of a party to claim relief.  An interest in property which a court of equity will protect.  27 Am J2d Eq § 1.
     See at law and in equity; bill in equity; decree; equity term; in equity; strong arm of equity. [2]

1. A system for insuring justice in circumstances where the remedies customarily available under conventional law are inadequate; a system of jurisprudence less formal and more flexible than the common law, available in particular types of cases to better ensure a fair result.  Although courts of equity and courts of law have been merged, their equity powers are still distinct.
     See equitable action; equitable relief.

2. Short for court of equity.

3. Fairness; justice; right.

4. A person’s interest in property after subtracting the amount he owes on the property from its fair market value.  USAGE: “I have paid off all but $10,000 of the $100,000 mortgage on my home, which is worth $120,000, so my equity is now $110,000. [3]

1. Fairness; impartiality; evenhanded dealing <the company’s policies require managers to use equity in dealing with subordinate employee>.

2. The body of principles constituting what is fair and right; natural law <the concept of “inalienable rights” reflects the influence of equity on the Declaration of Independence>. [1]

     Excerpt from R.E. Megarry’s Snell’s Principles of Equity (23d ed. 1947):

     “In its popular sense it [equity] is practically equivalent to natural justice. But it would be a mistake to suppose that equity, as administered by the Courts, embraces a jurisdiction as wide and extensive as that which would result from carrying into operation all the principles of natural justice.  There are many matters of natural justice wholly unprovided for, from the difficulty of framing any general rules to meet them, and from the doubtful wisdom of a policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude and kindness.  A large proportion of natural justice in its widest sense is thus not judicially enforced, but is left to the conscience of each individual. [4]

3. The recourse to principles of justice to correct or supplement the law as applied to particular circumstances; specifically, the judicial prevention of hardship that would otherwise ensue from the literal interpretation of a legal instrument as applied to an extreme case or from the literal exclusion of a case that seems to fall within what the drafters of the instrument probably intended <the judge decided the case by equity because the statute did not fully address the issue>. — aka natural equity. [1]

     Excerpt from Dennis Lloyd’s Introduction to Jurisprudence  (rev. ed. 1965):

     “Lord Evershed, after referring to the old doctrine of this ‘equity’ of a statute, whereby the courts had a certain latitude in stretching it to cover cases not expressly dealt With, makes the interesting suggestion that it might be as well to revive this doctrine and confer on the judiciary the, function of rendering an Act just and workable and of giving effect to sensible solutions, unless the terms of the Act itself precluded this.  Such a change would doubtless entail a fundamental reversal of the present form of legislative drafting.  Draftsmen and courts are at present engaged in a battle of wits, the draftsman seeking to anticipate its restrictive interpretations of the courts by inserting tie most elaborately detailed provisions to ensure that particular situations are covered, which often has the unfortunate result of excluding from the effect of the statute equally relevant situations which were not actually thought of at the time.[5]

4. The system of law or body of principles originating in the English Court of Chancery and superseding the common and statute law (together called “law” in the narrower sense) when the two conflict <in appealing to the equity of the court, she was appealing to the “king’s conscience”>; CHANCERY (second definition). [1]

     Excerpt from George T. Bispham’s The Principles of Equity (Joseph D. McCoy ed., 11th ed. 1931):

     “Equity is that system of justice which was developed in and administered by the High Court of Chancery in England in the exercise of its extraordinary jurisdiction. This definition is rather suggestive than precise; and invites inquiry rather than answers it. This must necessarily be so.  Equity, in its technical and scientific legal sense, means neither natural justice nor even all that portion of natural justice which is susceptible of being judicially enforced. It has, when employed in the language of English law, a precise, definite and limited signification, and is used to denote a system of justice which was administered in a particular court the nature and extent of which system cannot be defined in a single sentence, but can be understood and explained only by studying the history of that court, and the principles upon which it acts. In order to begin to understand what equity is, it is necessary to understand what the English High Court of Chancery was, and how it came to exercise what is known as its extraordinary jurisdiction. Every true definition of equity must, therefore, be, to a greater or lesser extent, a history. [6]

     Excerpt from R.E. Megarry’s Snell’s Principles of Equity 2 (23d ed. 1947):

     “In its technical sense, equity may . . . be defined as a portion of natural justice which, although of a nature more suitable for judicial enforcement, was for historical reasons not enforced by the Common Law Courts, an omission which was supplied by the Court of Chancery. In short, the whole distinction between equity and law is not so much a matter of substance or principle as of form and history. [7]

     Excerpt from Gianville Williams’ Learning the Law (11th ed. 1982):

     “The term ‘equity’ is an illustration of Mr. Towkington’s proposition that some words have a legal meaning very unlike their ordinary one. in ordinary language ‘equity’ means natural justice; but the beginner must get that idea out of his head when dealing with the system that the lawyers call equity.  Originally, indeed, this system was inspired by ideas of natural justice, and that is why it acquired its name; but nowadays equity is no more (and no less) natural justice than the common law, and it is in fact nothing else than a particular branch of the law of England. Equity, therefore, is law. The student should not allow himself to be confused by the lawyer’s habit of contrasting ‘law’ and ‘equity,’ for in this context ‘law’ is simply an abbreviation for the common law. Equity is law in the sense that it is part of the law of England; it is not law only in the sense that it is not part of the common law. [8]

court of chancery – the English court of equity, where one appealed to the “King’s Conscience.”  The term is derived from the court of the Lord Chancellor, the original English court of equity. — aka chancery; chancery court.; court of conscience.

5. A right, interest, or remedy recognizable by a court of equity <there was no formal contract formation, so they sued for breach in equity>.

  • contravening equity – a right or interest that is inconsistent with or contrary to a right sought to be enforced.
  • countervailing equity – a contrary and balancing equity, equally deserving of consideration.
  • latent equity – an equitable claim or right known only by the parties for and against whom it exists, or that has been concealed from one who is interested in the subject matter. — aka secret equity.
  • perfect equity – an equitable title or right that, to be a legal title, lacks only the formal conveyance or other investiture that would make it cognizable at law (i.e. the equity of a real-estate purchaser who has paid the full amount but has not yet received a deed).

6. The right to decide matters in equity; equity jurisdiction <the court decided that the wrong was egregious enough to ignore the statute of limitations and decide the case in equity>.

7. The amount by which the value of or an interest in property exceeds secured claims or liens; the difference between the value of the property and all encumbrances on it <thanks to the real-estate boom, the mortgaged house still had high equity>. — aka cushion.

  • negative equity – the difference between the value of an asset and the outstanding amount of the loan secured by the asset when the asset’s current value is less than the loan’s balance.

8. An ownership interest in property, especially in a business <the founders gave her equity in the business in return for all her help>See OWNERS EQUITY; BOOK EQUITY; MARKET EQUITY.

owners’ equity – the aggregate of the owners’ financial interests in the assets of a business entity.

  • ownership – the “bundle of rights” allowing one to possess, use, manage, and enjoy property, including the right to convey it to others (regardless of of any actual or constructive control).
  • interest – all or part of a legal or equitable claim to or right in property.

private equity – corporate stock that is not traded on a public exchange.  *  Investors put capital directly into a private company or buy out a public company and delist the stock in exchange for the equity interest.

9. A share in a publicly traded company <he did not want to cash in his equity>.

Terms Pertaining to Equity:

equity, bill in – See BILL (2).

equity accounting method = See ACCOUNTING METHOD.

equity capital – See CAPITAL.

equity contra legem – (1969) Int’l law. The use of equity in derogation of the law, where, under the circumstances of the case, an exception to the law is needed to achieve an equitable and just result. — Sometimes shortened to contra legem.  See EX AEQUO ET BONO.  Cf. EQUITY INTRA LEGEM.

equity financing – See FINANCING. equity insolvency, See INSOLVENCY.

equity intra legem – (1983) A court’s power to interpret and apply the law to achieve the most equitable result. — sometimes shortened to intra legem. — also written equity infra legem.  Cf. EQUITY CONTRA LEGEM.

equity jurisdiction – See JURISDICTION.

equity kicker. See EQUITY PA RTICIPATION. equity loan. See home equity loan under LOAN.

equity of exoneration – (1827) The right of a person who is secondarily liable on a debt to make the primarily liable party discharge the debt or reimburse any payment that the secondarily liable person has made.  *  One example is the right of a surety to call on the principal for reimbursement after the surety has paid the debt.  Unlike contribution, which exists when the parties are equally liable, the equity of exoneration exists when parties are successively liable. — aka right of exoneration.  See EXONERATION.

equity of partners – (1952) The right of each partner to have the firm’s property applied to the firm’s debts.

equity of redemption (18c) Real estate. The right of a mortgagor in default to recover property before a foreclosure sale by paying the principal, interest, and other costs that are due.  *  A defaulting mortgagor with an equity of redemption has the right, until the foreclosure sale, to reimburse the mortgagee and cure the default. In many jurisdictions, the mortgagor also has a statutory right to redeem within six months after the foreclosure sale, and the mortgagor becomes entitled to any surplus from the sale proceeds above the amount of the outstanding mortgage. — aka right of redemption; equitable right of redemption.  See CLOG ON THE EQUITY OF REDEMPTION; REDEMPTION (4); STATUTORY RIGHT OF REDEMPTION.

     Excerpt from Charles Herman Kinnane, A First Book on Anglo-American Law 309 (2d ed. 1952):

     “A mortgage is technically a conveyance of title to property as security for a debt.  The law courts, with typical technicality, early adopted the rule that if the debt was not paid on the very day it was due, the debtor lost his land.  The equity courts, however, with more liberality, and with more of a recognition of the real purpose of the transaction, recognized the fact that the securing of the debt, rather than the act of conveyance of title was the principal thing giving character to the transaction. Accordingly they alleviated the severity of the legal rule by, in effect, giving the land back to the debtor if he would pay the debt, even though it had not been paid on time. This equitable right to redeem, even after default in paying the debt when it was due, was called the ‘equity of redemption.” [9]

equity of subrogation (1850) The right of a person who is secondarily liable on a debt, and who pays the debt, to personally enforce any right that the original creditor could have pursued against the debtor, including the right to foreclose on any security held by the creditor and any right that the creditor may have to contribution from others who are liable for the debt. — aka right of subrogation; (in Scots law) right of relief.   See SUBROGA~ TION.

equity-of-the-statute rule (1959) In statutory construction, the principle that a statute should be interpreted according to the legislators’ purpose and intent, even if this interpretation goes well beyond the literal meaning of the text; the doctrine that the supposed fair application intended for an enactment is the interpreter’s paramount concern, allowing departures from the statute’s literal words.  *  This statute-specific ally of purposivism arose in the Middle Ages, mostly fell into disuse by the Renaissance, was thoroughly rejected for most of the 19th century, and has made spasmodic comebacks in American law since then.  See PURPOSIVISM.  Cf. GOLDEN RULE; MISCHIEF RULE; PLAIN-MEANING RULE.

equity participation (1947) The inclusion of a lender in the equity ownership of a project as a condition of the lender’s granting a loan. — aka equity kicker.

equity pleading See PLEADING (2)

equity praeter legem (1969) Hist. The use of equity to fill a gap in the law. — sometimes shortened to praeter legem.

equity ratio (1935) 1. The percentage relationship between a purchaser s equity value (especially the amount of a down payment) and the property value. 2. The measure of a shareholder s equity divided by total equity.

equity security – See SECURITY (4).

equity skimming (1974) Criminal law. The practice of purportedly buying a dwelling that is subject to a federally insured loan and then converting the rents received from tenants to one ’s own use instead of applying them toward payment of the mortgage.  *  When the property is foreclosed on, the “buyer” is gone and the original owner is responsible for the delinquent mortgage.

equity stock – See STOCK.

equity term – See TERM (5).

equity to a settlement – (1838) A wife’s equitable right arising when her husband sues in equity for the reduction of her equitable estate to his own possession.to have all or part of that estate settled on herself and her children. — aka wife’s equity; wife’s settlement.

More About Equity Law:

     Equity Law is law which compels performance.  It compels you to perform to the exact letter of any contract that you are under.  So, if you have compelled performance, there must be a contract somewhere, & you are being compelled to perform under the obligation of the contract.  Now this can only be a civil action – not criminal.  In Equity Jurisdiction, you cannot be tried criminally, but you can be compelled to perform to the letter of a contract.  If you then refuse to perform as directed by the court, you can be charged with contempt of court, which is a criminal action.  

    If a contract is violated, a Civil Action could be filed in order to compel performance via a Writ of Replevin or via a type of Vicontiel Writ called a Writ of Justice.

Contracts Must be Voluntary:

     Under the Common Law, every contract must be entered into knowingly, voluntarily, & intentionally by both parties or it is void & unenforceable.  These are characteristic- it must be based on substance.  For example, contracts used to read, “For one dollar & other valuable considerations, I will paint your house, etc.”  That was a valid contract.  A contract must be based on substance. [10]

contract – a written agreement between two or more parties creating obligations enforceable &/or recognized at law:

A Bond is a sort of One-Sided Contract:

bond – a written promise to pay money or do some act if certain circumstances occur or a certain time elapses.

References:

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: R.E. Megarry, Snell’s Principles of Equity 1 (23d ed. 1947). 

[5]: Dennis Lloyd, Introduction to Jurisprudence 388-89 (rev. ed. 1965).

[6]: George T. Bispham, The Principles of Equity 1-2 (Joseph D. McCoy ed., 11th ed. 1931).

[7]: R.E. Megarry, Snell’s Principles of Equity 2 (23d ed. 1947).

[8]: Gianville Williams, Learning the Law 25-26 (11th ed. 1982)

[9]: Charles Herman Kinnane, A First Book on Anglo-American Law 309 (2d ed. 1952).

[10]: “The U.C.C. Connection” by Howard Freeman: www.freedom-school.com/the-ucc-connection.html

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Other § § of The Public Intelligence Agency include:

Legal Precepts Adopted into U.S. Law (from Europe) through the Constitution

Common Law

Admiralty Law

Sections of Law Embedded into the U.S. Constitution Pursuant to the American Revolution

Indian Country Law

Intro To Law

Pro Se Legal Self-Help

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