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Simple Language and Clear Principles: The Maxims of EquityBruce D. Greenberg

Complex litigation is often fraught with legalese. Frequently, complex litigation seems more concerned with technicalities than what is fair and reasonable. But there is a refreshing body of law that expresses itself in plain English and focuses on what is right and just. That body of law is known as the “maxims of equity.”

In the English system of jurisprudence, which was the basis for courts in the United States, there were courts of “equity,” including Chancery courts. There were no jury trials in Chancery courts. Instead, the judge, known as the Chancellor, had authority to do what was necessary to achieve a proper result in a case, regardless of loopholes and technicalities in the law. The maxims of equity developed as a guide for litigating and deciding such cases, especially complex litigation.

New Jersey is one of the few states (our neighbor, Delaware, is another) that still has separate Law and Chancery Divisions. But the maxims of equity, though developed in the Chancery context, apply in both Divisions, as well as in federal court. Here are a few of those equitable maxims, with a brief (and highly oversimplified) discussion of each:

Equity will not allow a wrong to be without a remedy- for various technical reasons, the law sometimes recognizes that a party has been wronged but does not give that party any relief. Equity, in contrast, tries to get around such technicalities and seeks to afford a remedy to a party that has been harmed. This maxim does not allow courts to rewrite the law. Indeed, another maxim states that “Equity follows the law.” But this maxim does encourage courts to “find a way” to provide a wronged party with a remedy.

Equity abhors a forfeiture- a court of equity bends over backward to avoid depriving a party of substantial rights. Especially in cases involving real property, such as foreclosure matters, if there is a way to impose a less harsh result than total forfeiture while still following the law, equity courts try to find a way. 

Equity considers as done what ought to have been done-  where a party is required to do an act but refuses to do so, an equity court will not allow that failure to act to defeat the rights of another party. Instead, the equity court will treat the situation as though the obligated party took the required action.

A party who seeks equity must do equity; A party who comes into Equity must come with clean hands- these two maxims are, in some ways, two sides of the same coin. The first says that a party who asks a judge to do what is fair must have acted fairly and appropriately himself. The second states that a party who has not done that, but instead has engaged in “dirty pool,” will be considered to have “unclean hands” and will be barred from getting equitable relief.         

Many of the maxims of equity seem to relax strict justice in order to do what is fundamentally fair. But at least one maxim limits, as opposed to broadening, equity’s protection of an allegedly victimized party: Equity aids the vigilant, not those who sleep on their rights. A person who has suffered a wrong must act promptly in order to claim equitable relief. Failure to do so can mean the loss of what an equity court would otherwise provide.

These and other maxims of equity are available even in the most complex litigation. When the strict and technical demands of the law may produce a result that is unfair to a client, wise lawyers resort to the maxims of equity.