Elementary Legal Terminology
CIVIL TERMINOLOGY:
Claimant (known as a plain ff prior to April 1999) sues (i.e. brings an ac on against) a
defendant. The proceedings if successful (with the defendant being found liable ) result in
judgment for the claimant , and the judgment may order the defendant to pay the claimant
damages (money), to transfer property, to do or not do something (an injunc on ) or to
fulfil obliga ons under a contract (specific performance ). In proceedings against the
government or certain public authori es, known as applica ons for judicial review ,
whether by means of a mandatory, prohibi ng or quashing order, or otherwise, the par es
are also called claimant and defendant respec vely. In matrimonial cases in the Family
Division the par es are called pe oner and respondent, the relief sought concerns
dissolu on of the marriage and the proceedings result in a decree of divorce.
CRIMINAL TERMINOLOGY:
A prosecutor prosecu ng a defendant, the result of the prosecu on if successful is a
convic on, and the defendant who is found guilty may be punished by one of a variety of
punishments or sentences ranging from a fine to life imprisonment, including release on
proba on and other alterna ves to custody, or may be discharged without punishment. The
terminology of the one type of proceedings should never be transferred to the other.
“Criminal ac on”, for example, is a misnomer; so is “civil offence” (the proper expression is
“civil wrong”). One does not speak of a claimant prosecu ng or of the criminal defendant
being sued. The common announcement “Trespassers will be prosecuted” has been called a
“wooden lie”, for trespass has tradi onally been a civil wrong, not (generally) a crime.
CLASSIFICATION OF CIVIL WRONGS:
The more important types of civil wrong may be briefly men oned. One is the breach of
contract. Important to note is that this contract does not need to be in any form of
document at all. You make a contract even when you buy a newspaper or a bus cket.
Tort: Etymologically the word comes to us from the French tort, signifying any wrong, and
itself derived from the La n tortus, meaning “twisted” or “wrung”, the la er term having the
same origin as “wrong”. It includes such wrongs as negligence and nuisance, defama on of
character, assault, ba ery, false imprisonment, trespass to land and interference with goods.
It is a civil wrong independent of contract: that is to say, it gives rise to an ac on for
damages irrespec ve of any agreement not to do the act complained of. The adjec ve from
tort is “tor ous”: thus one speaks of a tor ous act.
A third civil wrong is a breach of trust . A “trust” is not a mere obliga on of honour, as the
word may seem to suggest, but an obliga on enforced by the courts. It occurs where a
person, called technically a se lor, transfers property (such as land or shares) to another,
called a trustee, on trust for yet another, called a beneficiary. Where the trust is created by
will the se lor is also called a testator (the name for anyone who makes a will); and an
alterna ve name for the beneficiary is cestui que trust, an ellip cal phrase meaning “the
person [for] whose [benefit the] trust [was created]”. In this phrase cestui is pronounced
“se ee” (with the accent on the first syllable), que is pronounced “kee” and trust as in
English. Gramma cally the plural should be cestuis que trust (pronounced like the singular);
but by an understandable mistake it is some mes wri en cestuis que trustent , as if trust
were a verb. The beginner will perceive by this me that several law-French words survive in
our law from the me when French was the language of the legal class. In the case of a
charitable trust there need be no definite beneficiary but the property is held on trust for
the public as a whole or for some sec on of it. Thus the heritage organisa on “Na onal
Trust” preserves beau ful places for the public enjoyment, and there are many trusts for
educa onal and religious purposes.
Res tu onary Obliga on: Suppose that I pay you £5, mistakenly thinking that I owe it to
you: I can generally recover it back in the law of res tu on. You have not agreed to pay it
back and so are not liable to me in contract; but in jus ce you ought to pay it back. There are
various other heads of unjust enrichment besides the par cular example just given, such as
the obliga on to repay money paid on a considera on that has totally failed.
The law of England may be said to be composed of three great elements: legisla on,
common law and equity.
Legisla on: The most important kind of legisla on is the Act of Parliament (otherwise called
a statute), through which the government of the day carries into effect its principal policies.
This is known as primary legisla on. What is called delegated legisla on, like the many
government orders generally known as statutory instruments, has come to be of great
importance as well.
Common Law:
The term is used to point a contrast and its precise meaning depends upon the contrast that
is being pointed. But when we speak of ecclesias cs and laymen, we mean by “laymen” nonecclesias cs. When we speak of doctors and laymen, we mean by “laymen” nondoctors.
“Laymen”, in short, are people who do not belong to the par cular profession of which we
are speaking. It is somewhat similar with the common law. Originally this meant the law that
was not local law, that is, the law that was common to the whole of England. This use may
occasionally be encountered, but it is no longer the usual meaning.
More usually the phrase will signify the law that is not the result of legisla on, that is, the
law created by the decisions of the judges. The decisions of the courts which create and lay
down the law are called precedents.
A third use to which the phrase may be put is to denote the law that is not equity (i.e. that
developed by the old Court of Chancery). In this sense it may even include statutory
modifica ons of the common law, though in the previous sense it does not.
Finally, it may mean the law that is not foreign law ; in other words, the law of England, or of
other countries (such as America) that have adopted English law as a star ng-point.
EQUITY:
In ordinary language “equity” means natural jus ce; Originally, indeed, this system was
inspired by ideas of natural jus ce, and that is why it acquired its name. Law generally refers
to Common Law & Equity is law in the sense of Law of England.
Equity is a very wide term that encompasses a vast array of remedies to ensure that the
ends of jus ce are met to the greatest end possible. The rule of equity is present to ensure
natural jus ce is present which in layman’s means that everyone gets the jus ce that they
need and which really is jus ce for them, not merely a formal procedure where jus ce has
more detrimental effect over li gants.
Many laws and legisla on, which have a colonial origin or impact also indicate the
presence of principles of the Rule of Equity namely The Indian Contract Act, 1872; The
Specific Relief Act, 1877; The Indian trust act, 1882; The Transfer of Property Act, 1882. For
instance, The Indian Contract Act, of 1872 has various provisions and remedies under it
that are based on these equity principles, like, Suit for specific performance, Suit upon
quantum merit and Suit for injunc on.
Origin of Equity: In Middle Ages the courts of common law failed to give redress in certain
types of case where redress was needed. The king through the Chancellor set up a Court of
Chancery whose rules hardened into Law and became a regular part of the Law of the Land.
in case of conflict or variance between the rules of common law and the rules of equity,
equity came to prevail. This was by means of what was called a common injunc on.
Suppose that A brought an ac on against B in one of the non-Chancery courts and, in the
view of the Court of Chancery, the ac on was inequitable. B’s proper course was to apply to
the Court of Chancery for an order, called a common injunc on, directed to A and ordering
him not to con nue the ac on. If A defied the injunc on the Court of Chancery would put
him in prison for contempt of court. Equity thus worked “behind the scenes” of the common
law ac on; the common law principles were theore cally le intact, but by means of this
intricate mechanism they were superseded by equitable rules in all cases of conflict or
variance. The result jus fied the sarcasm of the cri c who said that in England one court was
set up to do injus ce and another to stop it.
This system went on un l 1875, when as a result of the Judicature Act 1873 the old courts of
common law and the Court of Chancery were abolished. In their place was established a
single Supreme Court of Judicature, each branch of which had full power to administer both
law and equity. Also, common injunc ons were abolished and instead it was enacted that, in
cases of conflict or variance between the rules of equity and the rules of common law, the
rules of equity should prevail.
PRINCIPLES OF EQUITY:
The body of the Law of Equity is preserved in the following twelve maxims. These maxims
are general principles adopted to administer jus ce and fairness. They govern the Law of
Equity and are discre onary.
Equity will not suffer a wrong to be without a remedy
This maxim, in La n, is “Ubi Jus Ibi Remedium ” which means “where there is a right there is
a remedy”. The maxim states that in situa ons where the common law confers a right, it also
gives a remedy for infringement of that right. It must be kept in mind that this principle is
applicable only where the right and the remedy both are within the jurisdic on of the court.
In the Law of Equity, injunc on and specific performance are also the types of remedies
available. In Ashby V. White a qualified voter was not allowed to vote and thus he sued the
returning officer, this case deals with the principle laid down in this maxim, i.e. if a person
has been granted a right, he is also granted with a remedy.
Equity follows the law
This maxim is also expressed as “aequitas sequitur legem”, which means that equity will not
allow a remedy that is contrary to the law. This maxim lays down that equity supplements
law and does not supersede it. The discre on of the court is governed by law and equity
which are subservient to one another. Wherever the law can be followed, it must be
followed. In the cases where the law does not apply specifically, this maxim suffers
limita on. But in modern-day England and Wales, the law follows equity. Sec on 49(1) of
the Senior Courts Act 1981 clearly specifies that in case there is a conflict between the rule of
law and equity, equity shall prevail.
He who seeks equity must do equity
This maxim states that the plain ff is also subject to the powers of the court and is thus
obligated to perform his du es following the principle of equity. The concern of this maxim
is the future conduct of the plain ff. Thus, this maxim applies to the party who seeks
equitable relief as it s pulates that the plain ff must also recognize and submit to the right
of his adversary. This maxim was a racted in the case of Lodge v. Na onal Union
Investment where Lodge borrowed money from an unregistered moneylender and thus upon
an ac on by him to recover the securi es, the court refused to make an order except upon
the terms that Lodge should repay the money which had been advanced to him. This maxim
is also applicable in the following legal provisions:

Sec on 19A of the Indian Contract Act – the plain ff must restore all the benefits
arising from the contract which is rescinded by him.

Sec on 35 of Transfer of Property Act – the doctrine of elec on says that a benefit
under a legal instrument must be adopted with all of the provisions and obliga ons
under such an instrument.

The Doctrine of Consolida on of Mortgages- where a borrower has mortgaged
different proper es to secure separate debts, and he defaults on one of those debts,
this doctrine allows for the lender to pool the assets which were secured by the
borrower and to realise those secured assets against the total sum owing.

Order 8, Rule 6, of the CPC, the doctrine of set-off – in case of mutual debt between
two li ga ng par es, the amount due to one party shall be set-off by the same
amount which is due to the other party and only the residuary amount shall be
claimed.
He who comes to equity must come with clean hands
This doctrine relates to the past conduct of the par es and states that the person who
comes to the court seeking equity must not have involved in an inequitable act himself in
the past. This maxim is concerned with the past behaviour of the plain ff. The maxim does
not concern the general behaviour of the plain ff, the defence of unclean hands is only
applicable in situa ons where there is nexus between the applicant’s wrongful act and the
right that he wishes to enforce.
This principle was upheld in the case of D & C Builders V. Rees where the claim of the plain ff
to apply promissory estoppel was rejected because he had taken unfair advantage of the
poor financial posi on of the defendant’s builder company and thus had not come with
clean hands.
If the plain ff is involved in fraud or misrepresenta on that concerns the respec ve case
then he cannot demand equity. This principle is also adopted in Sec on 17, 18, and 20 of
the Specific Relief Act, which lay down that a plain ff’s unfair conduct will disen tle him to
the equitable relief of specific performance of a contract.
Delay defeats equity
The La n maxim for this principle is “Vigilan bus non dormien bus aequitas subvenit” which
means that Equity assists the vigilant and not those who sleep on their rights. Unreasonable
delay in bringing forth a claim is known as laches. Laches may also result in dismissal of the
claims. Thus, a party must assert an ac on within a period of reasonable me. There are
certain situa ons where the law of limita on is expressly applied, in such cases, there is a
par cularized legal situa on where a me period, which has been expressly prescribed, has
elapsed and the party is barred from bringing a suit of ac on.
In case of laches, the defence of acquiescence can be applied by the court and the plain ff
may be disallowed from seeking an equitable remedy as the court would assume that he has
acquiesced to the ques onable ac ons of the defendant. The equitable rule of acquiescence
and laches was first introduced in the case of Chief Young Dede v. African associa on Ltd
Equality is equity
This principle is expressed by the La n maxim Aequitas est quasi aequalitas which means
equality is equity. This maxim implies that as far as possible, equity strives to put the
li ga ng par es on an equal level and equate their rights and responsibili es. The ordinary
law may give one party advantage over the other but the court of equity, wherever possible,
puts the par es on an equal foo ng.
Equity looks to the intent rather than the form
This is the maxim by the means of which an equitable remedy was established which allows
for the terms of a contract to be interpreted by taking into account the inten on of the
par es. The common law was very rigid and could not respond favourably to demand of
me, this meant regarding the form of the contract more important than the substance.
Equity, on the other hand, looks to the spirit and not the le er of the contract. This principle
is enshrined in the provision for relief against penalty and forfeitures which states that the
object of a contract is to perform it and not the compensa on, thus the compensa on must
be propor onate to the damage and not benefit the receiver (Sec on 74 of the Indian
Contract Act provides for claiming reasonable compensa on). In the case of the contract for
the sale of land, if the party fails to complete within a fixed period, equity allows reasonable
me to the party to complete it (Parkin v. Thorold).
Equity looks on that as done which ought to have been done
This maxim states that in cases where individuals are required, by law or by agreement, to
perform any act of legal significance, equity will regard that act as having been done as it
ought to have been done even before it actually happened. This principle results in the legal
phenomenon of equitable conversion under which the buyer obtains the equitable tle to
the property even before the sale has been legally effected.
Equity imputes an inten on to fulfill an obliga on
This maxim means that if a person is obligated to do one act and does another, the act done
by him will be taken as a close enough approxima on to the fulfillment of the required
obliga on. For example, if a debtor leaves a legacy to his creditor which is equal to or greater
than the debt owed by him, then equity would regard such legacy as the fulfillment of the
obliga on of the payment of the debt owed by the person.
Equity acts in personam
This maxim states the equity applies to a person rather than a property. In England, the
Court of Common law and Chancery Courts were dis nguished by the fact that the former
had authority over the person as well as property but the la er only acted over people. The
Equity court’s coercive power arose from their authority to hold the violator in contempt of
court and punish accordingly. Since the law of equity was applicable to the persons and not
the property, it could also apply to the property outside a jurisdic on, provided that the
person was within the jurisdic on. In the case of Penn v. Lord Bal more, an order of specific
performance was made for the plain ff who brought a boundary dispute case to an English
Court, yet the land was situated in Maryland, USA. the jurisdic on of the court was
applicable to the par es as they both were English and lived in England.
Where the equi es are equal, the first in me prevails
Where the legal estate is absent in the ma er and the contest is among equitable estate
only, the person whose equity is a ached to the property first in me will be en tled to
priority over others. Here, the term equi es refer to mul ple equitable interests. Thus, in
case two equi es are equal, the original interest, i.e., the first in me will succeed. For
example, if A grants an equitable mortgage to X and then subsequently grants the same
mortgage to Y, X’s mortgage shall take priority.
Where the equi es are equal, the law prevails
In case neither of the par es has been wronged and both stand at an equitable posi on, the
legal remedy will be priori zed. Equity shall not provide any specific remedy in case both the
par es have equal causes. Thus, in such cases, the par es must bring a legal ac on rather
than an equitable ac on.
RULE OF EQUITY IN INDIAN LEGAL SYSTEM:
The rule of equity is an important part of the Indian legal system. It ensures that jus ce is
not merely done, but is also seen to be done. Equity helps to ensure that everyone is treated
fairly, regardless of their social or economic status.
The very nature of our society is evolu onary. Society keeps on evolving not only on the
quan ta ve parameters but also in terms of its modus operandi, norms and several such
factors. Human nature is also very complex and not at all predictable. Hence, it is prac cally
impossible for the legisla ve to make laws to regulate each and every sphere of human life
or conduct. There will always be absen a of law or absence of law where a wrong has
been commi ed but the wrong is not covered by any present law. The approach adopted
by the hon’ble courts, in such cases, is Equity. Whenever any such case approaches the
hon’ble courts, it is the duty of a judicial officer to examine as to whether there is any
viola on of any fundamental right of the par es. If this analysis of the said judicial officer
comes to the conclusion that a fundamental right has been violated, the officer has to direct
the par es to either approach the Supreme Court or the High Court of India. However, if
there is no viola on of any fundamental right, the judicial officer has to examine whether
any legal right on any law has been violated by the defendant. If the examina on is
affirma ve, then the judicial officer has to set the balance right in accordance with the
provision of the law. In the other scenario, if the examina on is nega ve, then, the judicial
officer has to apply the principles of ‘equity’, jus ce and good conscience and make sure
that there is no injus ce caused.
COMMON LAW AS MADE BY THE JUDGES:
When the term “common law” is used in contrast to statutory law, it may mean either of two
things, though they are closely related. It generally means the body of law produced by
decided cases without the aid of legisla on. 56 Occasionally, however, the invoca on of the
common law refers not to previously exis ng law but to the power of the judges to create
new law under the guise of interpre ng it. Nearly all the common law in the first sense is
created by the common law in the second sense, that is to say by the judges in the exercise
of their discre on. How much discre on a judge has to expand the law is a complex
ques on.
Law and equity both are important for jus ce. Where the rigidi es of the law threaten
jus ce, equity prevails, and where equity has no remedy the le er of law is followed.
Jus ce, thus, depends upon both and thus, both must be consulted in order to deliver
jus ce.