The Journal of the DuPage County Bar Association

Home

President's Page

Editor's Page

Judicial Profiles

Judge Thomas J. Riggs

Judge Kathryn E. Creswell

Judge Bonnie M. Wheaton

Judge Hollis L. Webster

Judge William J. Bauer

Judge John T. Elsner

What's Inside

Letters to the Editor

Photo Galleries

Online Version

Advertising

Subscriptions

Back Issues

Vol 24 (2011-12)

Vol 23 (2010-11)

Vol 22 (2009-10)

Vol 21 (2008-09)

Vol 20 (2007-08)

Vol. 19 (2006-07)

Vol. 18 (2005-06)

Vol. 17 (2004-05)

Vol. 16 (2003-04)

Vol. 15 (2002-03)

Vol. 14 (2001-02)

Vol. 13 (2000-01)

Vol. 12 (1999-00)

Vol. 11 (1998-99)

Vol. 10 (1997-98)

Vol. 9 (1997)

1997 Article List

1996 Article List

1995 Article List

1994 Article List

1993 Article List

1992 Article List

1991 Article List

1990 Article List

1989 Article List

Submissions

Author's Agreement

Publication Schedule

Author MCLE Credit

Back Issues > Vol. 12 (1999-00)
Equity Maxims

By Aaron H. Reinke, J.D.

Humor is undoubtedly one of the best ways to memorize arcane language. Thus, as I hearken back wistfully to the halcyon days of the law, I recall that Aristotle defined equity as a "better sort of justice which corrects legal justice where the latter errs through being expressed in a universal form and not taking account of particular cases." Aristotle, Ethics, book 5, c. 10. That pretty much says it all. So, for those cold and rainy mornings when you must follow another attorney’s call into the chancery division, please keep the following in mind:

1 Equity suffers no wrong to be without a remedy. Not only does this maxim provide the foundation for equitable jurisdiction, but also for personal vengeance.

2 Equity decrees only the right and just, and never that which would work injustice to the parties. Ideally, this is what all forms of law should do.

3 Equity regards that as done which ought to be done. Don’t we all.

4 Equity looks to substance rather than form. Courts of equity will disregard titles and peer into the inner workings of a transaction to discover the truth of the matter. This maxim is also important to remember when billing the client.

5 Equality is equity. However, some people are more equal than others.

6 Where equities are equal the first in time prevails. Very rarely do two parties have the same equitable rights, but when they do the first to the finish line prevails. One wonders if this maxim is the antecedent or progeny of the often-touted tortoise-hare war.

7 Equity follows the law. Most prison inmates also claim to have followed the law.

8 Where equities are equal the law prevails. Basically, the holder of an equitable right must show that he/she prevails over the holder of a legal right.

9 Equity acts in personam. Try as you might, you simply cannot enjoin your computer from crashing.

10 Equity aids the vigilant, not those who slumber on their rights. This is the obvious result of trying to find that lost set of car keys.

11 He who comes into equity must come with clean hands. As the most hygienic of all the maxims, the Freudian implications are staggering.

12 He who seeks equity must do equity. A close relative of the clean hands doctrine, only law professors fully understand the family relation.

13 Equity will not permit to be done indirectly what cannot be done directly. A law professor of mine also expressed this maxim as "equity will not go around a corner to violate itself." I have no objections to that.

14 Equity will not do, nor require to be done, that which is vain or useless. And you thought judicial economy was first propounded in that now forgotten civil procedure case.

15 Equity will not use a cannon to kill a mouse. Res ipsa loquitur.

Naturally, this is not an exhaustive list. Phraseology is an issue as everyone has invariably more colorful expressions, but I wanted to write the maxims in a relatively useful form. So the next time you are on your way to court or at a cocktail party, feel free to chuckle and spout off that equity will not use a cannon to kill a mouse.


____________________________________________________________

The DCBA BRIEF is the Journal of the DuPage County Bar Association (“DCBA”). Unless otherwise stated, all content herein is the property of the DCBA and may not be reprinted in whole or in part without the express written permission of the DCBA. © 2008 DCBA. Opinions and positions expressed in articles appearing in the DCBA BRIEF are those of the author(s) and not necessarily those of the DCBA or any of its members. Neither the author(s) nor the publisher is engaged, in this publication, in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. PUBLICATION GUIDELINES: All submitted materials must state the author’s surname and be signed by the author to be considered for publication. All submitted materials are subject to acceptance and editing by the Editorial Board of the DCBA BRIEF. Material submitted to the DCBA Brief for possible publication must confirm with the DCBA Brief’s Writers Guidelines (which are available at www. dcbabrief.org). ADVERTISING AND PROMOTION: Reprinted articles in the DCBA BRIEF’s format (with ads removed) are available for purchase. All advertising is subject to approval. Approval and acceptance of an advertisement does not constitute an endorsement or representation of any kind by the DCBA or any of its members as to the advertiser or the advertisement. CONTACT INFORMATION: All articles, comments, criticisms, and suggestions should be directed to Eric Waltmire, eric@ericksonlawgroup.com . Please send change of address notices and any subscription inquiries to: Jacki Hamler, DuPage County Bar Association, 126 South County Farm Road, Wheaton, IL 60187, jhamler@dcba.org.

www.dcbabrief.org