Equity

Front 1

What are the 10 Equitable Maxims?

Back 1

1) Where there's a wrong there's a remedy
2) Equity acts in personam, not in rem
3) Equity follows the law
4) Equity is Equality
5) Equity regards as done what ought to be done
6) Equity regards substance rather than form
7) Equity disfavors Forfeitures
8) One who seeks equity must do equity
9) One who comes into Equity must come with Clean Hands
10) Equity aids the viligant and the diligent

Front 2

When do you use/how do you spot the Maxim "Equity Will Not Suffer a Wrong to be w/o a Remedy"?

Back 2

Anytime you see in the fact pattern something that is wrong or unfair

Use it sparingly ("sound, judicial discretion")

Front 3

1) When do you use/how do you spot the maxim "equity acts in personam, not in rem" and

2) What is the exception?

Back 3

1) Ct will issue order "Defendant you will do this or go to jail"

2) Bush Exception--equity acts in rem where real estate is involved (sometimes a court may follow one maxim--equity will fashion a remedy for a wrong) by ignoring another--equity only acts in personam)

Front 4

Describe the maxim "equity follows the law" and how to spot it.

Back 4

Look for a statute!

Key Corp. Capital--"A court's equitable powers must yeild in the face of an unambiguously worded statute"

Normally, a ct will not create a remedy in direct violation of the law and rarely will equity create a remedy in the absence of a legal duty.

Front 5

Describe the maxim "equity is equality," how to spot it, and give an example.

Back 5

Anytime you see more than 1 person (group, class, bunch of people)

This principle is long-embodied in SC Jurisprudence. We treat all people equal (secure equality) who are equally obligated or entitled to a benefit.

Example: Contribution

Front 6

Describe the maxim "equity regards as done what ought to be done."

Back 6

This is what in fairness and good conscience, ought to be or should have been done.

Whether it applies sometimes depends on the existence of a legal or equitable duty (Kerr--gov't should keep its promises to its citizens who reasonably and justifiably relied on that promise)

Front 7

Describe the maxim "equity regards substance rather than form" and things to look out for.

Back 7

Equity seeks justice & when appropriate, it ignores technicalities it the result would be unfair.

Look out for "technicalities" and be wary of any "labels"

Front 8

Describe when to look for the maxim "equity disfavors forfeitures" and the rule from Cody Discount

Back 8

Look 4 where a person loses property rights.

Cody--It is inequitable to enforce a forfeiture provision in a K w/o allowing the buyer to redeem the purchase price

Front 9

Describe the maxim "one who seeks equity must do equity"

Back 9

The court may impose equitable obligations on a party as a condition for granting relief.

You do NOT have a right to equity (no one is entitled) -it is within the sound judicial discretion of the court.

Front 10

Describe the maxim "one who comes into equity must come with clean hands"

Back 10

Deny equity relief if the litigant's conduct is:
1) inequitable,
2) unfair,
3) dishonest,
4) fraudulent, or
5) deceitful.

This is the basis for the "unclean hands" defense.

Front 11

Describe the maxim "equity aids the viligant and the diligent" and what to look for

Back 11

Equity will not help you if you slept on your rights.

This is the basis for the laches defense so look for dates.

Front 12

What are the 2 inherent equitable powers?

Back 12

1) Ex part Dibble quote

2) Power of Contempt

Front 13

State the quote from Ex Parte Dibble

Back 13

"Courts have:
1) the inherent power
2) to do all things reasonably necessary
3) to insure that just results are reached
4) to the fullest extent possible."

Note: Use quote when appropriate or necessary. Can use this when don't know the answer--but use it sparingly.

Front 14

List the 6 sanctions for contempt upheld in Brandt v. Gooding

Back 14

1) Summary judgment favoring non-sanctioned party
2) Finding of criminal contempt & 6 months in jail
3) Finding of civil contempt & dismissing the case with prejudice
4) Citation for direct contempt for introduction of fraudulent document in a deposition
5) Entering restraining order
6) Ordering payment of costs and atty fees

Front 15

Discuss Direct vs. Indirect contempt

Back 15

Direct Contempt: includes anything that happens in front of a judge or in a deposition

Indirect Contempt: includes anything that happens outside of the courtroom—calls for a hearing & witnesses to determine if the order was actually violated

Front 16

Discuss Civil vs. Criminal Contempt

Back 16

Civil Contempt
1) Purpose of the order is coercive—to bring a party “in line” with a prior order
2) Jail time is for indeterminate time period
3) Order is abatable (can come to an end) when the party decides he is going to follow the ct order—the person held in contempt “holds the keys to his own jail cell”
4) Order is sought by the party seeking enforcement of prior order or decree

Criminal Contempt
1) Purpose of the order is punishment
2) Jail time is definite, for a fixed period
3) NOT abatable—one cannot purge himself by merely telling the ct he intends to follow the order, you’re stuck with the sentence
4) Order is sought by the court or the state

Front 17

What are the 2 limits on contempt power?

Back 17

1) The order must be clear b/c the conduct must be willful (intentional, deliberate)

2) Right to Jury in cases outside direct contempt & where fines are extremely significant

Front 18

List the 5 equitable defenses.

Back 18

1) Plaintiff's unclean hands
2) Laches (SOL)
3) Estoppel
4) Judicial Estoppel
5) Buckley v. Shealy

Front 19

What must be plead by the defendant to assert an "unclean hands" defense?

Back 19

1) Inequitable conduct by the P (broad definition)
-Does not include actions by other parties (including P’s customers)
-Limited to the actions of parties in this lawsuit (P & D)

2) Related directly to the subject matter of the litigation
- will not apply to a general inquiry about past conduct by P (Cherry)

3) That causes prejudice or injury to the D

Front 20

1) What signals a laches problem?

2) What is the definition of laches?

3) What must be plead by defendant to assert a "laches" defense?

Back 20

1) Dates, time period, time is of the essence

2) An undue lapse of time connected with negligence and opportunity to have acted sooner

3) Elements:

a) Delay (delay alone is not enough)
b) unreasonable in length under the circumstances
c) that prejudices the defendant

Note: Fairness is always relevant--if it would be unfair or harsh to apply laches defense, then don't apply it

Front 21

What are some relevant laches factors? (Four)

Back 21

1) Minority
2) Settlements
3) Delay by Δ
4) Remainders

Note: These are not per se rules. You have to consider what is fair, the discretion of the court, the specific of each party, and public policy.

Front 22

1) Define Estoppel

2) What signals an estoppel question?

3) What are the elements of Estoppel as to the party estopped (plaintiff)?

4) What are the elements of Estoppel as to the party asserting estoppel (defendant)?

Back 22

1) Prevents one party w/ knowledge of the situation from misleading another by words conduct or silence in such a way the other party would be prejudiced if the 1st party were allowed to take a later inconsistent position (inconsistency of facts, not law)

2) Inconsistent positions by plaintiff

3) Elements of estopped party (plaintiff):
a) Misrepresentation or concealment of facts
b) Intention or expectation that the other party act on those facts, and
c) actual or constructive knowledge of true facts

4) Elements of party asserting estoppel (defendant):
a) Lack of knowledge
b) Reasonable reliance, and
c) Change of position (prejudice or injury)