| 单词 | equity | |||||||||
| 释义 | equityeq·ui·tyE0191900 (ĕk′wĭ-tē)equity(ˈɛkwɪtɪ)Equity(ˈɛkwɪtɪ)eq•ui•ty(ˈɛk wɪ ti)n., pl. -ties. equity
equitydiscrimination, preference, prejudice, bias, injustice, unfairness, partiality equitynounequity(ˈekwəti) nounequityequity,principles of justice originally developed by the English chancellor. In Anglo-American jurisprudence equitable principles and remedies are distinguished from the older system that the common lawcommon law,system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that ..... Click the link for more information. courts evolved. One of the earliest functions of the king's chaplain (the chancellor) and of the chancery (the office that he headed) was to govern access to the royal courts by issuing on application the appropriate original writwrit, in law, written order issued in the name of the sovereign or the state in connection with a judicial or an administrative proceeding. Usually the writ requires the person to whom the command is issued to report at a fixed time (the return day) with proof of compliance or a ..... Click the link for more information. . At first the chancellor had great discretion in framing writs, but in time he was limited to a few rigidly circumscribed forms, and in certain cases worthy claims could not be satisfied. From this inadequacy arose the practice of appealing directly for aid to the chancellor as the "keeper of the king's conscience." By the early 16th cent. a fairly well-defined jurisdiction was exercised by the court of chancery in rivalry with the common law. In the 17th cent. it was definitely established that the court of chancery would decide any claim to jurisdiction that the courts of common law disputed. The early chancellors purported to dispense equity in its original sense of fair dealing, and they cut through the technicalities of common law to give just treatment. Some of their principles were derived from Roman lawRoman law, the legal system of Rome from the supposed founding of the city in 753 B.C. to the fall of the Byzantine Empire in A.D. 1453; it was later adopted as the basis of modern civil law. ..... Click the link for more information. and from canon lawcanon law, in the Roman Catholic Church, the body of law based on the legislation of the councils (both ecumenical and local) and the popes, as well as the bishops (for diocesan matters). ..... Click the link for more information. . Soon, however, equity amassed its own body of precedents and tended to rigidity. Equity, even in its more limited modern sense, is still distinguished by its original and animating principle that no wrong should be without an adequate remedy. Among the most notable achievements of equity were the trusttrust, in law, arrangement whereby property legally owned by one person is administered for the benefit of another. Three parties are ordinarily needed for the relation to arise: the settlor, who bequeaths or deeds the property for another's benefit; the trustee, in whose hands ..... Click the link for more information. and the injunctioninjunction, in law, order of a court directing a party to perform a certain act or to refrain from an act or acts. The injunction, which developed as the main remedy in equity, is used especially where money damages would not satisfy a plaintiff's claim, or to protect personal ..... Click the link for more information. . Because the decreedecree, in law, decision of a suit in a court of equity. It is the counterpart in equity of the judgment in a court of law, although in those jurisdictions where law and equity have merged, judgment is sometimes used to include both. ..... Click the link for more information. (final order) of an equity court operated as an order of the king, disobedience might be punished as contemptcontempt, in law, interference with the functioning of a legislature or court. In its narrow and more usual sense, contempt refers to the despising of the authority, justice, or dignity of a court. ..... Click the link for more information. ; in legal remedies, on the contrary, the plaintiff was limited to enforcing his (monetary) judgmentjudgment, decision of a court of law respecting the issues before it. The term ordinarily is not applied to the decree (order) of courts of equity. The outstanding characteristic of a legal judgment, in contrast to an equitable decree, is its finality and fixity; thus, except ..... Click the link for more information. . The fact that equity trials were decided without a jury was thought advantageous in complex cases. The coexistence of different systems of justice and delays in the courts of chancery came to present such great procedural difficulties that in England the Judicature Act was adopted (1873) to amalgamate law and equity. In the United States amalgamation had begun with the New York procedure code (1848) drafted by David Dudley FieldField, David Dudley, 1805–94, American lawyer and law reformer, b. Haddam, Conn.; brother of Cyrus W. Field and Stephen J. Field. He was graduated from Williams (1825), studied law in Albany and New York City, was admitted to the bar in 1828, and soon had a large practice ..... Click the link for more information. . Today only a few of the states have separate equity courts. Of the remaining states some divide actions and (to a lesser extent) remedies into legal and equitable, while the others have almost entirely abolished the distinction. Even in those states where law and equity remain unmerged, they are often handled by two sides of the same court, with relatively simple provisions for the transfer of a case that is brought on the wrong side. BibliographySee F. W. Maitland, Equity (1909, repr. 1969); R. A. Newman, Equity in Law (1961); H. G. Hanbury, Modern Equity (9th ed., ed. by R. H. Maudsley, 1969); G. H. Webb and T. C. Bianco, Equity (1970). Equitya legal system that has existed in England from the 14th century along with common law. The equity system took shape gradually, as a result of the extreme inflexibility of common law, which often prevented subjects from bringing suit in the king’s courts. In these cases or in cases where a litigant was not satisfied with the court’s judgment, the litigant could petition the king for mercy and equity. Owing to growth in the number of such appeals, a whole apparatus with its own rules for resolving cases was set up under the lord chancellor. This apparatus gradually came to be viewed as the Chancellor’s Court, or Chancery. Because this court was not bound by the norms of common law, it was considered to be guided by the principles of equity; hence the name court of equity. In the course of its work, the Chancery developed special norms based on precedents, the body of which served as the rules of equity. The court of equity had its broadest powers in civil law, because the cumbersome, formalized common-law system did not keep pace with the demands of economic development. The Chancery did not have the right to set aside on appeal the judgment of a common-law court, but it could deliver its own judgment, which ultimately nullified or fundamentally altered the judgment of the common-law court. Certain Anglo-Saxon legal institutions took shape under equity. Examples include the principles of trusts and of specific performance of contracts. (Common law recognized only monetary damages as a penalty for failure to execute a contract.) The dualism of common law and equity complicated the already cumbersome and intricate system of English law, and in 1873 equity was included in the system of common law. However, the legal institutions that arose as part of equity are clearly delineated from common-law institutions. In theory and practice, equitable rights, that is, rights based on equity, are distinct from subjective rights, which are based on common law. REFERENCESKhalfina, R. O. Dogovor v angliiskom grazhdanskom prave. Moscow, 1959.David, R. Osnovnye pravovye sistemy sovremennosti. Moscow, 1967. Pages 268-74. (Translated from French.) equityequityEquityequityEquityIn its broadest sense, equity is fairness. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of Common Law. Equity is also used to describe the money value of property in excess of claims, liens, or mortgages on the property. Equity in U.S. law can be traced to England, where it began as a response to the rigid procedures of England's law courts. Through the thirteenth and fourteenth centuries, the judges in England's courts developed the common law, a system of accepting and deciding cases based on principles of law shaped and developed in preceding cases. Pleading became quite intricate, and only certain causes of action qualified for legal redress. Aggrieved citizens found that otherwise valid complaints were being dismissed for failure to comply with pleading technicalities. If a complaint was not dismissed, relief was often denied based on little more than the lack of a controlling statute or precedent. Frustrated plaintiffs turned to the king, who referred these extraordinary requests for relief to a royal court called the Chancery. The Chancery was headed by a chancellor who possessed the power to settle disputes and order relief according to his conscience. The decisions of a chancellor were made without regard for the common law, and they became the basis for the law of equity. Equity and the common law represented opposing values in the English legal system. The common law was the creation of a judiciary independent from the Crown. Common-law courts believed in the strict interpretation of statutes and precedential cases. Whereas the common law provided results based on years of judicial wisdom, equity produced results based on the whim of the king's chancellor. Commonlaw judges considered equity Arbitrary and a royal encroachment on the power of an independent judiciary. Renowned seventeenth-century judge John Selden called equity "a roguish thing" and noted that results in equity cases might well depend on the size of a chancellor's foot. Despite this kind of opposition, equity assumed a permanent place in the English legal system. The powers of the Chancery became more defined; equity cases came to be understood as only claims for which monetary relief was inadequate. By the end of the seventeenth century, the chancellor's opinions became consistent enough to be compiled in a law reporter. Because of its association with the king, equity was viewed with suspicion in the American colonies. Nonetheless, colonial legislatures understood the wisdom of allowing judges to fashion remedies in cases that were not covered by settled common law or statutes. The Framers of the U.S. Constitution recognized the providence of equity by writing in Article III, Section 2, Clause 1, that the "judicial Power shall extend to all Cases, in Law and Equity." All states eventually allowed for the judicial exercise of equity, and many states created Special Courts of equity, which maintained procedures distinct from those of courts of law. In 1938, the Federal Rules of Civil Procedure established one system for processing both law and equity cases. Soon after, most states abolished the procedural distinctions between law and equity cases. In federal courts and most state courts, all civil cases now proceed in the same fashion, regardless of whether they involve legal or equitable redress. The most important remaining distinction between law and equity is the right to a jury trial in a civil case. Where the plaintiff seeks a remedy of money damages, the plaintiff is entitled to a jury trial, provided the amount sought exceeds an amount specified by statute. Where the plaintiff seeks a remedy that is something other than money, the plaintiff is not entitled to a jury trial. Instead, the case is decided by one judge. If a plaintiff asks for both equitable and monetary relief, a jury will be allowed to decide the claims that ask for monetary relief, and a judge will decide the equity claims. Judges are guided by precedent in equity cases, but in the spirit of equity, they have discretion and can rule contrary to apparent precedent. Delaware and Mississippi are among the few jurisdictions that still separate law and equity cases. In Delaware, equity cases are heard in a separate court of equity called the Court of Chancery. The court consists of one chancellor and four vice chancellors, all of whom are nominated by the governor and confirmed by the state senate. The court hears cases involving internal corporate disputes, as well as guardianship and trust management cases. In any court, equity or otherwise, a case or issue may be referred to as equitable. This generally means that the relief requested by the plaintiff is not a money award. Whether to grant equitable relief is left to the discretion of the judge. By contrast, other civil actions theoretically entitle a plaintiff to a prescribed remedy (usually money damages) from either a judge or a jury if, based on the evidence, the defendant is unable to defeat the plaintiff's case. Equitable ReliefEquitable relief comes in many forms. It may be a Restraining Order or an Injunction, which are court orders directing a party to do or not do something. An accounting may be requested by a plaintiff who seeks to know how his or her money is being handled. A trust or Constructive Trust can be ordered by a judge to place the care and management of property with one person for the benefit of another. A partition is an order dividing property held between two or more persons. Declaratory relief is granted when a judge declares the rights of certain parties. The effect of a Declaratory Judgment is to set future obligations between the parties. Under the remedy of Specific Performance, a judge may order one party to perform a specific act. This type of relief is often used to resolve contractual disputes involving unique property. For example, the purchaser of a house may not wish to obtain money damages if the seller breaks a contract for sale of the house. This may be so because a house is considered unique and thus the damage is irreparable—that is, it cannot be fully redressed by mere money damages. If the court agrees that money damages would be inadequate redress for the buyer, the judge may order a completion of the sale to the buyer, instead of money damages, for the seller's breach of contract.Equitable contract remedies offer a judge an array of choices. Rescission discharges all parties to a contract from the obligations of the contract. The remedy of rescission restores the parties to the positions they held before the formation of the contract. Restitution is an order directing one party to give back something she or he should not be allowed to keep. These two remedies may be sought together. For example, if a buyer purchases an antique piano on credit and later discovers it is a fake, the buyer may sue for rescission and restitution. Under such a dual remedy, the buyer would return the piano to the seller, and the seller would return any payments made by the buyer. Reformation is an equitable way to remedy a contractual mistake. Suppose, for example, that a buyer agrees to order 5,000 units of a product but mistakenly signs a contract ordering the shipment of 50,000 units. If the seller refuses to provide fewer than 50,000 units and demands payment for 50,000, the buyer may sue the seller for reformation of the contract. In such a case, the court may change the terms of the contract to reflect the amount of product actually agreed upon. Equitable relief has long been considered an extraordinary remedy, an exception to the general rule of money damages. Modern courts still invoke the rule that equitable relief is available only where money damages are inappropriate; in practice, however, courts rarely insist on monetary relief when equitable relief is requested by a plaintiff. Equitable DefensesThe doctrine of clean hands holds that the plaintiff in an equity claim should be innocent of any wrongdoing or risk dismissal of the case. Laches proposes that a plaintiff should not "sleep on his or her rights"—that is, if the plaintiff knows of the defendant's harmful actions but delays in bringing suit, and the delay works against the rights of the defendant, the plaintiff risks dismissal of the case. Under modern law, such defenses are available in any civil case. They are nevertheless considered equitable because they invoke notions of fairness; are not provided in statutes; and are decided only by a judge, not by a jury. Other Equitable DoctrinesMany of the equitable doctrines listed here are codified in statutes. This does not make the issues they concern "legal" as opposed to "equitable." Such issues, whether codified by statute or not, are left to the discretion of a judge, who makes a decision based on principles of fairness. Equitable Adoption Equitable Adoption is the adoption of a child that has not been formally completed but that the law treats as final for some purposes. Generally, a child cannot be adopted without the fulfillment of certain procedures. However, it is sometimes fair and in the best interests of the child to imply that an adoption has taken place. If an adult has performed parental duties and has intended to adopt the child but has failed to fulfill formal adoption procedures, a court may order that for some purposes, the child should be considered part of the adult's family. The most common purpose of an equitable adoption is to give a child the right to inherit from the estate of an equitably adoptive parent. Equitable Conversion Equitable conversion completes a land sale when the death of a seller occurs between the signing of the sale agreement and the date of the actual sale. In such a case, a judge will convert the title to the purchaser. This is in fulfillment of the time-honored Maxim that "Equity looks upon that as done which ought to have been done." Equitable Distribution Equitable distribution can describe a fair allotment of anything. In the law, equitable distribution is a Term of Art that describes a method used to divide the property of a Husband and Wife upon Divorce. Under this method, the needs and contributions of each spouse are considered when property is divided between them. This differs from the process used under the Community Property method, where all marital property is simply divided in half. Equitable Estoppel Under the doctrine of equitable estoppel, a person is prevented, or estopped, from claiming a legal right, out of fairness to the opposing party. For example, suppose that a person willfully withholds information in order to avoid defending a lawsuit. If the withheld information causes the lawsuit to be brought later than the Statute of Limitations requires, the person may be estopped from asserting a statute-of-limitations defense. Equitable Lien A lien is an interest in property given to a creditor to secure the satisfaction of a debt. An equitable lien may arise from a written contract if the contract shows an intention to charge a party's property with a debt or obligation. An equitable lien may also be declared by a judge in order to fairly secure the rights of a party to a contract. Equitable Recoupment Equitable recoupment prevents a plaintiff from collecting the full amount of a debt if she or he is holding something that belongs to the defendant debtor. It is usually invoked only as a defense to mitigate the amount a defendant owes to a plaintiff. For example, if a taxpayer has failed to claim a tax refund within the time period prescribed by the statute of limitations, the taxpayer may regain, or recoup, the amount of the refund in defending against a future tax claim brought by the government. Equitable Servitude An equitable servitude is a restriction on the use of land or a building that can be continually enforced. When a land buyer is aware of an agreement that restricts the use of the land, the buyer may be held to the terms of the restriction, regardless of whether it was written in the deed. Equity in Property Equity in property is the value of real estate above all liens or claims against it. It is used to describe partial ownership. For example, suppose the fair market value of a home is $80,000. If the homeowner has a mortgage and owes $50,000 on the mortgage, the equity amount is $30,000. The recognition of equity in property allows a property owner to borrow against a portion of the property value, even though the owner cannot claim complete and final ownership. Equity of Redemption Equity of redemption is the right of a homeowner with a mortgage (a mortgagor) to reclaim the property after it has been forfeited. Redemption can be accomplished by paying the entire amount of the debt, interest, and court costs of the foreclosing lender. With equity of redemption, a mortgagor has a specified period of time after default and before fore-closure, in which to reclaim the property. Equity Financing When a corporation raises capital by selling stock, the financing is called equity financing because the corporation is offering stockholders a partial interest in its ownership. By contrast, debt financing raises capital by issuing bonds or borrowing money, neither of which conveys an ownership in the corporation. An equity security is an equitable ownership interest in a corporation, such as that accompanying common and preferred shares of stock. Further readingsChancery Court: Mississippi. Available online at <www.co.jackson.ms.us/DS/ChanceryCourts.html> (accessed September 15, 2003). Court of Chancery: State of Delaware. Available online at <courts.state.de.us/chancery> (accessed September 15, 2003). Laycock, Douglas. 1993. "The Triumph of Equity." SUM Law and Contemporary Problems 56 (summer): 53. Cross-referencesDiscretion in Decision Making. equityn. 1) a venerable group of rights and procedures to provide fairness, unhampered by the narrow strictures of the old common law or other technical requirements of the law. In essence courts do the fair thing by court orders such as correction of property lines, taking possession of assets, imposing a lien, dividing assets, or injunctive relief (ordering a person to do something) to prevent irreparable damage. The rules of equity arose in England when the strict limitations of common law would not solve all problems, so the King set up courts of chancery (equity) to provide remedies through the royal power. Most eastern states had courts of equity or chancery separate from courts of law, and others had parallel systems of law and equity with different procedural rules. Now most states combine law and equity and treat both under "one cause of action." 2) the net value of real property, determined by subtracting the amount of unpaid debts secured by (against) the property from the appraised value of the property. (See: equitable, chancery, enjoin, injunction, writ) equityEQUITY. In the early history of the law, the sense affixed to this word was exceedingly vague and uncertain. This was owing, in part, to the fact, that the chancellors of those days were either statesmen or ecclesiastics, perhaps not very scrupulous in the exercise of power. It was then asserted that equity was bounded by no certain limits or rules, and that it was alone controlled by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441. EQUITY, COURT OF. A court of equity is one which administers justice, where there are no legal rights, or legal rights, but courts of law do not afford a complete, remedy, and where the complainant has also an equitable right. Vide Chancery. EquityEquityEquityequityEquity.In the broadest sense, equity gives you ownership. If you own stock, you have equity in, or own a portion -- however small -- of the company that issued the stock. Having equity is the opposite of owning a bond or commercial paper, which is a debt the company must repay to you. Equity also refers to the difference between an asset's current market value -- the amount it could be sold for -- and any debt or claim against it. For example, if you own a home currently valued at $300,000 but still owe $200,000 on your mortgage, your equity in the home is $100,000. The same is true if you own stock in a margin account. The stock may be worth $50,000 in the marketplace, but if you have a loan balance of $20,000 in your margin account because you financed the purchase, your equity in the stock is $30,000. equityordinary shareholders' funds, that is, their ORDINARY SHARE capital subscribed plus any RESERVES or ploughed-back profit. Alternatively, equity can be regarded as what would be left to the ordinary shareholders of a company after all the company's debts and liabilities have been met.ordinary sharesorequitya FINANCIAL SECURITY issued to those individuals and institutions who provide long-term finance for JOINT-STOCK COMPANIES. Ordinary SHAREHOLDERS are entitled to any net profits made by their company after all expenses (including interest charges and tax) have been paid, and they generally receive some or all of these profits in the form of DIVIDENDS. In the event of the company being wound up (see INSOLVENCY), they are entitled to any remaining ASSETS of the business after all debts and the claims of PREFERENCE SHAREHOLDERS have been discharged. Ordinary shareholders generally have voting rights at company ANNUAL GENERAL MEETINGS, which depend upon the number of shares that they hold. See also SHARE CAPITAL.equity(1) The difference between the value of a property and the mortgage debt on it is said to be the equity. Under federal law, when one's equity in property reaches 22 percent of the value of the property—when the mortgage has been reduced to 78 percent of the value of the property—then private mortgage insurance is supposed to be automatically cancelled if it is in place.(2) The ability of a court to do what's fair under the circumstances, without regard to many of the technical requirements of the law.Because real estate has always enjoyed a protected status in the courts,it is usually easier to obtain equitable relief when real property is involved.As an example,in a boundary line dispute there might be no legal theory to find in favor of a property owner who accidentally builds part of his house on his neighbor's land.Nevertheless,almost no court will require the property owner to tear down the encroaching part of the house.Instead,the court will usually “do equity”and require the landowner to sell,and the house owner to buy,the small amount of land necessary to fix the problem. EquityIn connection with a home, the value of the home less the balance of outstanding mortgage loans on the home.
See EQ equity
Synonyms for equity
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equity - conformity with rules or standards; "the judge recognized the fairness of my claim"