In What Circumstances and to What Extent Will Equity Perfect an Imperfect Gift

Introduction

In its original formulation, equity was a rectification of, or supplement to, rigid law. In its modern form, it has lost this concrete relation to rigid law and is used to describe either the “essence” of good law or an independent value that good law takes into consideration. Where equity was originally outside the law, it has come to describe a way in which the law itself ought to treat people (Berkowitz, 8-17). People say that the law is equitable, that it treats people fairly, or perhaps that it promotes equity. People no longer say that the law requires equity as a remedy. Furthermore, an original distinction between equity and equality in ancient Greece has given way to the modern interchangeable use of equity and equality. Tracing the evolution of the concept is instructive; the loss of its original meaning suggests people have lost sight of (a) a fundamental problem of governance by law and (b) an alternative to governance by law.

Historically the emergence of the principle may have been due to the need for equity to follow the law rather than an intuitive development of equity. The principle against imperfectly constituted gifts led to harsh and seemingly paradoxical results. Before long, equity had tempered the wind to the shorn lamb (i.e. the donee). It did so on more than one occasion and in more than one way.

Definition and Etymology

The English word equity comes from the Greek epieikeia and the Latin translation of epieikeia, aequitas. The Greek epieikeia had a relatively specific meaning that was partially transformed and later forgotten through its Latinization. The modern English use of the word equity is closer to the Latin aequitas. Two English terms, epiky and equity, capture the distinction between the original Greek and later Latinized meanings. Epiky is less frequently used and has perhaps dropped out of our ordinary language. Epiky is derived directly from the Greek epieikeia, whereas equity likely comes from the Latin aequitas.

Epieikeia

The term epieikeia was of both philosophical and practical importance to the ancient Greeks; the term was central for Athenian self-definition. The main sources for the meaning of Greek epieikeia are Thucydides, the fragment of Gorgias's funeral oration, Sophocles, and most prominently, Aristotle's Nichomachean Ethics. The term epieikeia originally had two concretely related meanings: (1) what is appropriate, convenient, or fitting and (2) what is opposed to strict law.

The concept of epieikiea originally pointed to a fundamental problem of governance by law. Aristotle, and much later, Thomas Aquinas, both identified the same problem. Simplified a bit, the problem is that laws necessarily take the form of general statements meant to apply to large classes of persons. A law that reads, “All persons who steal shall be punished” is exemplary of the generality of most laws. Such general statements speak to, or are meant to be applied to, cases that generally arise. People might say that in most cases, when someone steals, it is appropriate that they ...