PRINCIPLE OF
CONSCIENCE
IN THE EQUITY
COURTS
Chamila S. Talagala
PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
Introduction
The principle of conscience is a nebulous concept. It generally means
a person’s awareness of right or wrong with regard to his or her own
thoughts and actions.1 The word “conscience” has also been defined
as “the part of your mind that tells you whether your actions are right
or wrong”. 2 Hence, conscience always involves a moral judgement.
Nevertheless, the principle of conscience, as the foundation of equity,
has been instrumental in many jurisdictions towards the development
of law.
The purpose of this article is to briefly examine the status accorded to
the principle of conscience in equity, in the jurisdictions of England,
Australia and Sri Lanka.
Law and Conscience
Law seeks to apply general rules to particular cases. These rules are
generally assumed as fair. Yet, there would always be cases, which it
is not possible to cover in the form of a general rule. 3 Because of
idiosyncratic case characteristics, the application of the general rule
See, A. S. Hornby, Oxford Advanced Learner’s Dictionary of Current English, (5th
ed.) Oxford: Oxford University Press, 1996 at p.244.
1
A. S. Hornby, Oxford Advanced Learner’s Dictionary of Current English, (7th ed.)
Oxford: Oxford University Press, 2005 at p.322.
2
C. G. Weeramantry, An Invitation to the Law, (Indian Reprint) New Delhi: Lawman
(India) Private Limited, 1998 at p.84.
3
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
may result in unfair outcomes.4 Thus, law is deficient in dealing with
diverse and evolving situations. The principle of conscience could
guide the law in its application to different and novel situations.
Justice demands certainty in law. The law relies on rules and
precedents in order to achieve certainty. The strict view of the rule of
law holds that unfair results incurred due to the operation of these
rules are merely the price paid for a system of law. 5 However, as
Maitland has very correctly observed, “certainty of law must not
become certainty of injustice”. 6 Hence, justice also demands that
inconvenient rules and precedents to be discarded and conscience to
be applied.
Principles of equity are capable of setting aside the legally required
unfair outcomes, in order to arrive at just and fair outcomes based on
the individualised circumstances of each case. By acknowledging the
legitimacy of equity, legal systems incorporate within themselves
conflicting impulses towards rigid and formal technicalities on the one
hand, and discretionary and substantive common sense on the other.7
D. R. Fox, “The Autonomy Community Balance and the Equity-Law Distinction:
Anarchy’s Task for Psychological Jurisprudence” [1993] 11 Behavioural Sciences &
the Law 97.
4
5 D. R. Fox, “The Autonomy Community Balance and the Equity-Law Distinction:
Anarchy’s Task for Psychological Jurisprudence” [1993] 11 Behavioural Sciences &
the Law 97.
See, R. W. M. Dias, Jurisprudence, (2nd ed.) London: Butterworth & Co. Limited,
1964 at p.170.
6
D. R. Fox, “The Autonomy Community Balance and the Equity-Law Distinction:
Anarchy’s Task for Psychological Jurisprudence” [1993] 11 Behavioural Sciences &
the Law 97.
7
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
Conscience in the Early Courts of Equity
Conscience of the judges was the driving factor of the equity courts
used in correcting injustice. The early chancellors were ecclesiastical
men and their conscience was highly influenced by religion and
morality. Thus, they were able to inject a form of morality into the
operation of the law when they were left with the task of decisionmaking.8 Moreover, conscience was the only principle that had to be
adhered to in making decisions, because the chancellors were
unfettered by rules and precedents.
The decisions of early chancellors did not vary largely, because their
reasoning was based on similar standards. Hence, some sort of
certainty prevailed in relation to the decisions of equity courts.
However, when legal men were appointed as the chancellors of equity,
their decisions varied. Being selected from diverse segments of the
society, one judge’s perception of right or wrong deferred from
another. By systematisation of equity, it was intended to remedy the
problem raised by subjective approach of the courts.
Conscience in the Modern Courts
Even with precedent and legislation, there is still room for judicial
discretion in the modern courts. Hence, courts could continue with
applying conscience to develop the law and provide equitable results.
This would give flexibility to the courts. However, judicial discretion
See, A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the
Action of Assumpsit, Oxford: Clarendon Press, 1975 at pp.396-398.
8
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
should not be unfettered. Unrestricted application of conscience may
bring about detrimental results such as inconsistency and subjectivity
of law. Conscience based reasoning may not be apt for every decision.
Moreover, judicial decision-making purely on the ground of conscience
may, in certain instances, act as a strife to the concept of rule of law
which is preserved as fundamental to every jurisdiction. Thus, some
sort of control is required over judicial discretion.
The religion based approach in applying conscience for judicial
decision-making would not be feasible in the modern context. In the
modern complex and plural societies, there would hardly be any
consistency of value judgements between various religions.
It is very important that law needs to be flexible to achieve fairness.
Society is ever changing as new circumstances arise. Attitudes and
moral standards change as well. If the law lacks flexibility, it runs the
risk of being eventually discarded when it is found to be irrelevant to
the needs of a later stage.9 Conscience, as a flexible principle, could be
used to achieve fairness. However, courts should avoid “palm tree
justice” in this regard.
The modern courts apply conscience through different principles
which are founded upon fairness. For instance, the “doctrine of
unconscionability” mandates that a party in social or commercial
relationship with another should not be allowed by equity to take
C. G. Weeramantry, An Invitation to the Law, (Indian Reprint) New Delhi: Lawman
(India) Private Limited, 1998 at p.139.
9
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
unconscientious advantages. 10 The “doctrine of unjust enrichment”,
though having its roots in Roman law, stipulates the equitable
principle that no one should be enriched unjustly to the detriment of
another.11 However, as would be seen later, the modern approach in
many jurisdictions seems to be to apply the principle of conscience in
a controlled manner.
Conscience in the English Judiciary
Modernisation of equity has resulted in rules being entrenched to
assist the application of equity. Hence, the conscience of the
individual judges has become less significant. Due to the merger of
equity courts with the courts of law, the judges have been vested with
powers of both law and equity. Thus, they have the power to follow the
law as well as the power to opt for fairness instead of strictly following
the law. However, many judges have found it uncomfortable to apply
new equitable principles which have not been previously applied.
Pettit observes that:
“though there is no fiction in equity as there has been said to be
at common law that the rules have been established from time
immemorial, and though ‘it is perfectly well known that they have
been established from time to time—altered, improved and
refined from time to time. In many cases we know the names of
10 See, A. Dunn, “Equity is Dead, Long Live Equity!” [1999] 62 Mod. L. R. 141 at
p.141.
See, G. L. Peiris, Some Aspects of the Law of Unjust Enrichment in South Africa and
Ceylon, Colombo: Lake House Investments Limited, 1972.
11
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
the Chancellors who invented them’, yet, it is in principle doubtful
whether a new right can now be created.12
Since the fusion of equity and law, judiciary has been more
concerned with pursuing certainty by strict rules and precedents. As a
result, flexibility and freedom within the judiciary have been
exceedingly restricted.13 Yet, in certain instances, some judges have
departed from strict law and precedent in favour of fairness.
Therefore, as would be seen later, the application of conscience still
depends on individual attitudes of the judges and the same
observation is equally applicable in the case of other jurisdictions as
well.
Lord Denning commenting on the state of equity in 1984 states:
“Now, thirty years later in 1984, I can say that in my time the
courts have discovered the new equity. It is fair and just and
R. Clements and A. Abass, Equity & Trusts, Text, Cases and Materials, (2nd ed.)
Oxford: Oxford University Press, 2011 at p.18.
12
See, R. Clements and A. Abass, Equity & Trusts, Text, Cases and Materials, (2nd
ed.) Oxford: Oxford University Press, 2011 at p.18, where it is stated that “In 1952
((1952) 5 CLP 8), Lord Denning wrote that ‘the Courts of Chancery are no longer courts
of equity . . . they are as fixed and immutable as the courts of law ever were’. In 1953
((1953) 6 CLP 11 at 12), Lord Evershed stated that the Judicature Acts halted or, at
least, severely restricted the inventive faculties of future chancery judges. In Re
Diplock [1948] 2 All ER 204 at 218, the English Court of Appeal held that if a claim in
equity exists:
13
It must be shown to have an ancestry founded in history and in the practice
and precedents of the courts administering equity jurisdiction. It is not
sufficient that because we may think that the ‘justice’ of the present case
requires it, we should invent such a jurisdiction for the first time.
In their work, Equity, Doctrines and Remedies (2nd edn, Sydney: Butterworths, 1984
at 68–9) Meagher, Gummow, and Lehane write that equity’s naked power of
improvisation had long been spent. In Western Fish Products Ltd v Penwith District
Council [1981] 2 All ER 204 (CA) at 218, Megaw LJ stated that ‘the creation of new
rights and remedies is a matter for Parliament, not judges’.” [Emphasis added]
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
flexible, but not as variable as the ‘Chancellor’s foot.’ It is a great
achievement.
If I were setting an examination paper for students, I would ask
them to give examples of the truth of that statement. They would
find them in the doctrines of promissory estoppels, proprietary
estoppels, constructive trusts, licences of land, granting of
injunctions, and so forth.”14
English courts find place to the principle of conscience within the
initiated maxims of equity. For instance, under the maxim “equity acts
in personam”, the court has the power to restrain a defendant from
taking unfair advantage from the plaintiff.15
Apart from traditional equitable principles, the English judiciary has
created several doctrines such as, “doctrine of implied term” and
“doctrine of presumed intent” in order to reach fair and reasonable
solutions. These doctrines are mainly used when courts decide on
issues relating to law of contract.
Under the “doctrine of implied term”, the court implies a term, even
though there is no express term in the contract between the parties in
order to give effect to just and fair results.16 Despite the cautionary
Lord Denning, Landmarks in the Law, [Indian Reprint] New Delhi: Aditya Books,
1993 at p.86.
14
15
S. J. Bailey, “The Future of Equity” [1977] 93 L.Q.R. 529 at 532.
16
See, Gardiner v. Grey [1815] 4 Camp. 144.
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
approach towards the application of this doctrine by courts, 17 Lord
Denning had been a strong advocate of the doctrine in many
instances.18
The “doctrine of presumed intent” is utilised by courts to presume
that parties to a contract have agreed upon a fair and reasonable
solution instead of searching whether parties have actually agreed on
such terms. In the application of this doctrine too, the individual
attitudes of the judges have been the determinant factor.19
The “doctrine of unjust enrichment” is founded on the similar
principles of equity in English law.20 Nevertheless, the English Courts
have considered this doctrine as alien to their legal system. Hence,
See, Reigate v. Union Manufacturing [1918] 1 K.B. 592, where it was stated that
court cannot imply a term simply because it is reasonable to do so, but could only
when it is necessary. Also see, The Moorcock [1889] 14 P.D. 14.
17
Lord Denning, The Discipline of Law, (Indian Reprint) New Delhi: Aditya Books,
1993 at p.41.
18
19 See, Wholesale Distributors Ltd v. Gibbons Holdings Ltd [2007] NZSC 37 at
para.96, where is was stated that “The notion of presumed intent has been popular
ever since Viscount Simon, referring to the fact parties to a contract are often faced
with a turn of events which they did not anticipate, expressly enunciated the doctrine
in British Movietonews v. London and District Cinemas [1952] AC 166 at pp 185 –
186. The doctrine has necessarily had an impact on the way judges and lawyers
approach contractual interpretation in general. Aware that in many, if not most, cases
the parties did not, because of unforeseen events, have an actual intention in respect
of the particular clause in issue, the doctrine permits judges and lawyers to arrive at
an interpretation without compromising the basic premise that the contract must not
be interpreted subjectively. The presumed intent is imputed to the parties. Inevitably,
and understandably, judges and lawyers come to impute an intention to the parties
without questioning the process. The imputation becomes a habit of thought or attitude
of mind.” [Emphasis added]
See, Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] A.C.
32 at 61.
20
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
there is much uncertainty attending the topic of unjust enrichment in
England.21
Conscience in the Australian Judiciary
The Australian Courts, in contrast to the English Courts, are
commonly guided by the “doctrine of unconscionability” in equity
jurisdiction. In recent years, they have emphasised more on the
principle of conscience and prevention of unconscionable conduct
while returning to the moral basis of equity. It has been observed that:
“The emphasis upon unconscionability in Baumgartner 22 is
characteristic of recent cases in the High Court which have
identified unconscionability as the underlying principle in several
discrete equitable doctrines. The novelty of the analysis lies in the
urge to synthesis apparent in those cases. It might also be said
that to identify unconscionability as the basic principle underlying
a particular doctrine is necessarily to modify its potential
scope”.23
[Emphasis added]
See, Reading v. Attorney General [1951] 1 All. E.R. 617; [1951] A.C. 507 at 513514, where Lord Porter stated, “It was suggested in argument that the learned judge
founded his decision solely upon the doctrine of unjust enrichment and that that
doctrine was not recognized by the law of England. My Lords, the exact status of the
law of unjust enrichment is not yet assumed. It holds the place in law of Scotland, and
I think, of the United States, but I am content for the purpose of this case to assume
that it forms no part of the law of England”. See also, Orakpo v. Manson Investments
Limited [1978] A.C. 95, where Lord Diplock said that there is no general doctrine of
unjust enrichment recognized in English law.
21
22
Baumgartner v. Baumgartner [1987] 164 C.L.R. 137.
A. Black, “Baumgartner v Baumgartner, The Constructive Trust and the
Expanding Scope of Unconscionability” (1988) 11 (1) University of New South Wales
Law Journal 117 at p.122.
23
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
The “doctrine of unconscionability” is considered as the pivot to many
areas of equitable jurisdiction in Australia. It has been submitted that
this doctrine could be more successfully utilised as one key principle
upon which equity operates.24
According to Ashley Black, the approach emerging from the Australian
High Court identifies the concept of unconscionability as underlying a
number of equitable doctrines. Finn characterises that approach as
seeking to prevent an insistence upon strict legal rights where
unconscionable conduct has attended their acquisition or would
inhere in their proposed exercise. 25 The Australian High Court in
Commercial Bank of Australia v. Amadio, 26 held that a remedy in
unconscionability [unconscionable bargain] would be available where
one party unconscionably took advantage of the other’s position of
weakness.27
Though the origin of the doctrine of unconscionable bargain is in the
English Courts of Equity, it is found as a much more evolved and
wider doctrine in Australia, compared with its application in
See, A. Dunn “Equity is Dead, Long Live Equity!” [1999] 62 Mod. L. R. 141 at
p.141.
24
25 P. D. Finn, “Equitable Estoppel” in Finn, (Ed.) Essays in Equity, cited in A. Black,
“Baumgartner v Baumgartner, The Constructive Trust and the Expanding Scope of
Unconscionability” (1988) 11 (1) University of New South Wales Law Journal 117 at
p.122.
26
(1983) 151 C.L.R. 447.
A. Black, “Baumgartner v Baumgartner, The Constructive Trust and the
Expanding Scope of Unconscionability” (1988) 11 (1) University of New South Wales
Law Journal 117 at pp.122-123.
27
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
England.28 Initially, the doctrine was concerned with expectant heirs
who have made improvident bargains with respect to the inheritance
yet to be received by them. 29 However, today, the doctrine has
developed into a general ground on which any contract could be
challenged and set aside if the requisites of the doctrine are
satisfied.30
The approach of the Australian Courts in applying “doctrine of
unconscionability” does not seem to be subjective. Apart from the
moral considerations, they have paid attention to many other factors
in favour of an objective approach.
The main focus of the doctrine of unconscionability in the area of
contract law is on the procedure in which the transaction was brought
into force.31 Thus, the mere fact that the transaction turns out to be
harsh in its operation, does not impeach the transaction on the
See, C. S. Talagala, “The Doctrine of Unconscionability in Banking Law: New Vista
For Customer Protection in Sri Lanka”, A Dissertation submitted for the Degree of
Master of Laws, Faculty of Law, University of Colombo, 2008.
28
29 Fry v. Lane (1889) 40 Ch.D. 312 at 321. Also see, V. Hailsham (Ed.), Halsbury’s
Laws of England, Vol. 13, (2nd ed.) London: Butterworths, 1934 at p. 25.
See, M. Furmston, Cheshire, Fifoot & Furmston’s Law of Contract (15th ed.) New
Delhi: Oxford University Press, 2007 at p.385 and P. S. Atiyah & S. A. Smith,
Atiyah’s Introduction to the Law of Contract (6th ed.) New Delhi: Oxford University
Press, 2007 at p.308.
30
Commercial Bank of Australia v. Amadio (1983) 151 C.L.R. 447 at 459, 466 & 474.
Under the principle laid down in his case, the court can set aside a contract on the
ground of unconscionability provided that the following core elements are present.
31
1. A party to the contract (weaker party) was under a special disability in
dealing with the other party (stronger party), with the consequence that there
was an absence of any reasonable degree of equality between them; and
2. That disability was sufficiently evident to the stronger party to make it prima
facie unfair or "unconscientious" that he procure, or accept, the weaker
party's assent to the impugned transaction in the circumstances in which he
procured or accepted it.
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
ground of unconscionability. However, when the substance of the
transaction incorporates unduly harsh terms, such terms may form a
part of the factual matrix that could be used to infer unconscionable
conduct.32
When determining the nature of unconscionable conduct in the area
of family law, courts would examine the financial contributions made
by claimants of beneficial interest. On this ground, it has been held
that a defendant’s assertion of the sole legal title was not
unconscionable
where
the
plaintiff
had
made
no
monetary
contribution to the acquisition of property.33
The “doctrine of unjust enrichment” finds a place in Australia. The
courts have applied the doctrine, even in instances where an
agreement has
been
rendered
unenforceable
by operation
of
statutes.34 Also, Australian Courts have proceeded to the extent that
See, L. Brown, “The Impact of Section 51AC of the Trade Practices Act 1974 (CTH)
on Commercial Certainty” [2004] 28 Melbourne University Law Review 589 at p.595,
D. Clough, “Trends in the Law of Unconscionability” (1999) 18 Australian Bar
Review 34 at pp.37–38 & M. Sindone, “The Doctrine of Economic Duress — Part 1”
(1996) 14 Australian Bar Review 34.
32
33 Arthur v. Public Trustee [1988] 90 F.L.R. 203, where Asche C.J. stated, at 213,
“Darwin may be truly blessed with a colourful array of palm trees. But they are not
here for the judges of this court to sit under.” The court was not even prepared to
accede to arguments based on generalized notions of fairness and justice, which
were unrelated to contributions. See also, Hibberson v. George [1988] 12 F.L.R. 735,
where the court applied the unconscionability rule in Baumgartner’s Case in
consideration of the financial contributions made.
34
Pavey & Mathews Private Limited v. Paul [1987] 162 C.L.R. 221. The issue, which
the court had to decide in this case, was whether a licensed builder who had
renovated a cottage under an unenforceable oral contract could sue for quantum
meruit. By section 45 of the New South Wales Building Licensing Act 1971, a
contract to carry out building work by the holder of the license was not enforceable
against the other party to the contract, unless the contract was in writing,
sufficiently describing the building work and signed by the parties. The High Court
of Australia held that the right to recover on a quantum meruit depends on the
establishment of a claim based on unjust enrichment. See, A. O’Brien, “The
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
when there is a conflict between a statute and an equitable right, the
equitable right prevails unless it is extinguished by express and clear
statutory language.35
Conscience in the Sri Lankan Judiciary
The law of Sri Lanka has been greatly influenced by Roman and
English jurisprudence. Equity finds a place in both English law and
Roman law systems.36
According to Sir Ivor Jennings and Dr. H. W. Tambiah, Sri Lanka has
been heir to two sorts of equity. One is the Roman-Dutch equity, and
the other is English equity.
English equity was a system of law
formerly administered by the Court of Chancery in England, and
imported into Sri Lankan law through the Charter of Justice, 1801.
Jennings and Tambiah express the view that equitable jurisdiction
given by the Charter of Justice, 1801 meant administration of RomanDutch equity in an English manner.37
Nevertheless, English equitable principles have been introduced into
Sri Lanka through legislation 38 and judge made law. 39 English
Relationship between the Laws of Unjust Enrichment and Contract: Unpacking
Lumbers V Cook” (2011) 32 Adelaide Law Review 83 at p.101.
35
See, Minister for Lands and Forests v. McPherson [1991] 22 N.S.W.L.R. 687.
L. J. M. Cooray, An Introduction to the Legal System of Sri Lanka, (2nd ed.)
Colombo: Lake House Investments Limited, 1992, at p.197
36
A. R. B. Amerasinghe, The Legal Heritage of Sri Lanka, Colombo: The Royal Asiatic
Society, Law and Society Trust & Sarvodaya Vishva Lekha, 1999 at p.241.
37
See, for instance, Trusts Ordinance [Chapter 96, Legislative Enactments 1980,
Revised Edition – Unofficial], Industrial Disputes Act [Chapter 152, Legislative
Enactments 1980, Revised Edition – Unofficial] and Civil Procedure Code [Chapter
105, Legislative Enactments 1980, Revised Edition – Unofficial].
38
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
principles relating to rectification of documents drawn up under a
mistake, equitable relief against forfeiture in a lease, the tort of
passing-off, undue influence in contracts and specific performance of
contracts form part of the Sri Lankan law.40
In applying conscience through the “doctrine of unjust enrichment”
Sri Lankan Courts have acceded to the Roman law perception, “it is
inequitable that any person should be enriched to the detriment and
injury of another”.41 This doctrine is mainly applied by our courts in
areas such as, property, restitution, compensation for improvements,
and contracts.
The “doctrine of unjust enrichment” envisages a very broad spectrum.
Professor Weeramantry observes that in jurisdictions governed by
Roman-Dutch law, this doctrine is unfettered by technicalities, and
there is no need to insist on proof that the general rule has been
previously applied in a precisely similar situation.
42
He further
submits that the Sri Lankan courts would appear to proceed rather on
the general basis that relief will be granted against a person who has
been unjustly enriched at the expense of another, than upon a
for instance, Gavin v. Hadden [1871] 17 E.R. 247 (P.C.), Dodwell & Co. v. John
[1918] 20 N.L.R. 206 (P.C.) and Kapadiya v. Mohamed [1918] 20 N.L.R. 314.
39See
L. J. M. Cooray, An Introduction to the Legal System of Sri Lanka, (2nd ed.)
Colombo: Lake House Investments Limited, 1992, at p.200.
40
See, C. G. Weeramantry, The Law of Contracts, 2 Vols. (Indian Reprint) New Delhi:
Lawman (India) Pvt. Ltd., 1999 at p.1028. See also, Marie Cangany v. Karuppasamy
Cangany [1906] 10 N.L.R. 79 & Mohamadu Marikar v. Ibrahim Naina [1910] 13
N.L.R. 187.
41
C. G. Weeramantry, The Law of Contracts, 2 Vols. (Indian Reprint) New Delhi:
Lawman (India) Pvt. Ltd., 1999 at p.1030.
42
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
consideration of the actual form of the action, and no search is
required as is sometimes thought to be necessary in English law, for
an imputed contract on which to rest the claim.43
Professor
Lee observes
suggests
that the doctrine of unjust
enrichment should be confined to cases where there is an antecedent
relation between the persons concerned, if the doctrine is to be kept
within reasonable limits. 44 However, Professor Weeramantry very
correctly submits that such restriction would unduly hamper the
evolution of the doctrine towards fuller maturity so necessary in this
vital and developing area of law.45
Professor Peiris in his valuable work on the Law of Unjust Enrichment
in South Africa and Ceylon observes that:
“The remedies against unjust enrichment evolved by the RomanDutch law are viable in a modern context, in that they contain
elements of liability which are capable of being adopted and
applied readily to changed circumstances. Liability predicated on
the ground of unjust enrichment requires consideration of a
complex of factors, involving social and economic values. The
scope of the judicial function in the interpretation and application
of remedies against unjust enrichment, is necessarily wide. The
43 C. G. Weeramantry, The Law of Contracts, 2 Vols. (Indian Reprint) New Delhi:
Lawman (India) Pvt. Ltd., 1999 at pp.1029-1030.
R. W. Lee, An Introduction to Roman-Dutch Law, (5th ed.) Oxford: Clarendon Press,
1953 at p.348.
44
C. G. Weeramantry, The Law of Contracts, 2 Vols. (Indian Reprint) New Delhi:
Lawman (India) Pvt. Ltd., 1999 at p.1031.
45
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
extension or curtailment of the scope of a remedy or its
application to circumstances analogous to those provided for by
the classical law, may be necessitated by the requirements of a
particular society at a given period.......
The legal rules governing enrichment apply to circumstances
which have an immediate bearing on many aspects of public
policy. In this respect, adequate flexibility and the potential for
development, essential if the remedies are to be capable of useful
application at the present day, are found to characterize the
existing remedies”.46
[Emphasis added]
How far Sri Lankan Courts have made use of the wide scope of the
doctrine of unjust enrichment and exercised flexibility in the
interpretation and application of remedies against unjust enrichment
is worthy of examination.
In De Costa v. Bank of Ceylon,
47
Justice Weeramantry, as he then
was, after making an exhaustive examination of all relevant
authorities, concludes his judgement as follows:
“For all these reasons I strongly incline then to the view that there
is available in our law a general principle of liability based on
enrichment, I do believe moreover that any other view runs
G. L. Peiris, Some Aspects of the Law of Unjust Enrichment in South Africa and
Ceylon, Colombo: Lake House Investments Limited, 1972 at pp.416-417.
46
47
72 N.L.R. 457.
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
counter to the spirit and the essence of the Roman-Dutch law and
that a compartmentalised method of approaching the question
cuts across the gram and tradition of that eminently liberal
system. There is, beneath the particular actions, a broader
principle at once necessitous of and amenable to development;
and of this principle the specific actions are no more than
particular illustrations. Where possible, progress towards that
general principle rather than regress towards the particular
actions, is the obligation of the courts
If the view in Nortje's case be correct we have, with much respect,
reached the end of the development of the principle of unjust
enrichment. A principle vibrant with life and struggling for growth,
would then be locked forever in tight compartments, a prisoner of
the past. Such a view bodes ill for the future, for it cramps
development in what truly is and surely ought to be an area of
significant advance. We cannot thus cry halt at one of the vital
frontiers of the law.
I hold therefore, that the plaintiff would be entitled to recover the
sum claimed from the defendant on the basis, of the general
principle of enrichment which is recognised by the Roman-Dutch
law.”48
[Emphasis added]
48
72 N.L.R. 457 at 544-545.
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
In People’s Bank v. Yashodha Holdings Pvt. Ltd., 49 Justice Marsoof
citing the judgement of Justice Weeramantry with approval observes
that:
“This Court cannot show a Nelsonian eye to the fact that the
Respondent will be unjustly enriched if the Appellant cannot
recover the money advanced by it to the Respondent on a
straightforward short term loan. If the transaction on the basis of
which money was advanced to the Respondent is a nullity, then
at least the money so advanced should be capable of being
recovered. It is true that in Sinclair v Brougham [1914] AC 398,
due to insistence of an imputed or fictional contract, the English
House of Lords missed an opportunity of developing a general
restitutionary remedy to redress unjust enrichment, but we
cannot forget the ancient authority of Moses v Macferlan [1760] 2
Burr. 1055 in which Lord Mansfield observed at page 1012 that
‘if the defendant be under an obligation, from the ties of natural
justice, to refund, the law implies a debt, and gives this action
(sc. indebitatus assumpsit) founded in the equity of the plaintiff’s
case, as it were, upon a contract (“quasi ex contractu”) as the
Roman law expresses it).’ This reasoning has been followed in
England (Re Coltman; Coltman v. Coltman [1881], 19 Ch.D. 64),
Australia (In re K.L. Tractors Ltd., [1961], 106 C.L.R. 318) and
Canada (Breckenridge Speedway Ltd. et al. v. R., [1970] S.C.R.
49
S.C. C.H.C. (Appeal) 21/2006 decided on 25.06.2009.
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
175) to found an action for money had and received, and perhaps
prompted Vicount Haldane to observe in Dodwell & Co v John 20
NLR 206 at page 211, that ‘under principles which have always
obtained in Ceylon, law and equity have been administered by
the same Courts as aspects of a single system, and it could never
have been difficult to treat an action analogous to that for money
had and received as maintainable in all cases where the
defendant has received money which ex aequo et bono he ought
to refund’.”50
[Emphasis added]
Thus, it appears that the Sri Lankan Courts have been able to make
use of the doctrine of unjust enrichment as a flexible tool in
preventing inequitable enrichment of a person to the detriment or
injury of another and to develop the doctrine as a general principle
moving beyond the traditional precincts.
The doctrine of unconscionable bargain is found in Sri Lankan law as
part of the English law of equity. However, it has been rarely applied
by the courts in Sri Lanka.51 Such application too, appears to be in an
abstract sense. In any event, the doctrine of unconscionable bargain
does not find a fertile ground in Sri Lanka as in Australia. Hence, it
could be observed that the aptitude of Sri Lankan Courts to broadly
50
S.C. C.H.C. (Appeal) 21/2006 decided on 25.06.2009 at p.8.
Nakamuthu v. Kanthan (1908) 1 S.C.D. 48; Hinnihamy v. Gunawardena 3 C.L.R.
163; Parupathipillai v. Kandiah Arumugam (1944) 46 N.L.R. 35; Simon Appu v.
Somawathie 56 N.L.R. 275 & Raleeha v. Bee Bee (2004) 1 S.L.R. 195.
51
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
exercise conscience is found within the equitable principle of unjust
enrichment.
Conclusion
The principle of conscience vests equity with great amount of flexibility
to guide the law in its application to evolving needs of the society.
Therefore, it could be stated that conscience has been the driving
factor in the equity jurisdiction, which has enabled equity to promote
justice and fairness. However, in the modern context, equity has
become a rigid system.
Judicial discretion is essential to remove rigidities and technicalities of
the law. Principle of conscience is capable of granting wide discretion
to judges. However, unfettered discretion may erode objectivity and
certainty of the law, which are the fundamentals in any legal system.
The jurisdictions which were considered in this article have employed
the principle of conscience to a greater or lesser degree, in order to
make a balance between flexibility on one hand and, objectivity and
certainty of the law on the other. Hence, the application of the
principle has fostered a divergence of judicial approaches in these
jurisdictions.
The law, after all, must respond to human needs and aspirations,
even if it seeks only to confine them. Legal systems must contain
remnants of earlier forms of social life that render control more
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
palatable to the public.52 Hence, twinges of conscience are unfeasible
to be eliminated from justice, 53 and until such time, law and
conscience will cohabit.
D. R. Fox, “The Autonomy Community Balance and the Equity-Law Distinction:
Anarchy’s Task for Psychological Jurisprudence” [1993] 11 Behavioural Sciences &
the Law 97.
52
J. Ellul, The Technological Society, New York: Random House, 1964 at p.295, cited
in D. R. Fox, “The Autonomy Community Balance and the Equity-Law Distinction:
Anarchy’s Task for Psychological Jurisprudence” [1993] 11 Behavioural Sciences &
the Law 97.
53
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PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
BIBLIOGRAPHY
Amerasinghe, A. R. B., The Legal Heritage of Sri Lanka, Colombo: The
Royal Asiatic Society, Law and Society Trust & Sarvodaya Vishva
Lekha, 1999.
Atiyah, P. S. & Smith, S. A., Atiyah’s Introduction to the Law of
Contract, (6th ed.) New Delhi: Oxford University Press, 2007.
Bailey, S. J., “The Future of Equity” [1977] 93 L.Q.R. 529.
Baker, P. V., Snell’s Equity, (23rd ed.) London: Sweet & Maxwell, 1990.
Beatson, J., “Unjust Enrichment in the High Court of Australia”
[1988] 104 L.Q.R. 13.
Black, A., “Baumgartner v Baumgartner, The Constructive Trust and
the Expanding Scope of Unconscionability” (1988) 11 (1) University of
New South Wales Law Journal 117.
Brown, L., “The Impact of Section 51AC of the Trade Practices Act
1974 (CTH) on Commercial Certainty” [2004] 28 Melbourne University
Law Review 589.
Bryan, M., “The Conscience of Equity in Australia” [1990] 106 L.Q.R.
25.
Clements R. and Abass, A., Equity & Trusts, Text, Cases and
Materials, (2nd ed.) Oxford: Oxford University Press, 2011.
Clough, D., “Trends in the Law of Unconscionability” [1999] 18
Australian Bar Review 34.
Cooray, L. J. M., An Introduction to the Legal System of Sri Lanka, (2nd
ed.) Colombo: Lake House Investments Limited, 1992.
Page | 23
PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
Dias, R. W. M., Jurisprudence, (2nd ed.) London: Butterworth & Co.
Limited, 1964.
Dunn, A. “Equity is Dead, Long Live Equity!” [1999] 62 Mod. L. R. 141.
Ellul, J., The Technological Society, New York: Random House, 1964.
Fox, D. R., “The Autonomy Community Balance and the Equity-Law
Distinction: Anarchy’s Task for Psychological Jurisprudence” [1993]
11 Behavioural Sciences & the Law 97.
Furmston, M., Cheshire, Fifoot & Furmston’s Law of Contract, (15th ed.)
New Delhi: Oxford University Press, 2007.
Hailsham, V., (Ed.), Halsbury’s Laws of England, Vol. 13, (2nd ed.)
London: Butterworths, 1934.
Keeton, G. W., Equity by W. Keeton & C. A. Hendon, (3rd ed.) S. I.:
Barry Rose, 1987.
Klinck, D. R., “The Unexamined Conscience of Contemporary
Canadian Equity [2001] 46 McGill Law Journal 572.
Lee, R. W., An Introduction to Roman-Dutch Law, (5th ed.) Oxford:
Clarendon Press, 1953.
Lord Denning, Landmarks in the Law, (Indian Reprint) New Delhi:
Aditya Books, 1993.
Lord Denning, The Discipline of Law, (Indian Reprint) New Delhi:
Aditya Books, 1993.
Mason, A., “The Place of Equity and Equitable Remedies in the
Contemporary Common Law World” [1994] 110 L.Q.R. 238.
O’Brien, A., “The Relationship between the Laws of Unjust Enrichment
and Contract: Unpacking Lumbers V Cook” (2011) 32 Adelaide Law
Review 83.
Page | 24
PRINCIPLE OF CONSCIENCE IN THE EQUITY COURTS
Peiris, G. L., Some Aspects of the Law of Unjust Enrichment in South
Africa and Ceylon, Colombo: Lake House Investments Limited, 1972.
Simpson, A. W. B., A History of the Common Law of Contract: The Rise
of the Action of Assumpsit, Oxford: Clarendon Press, 1975.
Sindone, M., “The Doctrine of Economic Duress — Part 1” [1996] 14
Australian Bar Review 34.
Talagala, C. S., “The Doctrine of Unconscionability in Banking Law:
New Vista For Customer Protection in Sri Lanka”, A Dissertation
submitted for the Degree of Master of Laws, Faculty of Law, University
of Colombo, 2008.
Weeramantry, C. G., An Invitation to the Law, (Indian Reprint) New
Delhi: Lawman (India) Private Limited, 1998.
Weeramantry, C. G., The Law of Contracts, 2 Vols. (Indian Reprint)
New Delhi: Lawman (India) Pvt. Ltd., 1999.
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