”He who comes into equity must come with clean hands” versus “He who seeks equity must do equity”
“He who comes into equity must come with clean hands.”
The common-law equivalent of this equitable maxim is Ex turpi causa non oritur actio (“Out of a base cause, no action shall arise”).
“He who comes into equity must come with clean hands” differs from “He who seeks equity must do equity” because while the former is retrospective, the latter is prospective.
“He who comes into equity must come with clean hands” looks “to the past rather than the future. The plaintiff not only must be prepared now to do what is right and fair but must also show that his past record in the transaction is clean.” Snell’s Principles of Equity, 28th ed., 33.
Indeed, the emphasis of this first maxim is on the plaintiff’s past conduct. As was said in the days of old, “he who has committed Iniquity … shall not have Equity.” Jones v Lenthal (1669) 1 Ch. Cas. 154 (uppercasing in original).
This first maxim requires the suitor in equity to have behaved irreproachably regarding the equitable relief sought.
The maxim has at least two limitations:
It does not demand a saintly biography: “Equity does not demand that its suitors shall have led blameless lives.” Loughran v Loughran, 292 US 216, 229 (1934) (Brandeis J).
A general depravity on the part of the suitor in equity will not preclude him or her from seeking equitable relief; only a depravity specific to the equitable relief sought will conjure the maxim, a depravity with “an immediate and necessary relation to the equity sued for.” Dering v Earl of Winchelsea (1787) 1 Cox Eq. 318, 319, 320.
The second maxim, “He who seeks equity must do equity” is prospective, rather than retrospective. It looks toward the future: “To obtain equitable relief, the plaintiff must be prepared to do ‘equity,’ in its popular sense of what is right and fair to the defendant.” Snell’s Principles of Equity, 28th ed., 31.
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