Maryam Jameelah Binti Ali Sabri.

1081225.
TLB 5.

Where The Equities Are Equal The First In Time Prevails.

This maxim is sometimes quoted in its Latin form, Qui prior est tempore, potior est jure. It deals
with the priority of competing interests.1

This maxim is concerned with the priority that is to say which of interests prevails in the
time of conflict. The general rule, is that interests take effect in order of their creation, but, as
regards equitable interests, these may be defeated if a bona fide purchaser acquires a subsequent
legal estate without notice of the equitable one.2 The position of the bona fide purchaser of a
legal estate is stated in the case of Pilcher v Rawlins3. For the purchaser of the legal estate to gain
the priority, it is the must to show off that he is bona fide. Moreover, the purchaser would be
interrogated to the valuable consideration where he has given the opportunity to his bona fide
and to prove the presence of the absence of notice.

In the case of Cave v Cave4 the question arose of the priority of an equitable interest, a
legal interest and an equitable interest created in that order. The interests were a beneficial
interest under a trust, a legal mortgage created without notice of the prior beneficial interest and
a legal mortgage created without notice of an equitable mortgage. Applying the legal maxim
above, the court held that the beneficial interest took the priority over the equitable interest
because he is the bona fide for value without notice, neither beneficial owner being at fault.

The sort of action that the party might lose his priority, i.e making the equities unequal,
was culled from the case of Abigail v Lapin5. The Privy Council states that; “In the case of a
contest between two equitable claimants the first in time, all other things being equal, is entitled
to priority. But all other things must be equal, and the claimant who is first in time may lose his
priority by any act or omission which has, or might have had, the effect of inducing a claimant
later in time to act to his prejudice.”6

1
Philip H. Pettit, (2009), Equity and the law of Trusts, 11th Edition, Oxford University Press,
New York.
2
Richard Edwards and Negel Stockwell, (1999), Trust and Equity, 4th Edition, Pearson
Education Limited, England.
3
(1872) LR 7 Ch App 250.
4
(1880) 15 Ch D 639.
5
(1934) AC 491.
6
Ibid; p.502.