Advanced Equity and Trusts Law - alastairhudson.com

TOPIC 4. THEMES IN EQUITY AND TRUSTS
Aim: The aim of this seminar is to summarise at the outset some of the key thematic and intellectual
questions which this course will seek to address and which will be assessed ultimately in the form of essays
(as opposed to much of this course which focuses otherwise on problem-solving).
A. Definition
LECTURE MATERIALS
1. What is meant by “conscience”?
2. Where is the line between personal and proprietary rights?
B. Equity in commercial law
1. If the central philosophy of commercial law is certainty, how does equity interact
with commercial law?
2. Commercial law uses equitable doctrines like floating charges, trusts and
tracing to take security and to recover property.
3. Commercial law is nevertheless suspicious of judicial discretion as exercised
through equity: why?
4. How does the law relating to ownership of the home differ from trusts used in
commercial contexts? Will this lead to a schism in trusts law?
5. How does financial regulation correlate with the ordinary law of trust – see, for
example, regulation of pensions, regulation of unit trusts, and FSA regulation
of trustees trading as authorised persons.
C. The demands of international trusts law practice
1. Can trusts be better understood on the basis of contractual models: e.g.
exclusion of liability of trustees?
2. Is the beneficiary principle necessary, or would international trusts law fare
better by using protectors and other devices?
3. Is the trust part of property law or of the law of obligations?
4. Do these mooted developments qualify the notion of fiduciary liability?
D. Competing models to the conscience-based model
1. Is unjust enrichment a better model for equitable doctrines like resulting trust
and constructive trust than conscience-based models?
2. Is there a coherent basis for constructive trusts?
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