Advanced Equity and Trusts Law - alastairhudson.com

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Timetable for the course This course outline sets out the sequence of lectures in this topic. Students should be warned, however, that it is susceptible to minor change as the year progresses. It also contains lecture notes and the outline questions for seminars. Week: w/c Topic: lecture / seminar 2 / 10 Core principles of equity and the law of trusts 9 / 10 Foundational techniques of express trusts (1) 16 / 10 Foundational techniques of express trusts (2) 23 / 10 Themes in equity and trusts 30 / 10 Obligations of trustees (i): control of trustees & breach of trust 6 / 11 No class this week 13 / 11 Obligations of trustees (i): control of trustees & breach of trust 20 / 11 Obligations of trustees (ii): investment of trusts 27 / 11 Obligations of trustees (ii): investment of trusts 4 / 12 Equity and commerce (1): suspicion of equity, taking security & contract 11 / 12 Term End Equity and commerce (1): suspicion of equity, taking security & contract 8 / 1 Equity and commerce (2): finance, trusts and the local authority swaps cases 15 / 1 Equity and commerce (2): finance, trusts and the local authority swaps cases 22 / 1 Constructive trusts (i): secret profits and bribes 29 / 1 No class this week 5 / 2 Constructive trusts (i): secret profits and bribes 12 / 2 Constructive trusts (ii): fraud, contract and confidentiality 19 / 2 Constructive trusts (ii): fraud, contract and confidentiality 26 / 2 Breach of trust (i): dishonest assistance and knowing receipt 5 / 3 Breach of trust (i): dishonest assistance and knowing receipt 12 / 3 Breach of trust (ii): tracing 19 / 3 Breach of trust (ii): tracing 26 / 3 Term End Trusts of homes (i): English trusts law approaches 30 / 4 Trusts of homes (i): English trusts law approaches 7 / 5 Trusts of homes (ii): Other perspectives on rights in the home 14 / 5 Trusts of homes (ii): Other perspectives on rights in the home 21 / 5 www.alastairhudson.com | © professor alastair hudson 4
TOPIC 1. THE FOUNDATIONS OF EQUITY AND THE LAW OF TRUSTS Aim: This topic is concerned to introduce students to the core principles which underpin equity in general terms and the law of trusts in particular. The difficulty with beginning this LLM course is that there are usually two types of student: those who studied trusts law at undergraduate level and those who never studied trusts law at all before. Therefore, the first three topics of this course aim to teach the basics to novices and to serve as a refresher course for the initiated. (A) The nature of equity Reading: Hudson, section 1.1 LECTURE MATERIALS 1) Philosophical ideas of equity The following ideas come from Aristotle’s Ethics, and should be understood as considering the difference between common law and equity: “For equity, though superior to justice, is still just … justice and equity coincide, and although both are good, equity is superior. What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice.” So it is that equity provides for a better form of justice than the common law because it provides for a more specific judgment as to right and wrong in individual cases which rectifies any errors of fairness which the common law would otherwise have made: “The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. … So when the law states a general rule, and a case arises under this that is exceptional, then it is right, where the legislator owing to the generality of his language has erred in not covering that case, to correct the omission by a ruling such as the legislator himself would have given if he had been present there, and as he would have enacted if he had been aware of the circumstances.” Thus, equity exists to rectify what would otherwise be errors in the application of the common law to factual situations in which the judges who developed common law principles or the legislators who passed statutes could not have intended. 2) Early case law on the role of equity Earl of Oxford’s Case (1615) 1 Ch Rep 1, per Lord Ellesmere: “the office of the Chancellor is to correct men’s consciences for frauds, breach of trusts, wrongs and oppressions … and to soften and mollify the extremity of the law” Lord Dudley v Lady Dudley (1705) Prec Ch 241, 244, per Lord Cowper: “Now equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigour, hardness, and edge of the law, and is an universal truth; it does also assist the law where it is defective and weak in the constitution (which is the life of the law) and defends the law from crafty evasions, delusions, and new subtleties, invested and contrived to evade and delude the common law, whereby such as have undoubted right are made remediless: and this is the office of equity, to support and protect the common law from shifts and crafty contrivances against the justice of the law. Equity therefore does not destroy the law, nor create it, but assist it.” www.alastairhudson.com | © professor alastair hudson 5
Page 1 and 2: ADVANCED EQUITY AND TRUSTS Universi
Page 3: Aims and objectives Syllabus This c
Page 7 and 8: Reading: Hudson, section 2.2 The fo
Page 9 and 10: � Equity will not permit statute
Page 11 and 12: (B) Certainty of Subject Matter. Re
Page 13 and 14: equity the property was theirs. Yet
Page 15 and 16: TOPIC 3. FOUNDATIONAL TECHNIQUES OF
Page 17 and 18: Reading: Hudson, section 5.6.1 Cann
Page 19 and 20: 3. Do equitable doctrines protect p
Page 21 and 22: Learoyd v Whiteley (1887) 12 App Ca
Page 23 and 24: (i) The original, negative form of
Page 25 and 26: **O’Rourke v Derbyshire [1920] AC
Page 27 and 28: ecommendation. He signed the papers
Page 29 and 30: *Cowan v. Scargill [1985] 2 Ch. 270
Page 31 and 32: Trustee Act 1925, s.61: “If it ap
Page 33 and 34: Specific reading Hudson, Equity & T
Page 35 and 36: para 47-18) of a specified kind 13
Page 37 and 38: appropriately and to keep records a
Page 39 and 40: � Therefore it may be possible to
Page 41 and 42: TOPIC 6. EQUITY AND COMMERCE (1): S
Page 43 and 44: See also:- (1985) 101 L.Q.R. 269 (P
Page 45 and 46: participants goes into bankruptcy.
Page 47 and 48: drafted to make it clear that all c
Page 49 and 50: to consider the importance of Quist
Page 51 and 52: therefore it is said that the oblig
Page 53 and 54: there is some identifiable benefici
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(H) THE LIMITATION OF TRUSTEES’ O
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these moneys for any other purpose
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detail - Quistclose trusts, retenti
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Finn, “Fiduciary Law in the Moder
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Collective investment schemes are e
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6 REGULATION OF COLLECTIVE INVESTME
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The market abuse regime relates to
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1. Evaluate the changes which Lord
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3) The corporate opportunity doctri
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Joan asked why only one profit esti
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epresentee. It may well be that if
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TOPIC 10. BREACH OF TRUST (I): DISH
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(4) knowledge of circumstances whic
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Sullivan told his assistant, Malone
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*Re Oatway [1903] 2 Ch. 356 - benef
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d) When must the change of position
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Crafty advised Albert to use the ot
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Reading: Hudson, para 15.4.1 Gissin
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All three of them decided to buy a
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Lim v. Ang [1992] 1 WLR 113 Walton
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TOPIC 14. TRUSTS OF HOMES (III): OT
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childhood friend and solicitor, Fla
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National Westminster Bank v. Kostop
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