The family home is the key property asset that most family members will own in their lifetimes. However, many people living together in a home do not give any real thought to whether the property is owned between them, or what would happen if they separated. This chapter explores the reasons why cohabitants do not often think through their entitlements to the property, and why the law has been slow to provide redress to them. It considers the rules applicable to the application of trusts and proprietary estoppel to aid cohabitants, as well as critiques them. It also examines the practical impact of the remedies provided by outlining what happens when property is to be sold. Finally, it considers the many attempts at law reform and why they have, to date, failed to reach the statute books.
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Chapter
5. Property Division on the Breakdown of Non-Matrimonial Relationships
Warren Barr
Chapter
1. What is equity?
This chapter defines equity. Equity is both a different system of law which recognizes rights and obligations that the common law does not, and a system which seeks to address the inherent gaps which can exist in following any set of rules. Equity plays a large, but largely hidden, role in all our lives. For instance, buying houses with a partner, borrowing money, investing in private or company pensions, making complex arrangements in a will, or preventing human rights abuse all use some form of mechanism developed in equity, such as trust. Thus, equity, even if we do not always appreciate it, intrudes into many parts of our lives.
Chapter
11. The family home in context
This chapter starts by outlining some of the changes in society that have driven the development of the law on disputes regarding the family home. When a family is living happily together, there are unlikely to be disputes about the ownership of the family home. However, where the relationship fails, or one of the parties dies, the division of assets—including the family home—can be a deeply divisive issue. Where a couple are married, their dispute can often be resolved through the divorce legislation. Even then, the chapter shows how equity may have a part to play.
Chapter
1. Exam Skills for Success in Equity and Trusts Law
The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. This chapter gives students advice on skills for success in equity and trusts exams. It includes tips on what to do during the module, the revision period and in the exam room, as well as advice on the structure and approach to problem questions.
Chapter
22. Assignment of choses in action
D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner
This chapter deals with the general law of assignment of choses in action. Beginning with the historically based difference between equitable and statutory assignment, it then explains what ‘chose in action’ and ‘assignment’ are before discussing the requirement that there be an existing and assignable chose in action or right as well as the requirement that a person who holds an existing assignable chose in action intends to assign it. It also examines whether and when a rule of legal formality requires writing to be made; whether and when notice of the assignment is required; and obstacles to the enforcement of an assigned chose in action.
Chapter
1. An introduction to commercial law
D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner
This chapter introduces the reader to commercial law. It first considers the nature of commercial law by focusing on the definitions offered by previous scholars of note. It then examines its function and historical development, and discusses various sources of commercial law such as contracts and national legislation. In addition it refers importantly to the role of equity and trusts in commercial law, to public law in the commercial arena, and to the philosophy and concepts of commercial law. Possible codification of commercial law is discussed. Finally, the chapter assesses the challenges for commercial law in the twenty-first century and briefly discusses the impact of Brexit on English commercial law.
Book
Iain McDonald and Anne Street
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Equity & Trusts Concentrate covers all aspects of equity and trusts. Chapters look at the history and development of equity. The second chapter looks at the concept of a trust. The book also examines charitable, non-charitable purpose, secret, and implied trusts. Finally, issues relating to breach of trust and liabilities are covered. This edition has been updated with recent developments in the law and new case coverage including: Grondona v Stoffel & Co [2021] AC 540; Khan v Mahmood [2021] EWHC 597 Ch; Cohabitation Rights Bill 2021 HL; and Knipe v British Racing Drivers’ Motor Sport Charity & Others [2020] EWHC 3295.
Chapter
1. The history and development of equity
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the development of equity. Equity tackles injustice caused by a strict application of common law rules or unconscionable behaviour. Equity was originally dispensed by the King. However, this was soon delegated to the Lord Chancellor and the Court of Chancery. Equity and the common law were originally administered by separate court systems that coexisted uneasily until the Earl of Oxford’s Case (1615), when the King held that equity prevailed over the common law in the event of a conflict. The administration of equity and the common law was unified by the Judicature Acts 1873–75, meaning that all judges could apply both equitable and common law rules and responses.
Chapter
11. Trusts
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter describes how trusts may arise in relation to land, providing an overview of key situations in which a party may acquire an equitable interest under a trust of land. It considers express, resulting, and constructive trusts of land. A resulting trust can arise in favour of A, where A purchases or contributes to the purchase of land held by B, or in some cases where A transfers land to B without receiving anything in return. Constructive trusts arise in a number of diverse circumstances in which it can be said that it would be unconscionable for the legal owner to assert his or her own beneficial ownership and to deny the beneficial interest of another. They may arise, for example, under the doctrine in Rochefoucauld v Boustead and the Pallant v Morgan equity. The doctrine in Rochefoucauld v Boustead imposes a constructive trust to prevent a transferee of land from relying on the absence of compliance with formalities to deny a trust pursuant to which the land was transferred. The Pallant v Morgan constructive trust can arise where one party acquires land pursuant to an informal commercial joint venture and reneges on an agreement that another party will have an interest in the land.
Chapter
11. Trusts
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter describes how trusts may arise in relation to land, providing an overview of key situations in which a party may acquire an equitable interests under a trust of land. It considers express, resulting, and constructive trusts of land. A resulting trust can arise in favour of A, where A purchases or contributes to the purchase of land held by B, or in some cases where A transfers land to B without receiving anything in return. Constructive trusts arise in a number of diverse circumstances in which it can be said that it would be unconscionable for the legal owner to assert his or her own beneficial ownership and to deny the beneficial interest of another. They may arise, for example, under the doctrine in Rochefoucauld v Boustead and the Pallant v Morgan equity. The doctrine in Rochefoucauld v Boustead imposes a constructive trust to prevent a transferee of land from fraudulently relying on the absence of compliance with formalities to deny a trust pursuant to which the land was transferred. The Pallant v Morgan constructive trust can arise where one party acquires land pursuant to an informal commercial joint venture and reneges on an agreement that another party will have an interest in the land. The trust has been categorized as a form of ‘common intention constructive trust’ but this categorization is contentious.
Chapter
16. Skills for Success in Coursework Assessments
The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers, and author commentary. This book offers advice on what to expect in exams and how best to prepare. This chapter gives advice on skills for success in coursework assessments.
Chapter
5. Case law
Case law can be broken down into common law, equity, and custom. This chapter begins with a discussion of common law and equity, including a brief history on how these sources came into being. It then turns to custom as a further source of law. It also provides an overview of the court system to illustrate how the various courts in the system link together in a hierarchy. It concludes with a discussion of the European Court of Human Rights and the impact of the Human Rights Act 1998 on case law.
Chapter
6. Partnership Property
This chapter is concerned with the identification, nature and consequences of an item being regarded as partnership property. It sets out the situations where there is a need to distinguish between partnership property and the property of an individual partner(s), including insolvency and co-ownership issues, with special reference to farming partnerships. The nature of a partner's interest in such property is considered under English law together with the rights attached to it. The limits as to what may constitute such property are followed by the statutory and contractual rules for identification. Property bought out of partnership profits and the use of non-partnership land are considered. The chapter also covers the specific problems associated with two types of asset, the leases of business premises and the concept of the goodwill of a business.
Chapter
6. Trade secrets, confidential information, and the protection of private information
This chapter focuses on the law of breach of confidence, which protects trade secrets and privacy. It is judge-made law, with its origins in equity. The action for breach of confidence now resembles a common law cause of action, but its equitable basis is still evident in the flexibility and discretion the judges adopt in deciding cases. The Human Rights Act 1998 required the courts to implement the right to private and family life. The courts have done this, in cases concerning private information, by extending the law to protect privacy where the information concerned was not secret. This is now regarded as a separate branch of the law. Special considerations also apply in relation to the duties employees owe to their employer both during and after their employment. There is a defence to an action for breach of confidence where publication is in the public interest.
Chapter
10. Licences and Proprietary Estoppel
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the various types of licences and proprietary estoppel. It covers bare licences; licences coupled with an interest; contractual licences; revocation of a licence by the licensor; the effect of licences between the licensee and a third party; estoppel licences; proprietary estoppel; the requirements for an estoppel: assurance, detriment, and reliance; satisfying the equity and proportionality in the assessment of an award for estoppel; and status of ‘an equity’ before it has been satisfied.
Chapter
1. The nature and sources of commercial law
This chapter provides an overview of the nature and sources of commercial law. It explores the definition of commercial law, referencing how it is notoriously difficult to define. Commercial law draws on principles from a number of different areas of jurisprudence, such as contract law, criminal law, and principles from tort, property, equity, and trusts. The key challenge for commercial law is therefore to strike the right balance between the competing principles regardless of how they overlap. The chapter also considers the impact and significance of consumerism, internationalisation, digitalisation, certainty, and good faith on commercial law. It then discusses the role of equity in commercial law.
Chapter
15. Mixed Topic Questions
The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers, and author commentary. This book offers advice on what to expect in exams and how best to prepare. This chapter covers questions on a mixture of topic areas including the three certainties, constitution and formalities for the creation of a trust, charitable trusts and trusts of imperfect obligation.
Chapter
2. Nature of Equity and the Law of Trusts
The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers, and author commentary. This book offers advice on what to expect in exams and how best to prepare. This chapter covers questions on the nature of equity and the law of trusts.
Chapter
18. Tracing
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Trustees have personal liability in an action for compensation or account. If the action proves worthless in practice because the trustees are impecunious or have been declared bankrupt, and hence cannot repay trust monies to the fund, the beneficiaries may be able to trace the value of their trust property into bank accounts and into assets that have been bought with the trust property. It is the value of the trust property, not the precise item of the property itself, which is sought or traced in most cases. Tracing is a process that gives rise to the ultimate remedy of recovering misapplied money or property. This chapter examines tracing and the limits to common law tracing, the distinction between proprietary remedies and personal remedies, and how the rules for tracing in equity may be applied to unmixed funds, mixed funds and assets purchased with such funds. It also discusses the artificiality of the distinction between common law and equitable tracing rules, defences to the common law restitutionary claim and advantages of proprietary rights.
Chapter
20. Equity: doctrines and remedies
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.
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