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Chapter

Cover Equity

7. Reviewing Promises  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter is concerned with instances where Equity allows one party to escape the rigours of an apparently binding promise. The justification for contradicting apparently binding contractual agreements and perfectly properly intended gifts is simply the perception that it is sometimes unfair or unconscionable for the defendant to insist on his strict legal rights. The offending deals are then unwound; the defendant is forced to give up any enrichments that he should not have obtained. The different forms of intervention can be categorized under three heads. The first category is confined to written contracts, where the writing does not embody the real agreement between the parties. The writing may either misrepresent or omit certain critical features of the deal. Equity may then intervene to ensure that injustice does not ensue. The second category is devoted to procedural unfairness, and focuses on flaws in the claimant's consent to the underlying deal. The third category is concerned with substantive unfairness. Here Equity's intervention is far more paternalistic. It will sometimes intervene if the terms of the deal are unfair. This is a most aggressive form of intervention. It means interfering with a bargain even though there is no suggestion that the parties did not truly consent to the arrangement.

Chapter

Cover Equity & Trusts Law Directions

15. Breach of trust: defences and relief  

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. A trust must be duly administered in accordance with the provisions of the trust instrument, if any, and the general law. Similarly, a trustee should be liable for a dishonest breach of trust. Not every breach of trust is deliberate or dishonest. Liability may arise due to lack of care and other inadvertent breaches of trust, and even due to an essentially ‘technical’ or ‘formal’ breach of fiduciary duty. This chapter examines the extent of trustees’ civil liability for breach of trust, whether there might be a valid defence to a breach of trust and whether a trustee’s liability should be reduced by some form of relief. It looks at the remedies available against trustees for a breach of trust, a claimant’s election between inconsistent remedies, comparison with common law remedies, capital repayment, interest on the judgment, the Limitation Act 1980, the doctrine of laches, the beneficiary’s instigation of or consent to the breach and the beneficiary’s acquiescence in breach.