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Chapter

Cover Equity & Trusts

1. Introduction to Equity  

Paul S Davies and Graham Virgo

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 discusses the concept of Equity and defines it as the body of law that has been made and developed by judges in the Chancery courts to modify the rigid application of the common law. It is grounded on rules, principles, and doctrines that are strictly interpreted, but their application and the remedies awarded can be tempered by the exercise of judicial discretion to ensure a just and fair result. It plays an important role in many contemporary aspects of the law, including commercial and corporate law. A distinction between property rights and personal rights lie at the heart of Equity, and there exists no substantive fusion between Common Law and Equity as bodies of rules — even if their administration has been conjoined into a single procedural system. The chapter also discusses a variety of equitable maxims that are useful generalizations of complex law.

Chapter

Cover Equity & Trusts

10. Beneficiaries  

Paul S Davies and Graham Virgo

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 focuses on the beneficiary of a trust, and how this beneficiary possesses a variety of equitable rights arising from the trust, the nature of which will depend on the type of trust that has been created. Beneficiaries enjoy certain rights but do not have a right to inspect trust documents; however, disclosure of such documents can be ordered through the exercise of judicial discretion. In the case of a fixed trust, beneficiaries possess proprietary rights in the trust property and also a variety of personal rights. On the other hand, objects of a discretionary trust do not have any proprietary rights to trust property but have a variety of personal rights. To terminate the trust, its adult beneficiaries can unanimously agree to terminate it, but only if between them they are absolutely entitled to the beneficial interest.

Chapter

Cover Equity & Trusts

18. Proprietary Claims and Remedies  

Paul S Davies and Graham Virgo

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 discusses proprietary claims and remedies, which are based upon a claimant’s property rights. Proprietary claims require the claimant to have a right that can be identified in property in the defendant’s hands either through the process of following or that of tracing. Where a breach of trust or fiduciary duty has involved the transfer of property in which the beneficiary or principal has an equitable proprietary interest, the beneficiary or principal may wish to bring a claim to assert his or her proprietary interest in assets that are now in the hands of another person. Such claims are founded on the beneficiary’s equitable interest in the property, and so are properly characterized as proprietary claims. However, although the claim is founded on the beneficiary’s proprietary rights, the remedy awarded is not necessarily a proprietary one.

Chapter

Cover Equity & Trusts

2. Introduction to Trusts  

Paul S Davies and Graham Virgo

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 presents an introduction to the legal mechanisms of a trust, which involves a trustee or trustees holding property rights on behalf of another or for an identified purpose. A trustee is obliged in Equity to exercise those rights for that person or purpose. The law of trusts is primarily concerned with the different rights that various people might have following the creation of a trust. There is particular controversy about the nature of the beneficiary’s rights to trust property. There are a variety of reasons why someone would wish to create a trust, with the consequent separation of legal and equitable title, and a number of categories of trust exist, the operation of which is influenced by the context in which the trust arises.

Chapter

Cover Equity & Trusts

7. Constructive Trusts  

Paul S Davies and Graham Virgo

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 focuses on constructive trusts, which arise by operation of law without regard to the intentions of the parties. They are triggered by a defendant’s unconscionable conduct; however, in some cases, a constructive trust will be recognized even though the defendant has not acted unconscionably, such as the constructive trust that arises once a contract to sell land has been made. A remedial constructive trust is recognized by some jurisdictions, whereby equitable proprietary rights arise through the exercise of judicial discretion, but such a trust is not recognized in England and Wales. As with express trusts, title over particular property that is held on constructive trust is split between trustees and beneficiaries, but a constructive trustee is not subject to the same duties as an express trustee.

Chapter

Cover The Principles of Equity & Trusts

1. An Introduction to Equity  

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.

Chapter

Cover The Principles of Equity & Trusts

3. An Introduction to the Trust  

This chapter introduces the concept of the trust in England. It explains that the trust is a core element of Equity and its nature and function has developed over time. It discusses the fundamental principles relating to the trust, the classification of different types of trust, and identifies the rights and interests associated with them. This chapter suggests that, while many of the essential components of the modern commercial trust can be traced back to the medieval use, the context in which the trust arises today is completely different, and this has had a significant impact on the development of the contemporary law of trusts.

Chapter

Cover Equity

3. Creating Property  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. For many, Equity's greatest contribution to the law has been its manipulation of traditionally accepted concepts of property. This chapter deals with two strategies that Equity adapted to achieve its radical ends. Equity's first strategy is straightforward. Equity would sometimes regard certain assets as property even when the Common Law did not. This meant that these assets could be traded; they became usable wealth, at least in Equity's eyes. Equity's second strategy for manipulating concepts of property is more complicated. Equity will sometimes say that A ‘owns’ a car (or a company share, or an insurance pay-out) even though the Common Law says that B does. The chapter considers what it means when Equity says that A ‘owns’ property, and why the assertion is so ingenious.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

14. Proprietary estoppel  

This chapter focuses on proprietary estoppel. Proprietary estoppel can confer proprietary rights despite the lack of a formal grant or transfer. It can be used in three situations: where a person mistakenly believes that they have an existing right in land and the real owner acquiesces in this belief, where a person is encouraged by the owner to believe that they have an existing right in land, and where a person is led by the owner to believe that they will have a right in the future if they act in a particular way. It has much in common with common intention constructive trusts, but is capable of operating in different circumstances. Most cases involve rights in land, but the doctrine is not confined to this kind of property.

Chapter

Cover The Principles of Equity & Trusts

1. An Introduction to Equity  

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines a fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

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

Cover Equity

2. Legal Systems and Legal Rights  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. Legal rights are valued because of the protection they are accorded by the legal system. Over time, a hierarchy is established. It follows that legal rights can be restructured, judicially, simply by according different degrees of protection to different rights. This chapter surveys the techniques introduced by Equity to vary remedies, defences, and procedural practices so as to deliver a more attuned hierarchy of legal rights and, as a result, a more sophisticated legal system. This evolving discrimination is Equity's most pervasive, and least well acknowledged, contribution to the modern common law landscape.

Chapter

Cover Equity

4. Amplifying Property Rights  

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 considers Equity's special techniques for safeguarding property interests. Property's primary protection comes from rules that enable disputing parties to resolve title conflicts and priority disputes. Absolute justice is unlikely; the law must simply decide who has the stronger claim. Property's secondary protection is more controversial. Equity's tracing and claiming strategies allow claimants to assert new proprietary rights in substitute assets. These rights preserve the insolvency priority of the initial proprietary claim or secure entitlements to windfall secondary profits. Neither of these options follows inevitably from the initial assertion of a proprietary right.

Chapter

Cover An Introduction to the Law of Trusts

2. Policies Shaping the Express Trust Concept  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. An express trust arises from the decision of a settlor to create them. This chapter considers why such a decision by a settlor elicits the legal response of an express trust and whether it should. It discusses express trusts as facilitative devices and the basis for the facilitative provision of a trust device. It then looks at the other considerations by which the express trust device may be additionally supported or, on the other hand, according to which it may be problematic. The first consideration is paternalistic: preventing a settlor from acting against his own interests. The second is communitarian: taking the point that to concentrate exclusively on the wishes of an individual, the settlor, may be to overlook the interests of groups, which may be affected by those wishes. The third type is utilitarian: considerations as to whether trusts' effects are more beneficial than deleterious. The fourth focuses upon rights, the concern here being whether trusts vindicate or infringe people's rights.

Chapter

Cover The Principles of Equity & Trusts

3. An Introduction to the Trust  

This chapter introduces the concept of the trust in England. It explains that the trust is a core element of Equity and its nature and function has developed over time. It discusses the fundamental principles relating to the trust, the classification of different types of trust, and identifies the rights and interests associated with them. This chapter suggests that, while many of the essential components of the modern commercial trust can be traced back to the medieval use, the context in which the trust arises today is completely different, and this has had a significant impact on the development of the contemporary law of trusts.

Chapter

Cover The Principles of Equity & Trusts

11. Beneficiaries  

This chapter examines the nature of the rights of the beneficiaries of a trust, particularly where there is an express trust. It explains that the beneficiary gains equitable rights once a private trust has been validly created and they can enforce these rights against the trustee. It emphasizes that the nature of the right that is enforceable by the beneficiary depends on the nature of the trust that has been established and that the rights of beneficiaries under resulting and constructive trusts are limited. This chapter also considers the formality requirements for the disposition of equitable interests and when it is possible for the beneficiaries to terminate the trust.

Chapter

Cover The Principles of Equity & Trusts

11. Beneficiaries  

This chapter examines the nature of the rights of the beneficiaries of a trust, particularly where there is an express trust. It explains that the beneficiary gains equitable rights once a private trust has been validly created and they can enforce these rights against the trustee. It emphasizes that the nature of the right that is enforceable by the beneficiary depends on the nature of the trust that has been established and that the rights of beneficiaries under resulting and constructive trusts are limited. This chapter also considers the formality requirements for the disposition of equitable interests and when it is possible for the beneficiaries to terminate the trust.

Chapter

Cover The Principles of Equity & Trusts

12. Trustees  

This chapter examines the duties and powers of trustees. It considers how trustees can be appointed to and removed from office. It explains that trustees have a wide variety of powers but misuse of these powers will constitute a breach of trust. It also highlights the fact that, while trustees have the primary rights of ownership in trust property, they are not able to exploit the beneficial incidents of this ownership for themselves in their capacity as trustees, since they hold the property for other people or sometimes for particular purposes. This chapter also discusses the essence of trusteeship, the different types of trustees, and remuneration of trustees.

Chapter

Cover Trusts & Equity

1. Foundations  

This chapter focuses on the historical and conceptual foundations of trusts and equity, first examining the history of the relationship between law and equity, including the historical origins of the trust. It then explains the idea of equity and how it is intertwined with the common law, and compares the trust with concepts such as gifts and contracts. The chapter shows that the trust arose in response to equity’s special concern to ensure that legal rights are not used in bad conscience, but later developed into a sophisticated institution governed by established rules. It looks at the reform of the Court of Chancery and considers trust property, equitable rights under a trust, separation of legal and equitable title, and the paradox of property and obligation.

Book

Cover Equity

Sarah Worthington

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. Equity sets out the basic principles of Equity, and illustrates them by reference to commercial and domestic examples of their operation. The text, which is the second edition, describes the role of Equity in creating and developing rights and obligations, remedies and procedures that differ in important ways from those provided by the Common Law itself. This edition offers a reworking of the material traditionally described as Equity. In doing this, it provides an examination of the fundamental principles underpinning Equity's most significant incursions into the modern law of property, contract, tort, and unjust enrichment. In addition, it exposes the possibilities, and the need, for coherent substantive integration of Common Law and Equity. Such integration is perceived in this text as crucial to the continuing success of the modern Common Law legal system.