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Institute of Legal Executives Level 6
Subject 38 INSTITUTE OF LEGAL EXECUTIVES LEVEL 6 - EQUITY & TRUSTS EXAMINER’S REPORT – AUTUMN 2009 Introduction The primary aim of this report is to do the following: • comments on overall performance by candidates in the Autumn 2009 Equity and Trusts examination; • advises on how performance might be improved; • indicates what should be contained in successful answers to the questions in the examination paper; • provides comment on performance in individual questions. • this is the final Equity and Trusts examination paper under the Level 6 Professional Higher Diploma in Law. If candidates have failed then they should consider sitting Equity and Trusts on the new Level 6 Professional Higher Diploma in Law and Practice. Information is available on the ILEX website at [email protected] Comment on Overall Performance This is a Level 6 paper and was, consequently, appropriately demanding. Successful candidates are therefore to be congratulated. The most common weaknesses were: 1. Poor legal problem solving skills; 2. Lack of adequate skills for tackling essay questions; 3. Poor structure and inadequate understanding of how to use the law to answer questions; 4. Lack of knowledge of the law of Equity and Trusts. Poor Legal Problem Solving Skills Common weaknesses included: failure to identify all the key issues raised by the problem questions; failure to identify the particular principles of law relevant to the problems; failure to state the law accurately and cite cases appropriately; failure to apply the law to the facts of problem questions in an appropriate manner or (in the case of a few candidates) to apply it to the facts at all. -
The Overlapping of Legal Concepts a Legal Realist Approach to the Classification of Private Law
THE OVERLAPPING OF LEGAL CONCEPTS A LEGAL REALIST APPROACH TO THE CLASSIFICATION OF PRIVATE LAW by DAVID SALMONS A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Birmingham Law School College of Arts and Law University of Birmingham Summer 2011 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT The main aim of this research is two-fold; firstly, these chapters will seek to demonstrate the unreliability of theoretical or abstract approaches to legal reasoning in describing the law. Secondly, rather than merely providing a deconstruction of previous attempts to classify private law, the chapters attempt to construct an overlapping approach to classification. This represents a new way of classifying private law, which builds on the foundations of the lessons of legal realism and explains how classification can accommodate overlaps to assist in identifying the core elements of private law reasoning. Following the realist tradition, the thesis argues for narrower formulations of the concepts of property, contract and tort. It is then argued that within these narrower concepts, the law is made more predictable and clearer. -
Key Facts and Key Cases
KEY FACTS KEY CASES Equity & Trusts 25726.indb i 18/11/2013 10:40 KEY FACTS KEY CASES The Key Facts Key Cases revision series is designed to give you a clear understanding and concise overview of the fundamental principles of your law course. The books’ chapters refl ect the most commonly taught topics, breaking the law down into bite- size sections with descriptive headings. Diagrams, tables and bullet points are used throughout to make the law easy to understand and memorise, and comprehensive case checklists are provided that show the principles and application of case law for your subject. Titles in the series: Contract Law Criminal Law English Legal System Equity & Trusts EU Law Family Law Human Rights Land Law Tort Law For a full listing of the Routledge Revision range of titles, visit www.routledge.com/law 25726.indb ii 18/11/2013 10:40 KEY FACTS KEY CASES Equity & Trusts Chris Turner and Judith Bray Routledge Taylor & Francis Group LONDON AND NEW YORK 25726.indb iii 18/11/2013 10:40 First edition published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Chris Turner and Judith Bray The right of Chris Turner and Judith Bray to be identifi ed as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. -
Level 6 - Unit 5 – Equity & Trusts Suggested Answers – January 2011
LEVEL 6 - UNIT 5 – EQUITY & TRUSTS SUGGESTED ANSWERS – JANUARY 2011 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2011 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A 1(a) A decree of specific performance is a court order instructing a party to a contract to perform their obligations under that contract. Failure to comply is contempt of court. It is a precondition of a decree of specific performance that the remedy at law is inadequate. That remedy is generally damages. This is consistent with the role of equity within our legal system, as it developed to provide remedies for those who could not receive the assistance they required through the common law courts. Whether damages are an adequate remedy will depend on the subject matter of the contract. If a contract is for the sale and purchase of an item that is unique, no amount of damages will be able to make up for the fact that the purchaser will no longer receive the item they contracted for. -
Sharing Homes: a Discussion Paper
The Law Commission (LAW COM No 278) SHARING HOMES A Discussion Paper Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty November 2002 Cm xxxx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman 1 Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Discussion Paper was first published online on 18 July 2002. The text of this Discussion Paper is available on the Internet at: http://www.lawcom.gov.uk 1 At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO. ii THE LAW COMMISSION SHARING HOMES A Discussion Paper CONTENTS Paragraph Page Executive Summary vi PART I: INTRODUCTION 1 The shared home 1.6 2 A property-based approach 1.23 6 PART II: THE CURRENT LAW 9 Introduction 2.1 9 Trusts of land 2.4 10 Legal and beneficial ownership of the shared home 2.10 11 Legal title – joint tenancy 2.12 11 Beneficial ownership- joint tenancy or tenancy in common 2.16 12 Resolution of disputes between trustees and beneficiaries 2.23 14 Dealings with third parties 2.27 15 Occupation of the shared home 2.32 17 Where a person has an interest under a trust of land 2.34 17 Matrimonial home rights 2.37 18 Orders regulating -
Text, Cases and Materials on Equity and Trusts
TEXT, CASES AND MATERIALS ON EQUITY AND TRUSTS Fourth Edition Text, Cases and Materials on Equity and Trusts has been considerably revised to broaden the focus of the text in line with most LLB core courses to encompass equity, remedies and injunctions and to take account of recent major statutory and case law developments. The new edition features increased pedagogical support to outline key points and principles and improve navigation; ‘notes’ to encourage students to reflect on areas of complexity or controversy; and self-test questions to consolidate learning at the end of each chapter. New to this edition: • Detailed examination of The Civil Partnership Act 2004 and the Charities Act 2006. • Important case law developments such as Stack v Dowden (constructive trusts and family assets), Oxley v Hiscock (quantification of family assets), Barlow Clowes v Eurotrust (review of the test for dishonesty), Abou-Ramah v Abacha (dishonest assistance and change of position defence), AG for Zambia v Meer Care & Desai (review of the test for dishonesty), Re Horley Town Football Club (gifts to unincorporated association), Re Loftus (defences of limitation, estoppel and laches), Templeton Insurance v Penningtons Solicitors (Quistclose trust and damages), Sempra Metals Ltd v HM Comm of Inland Revenue (compound interest on restitution claims) and many more. • New chapters on the equitable remedies of specific performance, injunctions, rectification, rescission and account. • Now incorporates extracts from the Law Commission’s Reports and consultation papers on ‘Sharing Homes’ and ‘Trustee Exemption Clauses’ as well as key academic literature and debates. The structure and style of previous editions have been retained, with an emphasis on introduc- tory text and case extracts of sufficient length to allow students to develop analytical and critical skills in reading legal judgments. -
Creation of Express Trusts Capacity
Creation of Express Trusts Capacity - ‘Legal competency or qualification’ - Two common exclusions = poor mental health, infancy - S1(6) LPA 1925: a minor cannot hold a legal estate in land (so cannot create a trust of land). THE THREE CERTAINTIES - Knight v Knight: Lord Langdale: for an express trust to be created the settlor must express 3 things with certainty. o Certainty of intention o Certainty of subject matter o Certainty of objects Certainty of Intention - Did settlor intend to subject the property to a trust obligation? - Two ways in which a trust can be created: o The settlor declares himself trustee of property that he already owns; o Settlor transfers property to another person directing that they hold it on trust for the beneficiary. - Has the settlor done enough to make clear his intention? - Re Kayford Ltd – Megarry LJ: ‘a trust can be created without using the words “trust” or “confidence” or the like; the question is whether in substance a sufficient intention to create a trust has been manifested’. - Company opened separate account, ‘Customer’s Trust deposit Account’ to pay in money received for goods not yet delivered, withdrawing the money only if goods were later delivered – so they could refund customers if goods not supplied (if company went into liquidation). - Held: trust had been created. - Paul v Constance: C separate from his wife + lived with P. A number of times C told P that the money was as much hers as his. o C died intestate + as he had not divorced his wife, wife was entitled to all of his estate. -
Law of Contract July 2010
LEVEL 6 - UNIT 5 - EQUITY AND TRUSTS SUGGESTED ANSWERS - JANUARY 2014 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2014 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 (a) “Every effort” test The transfer of the legal title to company shares is not complete until the transferee is registered by the company. Similarly a gift of the legal estate in land is not effective until the donee is registered at the Land Registry. In these cases the final stage in the transfer formalities is in the hands of a third party and is outside the donor’s control. Such gifts are effective in equity before the legal title is transferred if the donor has done everything required of him or her to transfer legal title (Milroy v Lord (1862); Re Rose (1952)). In Re Rose it was held that this stage is reached for gifts of shares when the transferor has parted with the stock transfer form and share certificate beyond recall and it lies in the transferee’s power to be registered as the new shareholder. -
The Remedial Constructive Trust – Fact Or Fiction” Queenstown, New Zealand 10 August 2014
COMMENTARY ON LORD NEUBERGER’S “THE REMEDIAL CONSTRUCTIVE TRUST – FACT OR FICTION” QUEENSTOWN, NEW ZEALAND 10 AUGUST 2014 J D Heydon Lord Neuberger’s paper deals with its subject in admirable style. It is certainly learned. But it is also dashing. This is no surprise. The hand which wrote the paper can also be seen in the joint judgment of seven members of the Supreme Court of the United Kingdom in FHR European Ventures LLP v Cedar Capital Partners LLC.1 In that case the Supreme Court favoured the view of the lamented Lord Templeman in Attorney General for Hong Kong v Reid2 over its rivals. The judgment in the FHR European Ventures case is notable for three things at least. First, it dealt in a deft and scholarly way with a topic which has been controversial, sometimes bitterly controversial, for at least 150 years: whether a fiduciary who has taken a bribe is liable to the principal only as an equitable debtor or can be liable to restore the bribe or its proceeds in specie under a constructive trust. Secondly, the judgment was written in a style – brisk, brief and brilliant – quite beyond the powers of most Australian judges. Thirdly, despite the importance _______________________ 1 [2014] UKSC 45. 2 [1994] 1 AC 324. 2. and complexity of the issue and despite the fact that it was argued over three days, judgment was delivered less than four weeks after the close of argument. These are achievements which ought to make most Australian judges hang their heads in shame, though there have been exceptions to these strictures. -
Proprietary Consequences in Defective Transfers of Ownership
PROPRIETARY CONSEQUENCES IN DEFECTIVE TRANSFERS OF OWNERSHIP PROPRIETARY CONSEQUENCES IN DEFECTIVE TRANSFERS OF OWNERSHIP S a m u e l Z o g g Cambridge – Antwerp – Chicago Intersentia Ltd 8 Wellington Mews Wellington Street | Cambridge CB1 1HW | United Kingdom Tel: +44 1223 736 170 Email: [email protected] www.intersentia.com | www.intersentia.co.uk Distribution for the UK and Rest of the World (incl. Eastern Europe) NBN International 1 Deltic Avenue, Rooksley Milton Keynes MK13 8LD United Kingdom Tel: +44 1752 202 301 | Fax: +44 1752 202 331 Email: [email protected] Distribution for Europe Intersentia Publishing nv Groenstraat 31 2640 Mortsel Belgium Tel: +32 3 680 15 50 Email: [email protected] Distribution for the USA and Canada Independent Publishers Group Order Department 814 North Franklin Street Chicago, IL 60610 USA Tel: +1 800 888 4741 (toll free) | Fax: +1 312 337 5985 Email: [email protected] Proprietary Consequences in Defective Transfers of Ownership © Samuel Zogg 2020 Th e author has asserted the right under the Copyright, Designs and Patents Act 1988, to be identifi ed as author of this work. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, without prior written permission from Intersentia, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Intersentia at the address above. Artwork on cover: El Lissitzky, Proun 30 t © bpk / Sprengel Museum Hannover / Michael Herling / Benedikt Werner ISBN 978-1-78068-824-4 D/2020/7849/44 NUR 822 British Library Cataloguing in Publication Data. -
Imagereal Capture
Quasi-Matrimonial Property Division and Judicial Alchemy by Helen M. Dervan * Winner of the Law Review Prize for 1984 I. INTRODUCTION In the recent Australian decision of Seidler v Schallhofer,l Hutley JA commented that "[t]he courts should not becom~ alchemists transmuting the ashes of dead passion into gold". This remark is one of many emerging from the courts on the availability of recovery of property for the parties of broken de facto relationships. In recent legal history, the courts acted'on the assumption that the institution of marriage was to be protected from anything which undermined it. '} In applying this assumption, "it was natural that the law should make the results of other kinds of sexual relations as dis advantageously different from those in marriage as possible". 3 However, change in social mores and widening social acceptance' of couples living together without being formally married4 is destroying the foundations on which this assumption was set. Concomitant with the increasing number of informalised relationships are disputes as to division of property on their breakdown. As parties look to the courts for resolution of disputes, the judiciary has been set the task of developing new principles to govern recovery. 1 [1982] 2 NSWLR 80, 103. This case deals mainly with the legality of agreements to continue de facto relationships for a specified period. For comment see Bates, Private Law and Public Policy: An Extrapolation from Seidler v Schollhofer, 57 ALJ 460 (August 1983), 2 Ibid., 99. 3 Idem. 4 Bernard v Josephs -
Constructive Trusts
7 Constructive Trusts I General Principles 278 G Acquisition of Property by a Criminal 302 280 II Categories of Constructive Trust H , e Vendor under a Contract A Unconscionable Conduct 280 for the Sale of Land 307 B Rescission 284 I Undertakings by a Purchaser 310 C Unauthorised Pro t by a J , e Remedial Constructive Trust 315 Fiduciary 286 D Fiduciaries de son tort 286 III e Nature of Constructive E Mutual Wills 288 Trusteeship 320 F Secret Trusts 301 i General Principles A constructive trust arises by operation of law rather than by the intention of the parties2 and it can arise in a wide variety of circumstances. But there is little agree- ment amongst the judiciary or academic writers as to when a constructive trust will be recognised and why it should be recognised. To make this area of the law even more complicated, there is no consistent use of terminology. Indeed, the term ‘constructive trust’ has been used in at least four diH erent ways. e institutional constructive trust.3 According to this view of the constructive trust, it will only be recognised where the facts of the dispute fall within an existing category of cases where a constructive trust has previously been recognised. e remedial constructive trust.4 According to this view, a constructive trust will be recognised through the exercise of judicial discretion. , is notion of the constructive t r u st ha s be en recog n i s ed i n a nu mber of C om monwe a lt h cou nt r ie s , i nclud i ng Au st r a l ia , Canada, and New Zealand, but it has generally not been recognised in England.