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Ideas of Equity (Pdf) Ideas of Equity 00A_PoE_prelims.pmd 1 15/05/2017, 21:45 STUDIES IN SCOTS LAW Series Editor Kenneth G C Reid Editorial Board Alan R Barr Sandra M Eden George L Gretton Volumes in the series 1. Ross Gilbert Anderson, Assignation (2008) 2. Andrew J M Steven, Pledge and Lien (2008) 3. Craig Anderson, Possession of Corporeal Moveables (2015) 4. Jill Robbie, Private Water Rights (2015) 5. Daniel J Carr, Ideas of Equity (2017) 00A_PoE_prelims.pmd 2 15/05/2017, 21:45 STUDIES IN SCOTS LAW VOLUME 5 Ideas of Equity Daniel J Carr Lecturer in Private Law, University of Edinburgh Lecturer in Law, Robert Gordon University EDINBURGH LEGAL EDUCATION TRUST 2017 00A_PoE_prelims.pmd 3 15/05/2017, 21:45 Published by Edinburgh Legal Education Trust School of Law University of Edinburgh Old College South Bridge Edinburgh EH8 9YL http://www.centreforprivatelaw.ed.ac.uk/monograph_series First published 2017 © Daniel J Carr, 2017 The author asserts his moral rights. ISBN 978-0-9556332-9-4 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the copyright owner. Applications for the copyright owner’s permission to reproduce any part of this publication should be addressed to the publisher. Typeset by Etica Press Ltd, Malvern Printed and bound by Martins the Printers, Berwick-upon-Tweed 00A_PoE_prelims.pmd 4 15/05/2017, 21:45 Contents Preface vii Table of Cases ix Table of Statutes xvii Abbreviations xix 1 Introduction 1 2 Historical Understandings of Equity 14 3 Unjustified Enrichment 53 4 Trusts 104 5 Constructive Trusts 134 6 Fiduciary Law 184 7 Conclusion 219 Index 219 v 00A_PoE_prelims.pmd 5 15/05/2017, 21:45 00A_PoE_prelims.pmd 6 15/05/2017, 21:45 Preface This book is an updated version of my doctoral thesis submitted in 2009, and awarded by the University of Cambridge in 2010. As such the text no doubt bears some of the disadvantages and, hopefully, some of the advantages of such a work. The book is about the development of ideas about equity in Scots law and how those ideas influenced the doctrinal development of certain areas of law. Because PhDs are somewhat selfish affairs – the subject matter selected is invariably chosen because it is of interest to the candidate rather than necessarily out of consideration for a wider audience – the areas included in this text are selective. The book does not purport to be a comprehensive explanation of how equity operates across the whole of Scottish private law, let alone the whole of the legal system. What the book does seek to do is explain how ideas about equity have been present in the legal system in different ways at different times, and, in turn, how the development of those ideas can tell us something about the way in which the legal system and discrete areas of private law have developed in the past and how they might usefully develop in the future. In that sense the method of the text might be characterised as an exercise in rational reconstruction. Much (but not all) of the material in chapter 6, concerning fiduciary law, has appeared in an article, ‘English Influences on the Historical Development of Fiduciary Duties in Scottish Law’ (2014) 18 Edin LR 29; and a small amount of chapter 2 has appeared in my preface to the 2013 reprint of Lord Kames’s Principles of Equity. I would like to thank Professor David Ibbetson and Professor Graham Virgo, the former in particular as the primary supervisor, both of whom were a great source of inspiration and assistance as my doctoral supervisors during my time in Cambridge. I am extremely grateful to my examiners, Professor John Ford and the late Lord Rodger of Earlsferry, for their valuable time and for the wisdom and kindness they extended to me during my viva and afterwards. I also thank the Arts and Humanities Research Council for providing full funding for my doctorate and the requisite research masters degree which preceded it. My thanks are also due to Professor Neil Walker for allowing me to complete the last stages of the doctorate by employing me as a research assistant on another project. I also thank the many current and former colleagues, friends, and students whose assistance and encouragement have contributed to this book. Finally, I am grateful to Professor Kenneth Reid for his patience in awaiting the delivery of this book for inclusion in the Studies in Scots Law series, and for vii 00A_PoE_prelims.pmd 7 15/05/2017, 21:45 Preface viii his considerable assistance with its preparation for publication. I hope it is a worthy inclusion. Daniel J Carr Glasgow April 2017 00A_PoE_prelims.pmd 8 15/05/2017, 21:45 Table of Cases References are to paragraph numbers Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461 . 2-73, 5-77, 6-06, 6-28, 6-29, 6-42, 6-54 Aberdeen Town Council v Aberdeen University (1877) 2 App Cas 544 . 6-06 Addis v Clement (1728) 2 P Wms 456, 24 ER 811 . 6-27 Advice Centre for Mortgages Ltd v McNicoll [2006] CSOH 58, 2006 SLT 591 2-79 Advocate General for Scotland v Murray Group Holdings Ltd [2015] CSIH 77, 2015 SLT 765 . 4-56, 6-54, 6-55, 6-56 Aitken v Hunter (1871) 9 M 756 . 6-47, 6-57 Allan’s Trs v Lord Advocate 1971 SC (HL) 45 . 4-34 Allcard v Skinner (1887) LR 36 Ch D 145 . 6-29 Allen v McCombie’s Trs 1909 SC 710 . 4-30, 4-31 Anderson v Hogg 2000 SLT 634 . 2-66, 2-67 Angus’s Exr v Batchan’s Trs 1949 SC 335 . 2-80 Arthur v A-G of the Turks and Caicos Islands [2012] UKPC 30 . 5-79, 5-80 Attorney-General for Hong Kong v Reid [1994] 1 AC 324 . 6-51 Badfinger Music v Evans [2002] EMLR 2 . 6-57 Bainbrigge v Browne (1881) 18 Ch D 188 . 6-29 Baird v Creditors of Murray (1744) Mor 7737 . 5-12 Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437 . 5-73, 5-79 Bank of Scotland v Liquidators of Hutchison Main & Co Ltd 1914 SC (HL) 1 . 5-58, 6-42, 6-51 Bank of Scotland v Macleod Paxton Woolard & Co 1998 SLT 258 . 5-65, 5-69 Barclay v Liddel (1671) Mor 16591 . 3-22 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 . 5-39 Barclay’s Tr v Inland Revenue Comrs 1975 SC (HL) 1 . 5-05, 5-06 Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 WLR 1476 . 5-79 Barnes v Addy (1874) LR Ch App 244 . 5-72 Barney, Re [1892] 2 Ch 265 . 5-16 Barron v Willis [1900] 2 Ch 121 . 6-26 Barton v London Midland & Scottish Railway Co 1932 SC 113 . 2-80 Baumgartner v Baumgartner (1987) 164 CLR 137 . 5-86 Bee v Biggar (1745) Mor 6008 . 6-15 Bells v Wilkie (1662) 1 Stair 97 . 5-11 Bennett, Ex parte (1805) 10 Ves Jun 381, 32 ER 893 . 6-29 Beveridge v Wilson (1829) 7 S 279 . 5-29 ix 00B_PoE_ToC.pmd 9 15/05/2017, 21:45 Table of Cases x Biffa Waste Services Ltd v Patersons of Greenoakhill [2015] CSOH 137, 2015 GWD 34-548 . 3-92, 3-99 Blewett v Millett (1774) 7 Bro PC 367, 3 ER 238 . 6-27 Boardman v Phipps [1967] 2 AC 46, sub nom Phipps v Boardman [1964] 1 WLR 993 . 5-77, 6-47, 6-57 Bofinger v Kingsway Group Ltd [2009] HCA 44, (2009) 239 CLR 269 . 5-81 Bon-Accord Marine Assurance Co v Souter’s Trs (1850) 12 D 1010 . 6-29 Boswell v Coaks (No 1) (1886) LR 11 App Cas 232 . 6-29 Boyd & Forrest v Glasgow and South-Western Railway 1914 SC 472; revsd 1915 SC (HL) 20 . 3-63 Boylstoun v Robertson (1672) Mor 15125 . 5-13 Bray v Ford [1896] AC 44 . 6-47, 6-56 Bristol and West Building Society v Mothew [1998] Ch 1 . 5-77 Brown v Hamilton DC 1983 SC (HL) 1 . 2-80 Buell v Buckingham (1864) 85 Am Dec 516 . 6-37 Burdett v Willett (1708) 2 Vernon 638 . 5-12 Burgh of Ayr v Shaw (1904) 12 SLT 126 . 5-05 Burnett’s Tr v Grainger 2000 SLT (Sh Ct) 116, 2002 SC 580, [2004] UKHL 8, 2004 SC (HL) 19 . 4-32, 4-34, 4-40, 5-57, 5-61, 5-62, 5-87 Burrell v Burrell’s Trs 1915 SC 333 . 6-26 Buyers’ Trs and Nunan 1981 SC 313 . 5-29 Caldwell v Hamilton 1919 SC (HL) 100 . 4-06 Camille & Henry Dreyfus Foundation v Inland Revenue Comrs [1956] AC 39 . 4-13, 4-34 Campbell v Walker (1800) 5 Ves Jun 678 . 6-27 Campbell’s Trs v Campbell (1891) 18 R 992 . 5-05 Cantiere San Rocco v Clyde Shipbuilding and Engineering Co 1922 SC 723, 1923 SC (HL) 105, [1924] AC 226 . 1-12, 3-59, 3-60, 3-61, 3-62, 3-63, 3-64 Carmichael v Carmichael’s Exrx 1920 SC (HL) 195 . 2-73 Carter v Horne (1728) 1 Eq Rep 7, 21 ER 832 . 6-17 Cassels v Lamb (1885) 12 R 722 . 2-28, 2-48 Cathcart v Schaw (1755) Mor 15399 .
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