DOCSLIB.ORG

Trust Law 25.06.2020 Company and Partnership Law 09.07.2020 Civil Procedure + Insolvency Law Commonl 05 Part 1 (Of 5) Property Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Trust Law 25.06.2020 Company and Partnership Law 09.07.2020 Civil Procedure + Insolvency Law Commonl 05 Part 1 (Of 5) Property Law Prof. Dr. Alexander Trunk Class Introduction to the Common Law Summer term 2020 http://www.eastlaw.uni-kiel.de 16.04.2020 Introduction. Overview: UK, Commonwealth 30.04.2020 Overview: U.S. Law 14.05.2020 Contract law 28.05.2020 Tort law 11.06.2020 Property law + trust law 25.06.2020 Company and partnership law 09.07.2020 Civil procedure + insolvency law CommonL 05 Part 1 (of 5) Property Law Notion of „property law“ in the understanding of the Common Law • Branch of law dealing with the relationship between one or more persons and things (cf. Encyclopedia Britannica) • Termin „property“ (from Lat. proprietas/ownership) refers to „ownership“ in „things“ • „Ownership“ tends to be understood more broadly than „property“ (extending beyond „things“) • „Things“ in this context can be „tangible“ (corporeal) or „intangible“ (incorporeal) difference from Civil Law tradition! Eigentum - Vermögen • Practically, legal relations (ownership/property) with regard to intangibles are usually not dealt with in property law (but in contract law [e.g. assignment], company law etc.). Lease (landlord-tenant relationship) is often seen as a separate category between contract law and property law. dogmatically not stringent • Strong historic influences! Property law in context • Property and cultural background and historic development: role of private property • Property in socio-political theory (antiquity, enlightenment, French Revolution, Adam Smith, Marxist theory etc.). Relationship between property and society/justice/economy. • „Property rights theory“ under (new) institutional economics: importance of property rights in the process of economic development (“incentives”); how to structure. General concepts of „property“ in Common Law (general) • Private property – public property • „Full“ property (or „bundle of rights“) - „limited“ proprietary (property) rights [rights in rem] • Personal property („personalty“: in chattels) – real property („realty“: in land) History of property law in Common Law countries History of property law in England • Norman conquest (1066) • feudal system (e.g. only „estates“/„fees“) • „writ“ system (actions) has led to fragmentation (differentiation between personal property – real property: actions „in personam“ – actions „in rem“). • distinction common law – equity in property law, e.g. „legal“ and „equitable“ „interests“ • some statutes, e.g. Property Act 1925, Land Registration Act 2002, Sale of Goods Act 1979/1989, … • EU influence very limited History of property law in the U.S. • Based on English tradition, but particular developments: • U.S. Constitution • Federal structure: federal legislation – State legislation (+ Common Law) • Uniform laws, in particular UCC Art.9 (security interest) • Restatements Law of Property: 17 vol., but yet uncompleted • Economic analysis • Other Systematic position of property law • Part of private law, but based on constitutional law and linked with administrative law and criminal law • Branch of law dealing with „property“: contents = „right to exclusion, use and transfer” • Linked with law of obligations and procedural law (as well as others) Core elements of property law • Definition of sphere of application: lease? sales? intellectual property? trust? • Determination of types of property rights: • Personalty: legal/equitable property (ownership, “title“), credit security in rem (pledge et al.), possession as right? • Realty: • freehold – leasehold • freehold: fee simple absolute in possession, other fees/estates (e.g. terms of years absolute, fee tail, life estate) • „legal and equitable interests in land (see English Property Act 1925) • credit security in land: mortgage • possession • Principles of property law? • Most relevant aspects of the respective rights: • acquisition, protection, transfer, termination „Principles“ of property law • Numerus clausus of property rights? In U.S. explicitly recognized for real property. UK? Legislation mostly not dispositive. • Principle of „separation“ of property law and law of obligations: yes • Principle of „abstraction“? No • Principle of „speciality“ (Spezialitätsprinzip) in property law: mostly yes, but some exceptions, e.g. floating charge, general liens and privileges • Principle of „legal certainty“ (Bestimmtheits- grundsatz) in property law: not discussed as principle • Principle of „publicity“ in property law: mostly yes, but some exceptions Further reading on the subject https://www.peacepalacelibrary.nl/ebooks/files/321952723.pdf https://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/ResearchThemes/EuropeanPrivateLaw/RealPropertyProject/England%2 0and%20Wales.PDF Hay, US-Amerikanisches Recht, 7. Aufl. (2020), 5.Kapitel D. (Sachenrecht) CommonL 05 Part 2 (of 5) Constitutional guarantees of property U.S. Constitution •Fifth Amendment (1789/1791) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury …; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Numerous case-law by U.S. Supreme Ct., e.g. broad interpretation of “property”, 5th Amd covers also relations between private parties. Particular aspect expropriation (“eminent domain”) UK No express constitutional guarantee (but see Magna Carta 1215). But Human Rights Act 1998 (enforced by regular courts, also ECtHR available). See also ECJ (but EU Charter of Human Rights not binding for UK). •Protocol 1, Article 1: Protection of property •Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. •The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure payment of taxes or other contributions or penalties. Sources of property law • International law (e.g. investment protection) • [EU law] • Constitutional law (e.g. human rights) • Substantive private law • Procedure: procedural aspects typically involved, e.g. enforcement of security rights by „foreclosure“, actions in rem and in personam, insolvency • Related legal areas: e.g. trust, contracts, company law, conflict of laws TypesTypes ofofsources sources • “Codes” e.g. Texas Property Code, California Civil Code, Louisiana Civil Code • Specific legislation: movable/immovable property, supplementary legislation • Restatement of the Law Property (U.S.) • Uniform Acts, e.g. UCC Art.9 (security interest) (U.S.) Sources of property law: UK • Statutes • Common for Personal and Real Property • Companies legislation (e.g. Companies Act 2013) on fixed and floating charges • Personal Property • Sale of Goods Act 1979 (includes property aspects) • Real Property • Law of Property Act 1925 • Land Registration Act 2002 • Common Law (case-law) Sources of property law: U.S. • Federal statutes • E.g. Uniform Relocation Assistance and Acquisition of Real Property Act for Federal and Federal-Assisted Programs (1970), 42 U.S.C § 4601 and 49 CFR Part 24 • States legislation • ULC Uniform Acts: • Uniform Abandoned Property Act 2018 (Model Act) • Uniform Condominium Act 1977 • Eminent Domain Code 1974 (Model Act) • Disclaimer of Property Interests Act • Federal Lien Registration Act • Residential Mortgage Satisfaction Act • Real Property Transfer on Death Act • Real Property Electronic Recording Act • Real Estate Time Share Act (Model Act) • UCC Art.2 Sales – Art.2A Leases • UCC Art.9 Secured Transactions • Uniform Unclaimed Property Act, Revised • Other legislation • e.g. Property Code (Texas), California Civil Code, Louisiana Civil Code Federal: URA, 42 U.S.C § 4601 See also: U.S.C.A. (= Annotated) Restatements on Property Law (ongoing) • Restatement of Property (1936–40; mostly superseded by Restatement of Property, Second and Third volumes) • Restatement of Property, Second, Landlord and Tenant (1977) • Restatement of Property, Third, Mortgages (1997) • Restatement of Property, Third, Servitudes (2000) • Restatement of Property, Third, Wills and Other Donative Transfers (1999, 2003, and 2011) • Restatement of Security (Division I largely superseded by the Article 9 of the Uniform Commercial Code; Division II entirely superseded by Restatement of Suretyship and Guaranty, Third) Division 3: Possession Division 4: Acquisition Vol. 2: INTERFERENCES WITH, AND LIMITS ON, OWNERSHIP AND POSSESSION Division 1: Property torts Division 3: Remedies (eg damages) Vol. 3: POWERS AND DUTIES ASSOCIATED WITH OWNERSHIP DIVISION ONE: OWNER POWERS (eg alienation, gifts) DIVISION THREE: LANDLORD AND TENANT Sources of property law: Other Jurisdictions • Australia • Canada • India • South Africa https://indiankanoon.org/doc/515323/ CommonL 05 Part 3 (of 5) Selected topics of property law Typical issues • Relevance of distinction movable/immovable (personal/real) property and consequences therefrom: distinction is of basic character, but some statutes and literature develop general approaches • Acquisition of (full) property in general • Good faith transfers (movables/immovables): possible, sometimes even without good faith • Protection
Load more

Recommended publications
  • Sale of Goods Act 1979, Section 32
    Changes to legislation: There are currently no known outstanding effects for the Sale of Goods Act 1979, Section 32. (See end of Document for details) Sale of Goods Act 1979 1979 CHAPTER 54 PART IV PERFORMANCE OF THE CONTRACT 32 Delivery to carrier. (1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier (whether named by the buyer or not) for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer. (2) Unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case; and if the seller omits to do so, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself or may hold the seller responsible in damages. (3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit; and if the seller fails to do so, the goods are at his risk during such sea transit. [F1(4) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 29 of that Act).] Textual Amendments F1 S.
    [Show full text]
  • Contracts Course
    Contracts A Contract A contract is a legally enforceable agreement between two or more parties with mutual obligations. The remedy at law for breach of contract is "damages" or monetary compensation. In equity, the remedy can be specific performance of the contract or an injunction. Both remedies award the damaged party the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppels. Origin and Scope Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated "agreements to be kept" but more literally means, "pacts must be kept". Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations, along with tort, unjust enrichment, and restitution. As a means of economic ordering, contract relies on the notion of consensual exchange and has been extensively discussed in broader economic, sociological, and anthropological terms. In American English, the term extends beyond the legal meaning to encompass a broader category of agreements. Such jurisdictions usually retain a high degree of freedom of contract, with parties largely at liberty to set their own terms. This is in contrast to the civil law, which typically applies certain overarching principles to disputes arising out of contract, as in the French Civil Code. However, contract is a form of economic ordering common throughout the world, and different rules apply in jurisdictions applying civil law (derived from Roman law principles), Islamic law, socialist legal systems, and customary or local law. 2014 All Star Training, Inc.
    [Show full text]
  • Overreaching: Beneficiaries in Occupation
    -The Law Commission (LAW COM. No. 188) TRANSFER OF LAND OVERREACHING: BENEFICIARIES IN OCCUPATION Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 19 December 1989 LONDON HER MAJESTY’S STATIONERY OFFICE L4.90 net 61 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are- The Right Honourable Lord Justice Beldam, Chairman Mr Trevor M. Aldridge Mr Jack Beatson Mr Richard Buxton, Q.C. Professor Brenda Hoggett, Q.C. The Secretary of the Law Commission is Mr Michael Collon and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. OVERREACHING BENEFICIARIES IN OCCUPATION CONTENTS Pa ragraph Page PART I: INTRODUCTION 1.1 1 Background and scope 1.1 1 Recommendations 1.7 2 Structure of this report 1.8 2 PART 11: THE PRESENT LAW 2.1 3 Introductory 2.1 3 Equitable interests 2.3 3 Overreaching 2.9 4 Mortgagees 2.14 5 Personal representatives 2.16 6 Bare trustees 2.17 6 Safeguard for beneficiaries 2.18 7 Registered land 2.2 1 7 Registration of beneficiary’s interests 2.25 8 Beneficiary in occupation: summary 2.28 9 PART 111: NEED FOR REFORM 3.1 10 Change of circumstances 3.1 10 Protecting occupation of property 3.4 10 Bare trusts 3.10 12 PART IV REFORM PROPOSALS 4.1 13 Principal recommendation 4.1 13 Beneficiaries 4.4 13 (a) Interests 4.5 13 (b) Capacity 4.8 14 (c) Occupation 4.11 14 (d) Consent 4.15 15 Conveyances by mortgagees 4.20 16 Conveyances by personal representatives 4.22 16 Conveyances under court order 4.23 17 Conveyancing procedure 4.24 17 Second recommendation: bare trusts 4.27 18 Transitional provisions 4.28 18 Application to the Crown 4.30 18 PART V: SUMMARY OF RECOMMENDATIONS 5.1 19 APPENDIX A Draft Law of Property (Overreaching) Bill with Explanatory Notes 21 APPENDIX B: Individuals and organisations who com- mented on Working Paper No.
    [Show full text]
  • Consumer Sales Contracts: Rules on the Transfer of Ownership of Goods
    BRIEFING PAPER Number 9036, 30 October 2020 Consumer sales contracts: By Lorraine Conway rules on the transfer of ownership of goods Contents: 1. Introduction 2. Current law: when is a consumer contract formed? 3. Current transfer of ownership rules 4. Consultations on reform of transfer of ownership rules 5. Law Commission’s draft Bill 6. Next steps www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 Consumer sales contracts: rules on the transfer of ownership of goods Contents Summary 3 1. Introduction 5 1.1 Nature of the problem 5 1.2 The policy rationale for the draft Bill 5 1.3 Coronavirus has created a new sense of urgency 6 2. Current law: when is a consumer contract formed? 8 2.1 When is a sales contract formed? 8 2.2 How do terms and conditions delay formation of a sale contract? 8 2.3 Why delay the formation of the contract? 9 2.4 Possible consumer detriment 9 3. Current transfer of ownership rules 11 3.1 Specific goods 11 3.2 Unascertained or future goods 12 3.3 Goods forming part of a bulk 14 4. Consultations on reform of transfer of ownership rules 16 4.1 Law Commission consultation - June 2015 16 4.2 Law Commission’s Final Report - July 2016 16 4.3 Current Law Commission consultation & draft Bill – July 2020 17 5. Law Commission’s draft Bill 19 5.1 Scope of the proposed new rules 19 5.2 New modern terminology 20 5.3 “Goods identified and agreed” (currently referred to as specific goods) 20 5.4 “Goods not identified and agreed upon” (currently referred to as unascertained goods) 21 5.5 Rules to be mandatory 23 5.6 Goods forming part of a bulk 24 5.7 Transfer of risk 26 5.8 Insolvency and the operation of the proposed transfer of ownership rules 26 6.
    [Show full text]
  • Sale of Goods Act 1979, Part IV
    Changes to legislation: There are currently no known outstanding effects for the Sale of Goods Act 1979, Part IV. (See end of Document for details) Sale of Goods Act 1979 1979 CHAPTER 54 PART IV PERFORMANCE OF THE CONTRACT 27 Duties of seller and buyer. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. 28 Payment and delivery are concurrent conditions. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods. 29 Rules about delivery. (1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. (2) Apart from any such contract, express or implied, the place of delivery is the seller’s place of business if he has one, and if not, his residence; except that, if the contract is for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery. (3) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.
    [Show full text]
  • Trusts, Equitable Interests and the New Zealand Statute of Frauds
    TRUSTS, EQUITABLE INTERESTS AND THE NEW ZEALAND STATUTE OF FRAUDS ROBERT BURGESS* The Property Law Amendment Act 1980 1 contains provisions which effectively patriate sections 7-9 of the Statute of Frauds 1677, replacing the "archaically worded and often obscure provisions"2 of the original English statute with a more modern set of provisions which again have an English derivation being "taken almost word for word"3from that country's Law of Property Act 1925. 4 The new provisions take effect as section 49A of the Property Law Act 1952 and, in so far as they concern the law of trusts, read as follows: 49A(2) A declaration of trust respecting any land or any interest in land shall be manifested and proved by some writing signed by some person who is able to declare such trust or by his will. (3) A disposition of an equitable interest or trust subsisting at the time of the disposition shall be in writing signed by the person disposing of the same or by his agent lawfully authorised in that behalf, or by will. (4) This section does not affect the creation or operation of resulting, implied or constructive trusts. Section 49A is stated5 as being "in substitution for" the corresponding provisions of 1677 and represents a consolidation of those provisions, although perhaps not, as has been suggested, 6 a "true consolidation". The point is that the structure of section 49A would appear to indicate that the ambit of its application is different from that of its predecessor. In particular, the provision contained in section 49A(4) appears to have an application within the context of the section as a whole whereas under * LLB Hons (London), PhD (Edinburgh), Reader in Law, University of East Anglia.
    [Show full text]
  • Law of Property Act 1925 Is up to Date with All Changes Known to Be in Force on Or Before 01 July 2021
    Changes to legislation: Law of Property Act 1925 is up to date with all changes known to be in force on or before 01 July 2021. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes Law of Property Act 1925 1925 CHAPTER 20 15 and 16 Geo 5 X1 An Act to consolidate the enactments relating to conveyancing and the law of property in England and Wales. [9th April 1925] Editorial Information X1 A dagger appended to a marginal note means that it is no longer accurate Modifications etc. (not altering text) C1 Act applied by Land Registration Act 1925 (c. 21), ss. 36, 38, 69(3), S.R. & O. 1925/1093 (Rev. XII, p. 81: 1925, p. 717) Act applied by Agriculture (Miscellaneous Provisions) Act 1941 (c. 50), s. 8(4) Act applied by Finance Act 1949 (c. 47), s. 40(4)(b) Act applied by Highways Act 1959 (c. 25), s. 81(3) Act applied by Housing Act 1964 (c. 56), s. 80(5) Act applied by Building Act 1984 (c. 55, SIF 15), s. 107(2) Act applied (1.11.1993) by 1993 c. 28, s. 69(3); S.I. 1993/2134, arts. 25 Act applied (5.1.1994) by 1990 c. 43, s. 81A(8) (as inserted (5.1.1994) by 1993 c. 40, ss. 10(2), 12(1)(2) Act applied (21.9.1995 for E. specified purposes and 1.4.2000 for E.
    [Show full text]
  • Trustee Act 1925 Chapter 19
    Trustee Act 1925 Chapter 19 Part II General Powers of Trustees and Personal Representatives 12 Power of trustees for sale to sell by auction, etc (1) Where a trustee has a duty or power to sell property, he may sell or concur with any other person in selling all or any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence of title or other matter as the trustee thinks fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale and to re-sell, without being answerable for any loss. (2) A duty or power to sell or dispose of land includes a trust duty or power to sell or dispose of part thereof, whether the division is horizontal, vertical, or made in any other way. 13 Power to sell subject to depreciatory conditions (1) No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate. (2) No sale made by a trustee shall, after the execution of the conveyance, be impeached as against the purchaser upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made.
    [Show full text]
  • Sale of Goods Act 1979, Cross Heading: Transfer of Title
    Changes to legislation: There are currently no known outstanding effects for the Sale of Goods Act 1979, Cross Heading: Transfer of title. (See end of Document for details) Sale of Goods Act 1979 1979 CHAPTER 54 PART III EFFECTS OF THE CONTRACT Transfer of title 21 Sale by person not the owner. (1) Subject to this Act, where goods are sold by a person who is not their owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. (2) Nothing in this Act affects— (a) the provisions of the Factors Acts or any enactment enabling the apparent owner of goods to dispose of them as if he were their true owner; (b) the validity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. 22 Market overt. F1(1) . (2) This section does not apply to Scotland. (3) Paragraph 8 of Schedule 1 below applies in relation to a contract under which goods were sold before 1 January 1968 or (in the application of this Act to Northern Ireland) 29 August 1967. Textual Amendments F1 s. 22(1) repealed (3.1.1995) by 1994 c. 32, ss.1, 3(3) (with s. 3(2)). 2 Sale of Goods Act 1979 (c. 54) Part III – Effects of the Contract Document Generated: 2021-04-22 Changes to legislation: There are currently no known outstanding effects for the Sale of Goods Act 1979, Cross Heading: Transfer of title.
    [Show full text]
  • An Introduction to Wills and Administration Percy Bordwell
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1929 An Introduction to Wills and Administration Percy Bordwell Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Bordwell, Percy, "An Introduction to Wills and Administration" (1929). Minnesota Law Review. 2068. https://scholarship.law.umn.edu/mlr/2068 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. MINNESOTA LAW REVIEW Journal of the State Bar Association VOLUMIE XIV DECE-MBERP, 1929 No. I AN INTRODUCTION TO WILLS AND ADMINISTRATIONt By PERcy BORDWELL* F REEDOm of testamentary disposition has become second nature to Americans and all others brought up under the influence of Anglo-American law. While the testator cannot take his prop- erty with him nor have rights after he is dead,' yet it is the almost universal rule that by his will he may control the subse- quent course of his property even to the extent of leaving his children penniless.' So extreme a power of testamentary dis- position is probably not to be found elsewhere,' and even in Anglo-American law is, as legal history goes, of comparatively recent date. Up until 1692 it was the law in the northern of the two ecclesiastical provinces into which England is divided that where a testator had wife and children he was entitled to dispose of only one third of his goods and chattels, one third going to the wife and the remaining third to his children.' And such was the custom of London until 1724.
    [Show full text]
  • 'Whether Or Not the Law Relating to Modern Trustees' Power and Duties Have Achieved a Balance Between Managing the Trust As
    ISSN 2039-2117 (online) Mediterranean Journal of Social Sciences Vol 6 No 2 ISSN 2039-9340 (print) MCSER Publishing, Rome-Italy March 2015 ‘Whether or Not the Law Relating to Modern Trustees’ Power and Duties have Achieved a Balance between Managing the Trust Assets and Protecting the Interest of the Beneficiaries: A Critical Analysis’ Md. Saifur Rahman Chowdhury Advocate, Chittagong District Bar Association, Bangladesh & Legal Expert Email: [email protected] Doi:10.5901/mjss.2015.v6n2p386 Abstract The purpose of this article is to critically analyse with the reference of appropriate authority whether or not the law relating to modern trustees’ power and duties have achieved a balance between managing the trust assets and protecting the interest of the beneficiaries.The duties, power and responsibilities of trustees are normally set out in the trust documents, at least in part. In this regard the range of underpinning statutory provisions contained, in particular, in the Trustee Acts 1925 and 2000 and the Trusts of Land and Appointment of Trustees Act 1996. However there is a common law standard of duty expected of trustees and that it has been modified under s 1(1) of the Trustee Act 2000 in a range of situations. As we know fiduciary obligations are particular – and peculiar –obligations recognized by equity. In certain circumstances, typically in trusts but also in agency and other relationships, equity will require one party to the relationship, called the ‘fiduciary’, to act in the best interests of the other, called the ‘principal’. Failure to do so will mean that the first party commits the equitable wrong of breach of fiduciary duty vis-à- vis the second.
    [Show full text]
  • Introduction to Will Drafting for Accountants
    Introduction to Will Drafting for Accountants MONDAY, 25 MARCH 2019 In association with… icaew.com The value of ICAEW membership Qualified professionals to advise you on technical and 1 ethical matters 259 World class Industry and library ... country guides ... with Connecting information ACA/FCA members through and research online professionals communities, offering blogs and forums tailored help Internationally recognised designatory letters Member App available on Android and iOS INTELLIGENCE AND INSIGHT APRIL 2015 | ICAEW.COM/ECONOMIA ISSUE 37 | ACCOUNTANCY | FINANCE | BUSINESS 200+ Confidential Fight for and non- your right Specialist technical Multimillionaire barrow boy Barry Hearn on fortune, family and making his own way helpsheets and judgmental PRIVATE EQUITY THE PENSIONS REVOLUTION EUROPEAN support and ROAD TRIPS FAQs advice 18 International member groups 3,450+ 24h electronic 24 10 journals UK District International Societies offices and books Information online when you need it – no cost, no time zone, no delay Agenda Time Session 09:00 Registration 09:30 Formal requirement for wills; When to use life interest trusts; When to use discretionary trusts; Taking instructions for a will – who is the client?, family, size of estate, who does the client wish to benefit; Capacity to make a will and knowledge and approval of the contents; Undue influence: Conflict of interest – couples may have different wishes; Does client have an equitable interest in a house vested in the name of someone else? Does someone else have an equitable
    [Show full text]