This quote from Professor James Penner concerns one of the three certainties required when creating an express private trust in English law, which is certainty of subject matter.
In most trusts, the subject matter can be clearly identified. However, in can occur in some cases that the subject matter is ambiguous. That is a problem because in an express private trust, the ‘three certainties’ need to be satisfied in order to create a valid express trust, as stated in Re Kayford Ltd (In Liquidation). Lord Langdale MR identified the three requirements for a valid trust in Knight v Knight, where he claimed that a trust would only come into existence if there was certainty of words, certainty of subject matter, and certainty of objects. The finding
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An express trust cannot be established if a trust was not intended. The property which is intended to be subject to the trust obligation must be clearly identified. A vague and inaccurate definition of the intended trust property will render the trust invalid for uncertainty of subject matter. With the exclusion of charitable trusts, a trust will only be considered valid if it exists for the interest of identified legal persons who possess the locus standi to enforce the trust obligations, and for whom the property is held. If any of these certainties do not turn out to be sufficiently certain enough, the trust will be invalid. In this way, we need to make sure that the subject matter is ascertainable. If we cannot properly ascertain what the subject matter of a trust is, then it could be said that the settlor did not really intend to create a trust at all. Notwithstanding the fact that the three facets of ‘certainty’ are treated separately, in many cases they overlap. This essay will only concentrate on the certainty of subject matter, thus the two other certainties which are certainty of intention and certainty of objects will not be considered further, albeit they may be mentioned. The first part will focus on the general application of the requirement and where it
The hired firm then presents its findings in a Service Organization Controls (SOC) report, which allows the auditor to determine whether or not the intermediary’s controls can be relied upon. A SOC 3 Seal of Assurance was given to certify that the edu.confirmation.com website has been examined by an independent accountant. This report is based on management’s assertions that the entity’s business is in conformity with the applicable Trust Services Principles and Criteria. The principles that must be met in order to earn the Seal are security, availability, processing completeness, confidentiality and privacy. Certain criteria must be met also in order to display the Seal, which are the following: objectivity, measurability, completeness, and
Though there is no need for either party to use the word trust, the courts must be able to construe some sort of positive intent that the equitable interest was not to reside in the transferee. However Lord Millett later in Twinsectra Ltd denounces the emphasis previously placed on the party’s intent. Twinsectra involved a borrower seeking short term finance for the purchase of land and Lord Millett in this case states that Quistclose trusts are resulting trusts which arise by operation of law. His conclusion is based on the theory that resulting trust emerges when there is a transfer of property in circumstances in which the transferor did not intend to benefit the recipient. Carnworth J, however contends that from Twinsectra it seems that the parties place no real significance to the purpose so even applying Lord Millett’s newly configured resulting trust analysis, there is no real intent on the lenders part to ensure that the recipient does not receive the money at his free disposal. Furthermore, a key aspect of any intent to create a trust always revolves around the funds being held separately and so by devaluing this factor Lord Millett is detracting from traditional trust law principles and in the process is making it much easier to find a Quistclose trust in situations where it was never
...am R, Incompletely constituted trusts: Covenants to settle property (Equity & Trusts: Text, Cases, and Materials 2013).
...trust and confidence, which implores for a doctrine of good faith. Hence, although the future of a general principle of good faith in English contract law may not be certain, a judicial movement is slowly gaining momentum to increase the steps towards its realization.
Trust is the first one of the characteristics and is very important in our profession. Without trust in our profession we could not accomplish anything. In Chapter on...
Current English land law on the co-ownership of interests of land has developed quite a contentious history pertaining to the relationship between the acquisition of rights and the quantification of the shares. In terms of co-ownership, there are huge variances and legal consequences when legal ownership is in one person’s name compared to two. These differences can be seen in various landmark cases which have created precedent and developed refined principles such as Lloyds Bank plc v Rosset and the Stack v Dowden. For the courts, it has often been relatively complex to distinguish between constructive and resulting trusts and to decide on the procedure to be used for the quantification of equitable entitlement once the decision to impute has been established. The quantification of resulting trusts is carefully considered in both, Midland Bank v Cooke and Stack v Snowden. In many co-ownership cases dealing with the acquisition of rights and the quantification of shares, the outcomes aren’t always proportionate. Reasons can include the ambiguities in the identification and changes of common intention and contributions types. In speaking to this issue, Baroness Hale stated in Stack v Dowden that “each case will turn on its own facts” and furthermore elaborated on the conditions for a common intention construct arising. It is furthermore important to critically discuss the repercussions these cases have for the future of co-ownership law to reconcile existing sources of confusion.
It has been generally acknowledged that the doctrine of proprietary estoppel has much in common with common intention constructive trusts, i.e. those that concern the acquisition of an equitable interest in another person’s land. In effect, the general aim is the recognition of real property rights informally created. The similarity between the two doctrines become clear in a variety of cases where the court rely on either of the two doctrines. To show the distinction between the doctrines, this essay will analyse the principles, roots and rationale of both doctrines. With reference to the relevant case law it will be possible to highlight the subtle differences between the doctrines in the cases where there seems to be some overlap. Three key cases where this issue surfaced were the following: Lloyds Bank Plc v. Rosset (1991), Yaxley v. Gotts (1999) and Stack v. Dowden (2007). This essay will describe the relevant judgements in these cases in order to show the differences between the two doctrines.
Trust, Deceit, & Immorality in And Then There Were None, a mystery novel by Agatha Christie, discusses matters of trust, deceit, and immorality. These two words are present within each chapter, and they come to us in ways that do not meet the eye right away. They require a certain level of thought in order to be understood clearly. In which Agatha Christie hopes to bring out.
middle of paper ... ... 9. In other words, it may be the case that if certain basic assumptions we have about commitments and practicable deliberation are to hold, we may have to suppose that they range over persons even if we have no deep metaphysical grounds for doing so. 10.
The legal issue of constitution of trusts is very important, judicial decisions over the years on cases where trusts were not properly constituted indicates that constitution of trusts could be quite complex and must be very cautiously done by a property owner as a simple factor could make his trust void. An express trust is completely constituted either by effectively transferring property to trustees or by effectively declaring a trust. In case of personal property, the declaration of the trust may be put in writing; however, equity will not perfect an imperfect gift. It is only when the trust is constituted that it is binding on the settlor. The long-standing idea that equity will not perfect an imperfect gift can be traced back to the 19th century cases of Ellison v Ellison and Milroy v Lord , and was further emphasized in the 20th century in the case of Re Fry .
Explain why it is important to have an intention to create legal relations when making a contract and why is consideration of the parties to the agreement necessary-:
...d acts tot heir detriment on the basis of trust. But there are some contradicting grounds between the two. Constructive trust is generally created by the action of the parties whereas a court order is mandatory in proprietary estoppel. Furthermore, the nature of constructive trust is to identify the true beneficial owner of the land and it reflects the nature of a person's interest but the court makes the minimum award which are essential to proceed for justice under proprietary estoppel, which allows the courts to provide such remedy fits to the facts of the case and the remedy is not necessarily be similar to the share in the beneficial ownership of the land to a monetary award.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
...at the case of Adams v Cape Industries Plc fails to provide for a perfect illustration as it has narrowly defined the instances when the court must lift the corporate veil. Thus, considering it as the benchmark providing for an all-encompassing rule would be misleading as there remain loopholes within this area which demand to be cured so as to provide a more reliable framework as to when and why must the court intervene to lift the corporate veil. It therefore remains questionable whether justice can be encompassed within an uncertain rule. As Lord Parker in Daimler Co Ltd v Continental Tyre and Rubber Co (GB) Ltd stated, the ‘legislature might, but no court could possibly, lay down a hard and fast rule’ . It can therefore be concluded that it is desirable for the parliament to devise a mechanism to determine the conditions when the corporate veil may be pierced.