Assimilation of Common Law and Equity 8 3. This is now recognized by the Senior Courts Act 1981. Am I then bound by the authorities to hold otherwise? It is rather a gift upon condition, than a gift upon trust. See now the Pension Schemes Act 1993, s. Before the estate was distributed, one of the sons delivered some silver plate from the residuary estate with a pawnbroker, in order to secure a personal loan. Perhaps the age of my daughter — a thing strictly irrelevant — would decide which way it would go.
I fear that the mistaken assumption that mere expenditure of money may be regarded as amounting to a change of position for present purposes has led in the past to opposition by some to recognition of a defence which in fact is likely to be available only on comparatively rare occasions. It is not sufficient that because we may think that the 'justice' of the present case requires it, we should invent such a jurisdiction for the first time. There remain exceptional cases which do not readily fall into any of these categories yet where the courts have taken the view that it would be unconscionable for the plaintiff to succeed, and these cases can be regarded as applications of a clean hands doctrine. If therefore T acts without the authority conferred by that power, overreaching can have no place in the transaction. The trust is called 'protective' because it provides a mechanism for protecting the beneficiary from adverse events.
Maitland, Lectures on Equity 2nd edn , p. Brian withdraws £20,000 from his bank account, which he uses to buy 20,000 shares in Europa Ltd for £1 each. In breach of trust he sells them to X; X buys in good faith and has no notice of the trust. General Principles Relating to Trustees; 17. On the other hand, S is making a marriage settlement and the property that he is settling includes a library of books; he vests the whole ownership of these books in T and T' who are to permit S to enjoy them during his life and then to permit his firstborn son to enjoy them and so forth. This is because the property itself belongs, in Equity, to the claimant.
See Chapter 4 3 d i , pp. . The housekeeper consequently argued that the testator had made a gift subject to a condition and that, since the condition had become impossible to perform, she was entitled to receive the property absolutely. It should not be legally relevant that the co-owners of the relevant pipelines, for reasons that seemed good to them, decided to vest the legal title to the pipelines in their service companies and enjoy the beneficial ownership rather than the formal legal title. Even though Equity's function in moderating the rigours of the Common Law was clear, the legal system that emerged was far from ideal.
I wish to stress however that the mere fact that the defendant has spent the money, in whole or in part, does not of itself render See Chapter 14. Graham Virgo would like to thank Cally, Elizabeth, and Jonathan for their support and encouragement, and Paul Davies is similarly grateful to his family, particularly Marine, who has continued to support the writing of this book amidst the chaos of organizing their move from Cambridge to Oxford. See also Maitland, Equity: A Course of Lectures 2nd edn , p. He is also the author of Cheshire and Burn's Modern Law of Real Property and Maudsley and Burn's Trusts and Trustees Cases and Materials. But if a beneficiary has an equitable property right to assets held by the trustee, it cannot be said that those assets belong to the trustee beneficially.
But 'Common Law' is used in another, more specific sense, to indicate that body of law which was made and devel- oped by the judges in the Common Law courts, as opposed to that body of law which was made and developed by the judges in the Chancery courts. The property is said to 'result' back to the settlor or the estate of the testator, and so the trust is called a resulting trust. Equity will consequently presume that the beneficial interest in the property corresponds to their legal interest, so that they will share the beneficial interest equally, although this presumption can be rebutted by a contrary intention. Whilst the def- inition of the trust in the 1987 Act does not purport to define the trust domestically, its definition does accord with the understanding of the trust in English law. The personal representatives have legal title to the estate. Equity remains relevant, both in terms of explain- ing long- established doctrines of private law and also as a mechanism for providing new solutions to contemporary problems.
As Millett J said in Macmillan Inc. Joint Venture Constructive Trusts 448 4. Equity in the seventeenth century was certainly characterized in that way. Nonetheless the terms of the agency relationship permitted Rye to mix Nelson's fees and royalties with his own money, to use them for his own cash-flow, to deduct his own commission and to account for the balance to Nelson only at the year end. Reasons for Creating an Express Trust 36 6. The Contemporary Contribution of Equity 10 4. However, the maxim that Equity is equality was applied literally in Re Bowers Settlement TrustsP A settlement provided that if one of the beneficiaries were to die, his share should accrue to the other beneficiaries.
Also extracts from Goff and Jones, The Law of Restitution; Hodge, Rectification: The Modern Law and Practice Governing Claims for Rectification for Mistake; Lord Millett, Proprietary Restitution in Degeling and Edelman eds. But there stands the decision. In Equity, the beneficiaries under a trust are the owners of the ben- eficial interests given to them. Equity considers as done that which ought to have been done. The hallmark of tax mitigation, on the other hand, is that the taxpayer takes advantage of a fiscally attractive option afforded to him by the tax legislation, and genuinely suffers the economic conse- quences that Parliament intended to be suffered by those taking advantage of the option.