Non-Consensual Property Rights

2423 Words Jul 10th, 2018 10 Pages
Non-Consensual Property Rights

Some form of classification is necessary to aid attempts to bring order to a confusing and confused area of law. If the events from which non-consensual property rights arise can be classified, then the law’s response is more likely to be consistent and coherent. Yet there are problems. The very nature of the facts that are brought before courts in the sorts of cases that comprise this area of law demand fairness, and legal policy considerations lurk behind every rationalisation. This makes it more difficult to achieve coherence, but our task is less demanding than achieving coherence in the law: we only need to look at the sets of facts that give rise to property
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He and one of the beneficiaries told the other beneficiaries that the best way to realize the value of the shares would be to make a takeover bid. In the end, Mr Boardman made such a bid, successfully, in his personal capacity. However, this became an event giving rise to non-consensual property rights, a wrong, because he only gained the opportunity to do this and the information necessary while purportedly (or actually) acting in the capacity of adviser to the trustees. Mr Boardman did not act dishonestly in the sense that he deliberately set out to deceive the beneficiaries. After his actions they effectively ‘doubled their money’. Viscount Dilhorne, who dissented, was prepared to hold that the authority of Regal v Gulliver (a case with similar facts which he distinguished on the ground that there the fiduciary held assets originally belonging to the trust which wasn’t the case in Boardman) required ‘wrongdoing’ which was absent in the case before him because the trust had not suffered a loss. The reasoning of the majority did indeed beget a strict rule; that an agent is liable to account for profits he makes out of trust property if there is a possibility (my italics) of conflict between his interest and his duty to the principal (Lord Cohen).

AG for Hong Kong v Reid
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