The Modern Trust Law : The Shortcomings Of The Modern Trust Law

The particular focus of this essay is on how terms are implied. This is central because the courts intervene and impose implied terms when they believe that in addition to the terms the parties have expressly agreed on, other terms must be implied into the contract. Gillies argued that the courts have become more interventionist in protecting the rights of contracting parties thereby encroaching upon the notion of freedom of contract. The doctrine of freedom of contract is a prevailing philosophy which upholds the idea that parties to a contract should be at liberty to agree on their own terms without the interference of the courts or legislature. Implied terms can be viewed as a technique of construction or interpretation of contracts. It has been argued that the courts are interfering too much in their approach to determine and interpret the terms of a contract. The aim of this essay is to explore this argument further and in doing so consider whether freedom of contract is lost due to courts imposing implied terms. The essay will outline how the common law implies terms. The final part of the essay will examine whether Parliament, by means of a statute, or terms implied by custom restrict freedom in a contract. An overall conclusion on the issue will be reached.

A trust is often used by trusts that make grants or smaller service providing organisation of whom do not have a membership.

Third Party Trusts – Third Party Trusts are trusts that are created by a third-party individual(s) who contribute assets of their own for the benefit of a person with a

This function of the law, ensuring reasonable predictability in daily life, is challenged within this case. This is shown within the case, from the perspective of being the owners of

In his article ‘Equitable Rights of Cohabitees’ Hayton suggested that the distinction between common intention constructive trusts and proprietary estoppel has, over time, come to be but illusory and goes on further to propose that since the general direction of the development of the law has been to embrace the principle of preventing and remedying unconscionable conduct regardless of whether the claim brought before them was originally brought under the concept of a constructive trust or proprietary

Since the early 1990s, Australian judicial system has experienced a great flux revolving around the notion of good faith in the performance the enforcement of contracts. The leading case Renard Construction (ME) Pty Ltd v Minister for Public Works (Renard) along with Preistly JA’s judgment commenced the controversial introduction of universal obligation of good faith in all contracts. Such introduction was also confronted by the opposing force of the more conservative judgments, such as those of Meagher JA in Renard and Gummow J in Service Station Association v Berg Bennett & Associates Pty Ltd . In order to correctly assess the extent to which the High Court of Australia should recognize that in all contracts, parties

A trust can only be enforceable if it is sufficiently certain. The three certainties of a trust must coincide for a trust to become valid. Absence of any of the uncertainties makes a trust invalid from the start. The three certainties are certainty of the subject matter, certainty of intention and certainty of the objects. All these certainties must be established to make a trust valid. The purpose of the certainty requirement of trusts is to ensure compliance with the intentions of the settlor. For a trust to be enforced, there must be an individual who can compel the trustee to enforce the trust. The trust should also be capable of being implemented for the benefit of a beneficiary. The certainty requirement ensures that a trust is capable of being implemented failure to which would render the concept of trusts pointless.

Strictly Legal will ensure any electronic devices and computers used in the trust accounting process, by Strictly Legal, has adequate internet security to protect against hackers and viruses. This includes:

This essay will discuss the Supreme Court decision in FHR European Ventures LLP and others v Cedar Capital Partners LLC (Cedar) . The issue in this case was whether a bribe or secret commission accepted by an agent is held on constructive trust for his principal. This topic is a “relentless and seemingly endless debate” , as Sir Terence Etherton described, and that the “remedy awarded has vacillated for the last 200-odd years” . The major reason for the debate is because the principal will have propriety claim as opposed to a mere equitable compensation, if the bribe or commission is held on a constructive trust . The principal will be in a much more advantageous position if he was held to have propriety

Solland & Ors discusses about Common law lien and the statutory lien in which the Court’s opinion was that even though the right of a solicitor is meant to be lien regardless of it not being a true lien under the common law or the statute, which is existent only in the sense where the person who claims that the lien has the property which he claims to be subject to the lien in his possession.. Another aspect considered upon was that when there is a case of the solicitor's common law lien over his client's documents, there is a firm principle that a solicitor who takes substitute security from his client for his costs may be held to have waived his lien. Prima facie a solicitor has a lien for his charges upon the papers of his client. If the lien is lost, released, or waived in the same way as the liens which other persons hold, the different between the case of the other lien and a solicitor’s lien is that the solicitor has a duty to make the client aware of it if he intends to retain the lien or else his lien will be taken to be

Certainty of subject matter is where there must be an identification of the trust property and certainty as to whom is which part of the trust property to be held. In relation to uncertainty of beneficial interests, the trust will fail where the method of distribution is stipulated by the sethlow but cannot take effect (Boyce v Boyce). However the trust will not fail where the method of distribution is not stipulated by the sethlow leaving the court to intervene (re napton). If there is an effect of lack of certainty in

The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.

* However, there are exceptions because an agent can be a constructive trustee – imposition of a trust, converting the right from a personal right to a proprietary right.

A Contract requires several elements in order to be considered enforceable. However for the purpose of this essay we would explore one of these elements in order to effectively understand the controversial cases of Williams v Roffey Brothers and Nicholls (contractors) Ltd (1990) and Stilk v Myrick (1804). Before going any further one should briefly understand the doctrine of Consideration. Despite the vast amount of content written, the doctrine of consideration is still to this day unclear due to the inconsistency of the courts and its application of necessary rules. Consideration refers to that which the law deems as valuable in that the promisor receives from the promise that which was promised. In other words, it is the exchange of something of value between the parties in a contract. One should be mindful that in English law, every promise may not be legally enforceable; it requires the court to distinguish between are enforceable and non-enforceable obligations. This brings us to the controversial cases of Stilk v Myrick and Williams v the Roffery brothers. Many argue that that the case of Williams was wrongly decided leading to impairments in the rule initially established in Stilk v Myrick. This essay seek to analyse and critique the cases of Stilk v Myrick and Williams v Roffey Brothers and also highlight whether or not the new rule of Practical benefit lead to serious impairments in later cases.

In one circumstance it neglects to only allow reliable evidence. In its oblique way it allows unreliable evidence. It could also be called circular because if it process to justify a secret trust. It works better with a fully secret trust rather than a half secret trust because it barely justifies the enforcement of a half secret trust. The Fraud theory is the first justification aspect of secret trusts. It was based on the resemblance with a secret trust and the statutory provisions contained in the Statute of Fraud 1677 preventing a legatee who accepted being a trustee, but then relied on the provision to take the full benefit. This would in case be seen as fraud. The predicament that occurs is the one of question why the courts should even allow the admittance of unreliable evidence. It is questionable whether the courts should in the case just assume that the legatee has the right to the full benefit they are supposed to hold trust in regards to a fully secret trust and in the case of a half secret trust the courts could assume that a testamentary trust fails to be upheld given the fact that in a half secret trust the object of the trust is kept a secret and therefor it fails. Hence it becomes an resulting trust in favour of the testators estate rather than who it was initially intended to be in favour for. Therefor in order to justify secret trust the fraud theory is used in certain