Category Archives: Equity and Trusts

Brady Williams, ‘Unconscionability as a Sword: The Case for an Affirmative Cause of Action’

ABSTRACT Consumers are drowning in a sea of one-sided fine print. To combat contractual overreach, consumers need an arsenal of effective remedies. To that end, the doctrine of unconscionability provides a crucial defense against the inequities of rigid contract enforcement. However, the prevailing view that unconscionability operates merely as a ‘shield’ and not a ‘sword’ […]

Tang Hang Wu, ‘Trustees’ investment duties and cryptoassets’

ABSTRACT This article considers the legal and practical concerns for trustees regarding cryptocurrencies and other related instruments, which will be referred to as ‘cryptoassets’. It will briefly introduce the various types of cryptoassets and explore the risks involved when trustees decide to (or not to) invest in these instruments. This article provides a framework on […]

Colin Mayer, ‘Ownership, Agency and Trusteeship’

ABSTRACT This article argues that the two dominant concepts of theory of the firm and the bases of modern management education, business practice, and public policy towards the firm, namely shareholder primacy and agency theory, are at best incomplete and at worst erroneous. They omit what was a substantial basis of discourse on the company […]

Edward Stone, ‘Dying trusts, living trusts’

ABSTRACT The popularity of trusts has been on a long downward trend in the UK. According to the latest data published by HMRC in September 2019, the total number of trusts and estates registered for tax in the UK has fallen by almost one-third since April 2006 to 150,000 and the number of interest in […]

Chris Dent, ‘The Introduction of Duty into English Law and the Development of the Legal Subject’

ABSTRACT ‘Duty’ is a term that is used in several areas of the law – notably the ‘duty of care’ and ‘fiduciary duty’. This article considers the introduction of the term ‘duty’ itself to the law, before it became part of the compound terms. In order to do so, the article surveys a range of […]

David Wilde, ‘Valid trust declarations over property not owned by the settlor or over unascertainable property’

ABSTRACT It seems to be widely believed that settlors can never make valid declarations of trust over property that, at the time of the declaration, they do not own; or which is unascertainable then. It is argued that this is a misconception: arising from a failure to distinguish between (1) rules applicable to self-declarations of […]

Greg Callaghan, ‘Robo Advisers: An Argument for More Information Solicitation and Disclosure to Satisfy Fiduciary Duties’

ABSTRACT It is proposed that robo advisers should gather more investor data to act in the best interest of investors by implementing enhanced, digital communications systems in their platforms that will better enable robo advisers to solicit/disclose information from/to an investor while also providing investors the ability to input and request information from robo advisers. […]

Douglas Baird, ‘Unlikely Resurrection: Richard Posner, Promissory Estoppel, and The Death of Contract’

INTRODUCTION Many of Richard Posner’s opinions boldly confront great questions. But equally important are those that, in the aggregate, illuminate discrete areas of the law and make them easier to understand. Among the best examples are Posner’s some two dozen opinions on promissory estoppel. They illustrate his ability to reshape the terms of even the […]

Christopher Chiam, ‘Trustee Rights and Powers: A Taxonomical Analysis’

ABSTRACT This article examines what differences there are, if any, between the rights and powers of a trustee. Although these terms are commonly applied to distinguish between various aspects of trusteeship, there is no clear explanation of the basis of this taxonomy. This article argues that there is no conceptual difference between these two terms, […]

‘Article on The Sub-Trust in Scots Law’

“Patrick J Follan recently published an Article entitled, ‘The Sub-Trust in Scots Law’, Wills, Trusts, and Estates Law eJournal (2019). Provided below is an abstract of the Article. ‘The paradigmatic trust involves three parties: a settlor (who transfers property to another) a trustee (who holds the property in trust) and a beneficiary (for whom the […]