Category Archives: Equity and Trusts

Oliver Passmore, ‘Insolvent trusts – the Z Trusts litigation’

ABSTRACT The Z Trusts litigation in Jersey represents the first occasion on which a Court has considered what is to happen when a trust becomes ‘insolvent’. The Royal Court has given a series of judgments which deal with various aspects of such a situation, from the duties of trustees, to the procedure for creditor claims, […]

Thilo Kuntz, ‘Transnational Fiduciary Law: Spaces and Elements’

ABSTRACT In recent years, fiduciary law has increasingly moved to the center of scholarly attention in the common-law world. Even a cursory review shows ample evidence of the importance of fiduciary-related norms; not only both in common-law and civil-law jurisdictions, but also beyond the nation state. Although civil-law countries have no tradition of the trust […]

Deborah DeMott, ‘Fiduciary Duties on the Temporal Edges of Agency Relationships’

ABSTRACT The duties that principals and agents owe each other are typically coterminous with the agency relationship itself. But sometimes temporal lines of clean demarcation do less work. The Chapter identifies situations in which an agent may owe duties – including fiduciary duties – to the principal prior to the formal start of their relationship, […]

Ooi and Peng, ‘Cryptocurrencies and Code Before the Courts’

INTRODUCTION In the rapidly developing cyber sphere dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments leaving the law behind as an afterthought. B2C2 Ltd v Quoine Pte Ltd (‘B2C2’) 1 may serve as a timely reminder of the importance of the legal principles supporting e-commerce […]

Hofri-Winogradow and Weiss, ‘Trust Parties’ Uniquely Easy Access to Rescission: Analysis, Critique and Reform’

ABSTRACT This article shows that parties to trusts currently enjoy easier access to judicial avoidance of voluntary dispositions resulting from mistakes and inadequate decision-making than other persons. The principal doctrinal basis for this advantage has shifted from the rule in Re Hastings-Bass to rescission in equity. We show this advantage to be normatively unjustified, and […]

Simone Degeling, ‘Discretion and Equitable Compensation’

ABSTRACT This chapter considers the ambit of equitable compensation. As an equitable remedy, equitable compensation is given within equity’s discretion to grant or refuse relief, or otherwise fashion the remedy, to meet the equity of the case. We know that historically chancery concealed its remedy of compensating loss behind the language of account. So it […]

Just Published: Form and Substance in the Law of Obligations (Robertson and Goudkamp eds)

This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array […]

Joshua Fershee, ‘An Overt Disclosure Requirement for Eliminating the Fiduciary Duty of Loyalty’

ABSTRACT This essay focuses on the concept of eliminating the fiduciary duty in an LLC, as permitted by Delaware law, and what that could mean for future parties. When parties A and B get together to create an LLC, it is okay if they negotiate to eliminate their fiduciary agreements as to one another. They […]

Reid Weisbord, ‘Fiduciary Authority and Liability in Probate Estates: An Empirical Analysis’

ABSTRACT This Article presents an empirical analysis of testamentary preferences pertaining to the selection, compensation, appointment, powers, and liability of executors. Often an after-thought in the will-drafting process, such administrative terms deserve careful attention because the executor’s central role in the transfer of property at death is so often a source of posthumous conflict. Prior […]

Paul Miller, ‘Equity, Majoritarian Governance, and the Oppression Remedy’

ABSTRACT This chapter, forthcoming in Fiduciary Obligations in Business, examines two modalities of equitable intervention in corporate governance in cases of shareholder conflict. The first involves the extension of fiduciary duties to controlling shareholders, and the second judicial review on the grounds of oppression. Both forms of intervention are intended to be responsive to pathologies […]