Category Archives: Equity

Kwan and Chin, ‘Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

Abstract Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from […]

Rafael Ibarra Garza, ‘A prospective analysis of the proposed Belgian trust’

Abstract The Belgian Minister of Justice commissioned the reform of the Civil Code. An entirely new Book on the Belgian Law of Property was drafted. One of the most significant novelties proposed is the introduction of the fiducie (a civil law trust). It can be assumed that, if a jurisdiction introduces a new legal institution, […]

Mark Pawlowski, ‘Unconscionability in modern trust law’

Abstract This article seeks to examine the extent to which a unified concept of unconscionability can be used to rationalize related doctrines of equity, in particular, in the areas of: (i) imperfect transfers of property; (ii) proprietary estoppel; (iii) joint venture arrangements; (iv) secret trusts; (v) mutual wills; and (vi) knowing receipt liability. The conclusion […]

Susan Gary, ‘Restricted Charitable Gifts: Public Benefit, Public Voice’

Introduction “… The article begins with a brief look at history, first the English roots of charitable trusts, then US developments and the current state of the law in the US. The article proceeds to a discussion of cy pres, the primary means for modifying restrictions placed on charitable assets, and identifies other tools for […]

Nicole Roughan, ‘Public/Private Distortions and State-Indigenous Fiduciary Relationships’

Abstract This article explores two related aspects of the applications of fiduciary theory and doctrine to state-Indigenous relationships. The first is the interaction of fiduciary political theory with fiduciary law that is triggered by any attempt to treat the state as a ‘public fiduciary’. The second is the interaction of the public and private roles, […]

Sinéad Agnew, ‘The Meaning and Significance of Conscience in Private Law’

Abstract This article argues that the idea of conscience can play a useful, albeit limited and highly general, explanatory role in private law, if we have regard to two distinctive contexts in which it is used. First, it tells us something about how equitable obligations arise and reminds us that they directly enforce moral duties. […]

‘The Temporal Dimension of Fiduciary Duty’

Susan N Gary, Best Interests in the Long Term: Fiduciary Duties and ESG Integration, 90 University of Colorado Law Review (forthcoming 2018), available at SSRN. What is the time frame of fiduciary duties? In other words, what time horizon should fiduciaries have in mind as they execute their responsibilities? This is an underexamined aspect of […]

Jamie Glister, ‘Lifetime Wealth Transfers and the Equitable Presumptions of Resulting Trust and Gift’

Introduction … If there is insufficient evidence of the parties’ intent, then the law’s default presumptions come into play. These presumptions are the presumption of resulting trust and the presumption of gift (also called the presumption of advancement). This Article will outline the elements of these presumptions, detailing when and how they operate. In doing […]

Smith and Gold, ‘Introduction to the Research Handbook on Fiduciary Law’

Abstract Fiduciary law governs myriad relationships, including employment relationships, business organizations, and professional relationships. Fiduciary relationships characteristically have two parties, a fiduciary and a beneficiary, each of which may be an individual, an organization, or a group of individuals or organizations. The fiduciary acts on behalf of the beneficiary. Trustees are fiduciaries for the beneficiaries […]

Degeling and Legg, ‘Fiduciary Obligations of Lawyers in Australian Class Actions: Conflicts between Duties’

Abstract The interaction between the demanding requirements of fiduciary obligations and the undemanding requirements of the Australian class action regime in facilitating the aggregation of differing claims creates a challenging environment for legal representation. The solicitor who acts in a class action owes fiduciary obligations to the representative party that is their immediate client. This […]