Category Archives: Equity

E Gary Spitko, ‘“Undemocratic” Trusts and the Numerus Clausus Principle’

Abstract In Democracy and Trusts, Professor Carla Spivack argues that, pursuant to the numerus clausus principle, a court is empowered to impair legislation authorizing a certain trust form where the legislation was not the product of ‘democratic decision-making’. This imaginative claim is predicated upon two antecedent claims. First, Professor Spivack argues that the numerus clausus […]

Henry Smith, ‘Equitable Defences As Meta-Law’

Abstract Equitable defences are the front line of controversy over fusion. Because law and equity offer a range of defences that partially overlap and the rationale for matching equitable defences to equitable remedies is at least as obscure as the rationale for separate equitable remedies, conventional wisdom holds that the more one can fuse the […]

Palmer and Rickett, ‘The Revolution and Legacy of the Discretionary Trust’

Abstract The requirement of object certainty in express trusts underwent significant reform in the heady days of the late 1960s and early 1970s. This article argues that those changes have had important implications not only for the theoretical conception of the trust, but also for the modern practice of discretionary trusts. Palmer, Jessica and Rickett, […]

Schanzenbach and Shoked, ‘Reclaiming Fiduciary Law for the City’

Abstract Modern law sets ‘public’ local government law apart from ‘private’ business entities law. Although intuitive, this distinction ignores legal history and, even more troublingly, the contemporary practices of local governments. Due to distressed finances and a political atmosphere favoring privatization, present-day cities routinely engage in sophisticated market transactions typical of private business entities. Current law […]

Tim Beijer, ‘Trust Law in the Process of Reunifying East and West Germany. How a Legal Concept Foreign to German Law Was the Solution to Merge a Socialist and a Capitalist Economy between 1989 and the Present’

Abstract In the run-up to the Re-Unification of the East and West Germany in the 1990’s the governments faced a problem, how do we integrate two political systems without causing a collapse of the economy and livelihoods. In order to counter the aforementioned the East-German government initiated the Treuhandanstalt, a piece of legislation that would […]

Paul Miller, ‘The Identification of Fiduciary Relationships’

Abstract This chapter in the forthcoming Oxford Handbook of Fiduciary Law provides synthetic analysis of the law on fiduciary relationships, focusing on the identification of fiduciary relationships and fiduciary relationship formation and termination. The chapter discusses status- and fact-based methods of identifying fiduciary relationships, as well as analogical and definitional variants on these methods. The […]

Lloyd Hitoshi Mayer, ‘Fiduciary Principles in Charities and Other Nonprofits’

Abstract This book chapter provides an overview of the fiduciary principles that apply to charities and other nonprofit organizations. More specifically, it discusses the criteria that trigger a fiduciary relationship, the duties of loyalty and care, other legal obligations that may apply to nonprofit fiduciaries, and the extent to which those duties and obligations may […]

Scott and Chen, ‘Fiduciary Principles in Family Law’

Abstract Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another […]

PG Turner, ‘Lex Sequitur Equitatem: Fusion and the Penalty Doctrine’

Abstract Since an early article of Professor Brian Simpson’s, the opinion of historians and lawyers has been that the penalty doctrine which disallows the enforcement of penal stipulations in voluntary transactions derives from a fusion of law and equity. Specifically, the doctrine derives from ‘fusion by convergence’: the independent development by separate courts of law […]

Jacob Meagher, ‘(Re-defining) the trust of the specifically enforceable contract of sale – the vendor purchaser constructive trust’

Abstract This article provides a comprehensive outline and consequential redefinition of the oldest form of constructive trust occurring in English law, the vendor–purchaser constructive trust (VPCT). This species of constructive trust arises by operation of law, once primarily in the context of sales of land, but now in the context of any specifically enforceable contract […]