Category Archives: Equity

Arthur Laby, ‘Book Review: Philosophical Foundations of Fiduciary Law

Abstract: This book review examines Philosophical Foundations of Fiduciary Law, edited by Professors Andrew S Gold and Paul B Miller, a 2015 addition to Oxford’s Philosophical Foundations of Law series. In recent years, fiduciary law has received increasing attention from courts and legal scholars as a field of private law; fiduciary principles have been applied […]

David Salmons, ‘Claims Against Third-Party Recipients Of Trust Property’

Abstract: This article argues that claims to recover trust property from third parties arise in response to a trustee’s duty to preserve identifiable property, and that unjust enrichment is incompatible with such claims. First, unjust enrichment can only assist with the recovery of abstract wealth and so it does not assist in the recovery of […]

Hafeez-Baig and English, ‘Disclosure of trust information: discretionary or principle-based jurisdiction?’

Abstract: In Erceg v Erceg [2017] NZSC 28, the Supreme Court of New Zealand (Elias CJ, William Young, Glazebrook, Arnold, and O’Regan JJ) considered the vexed issues surrounding the disclosure of information relating to a trust. In a unanimous judgment delivered by O’Regan J, the court approved the decision of the Privy Council in Schmidt […]

Arthur Laby, ‘Competing Accounts of Fiduciary Obligation’

Abstract: Over the past several years, fiduciary scholars have developed several competing accounts of the fiduciary obligation. Studying these accounts leads to a more complete understanding of the fiduciary relationship and the obligations imposed on fiduciaries. In previous work, I presented an account of the fiduciary obligation as a duty by the fiduciary to adopt […]

‘Trusts as Ownerless Property’

Alexandra Popovici, Trust in Quebec and Czech Law: Autonomous Patrimonies?, 24 European Review of Private Law 6 (2016). When comparing common law and civil law in the area of property, the trust is always presented as a legal institution of ownership typical for the common law and absent in the civil law. The trust, then, […]

Gabriel Rauterberg and Eric Talley, ‘Contracting Out Of The Fiduciary Duty Of Loyalty: An Empirical Analysis Of Corporate Opportunity Waivers’

Abstract: For centuries, the duty of loyalty has been the hallowed centerpiece of fiduciary obligation, widely considered one of the few ‘mandatory’ rules of corporate law. That view, however, is no longer true. Beginning in 2000, Delaware dramatically departed from tradition by granting incorporated entities a statutory right to waive a crucial part of the […]

‘Lord Eldon Redux: Information Asymmetry, Accountability and Fiduciary Loyalty’

“Judicial and scholarly discourse about fiduciaries’ duty of loyalty has emphasized the ‘no conflict’ and ‘no profit’ rules as a vehicle for coping with opportunistic behaviour much more than disclosure duties. In a new article published in the Oxford Journal of Legal Studies, I seek to rebalance this image of the structure of fiduciary loyalty […]

Daniel Harris, ‘Testing the orthodoxy of Akers v Samba

Abstract: In Akers v Samba, a trustee, in breach of trust, transferred legal title to shares forming the subject matter of the trust fund to a bona fide purchaser for value without notice, thereby clearing the title. The Supreme Court held that the corporate beneficiary of the trust, which was the subject of winding-up proceedings, […]

Mark Pawlowski, ‘Beneficial ownership of the family home – where now the resulting trust?’

Abstract: The article seeks to identify those areas where the resulting trust may still have an important role to play in determining beneficial ownership of the family home. Although the modern judicial trend is for the courts to apply constructive trust or proprietary estoppel mechanisms in the family context, the resulting trust remains the appropriate […]

Evan Fox-Decent, ‘Challenges to Public Fiduciary Theory: An Assessment’

Abstract: Over the past decade, a growing number of legal and political theorists have looked to ideas of trusteeship and fiduciary relations to explain foundational concepts associated with the rule of law, constitutional government, the role of judges and legislators, and the idea of public authority itself. Professor Evan Criddle and I have contributed to […]