Category Archives: Equity

Sarah Worthington, ‘The Commercial Triple Helix: Contract, Property and Unjust Enrichment’

Abstract This chapter revisits some of the enduring controversies affecting the interface between contract, property and unjust enrichment. Unless these controversies are settled satisfactorily, the framework for commercial law will be weak. Having trawled through the detail, four points are made to assist analysis in these areas: 1. Property questions must be answered before liability […]

Paul Miller, ‘Fiduciary Representation’

Abstract The idea of fiduciary government is venerable. However, it has also been developed in new and sometimes provocative ways by contemporary theorists. Partly as a result, the idea is facing fresh criticism. Critics allege that government (in general, or in respect of particular governmental functions, branches, or offices) is not properly characterized as fiduciary […]

Benny Chung, ‘Fraud Prevention? Dehors? Or What?: why secret trusts are enforced?’

Abstract Two theories – the fraud theory and the dehors the will theory – are often cited to justify the enforcement of secret trusts. While these theories are undeniably popular, they nonetheless suffer from some critical problems. This article seeks to discuss the flaws of these two theories, and justify the enforcement of secret trusts […]

Victoria Stace, ‘The Law of Contribution – An Equitable Doctrine or Part of the Law of Unjust Enrichment?’

Abstract This article looks at the changes made to the equitable doctrine of contribution by the New Zealand Supreme Court in a 2016 decision, Hotchin v New Zealand Guardian Trust Co Ltd. The approach now favoured by the Supreme Court is that to establisha claim for contribution by one defendant against another, there is no […]

Judith Maute, ‘Race Politics, O’Hare Airport Expansion, and Promissory Estoppel: The More Things Change, the More They Stay the Same’

Abstract: Quake Construction v American Airlines, Inc is featured in some prominent American casebooks on contract formation or precontractual liability, where scholars and authorities debate when liability should properly attach. The case is widely cited by courts and secondary authorities, both on precontractual liability based on a letter of intent and the more unwieldy doctrine […]

John Lightbourne, ‘Algorithms and Fiduciaries: Existing and Proposed Regulatory Approaches to Artificially Intelligent Financial Planners’

Abstract Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms […]

Russell and Shakhnazarov, ‘Russia – a new province for trust law?’

Abstract Given its civil law tradition and, for over 70 years, rejection of the concept of private (as opposed to personal) property, the Russian Federation may seem an unlikely place for the concept of the trust to develop, but a trust-like phenomenon has been developed, and now forms part of the Russian Civil Code. In […]

Paul Miller, ‘Regularizing the Trust Protector’

Abstract Increasingly, settlors of trusts in on-shore jurisdictions are making use of trust protectors. Protectors serve a variety of functions but generally speaking they are appointed to provide additional security for settlors’ expectations that trusts will be administered in accordance with their intentions. Given the potential breadth and variety of functions performed and powers wielded […]

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

Abstract This article investigates the development of accountability and fiduciary loyalty as an institutional response to information asymmetries in agency relations, especially in firm-like settings. Lord Eldon articulated the crucial role of information asymmetries in opportunistic behaviour in the early 19th century, but its roots are much older. A 13th-century trend towards direct farming of […]

Leonard Rotman, ‘Justice Cromwell and Fiduciary Duties: Placing Law into Context’

Abstract This paper considers the Supreme Court of Canada’s judgment in Galambos v Perez, (2009) SCR 247 and its requirement that fiduciaries undertake fiduciary responsibility, whether expressly or by implication, in the context of ad hoc (as opposed to per se) fiduciary relationships. Rotman, Leonard I, Justice Cromwell and Fiduciary Duties: Placing Law into Context […]