Category Archives: Equity

Tamar Frankel, ‘The Rise of Fiduciary Law’

Abstract The law that defines and regulates fiduciary relationships appears in many legal areas, such as family law, surrogate decision-making, international law, agency law, employment law, pension law, remedies rules, banking law, financial institutions’ regulation, corporate law, charities law not for profit organizations law, and the law concerning medical services. Fiduciary relationships, and the concepts […]

Michael Douglas, ‘Extraterritorial Injunctions Affecting the Internet’

Abstract Digital globalisation will see an increase in the number of cases concerning claims for extraterritorial injunctions as plaintiffs seek to have content removed from the internet. This article considers the scope of courts’ jurisdiction to issue such injunctions. It is shown that courts have broad powers to issue injunctions in respect of persons and […]

T Leigh Anenson, ‘Introduction to Judging Equity: The Fusion of Unclean Hands in US Law

Abstract This book analyzes the scope of judicial authority and discretion to recognize the equitable doctrine of unclean hands as a bar to actions seeking damages in the United States. Bringing an American perspective to the contentious conversation about law – equity fusion in other countries of the common law, the book provides a historical, […]

Galoob and Leib, ‘Fiduciary Loyalty, Inside and Out’

Abstract The duty of loyalty is central to fiduciary law. But what does ‘loyalty’ mean? Some theorists and judges (‘moralists’) see a deep connection between fiduciary loyalty and the ordinary notion of loyalty. Others (‘amoralists’) see no meaningful connection between the demands of loyalty that apply to fiduciaries and those that apply in moral life. […]

Andrew Butler and Nathaniel Walker, ‘New Zealand developments in equitable tracing and subrogation: overuse and underuse’

Abstract In this article, the authors examine developments in the field of equitable tracing and subrogation. The focus is on the disputed ability of a claimant (eg a wronged beneficiary) to trace misappropriated funds that have been used to pay down debt (‘backwards tracing’). The Privy Council recently considered this issue in the context of […]

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, […]