Category Archives: Equity

Emily Hudson, ‘A Normative Approach to the Quistclose Trust’

Abstract: This is the first article to undertake a sustained analysis of normative justifications for the Quistclose trust. Whilst much of the existing writing on this topic has focused on the better classification of such trusts – for instance, whether they are express, resulting, constructive or sui generis – this article asks why the law […]

Power, Property and the Law of Trusts Revisited: Roger Cotterrell’s Contribution to Critical Trusts Scholarship: Kent Law School, 25-26 October 2017

“In his 1987 article, ‘Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship’, published in Journal of Law and Society, Roger Cotterrell outlined for the first time a critical, socio-legal approach to the law of trusts. For Cotterrell law is both instrumental and ideological. As such, critical analysis aims at […]

Melanie Fein, ‘Are Robo-Advisors Fiduciaries?’

Abstract: This paper addresses whether robo-advisors are ‘fiduciaries’. The simple answer is ‘yes’. As registered investment advisers, robo-advisors are deemed to be ‘fiduciaries’ that owe a fiduciary duty of loyalty to their customers and can be liable for breach of fiduciary duty. But that is only half of the equation. Merely labeling robo-advisors as ‘fiduciaries’ […]

Jesse Wall, ‘The functional-formal impasse in (trust) property’

Abstract: This paper identifies an impasse between two conceptions of ‘property rights’. Formal conceptions explain ‘property rights’ in terms of an alienable right to exclude, that has moral significance in terms of individuals’ preference satisfaction, and describe a trust beneficiary as having a right against the trustees’ right. Functional conceptions explain a ‘property right’ in […]

John Mee, ‘The Past, Present, and Future of Resulting Trusts’

Abstract: This article considers the nature and future of resulting trusts, and offers a critique of the Birks/Chambers theory of resulting trusts. It argues that the current law cannot be explained, as the Birks/Chambers theory suggests, on the basis of the reversal of unjust enrichment. Instead, the law of resulting trusts is based on an […]

Christopher Bruner, ‘Opting Out of Fiduciary Duties and Liabilities in US and UK Business Entities’

Abstract: This chapter explores the extent of contractual freedom to opt out of fiduciary duties and liabilities in US and UK business entities, including the US corporation, general partnership, limited partnership, limited liability partnership, and limited liability company, and the UK limited company, general partnership, limited partnership, and limited liability partnership. Discernible commonalities emerge from […]

Mark Bennett, ‘Competing Views on Illusory Trusts: The Clayton v Clayton Litigation in its Wider Context’

Abstract: This article considers the concept of a trust that is ‘illusory’ – not in fact a trust – due to the settlor or trustee being provided with excessive powers of control or benefit by the trust deed. The New Zealand case Clayton v Clayton [2016] NZSC 29 and the earlier decisions are examined, in […]

Adam Hofri-Winogradow, ‘Contract, Trust and Corporation: from Contrast to Convergence’

Abstract: This Article presents a new theory of fiduciary relationships. Using legal analysis, legal theory and the results of an unprecedented global survey of professional fiduciaries, I show that fiduciary relationships are not now fundamentally different from contractual relationships. I then show how different types of fiduciary relationships are converging. Scholars commonly claim that trusts […]

Hanoch Dagan, ‘Fiduciary Law and Pluralism’

Abstract: This Essay introduces the idea of a plural legal category, namely, a legal category that is deeply heterogeneous and, nonetheless, legally meaningful. A wholesale category, I argue, should not be a category for deciding; pigeonholing a case within its ambit is not enough to justify any concrete decision. At times, however, holding on to […]

Lionel Smith, ‘Aspects of Loyalty’

Abstract: One of the many current controversies around fiduciary obligations is whether the duty of care and skill owed by a fiduciary is properly called a fiduciary duty. Another is what is the content of the fiduciary duty of good faith, and whether it stands apart from the duty of loyalty, or rather is merely […]