Category Archives: Equity and Trusts

Lionel Smith, ‘Loyalty’

“Loyalty has many meanings, within and without the law. There is a difficult question about whether loyalty is a virtue, inasmuch as one can be loyal to many causes, not all of them virtuous. For many jurists, the notion of loyalty evokes the common law’s fiduciary relationship and the norms that are particular to that […]

Goldstein and McKenzie, ‘Excluding beneficiaries: a decision not to be taken lightly’

ABSTRACT The power to exclude beneficiaries is a little different from other powers given to trustees which must all be exercised in the best interests of the beneficiaries. In the case of exclusion, however, it will not in general, for obvious reasons, be in the interests of the person being excluded (except where there is […]

Eben Nel, ‘Estate Planning and Wills Across Borders: Sometimes a Quagmire in the Making’

ABSTRACT In this article a synoptic evaluation is made in respect of the estate planning and wills of South African nationals working, investing or living in foreign jurisdictions, in the broader context of globalisation and internationalisation. Estate planners and testators may inadvertently leave family members in a financially vulnerable position or diminish family assets due […]

Stephen Alexander, ‘When does a beneficiary benefit?’

ABSTRACT It is a well-recognised principle that trustees, acting as fiduciaries, must exercise their discretionary powers for the benefit of the beneficiaries of the trust. A wrongful exercise of those powers will be a breach and may be set aside by a court. In most cases, the question of whether the exercise of the discretion […]

Mrs Justice Cockerill, ‘Contractual Estoppel: The Case for Coherent Principles’: Aston Law School, 4 November 2021, 18:15

Aston Law School, Aston University, invites you to the next Professor Jill Poole Memorial Lecture: ‘Contractual Estoppel: The Case for Coherent Principles’ by Mrs Justice Cockerill (Judge in Charge of the Commercial Court). The lecture will take place at Aston University’s Main Building. Guests are invited to arrive from 17:30 when drinks will be served […]

Robert Flannigan, ‘Fiduciary accountability shattered’

ABSTRACT The law of fiduciary accountability has for some time been harried by the misinformed assertions and suppositions of various judges and writers. The numerous misconceptions increased the risk that the conventional understanding of the jurisdiction would collapse. That has now happened. The Supreme Court unconsciously (or consciously) rejected its own jurisprudence to reshape the […]

David Kershaw, ‘Delaware’s Fiduciary Imagination: Going-Privates and Lord Eldon’s Reprise’

ABSTRACT What does it mean to be a fiduciary, and does it really matter whether the law labels a person a fiduciary or not? Until the late twentieth century Delaware corporate law could have given a singular, coherent answer to these questions; an answer that bore the deep imprint of fiduciary obligation fashioned in England […]

Mantucci and Perriello, ‘The Trust Experience in San Marino Between Ius Commune and International Models’

ABSTRACT San Marino trust law is embedded in a consolidated civil law tradition stretching back to the ius commune system of fiduciary instruments, thereby making it possible to trace, to a large extent, an itinerary related to common law trusts, and to challenge unwarranted allegations (now, fortunately, fading away) that trusts cannot be transplanted into […]

Sarah Worthington, ‘Fiduciaries Then and Now’

ABSTRACT This article takes as its starting point three ground-breaking articles by Len Sealy in the 1960s, and examines their lasting impact on the modern law of fiduciaries. It includes a detailed consideration of the modern tendency to describe rather than define fiduciaries; it critiques the current readiness to merge fiduciaries with other power-holders, thus […]

‘Jody Kraus and Bob Scott on Equity, Personal Sovereignty, and Contract Theory’

“Jody Kraus teaches at Columbia University, he is a lawyer and a philosopher by training, and focuses his scholarship on the relationship between moral and economic theories of law in general, with particular emphasis on contract law. Robert Scott is a Professor Emeritus at Columbia, and is an internationally recognized scholar and teacher in the […]