Category Archives: Equity and Trusts

Esmeralda Colombo, ‘From Bushfires to Misfires: Climate-related Financial Risk after McVeigh v Retail Employees Superannuation Trust

ABSTRACT The year 2020 proved to be a clarion call for global society. There is no longer doubt that increasingly we are experiencing unpredictable events, known as ‘black swans’, ranging from pandemics to financial meltdowns. One of the ’climate black swans’ against which experts have cautioned is the financial crisis caused by climate change. In […]

Rohan Balani, ‘Abandoning the Quistclose Trust in Insolvency’

ABSTRACT The majority of academic commentary on the Quistclose trust has focused on its juridical nature in an attempt to understand it through orthodox trust principles. This article focuses instead on the less discussed normative and practical aspects of the Quistclose trust. Through a consideration of the leading cases giving rise to Quistclose relief, it […]

Johnson and Halligan, ‘A closed class? Powers to appoint further beneficiaries as a constraint on the rule in Saunders v Vautier

ABSTRACT One constraint on the rule in Saunders v Vautier is that, where the trusts include discretionary trusts, the class of beneficiaries must be closed, so it is possible to determine who may legitimately benefit from, and thereby terminate, the trusts. At common law, it is unclear whether a power to appoint further beneficiaries may […]

Recently published: English and Hafeez-Baig, The Law of Tracing

The Law of Tracing determines when one right stands in place of another for the purposes of certain personal or proprietary claims. It is an important part of the law of property and trusts, and the law of remedies. This book aims to provide a comprehensive account of the law of tracing. It offers clear […]

Jared Mayer, ‘Bankruptcy’s Equity Canon’

ABSTRACT Under longstanding Supreme Court precedent, the Bankruptcy Code constrains bankruptcy courts’ equitable powers. At the same time, bankruptcy courts have often used their equitable powers in ways that go beyond the Code’s text. This conflict between precedent and practice creates tensions between various bankruptcy goals. The Code provides ex ante certainty and contains substantive […]

William Lynch Schaller, ‘When Half Right Is All Wrong: Illinois Abolishes the Corporate Opportunity Doctrine’

INTRODUCTION It is not every day the Illinois Supreme Court overturns longstanding law in any field, much less a field of central importance like agency law. It is even rarer for the court to do so without saying so. Yet that’s exactly what the Illinois Supreme Court did in Indeck Energy Services, Inc v DePodesta, […]

Kaplan, Eyal and Liberman, ‘Israel: foreign trusts, trustee confidentiality and dispute resolution’

ABSTRACT Trusts/foundations are a relatively new estate planning tool in Israel. As such, the Trust Law, passed in 1979, is basic legislation governing the principles of trust law. Together with the Tax Ordinance governing the taxation of trusts and court precedents, Israel trust practice is formed. Although, compared to extensive practices in other jurisdictions such […]

‘The Future of Trusts and Estates: A Symposium in Honor of Sheldon F Kurtz’

“The following is from an announcement provided to me by Prof Thomas Gallanis of the University of Iowa College of Law: ‘You are invited to attend a Zoom symposium on “The Future of Trusts and Estates: A Symposium in Honor of Sheldon F Kurtz”. The symposium, in honor of Shelly’s retirement, will be held by […]

Mark Pawlowski, ‘Proprietary Estoppel: Widening the Net’

ABSTRACT Most of the case law on the entitlement to family assets is concerned with disputes concerning beneficial ownership of the matrimonial (or quasi-matrimonial) home. This, of course, is not surprising given that the family home is likely to be the most substantial asset acquired by the parties during the period of their marriage or […]

Steven Schwarcz, ‘The Inequities of Equitable Subordination’

ABSTRACT The Supreme Court originated the doctrine of equitable subordination to reform contracts by prioritizing the claims of innocent creditors over those of creditors who engage in malicious misconduct. In recent decades, though, equitable subordination has devolved into a standardless doctrine under which judges sometimes subordinate claims in a no-fault manner according to their personal […]