Dissertations / Theses on the topic 'Equity and Trusts Law'
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1
Ashdown, Michael J. "The rule in Re Hastings-Bass." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:b63ddd3f-1762-41b2-8c6b-e3c4c1c2b711.
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The rule in Re Hastings-Bass is an equitable control on the exercise of powers by trustees. It has developed without satisfactory explanation of its doctrinal basis, resulting in uncertainty as to its scope and application. In Pitt v Holt [2011] EWCA Civ 197 the Court of Appeal began to remedy these defects by deciding that the rule is founded on a trustee’s duty properly to consider the exercise of a power. This thesis argues, first, that Pitt is right to understand the Re Hastings-Bass rule as premised on the duties of trustees, and not on the exercise of a power producing an unintended result. This accords with the reasoning of earlier cases on the rule, and is also consistent with House of Lords authority on fiduciary powers and judicial non-interference in trustees’ decision-making. This duty is not a ‘fiduciary’ duty, or an aspect of the trustee’s duty of care, but is an independent incident of the office of trustee. Secondly, this analysis of the Re Hastings-Bass rule facilitates exposition of its important features: the concept of ‘relevant consideration’ must be carefully circumscribed; the purported exercise of a power in breach of the rule is voidable, not void; the rule does not apply to purely personal powers, or to administrative powers; there are no special rules for pension trusts or the use of the rule to mitigate liability to taxation; trustees can usually avoid a breach of duty by taking professional advice; and in some circumstances, those professional advisers can incur liability to the trust beneficiaries. Finally, the relationship between the Re Hastings-Bass rule and fraud on a power is examined. It is argued that the analogy between the two doctrines is not sound, and that there is reason to doubt aspects of the orthodox account of fraud on a power.
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Olcese, Tomás. "Formação histórica da real property law> inglesa: tenures,estates, equity & trusts." Universidade de São Paulo, 2012. http://www.teses.usp.br/teses/disponiveis/2/2131/tde-29082013-140556/.
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A real property law inglesa é um tema pouco estudado na tradição jurídica de base romanística, e menos ainda no Brasil. Mesmo a literatura comparatística tem minimizado, ou mesmo omitido, o estudo abrangente das fontes inglesas ao analisar o tema, resultando na ausência de trabalhos escritos desde uma perspectiva do direito privado continental que analisem com maior profundidade os principais elementos formativos dos direitos reais sobre bens imóveis de matriz inglesa. As referências e alusões ao sistema do common law, contudo, são hoje cada vez mais freqüentes nos ordenamentos de matriz civilística, principalmente em razão da maior interação entre ordenamentos pertencentes a sistemas jurídicos de tradição histórica diversa. Portanto, para estabelecer diálogos relevantes, deve-se dedicar atenção especial aos principais elementos de formação do sistema de direito inglês, de modo a desvendar sua particular estrutura e terminologia. O primeiro passo para estabelecer esse diálogo é conhecer os elementos que deram origem ao sistema do common law. Dado o forte vínculo do direito inglês com a sua história, torna-se necessário o estudo da real property law por meio de uma análise das suas fontes históricas que revele tanto a estrutura conceitual quanto o sentido das expressões e dos institutos mais típicos do sistema do common law. É esse estudo que pretendemos realizar neste trabalho, mediante a análise da formação histórica das tenures, dos estates, da equity e dos trusts. Uma pesquisa baseada nas fontes relativas à formação da real property law traz a vantagem adicional de fornecer uma visão ampla acerca da natureza e o funcionamento do sistema do common law como um todo, na medida em que o desenvolvimento primário do direito inglês esteve associado à estrutura dos direitos reais sobre bens imóveis na Inglaterra. Desse contexto derivam, em larga medida, as particularidades e as características que tornam o sistema do common law, em muitos aspectos, diverso dos sistemas jurídicos de tradição romanística. A busca por uma aproximação entre os sistemas pertencentes a essas duas tradições jurídicas exige uma compreensão dos elementos que deram origem à diversidade entre elas. Nossa proposta é, justamente, identificar esses elementos e torná-los compreensíveis desde uma perspectiva civilística, por meio de uma análise das fontes inglesas mais relevantes para o tema.English real property law is not a subject very often studied in the legal tradition based on Roman law, and even less so in Brazil. Even comparative writers have tended to minimize, if not altogether omit, a comprehensive study of the English sources when discussing the subject, resulting in a lack of literature, written from the perspective of continental private law, that analyses in greater depth the main formative elements of the law of real property based on the English legal model. The references and allusions to the common law legal system, however, have become increasingly more frequent in civil law contexts, largely due to the greater degree of interaction between legal systems belonging to different historical traditions. Thus, in order to establish meaningful dialogues, special attention must be given to the main factors that shaped the English legal system, thereby unveiling its specific structure and terminology. The firs step towards establishing such a dialogue is to understand the elements that gave birth to the common law legal system. Given the strong connection English law has with its history, it is necessary to study the real property law through an analysis of its historical sources, which will reveal the conceptual structure and the meaning of the most typical expressions and institutions of the English legal system. That is the task undertaken herein, to be accomplished through the study of the historical inception of the doctrine of tenures, the doctrine of estates, equity and trusts. A study based on the sources regarding the formation of the real property law brings the additional advantage of providing a broad outlook on the nature and operation of the English legal system as a whole, as the primary development of English law was associated to the structure of rights over land in England. That context is the cause, to a large extent, of the peculiarities and characteristics that make the English legal system, in many ways, different from legal systems based on Roman law. The pursuit for a closer interaction between the legal systems that belong to those two legal traditions requires an understanding of the elements that determined their differences. The object of this research is to identify those elements and make them comprehensible from a civilian perspective, by means of an analysis of the most relevant English sources on the subject.
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Stafford, Rowan Bell. "A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: the dangers of translocating company law principles into trust law." Thesis, Rhodes University, 2011. http://hdl.handle.net/10962/d1003210.
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This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
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Cutts, Tatiana. "The role of tracing in claiming." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:5000c8bc-8fd4-4889-b13d-f0ad714e947f.
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The central tenet of tracing theory is that in certain circumstances it is possible to show that one asset stands in the place of another, such that any claims in relation to the original asset can be transmitted to its substitute. Since at least 2001 academic and judicial orthodoxy has been that this is done by following the path of value from one asset to the other, and can be aided in more complex cases by the application of evidential rules or presumptions. These ideas are at the heart of existing accounts of proprietary claims against trustees who deal with trust assets without authority, and personal and proprietary claims against strangers to the trust. They are also at the heart of calls to 'unify' the rules of tracing at law and in equity, removing existing distinctions drawn between claimants who are owed fiduciary duties and those who are not. In this thesis it is argued that there are no independent processes of following and identifying value, and that the language of 'tracing value' has lent the appearance of neutrality and conceptual unity to disparate heads of fiduciary and non-fiduciary liability. Most importantly, it has led to the assumption that in any case in which a claimant can demonstrate that a series of transactions links some right in the defendant’s hands with a right previously held by or for the claimant, the claimant can claim that right. In this thesis it is argued that far from creating an arbitrary practical obstacle for claimants seeking to trace and locate value, the fiduciary relationship is at the heart of the justification for any claim that exists to a new right in the hands of someone else.
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Chan, Kathryn. "The public-private nature of charity law in England and Canada." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:a77dd8a0-9a94-46f0-9e83-761103f45655.
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This thesis examines various aspects of English and Canadian charity law in terms of their relationship with the contested categories of ‘public law’ and ‘private law’. It argues that the law of charities can be regarded as a hybrid legal discipline in both a general or categorical sense, and in the context-specific or functional sense that both the conditions for obtaining charitable status, and the regulation of the conduct of charities and their trustees, are continually being adjusted in such a way as to maintain in a broad sense a functional equilibrium between individual project pursuit and collective project pursuit; that is to say, an equilibrium between the protection of the autonomy of property-owning individuals to control and direct their own wealth, and the furtherance of competing public interests or visions of the good. After sketching out the history and nature of the common law charities tradition and the contemporary English and Canadian regulatory regimes, the thesis pursues its analytical and comparative hypotheses by examining two important features of English and Canadian charity law, the public benefit doctrine and the rules of locus standi that determine who may seek relief for misapplications of charity property. It then addresses the comparatively modern issue of the governmental co-optation of charitable resources, considering to what extent modern pressures associated with the retrenchment of welfare states threaten to destabilize charity law’s hybrid equilibrium in EW and Canada. The thesis then turns to the emerging phenomenon of social enterprise, arguing that shifts to charity law’s functional equilibrium may explain the emergence of this ‘post-charitable’ legal form. The thesis concludes with some observations on the hybrid nature of the law of charities, and on the different functional equilibriums between individual project pursuit and collective project pursuit that have been reached by English and Canadian charity law.
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Sanchez, de Lozada Louis. "Trusts exprès privés anglo-américains, fidéicommis latino-américains et la fiducie française." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020043/document.
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Les trusts anglo-américains (anglais, américain et des Iles Cook) coexistent avec les trusts de droit civil (les fidéicommis argentin, bolivien, panaméen et la fiducie française). Ils appartiennent aux deux familles de droit de Common Law et romano-germanique et ont des structures différentes. Les trusts exprès anglo-américains sont créés par acte unilatéral du constituant et mettent en place une relation trustee-bénéficiaire. Les trusts de droit civil sont créés par contrat (ou testament) entre le constituant et le fiduciaire et ne donnent pas des droits réels aux bénéficiaires. Malgré leur différence de structure, les deux trusts fonctionnent de manière équivalente, grâce au transfert de propriété au fiduciaire et à l’étanchéité du patrimoine fiduciaire. Les réserves héréditaires sont un élément extérieur à la structure des trusts testamentaires ; ceux-ci fonctionnent de manière analogue. Les techniques d’investissement et de gestion fiduciaire sont aussi similaires : des clauses conditionnelles d’accès ou fin de la propriété fiduciaire et des pouvoirs discrétionnaires donnés au trustee sont communs aux deux modèles de trust. La séparation du patrimoine sert à mettre en place des trusts de gestion, de protection ou de garantie de financement de projet, de défaisance ou de titrisation. Le fonctionnement du FCP, similaire à celui des Unit Trusts, devrait donner la propriété fiduciaire des actifs au dépositaire. Des éléments de la loi, extérieurs à la structure de la fiducie, qui n’existent pas chez ses homologues latino et anglo-américains, empêchent son fonctionnement normal. Nous proposons de modifier la loi sur la fiducie, sur les FCP et les fonds de titrisationAnglo-American express private trusts, Latin-American fideicomiso and French fiducia”. Common Law trusts (English, American and Cook Islands) co-exist with civil law domestic trusts (Argentinean, Bolivian and Panamanian fideicomiso and French fiducia). They belong to the Common Law and continental law families respectively and have different structures. Anglo-American express trusts are settled by a settlor (declaration, gift) or by a will that creates an equitable relationship between the trustee and the cestui, whereby both share legal and equitable interests on the trust property. Civil law trusts are settled by a contract between the settlor and the trustee and by a will. Thus, a civil law trust beneficiary has only personal remedies against a trustee in respect of breach of trust. Despite the structural differences, both types of trusts operate in similar ways, due to the transfer of property to the trustee and the separation of the trust property. Testamentary trusts also work in a similar way; forced heirship is an external element of both. Trust managing and investment techniques and practices are also similar: condition precedent and condition subsequent clauses and discretionary trusts and powers are common to both trust models. Separation of the trust property allows for the settlement of protective trusts, trusts for project financing, defeasance and securitization. French Mutual Funds are comparable to Unit Trusts. Both should give legal title to the trustee (custodian). External elements of French law, which do not exist in Anglo or Latin American trusts, restrain the normal operation and use of French fiducia. We propose to modify the fiducia, mutual and securitization funds law
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Molinari, Claire Marcella. "The environment, intergenerational equity & long-term investment." Thesis, University of Oxford, 2011. http://ora.ox.ac.uk/objects/uuid:30dd270b-3f0f-4b8b-979e-904af5cb597b.
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This thesis brings together two responses to the question ‘how can the law extend the timeframe for environmentally relevant decision-making?’ The first response is drawn from the context of institutional investment, and addresses the timeframe and breadth of environmental considerations in pension fund investment decision-making. The second response is related to the context of public environmental decision-making by legislators, the judiciary, and administrators. Three themes underlie and bind the thesis: the challenges to decision-making posed by the particular temporal and spatial characteristics of environmental problems, the existence and effects of short-termism in a variety of contexts, and the legal notion of the trust as a means for analysing and addressing problems of a long-term or intergenerational nature. These themes are borne out in each of the four substantive chapters. Chapter III sets out to demonstrate the theoretical potential of pension funds to drive the reduction of firms’ environmental impact, and, focusing particularly on the notion of fiduciary duty, explores the barriers that stand in their way. Chapter IV provides a practical application of the theoretical recommendations outlined in its predecessor. It provides a framework outlining how pension funds might implement a longer term, more sustainable approach to investing. The second half of the thesis, operating in the context of public environmental decision-making, is centred upon a particularly poignant legal notion with respect to the environment and time: the concept of intergenerational equity. Just as the first half of the thesis deals with the timeframes relevant to investment decision-making by pension funds within the bounds of fiduciary duty, largely a private law affair with public implications, the second half of the thesis is concerned with the principle of intergenerational equity as a means for extending the decision-making timeframe of legislative, judicial and administrative decision-makers. As previous analyses of the concept of intergenerational equity provide little insight into its practical implications when applied to particular factual situation, Chapter V sets out the structure of the principle of intergenerational equity as revealed by case law. Chapter VI brings together the issues from the first three papers by conceptualising intergenerational equity in resource management as an issue of long-term investment. Long-term environmental decision-making faces many obstacles. Individual behavioural biases, short-term financial incentive structures, the myopic pressures of the electoral cycle and the tendency of the common law to reinforce the (often shorttermist) status quo all present significant barriers to the capacity of both private and public decision-makers to act in ways that favour the longer term interests of the environment. Nonetheless, this thesis argues that there is reason for hope: drawing upon the three themes that underlie all of the substantive Chapters, it articulates potential legislative changes and recommends the adoption of particular governance structures to overcome barriers to long-term environmental decision-making.
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Garland, Fae Sinead. "Valuing domestic contributions : a search for a solution for family law." Thesis, University of Exeter, 2012. http://hdl.handle.net/10871/10201.
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Currently, a great schism exists in the way that the law of financial provision treats cohabiting and married couples on relationship breakdown. Given that research consistently demonstrates that women are predominantly responsible for carrying out homemaking activities regardless of employment status, at the heart of this divide is the way that the law attributes value to this traditionally female role. In the married context, on divorce, breadwinning and homemaking contributions have equal value, yet in the cohabitation context only financial contributions are recognised, with homemaking having no value attributed to it. This polarised approach has received extensive criticism from the courts, the legal profession and the academic community, both for overvaluing domestic contributions in the married context and for ignoring or at best undervaluing them in the cohabitation context. Yet, despite the agreement over the inadequacies in this area, there is a lack of consensus over the direction that reform should take, and so far attempts have been slow and have often come to nothing, especially in the cohabitation context. Furthermore, feminist opinion is divided about whether financial recognition of domestic contributions in family law poses a threat to the financial autonomy of women, encouraging patriarchal financial dependence; or whether such developments redress a glaring inequality inherent in gendered roles freely chosen within the family. Consequently, this project uses the two very differing feminist positions of Ruth Deech and Martha Fineman who embody this divide as the lens through which to explore this dichotomous tension underlying the law in this area. To test out these two feminist stances, this project uses a range of doctrinal, feminist and empirical methodology, namely interviews with legal practitioners, to compare the approaches in New Zealand, Scotland and Queensland, Australia alongside England and Wales, where each jurisdiction differentially reflects a point on a spectrum between Deech and Fineman’s contrasting positions. This project also uses focus groups with members of the public in England and Wales to ascertain the affected communities’ views on these models of financial provision. Drawing on these results, this thesis shall consider how the law of financial provision in England and Wales should divide assets on relationship breakdown in the marriage, civil partnership and the same- and different-sex cohabiting context. Should it promote financial autonomy or should it offer greater protection to those who lead gendered lives in the private sphere?
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Ball, Eli Byron Stuart. "Enrichment at the claimant's expense : attribution rules in unjust enrichment." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:dc066712-fd0c-4d4f-81ad-dfbbb1805acf.
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This thesis presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties – a claimant and a defendant – are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This thesis presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test – asking whether enrichment and loss arise 'but for' each other – provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment. The law is stated as at 15 March 2014.
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Shmilovits, Liron. "Deus ex machina : legal fictions in private law." Thesis, University of Cambridge, 2019. https://www.repository.cam.ac.uk/handle/1810/286225.
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This PhD dissertation is about legal fictions in private law. A legal fiction, broadly, is a false assumption knowingly relied upon by the courts. The main aim of the dissertation is to formulate a test for which fictions should be accepted and which rejected. Subsidiary aims include a better understanding of the fiction as a device and of certain individual fictions, past and present. This research is undertaken, primarily, to establish a rigorous system for the treatment of fictions in English law - which is lacking. Secondarily, it is intended to settle some intractable disputes, which have plagued the scholarship. These theoretical debates have hindered progress on the practical matters which affect litigants in the real world. The dissertation is divided into four chapters. The first chapter is a historical study of common-law fictions. The conclusions drawn thereform are the foundation of the acceptance test for fictions. The second chapter deals with the theoretical problems surrounding the fiction. Chiefly, it seeks precisely to define 'legal fiction', a recurrent problem in the literature. A solution, in the form of a two-pronged definition, is proposed, adding an important element to the acceptance test. The third chapter analyses modern-day fictions and recommends retention or abolition for each fiction. In the fourth chapter, the findings hitherto are synthesised into a general acceptance test for fictions. This test, which is the thesis of this work, is presented as a flowchart. It is the author's hope that this project will raise awareness as to the merits and demerits of legal fictions, de-mystify the debate and bring about reform.
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Tse, David. "Conditional Systematic Risk of Equity Real Estate Investment Trusts." Scholarship @ Claremont, 2015. http://scholarship.claremont.edu/cmc_theses/1128.
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Elias, Gbolahan O. A. "The aims of constructive trusts." Thesis, University of Oxford, 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.303525.
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Hudson, Alastair. "Financial derivatives, restitution and trusts." Thesis, University of London, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.300585.
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Eddy, Christopher. "Style adjusted performance of South African general equity unit trusts." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/8558.
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Includes bibliographical references.The performance of South African General Equity Unit Trusts is investigated in order to establish if managers are able to add value after adjusting for style exposure. The analysis is performed from January 2003 to December 2012 using three alternative methodologies including unconstrained regressions, returns-based style analysis and return decomposition. The results indicate that the majority of unit trust manager's style adjusted excess return is not statistically different from zero and the performance can be replicated using passive style indices. While the majority display negative style adjusted excess return there are individual unit trusts which consistently are able to outperform across the different methodologies and time periods. The economic significance of this positive alpha can be large over a longer period of time.
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Hoch, Rowan Andrew. "Persistence of alpha in South African general equity unit trusts." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/28316.
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The ability of active managers to produce consistent benchmark-beating returns is a topic that has been widely debated with increasing interest over the past decade. The majority of previous studies in which persistence of performance is tested consider a fund's ability to maintain its relative ranking over various time periods amongst its peer group. This study adds to the literature by considering the persistence of alpha, where alpha is defined as the out- or under-performance of a market-related benchmark. Persistence of alpha for South African general equity unit trusts is tested over six-month, one-, two- and three-year formation and holding periods using a similar methodology to that of Collinet & Firer (2003). Alpha is found to persist most prominently in tests of one-year periods, with other period lengths yielding less significant results. Additionally, using the methodology of Malkiel (1995), certain funds which have demonstrated statistically significant persistent alpha over various periods are identified.
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Chambers, Robert. "Resulting trusts and the law of restitution." Thesis, University of Oxford, 1995. https://ora.ox.ac.uk/objects/uuid:52463f15-d433-46cc-a70b-3524106c860e.
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This thesis explores the nature of the resulting trust and its role in the law of restitution. Part One examines the situations in which resulting trusts arise. Chapters I (Apparent Gifts) and II (Trusts Which Fail) concern the traditional categories of resulting trust; III (Quistclose trusts) and IV (Failure of Consideration) look at resulting trusts which arise when property has been transferred for limited purposes which become incapable of fulfilment. It is concluded that all resulting trusts operate on the same principle, arising when property is transferred to another and the provider of that property did not intend to benefit the recipient. The presumption of resulting trust is an inference of that lack of intention. The presumption of advancement is an inference that a gift was intended. The distinction between 'presumed' and 'automatic' resulting trusts is rejected. Part Two explores the relationship between resulting trusts and restitution. It is argued in chapter V (Restitution) that all resulting trusts reverse unjust enrichment. The restitutionary role of the resulting trust is considered by looking at (i) the types of unjust enrichment to which it responds, in chapters VI (Vitiated Intention), VII (Qualified Intention) and VIII (Mere Equities), and (ii) how it responds, in chapters IX (First- Measure Liability) and X (Fiduciary Obligations). Any defect in or qualification of the provider's intention to benefit the recipient, which gives the provider a right to restitution, should give rise to a resulting trust, so long as the property remains identifiable and the recipient has not obtained the unfettered beneficial ownership of that property before the right to restitution arises. This thesis concludes by looking at three areas affected by this view of resulting trusts: (i) the classification of trusts, (ii) proprietary restitution and (iii) defences to restitutionary claims. When trusts are organised by the events which give rise to them, the primary trust responding to unjust enrichment (by subtraction) is resulting.
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Kaur, Jaswinder. "Choice of law rules for testamentary trusts." Thesis, University of Birmingham, 2014. http://etheses.bham.ac.uk//id/eprint/4978/.
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This thesis critically analyses the English choice of law rules for testamentary trusts. After outlining the research context (Chapter 1), the key concepts and terms for testamentary trusts in cross-border estates are introduced (Chapter 2). The dual system of choice of law rules (one for testate succession and the other for the trust) are discussed with reference to reads 'rocket and rocket-launcher' illustration that has been favoured by legislators and commentators alike. Thus, the current choice of law rules for testate succession matters are analysed in Chapter 3 and the choice of law rules for trusts are examined in Chapter 4. This leads to Chapter 5 concluding that the choice of law rules for the creation of testamentary trusts (the rocket-launching aspects) are particularly problematic. The discussion thereafter focuses on how the choice of law rules for the rocket-launching aspects of testamentary trusts could be improved with reference to the international and European reform attempts to legislate on succession and trusts, including the Hague Succession Convention and the European Succession Regulation (Chapter 6). Moreover, the limited UK reform attempts relevant to the choice of law rules for testamentary trusts are discussed in Chapter 7. Chapter 8 proposes recommendations for reform.
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Collinet, Lance. "Characterising persistence of performance amongst South African general equity unit trusts." Master's thesis, University of Cape Town, 2001. http://hdl.handle.net/11427/10290.
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Bibliography: leaves 104-112.This study analyses the relative performance of general equity unit trusts from 1980 to 1999, using a database that has been verified for accuracy and is free of survivorship bias. It characterises the behaviour of performance persistence in order to explain the conflicting results of previous persistence studies and to provide a framework for further research into the causes of persistence. This research shows that the relationship between past and future performance rankings is positive, but weak. The results of persistence studies are highly sensitive to the length of the holding period used to evaluate performance and to the time period covered in the analysis. As the holding period lengthens, the persistence studies are highly sensitive to the length of the holding period used to evaluate performance and to the time period covered in the analysis. As the holding period lengthens, the persistence results become more sensitive to the beginning date and ending date of the period under examination.
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Robertson, M. "Identifying and correcting misclassified South African equity trusts using style analysis." Master's thesis, University of Cape Town, 1999. http://hdl.handle.net/11427/9944.
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Bibliography: leaves 116-123.The concept of style analysis is rapidly spreading in the money management business. In addition to it's use in the areas of benchmarking, portfolio structuring, risk control and performance attribution, style analysis has also been shown to be a powerful tool for identifying and evaluating the groupings and classification of investment portfolios. This study is based on an iterative application of William Sharpe's technique of returns-based style analysis. In essence the technique is used to create purified unit trust style indices in order to verify the existing classification of equity unit trusts. The technique is extended for the purpose of confirming the returns-based misclassified funds through testing the fit of combinations of style factor returns derived from a composition-based factor model.
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Swann, Stephen James Alan. "From law to faith : letting go of secret trusts." Thesis, University of Leicester, 1999. http://hdl.handle.net/2381/31100.
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This thesis re-examines the law of secret trusts and the doctrinal justification for enforcing a legatee's promise to a testator to apply his inheritance for the benefit of a third party nominated by the testator. It critically appraises, in terms of both case law and theory, the justifications presented by the fraud and dehors the will theories. Commencing with a review of the law on past and present testamentary formalities, it presents evidence that the modem dehors the will theory is a throwback to early misunderstanding about the relationship of informal testamentary trusts to wills. The testamentary nature of secret trusts is confirmed by an examination of probate case law defining a will and an analysis of the functions of the Wills Act formalities excludes the notion of an implied statutory exception for secret trusts. A review of precatory secret trust case law indicates how the law has developed based on a conventional assumption as to the nature of testators' secret instructions. The thesis also re-considers limits to the fraud-based constructive trust jurisdiction assumed to have endured the demise of the special probate courts. The thesis offers a new approach for English law based on accommodating the legatee's moral duty within a contingent restitutionary principle of personal fraud.
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Carr, D. J. "Equity in Scots law." Thesis, University of Cambridge, 2010. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.597303.
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The aim of this thesis is to consider the development of the nature of equity in Scottish private law. Accordingly, the thesis considers the manner in which Scottish law has utilised ‘equitable’ terminology and conceptualisation in the development of different areas of Scottish private law. In considering this matter, the thesis employs an historical methodology up to a point; however, the prime objective of the thesis is to attempt to state the modern day position as regards the influence of equity within Scottish private law. Such a thesis cannot ignore the influence of English law, or at least conceptions of English law, upon Scottish law. In fact, the choice of subject matter for the thesis was inspired by a Common law idea of equitable remedies, and this starting point is reflected in the specific subject areas discussed. Accordingly, the chapters consider the institutional role of equity in Scots law, before considering the influence of equity in the following areas of Scottish law: unjustified enrichment, trusts, constructive trusts, and fiduciary liability in Scottish law. The analyses of these different areas of law demonstrate the problematic conception of equity in Scots law, insofar as they take different approaches to the substantive and linguistic employment of the term equity. The consideration of these different approaches to equity across different areas of Scots law demonstrates the inherent vagueness of the Scottish approach to equity. Such vagueness has, up to now, allowed the influence and importance of the equitable tradition to wax and wane reasonably quietly according to the prevailing epoch. The historical analysis suggests that, at least in recent times, the influence of something called equity is increasing, and with its rise there are important definitional and substantive choices ahead.
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Yu, Jiejun. "Performance evaluation of the UK equity unit trusts : does active management add value?" Thesis, University of Birmingham, 2012. http://etheses.bham.ac.uk//id/eprint/3484/.
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Since Jensen (1968), performance evaluation of managed funds has been a popular topic in Finance. Whilst most of the studies have been focused on the US mutual funds, the evaluation of fund performance in the UK has been relatively few. This thesis investigates if active equity portfolio management can add value using a sample of UK unit trusts. Chapter 1 introduces the UK unit trust industry and the descriptive results of the data. Chapter 2 provides a literature review on performance evaluation. Chapter 3 explains the stochastic discount factor models and the generalized method of moments. It further explores the most fitted estimator with examinations of their small sample properties. Chapter 4 evaluates the conditioning performance of UK unit trusts within the framework of the stochastic discount factor models. Chapter 5 investigates style performance and presents the evidence of superior performance of style rotation strategies. Chapter 6 examines performance persistence. Chapter 7 concludes.
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Le, Grand de Belleroche Diane. "La reconnaissance des trusts étrangers en droit français : étude comparative du concept anglais de trust et du contentiaux du droit des trusts en France." Paris 1, 2003. http://www.theses.fr/2003PA010297.
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Né en Angleterre, le concept de trust y est indissociable du système juridique de l'Equity, contrairement aux acclimatations qui en ont été réalisées. Des litiges impliquant des trusts étrangers sont parfois soumis au juge français, même si le droit français ne reconnaît pas la notion de trust. Or le concept de trust ne va pas à l'encontre de la notion de patrimoine et de l'idée d'un numerus clausus des droits réels, qui sont remis en question dans le droit français contemporain. La conception française de l'ordre public successoral est, quant à elle, efficacement protégée. De plus, le juge français a toujours tenté de reconnaître les trusts étrangers, par la méthode de l'adaptation. Mais cela aboutit à des analogies forcées et erronées, que la ratification, par la France, de la Convention de La Haye du 1er juillet 1985, qui propose des règles de conflit de lois unifiées ainsi qu'une présentation harmonisée des caractéristiques et des effets des trusts, permettrait d'atténuer.
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Clark, James Peter. "Performance, performance persistence and fund flows : UK equity unit trusts/open-ended investment companies vs. UK equity unit-linked personal pension funds." Thesis, University of Exeter, 2013. http://hdl.handle.net/10871/10821.
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This thesis analyses and compares the performance, performance persistence and fund flows for UK equity unit trusts/OEICs and UK equity unit-linked personal pensions over the sample period January 1980 to December 2007. Unit-linked personal pension funds are an illiquid investment from the investor’s perspective since any invested capital is inaccessible until retirement whereas for unit trusts/OEICs capital invested can be withdrawn at any time. Since decreasing returns to scale from fund flows are the equilibrating mechanism in Berk and Green (2004) that results in no persistence in performance the illiquid nature of unit-linked personal pension funds should ensure more evidence of performance persistence in comparison to unit trusts/OEICs. I find significant evidence using performance ranked portfolio strategies that underlying portfolios that are only composed of unit-linked personal pension funds have greater performance persistence than unit-linked personal pension funds that have underlying portfolios that also include at least a unit trust/OEIC. This evidence is consistent with Berk and Green (2004) since the illiquid nature of personal pension funds results in an attenuated performance fund flow relationship restricting the equilibrating mechanism. However, there are anomalies in the performance persistence results in relation to Berk and Green (2004) but it could be due to the differential between the number of non-surviving unit trusts/OEICs and non-surviving unit-linked personal pension funds. I also find that the performance fund flow relationship based on abnormal returns from a Carhart four factor model for both UK equity unit trusts/OEICs and UK unit-linked personal pensions is convex but the performance fund flow relationship is more attenuated for the unit-linked personal pension funds. For the worst performing unit trusts/OEICs there are outflows on average whereas for unit-linked personal pensions there are fund inflows on average. For performance persistence tests conditional on underlying portfolio fund flows unit trusts/OEICs that have the worst performance but the lowest net fund flows in the ranking period have significantly greater subsequent performance in comparison to the unit trusts/OEICs that have the worst performance but the highest net fund flows in the ranking period. This empirical evidence provides support for Berk and Green (2004) but for the unit-linked personal pension funds the evidence is less convincing. There is very little evidence that UK equity unit-trusts/OEICs or UK equity unit-linked personal pensions produce abnormal returns. These results are robust across the single index (CAPM) model, the Fama and French three factor model and the Carhart four factor model for both conditional and unconditional models. There is also no evidence that unit trusts/OEICs or unit-linked personal pension funds can time the market. There is a significantly negative timing effect across unconditional factor models which becomes insignificant for the conditional models. There is also no evidence that unit trusts/OEICs have significantly different performance than unit-linked personal pension funds.
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Picton, John. "Charitable intention in the Cy-Pres doctrine and related trusts principles." Thesis, University of Liverpool, 2013. http://livrepository.liverpool.ac.uk/17913/.
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This thesis provides the first extended taxonomy of charitable intention in the law of schemes. It does so in order to identify the legal functions of intention and suggest critical doctrinal (‘black letter’) reforms so that those functions can be better carried out. Where appropriate, it draws on Australasian statutory and common law innovation. It contrasts developments in those related jurisdictions as a reference point for English reform. Two functions of intention are identified. In the context of established trust reform, intention is one element of a broader process of ‘balanced variation’. The original intention of the donor is balanced against broadly defined effectiveness standards. By contrast, in the context of testamentary construction, intention has a different role. It is constructed simply to make a failed will possible to effect. Efficacious reform is possible with regards to both those functions, and so this thesis proposes a series of common law and legislative changes.
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Rahman, Latiefa (nee Manie). "Defining the concept "Fiduciary Duty" in the South African law of trusts." Thesis, University of the Western Cape, 2006. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_7366_1205415700.
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An aspect of the South African law of trusts which has, despite the abovementioned evolution of South African trust law, not been clarified, is the ambit of a trustee's fiduciary duty. This, however, is not only the position in South Africa, but Scotland and, until recently, England as well. It is opined that the "
fiduciary obligation"
is a concept in search of a principle. Thus, the aim of the present research was to define this concept in terms of the South African trust law context.
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Oldham, Davis. "The idea of trust in the age of trusts /." Thesis, Connect to this title online; UW restricted, 2000. http://hdl.handle.net/1773/9335.
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Myers, David Hobson. "Persistence in pension account returns : the impact of survivorship and reaction of asset flows /." Thesis, Connect to this title online; UW restricted, 2001. http://hdl.handle.net/1773/8783.
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Guneratne, Camena Erica. "Genetic Resources, Equity and International Law." The University of Waikato, 2009. http://hdl.handle.net/10289/2475.
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This thesis examines the application of international law to the uses of agricultural crop plants termed plant genetic resources for food and agriculture. In particular, it asks the question, does international law regulate the use of plant genetic resources for food and agriculture so as to enable equity among nations in accessing these resources and sharing the benefits which arise from them? In answering this question this thesis will also consider several related issues which have arisen in the course of the international debate on this topic. These resources are closely entwined with the lives and livelihoods of certain categories of peoples such as indigenous peoples and farmers and local communities. In addition, they are critical for the economies, agricultural systems and food security of nations. The thesis question will not be considered in the abstract, but will rather be placed against the background of these issues, which will be continuously used to put the legal discourse into perspective. The legal analysis will focus on five international agreements which directly or indirectly regulate the use of crop plants. These five agreements are placed in two broad categories, i.e. environmental/conservation agreements and trade and property related agreements. The first category includes the Convention on Biological Diversity of 1992 and the International Treaty on Plant Genetic Resources for Food and Agriculture of the Food and Agriculture Organisation of 2001. The second category includes the Convention for the Protection of New Varieties of Plants of 1991, the Agreement on Trade Related Aspects of Intellectual Property Rights of 1994, and several treaties of the World Intellectual Property Organisation. In addition, since the topic raises issues of rights, certain human rights treaties and documents will also be used in the analysis. The current international conflict over plant genetic resources can be condensed into one of rights, human rights and property rights. The international treaties cited above have all contextualized the issue within a framework of property rights, setting out mechanisms for different forms of legal control of these resources. This thesis will argue that whatever the form and nature of such property rights, they cannot achieve equity in the use of crop plants. Rather the use of such rights results in violations of human rights.
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Manie, Latiefa. "The South African law of trusts with a view to legislative reform." University of the Western Cape, 2016. http://hdl.handle.net/11394/5349.
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Doctor Legum - LLDMore than twenty years have passed since the Trust Property Control Act 57 of 1988 came into operation. Although the Act provided context, clarity and regulation in certain areas of trust law, it is apparent that there exists a pressing need to develop statutorily the law of trusts more extensively. To this end, the research has a dual objective: Firstly, to identify those areas of South African trust law that are not currently regulated statutorily but for which, by reason of extensive and, at times, controversial jurisprudential development, such regulation is now essential. Secondly, to analyse critically the Trust Property Control Act in its current form in order to determine the utility of its provisions, particularly in light of jurisprudential development since the Act’s commencement. The purpose of the study is to formulate comprehensive recommendations for legislative reform in the area of South African trust law.
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Kudanga, Annah. "A critical analysis of the financial regulation of private equity investments in South Africa." Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/4768.
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Magister Legum - LLMPrivate equity is a critical vehicle of entrepreneurship development that is essential in reducing unemployment and boosting the economic growth of South Africa. There has, however, been a decline in private equity investment (PEI) activity in South Africa compared to the 2006-2007 peak and seed capital by venture capitalists has been affected the most. This has been attributed to a number of factors mainly related to financial and tax regulation. This study critically reviews the financial regulation of the PEIs in South Africa with a view to elucidating potential pitfalls that may be affecting the competitiveness of the industry. A comparison with the regulation of PEIs in the United Kingdom (which is generally regarded as functioning well) is also made in order to provide a basis for recommendations to improve private equity activity in South Africa. The main legal structures for PEIs in South Africa are the en commandite partnerships and the bewind trusts, of which en commandite partnerships are the most common legal structure. The private equity industry is mainly regulated by common law. However, there are various, separate sections of legislation that regulate private equity transactions as well as public companies. These fragmented pieces of legislation and regulations include the Financial Advisory and Intermediary Services Act, the Broad-based Black Economic Empowerment Act and the Black Economic Empowerment policy framework, the Companies Act, the Pension Funds Act, the Financial Markets Act, the Exchange Control Regulations 1961, the Competition Act, the Johannesburg Stock Exchange Listing Requirements and the King Reports on Corporate Governance. Of these, the most influential is the Financial Advisory and Intermediary Services Act which regulates financial service providers or fund managers. A comparison with the PEIs regulatory framework in the UK showed that the UK, apart from having a consolidated legislation regulating the legal structure of PEIs, generally, has a more comprehensive scope of regulation that includes self-regulation, co-regulation, and regional regulations, in addition to the traditional, conservative common law. This integration of regional requirements through EU’s Directive 2011/61/EU and the Walker Guidelines has probably helped the UK to open up new markets in the region. Although there are some positives in the regulation of PEIs in South Africa, notably the regulation of financial markets to prevent market abuse and insider trading, it appears financial regulation may benefit from drawing lessons from the law and regulatory framework of the UK. It is therefore recommended that the South African private equity industry develops a consolidated and facilitative regulatory framework. This can be based on co-regulation along the lines of the Walker Guidelines (which encourages more disclosure and transparency) as well as a consolidated Act to control all PEIs activities.
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Le, More Pauline. "Le droit et les cartels internationaux /." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=80936.
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This thesis aims to underline the paradox surrounding cartels in general and international cartels in particular. While they are almost unanimously recognised as the most egregious form of antitrust violations, real political willingness fails to fight efficiently against cartels. Notwithstanding, this paper shows why international cooperation is essential but still unsatisfactory in eliminating international cartels through concrete examples in domestic laws, such as the Fine Arts Auctions Case and export cartel configurations. Existing national and international instruments present advantages and disadvantages. International competition law, including international cartel issues, is still subject to virulent debates within the international community, particularly with respect to the future of a WTO Multilateral Agreement. It raises the question as to what can be suggested in order to solve aspects of these debates in a satisfactory manner and thereby contribute---modestly---to ameliorate the fight against international cartels.
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Speckhahn, Wolfgang. "Real estate investment trusts (REITS) in Europe - Europeanizing tax regimes." Thesis, Anglia Ruskin University, 2015. https://arro.anglia.ac.uk/id/eprint/579909/1/Wolfgang%20Speckhahn%20Final%20Thesis%20combined.pdf.
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The research investigated the impact of EU law and policies on direct taxation in
REITs, and movement towards a harmonised EU-REIT with common direct
taxation of REITs profits. It represents the first comparative study of EU member
state REIT regimes to identify an emerging common understanding informed by
European jurisprudence and Europeanization policy and theory.
After identifying the fundamental elements of a REIT (following the original US
model) within a context of Europeanization theory, the research examined EU
policy mechanisms (such as goodness of fit and adaptational soft pressure) and
the impact of relevant case law from the European Court of Justice. It then
presented in-depth case studies of three member states: France (example of a
well-established REIT regime), Bulgaria (a new accession state) and Spain (a
recent REIT regime).
The research found an emerging common understanding between member states’
REIT regimes, offering the prospect of a European harmonised REIT form
distinguishable from the US model. It also found negative approaches to direct
taxation in cross-border situations, and member state concerns about loss of
sovereignty and tax base, which should be recognised within any harmonised
direct tax regime.
The research can claim to be the first comparative analysis of MS REIT regimes to
address a common understanding, and thus is relevant to practitioners and
academics in the fields of European law and international taxation. It has potential
to contribute towards an improved common direct taxation approach and the
harmonisation of European REITs within the wider processes of Europeanization.
The research was limited to REIT regimes in EU member states, and further
research could analyse relevant member state tax regimes outside the 'common
understanding' REIT model, and further explores issues of loss of sovereignty and
tax base in member states.
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Speckhahn, Wolfgang. "Real estate investment trusts (REITS) in Europe : Europeanizing tax regimes." Thesis, Anglia Ruskin University, 2015. http://arro.anglia.ac.uk/579909/.
Full textAbstract:
The research investigated the impact of EU law and policies on direct taxation in REITs, and movement towards a harmonised EU-REIT with common direct taxation of REITs profits. It represents the first comparative study of EU member state REIT regimes to identify an emerging common understanding informed by European jurisprudence and Europeanization policy and theory. After identifying the fundamental elements of a REIT (following the original US model) within a context of Europeanization theory, the research examined EU policy mechanisms (such as goodness of fit and adaptational soft pressure) and the impact of relevant case law from the European Court of Justice. It then presented in-depth case studies of three member states: France (example of a well-established REIT regime), Bulgaria (a new accession state) and Spain (a recent REIT regime). The research found an emerging common understanding between member states’ REIT regimes, offering the prospect of a European harmonised REIT form distinguishable from the US model. It also found negative approaches to direct taxation in cross-border situations, and member state concerns about loss of sovereignty and tax base, which should be recognised within any harmonised direct tax regime. The research can claim to be the first comparative analysis of MS REIT regimes to address a common understanding, and thus is relevant to practitioners and academics in the fields of European law and international taxation. It has potential to contribute towards an improved common direct taxation approach and the harmonisation of European REITs within the wider processes of Europeanization. The research was limited to REIT regimes in EU member states, and further research could analyse relevant member state tax regimes outside the 'common understanding' REIT model, and further explores issues of loss of sovereignty and tax base in member states.
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Rudman, Riaan J. "An empirical study on the determinants of net investment flows of South African General Equity unit trusts." Master's thesis, University of Cape Town, 2004. http://hdl.handle.net/11427/5981.
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Gustafsson, Edvard. "Equity Crowdfunding - en delägarrevolution." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-343460.
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Scherer, John-Patrick. "“Deadlock Provisions in Equity Joint Venture Agreements”." Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/29713.
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The dissertation “Deadlock Provisions in Equity Joint Venture Agreements” gives a comprehensive overview and a detailed analysis of the existing contracting possibilities addressing conflicts between the partners of an equity joint venture which cannot dissolved by them. To understand the variety of such deadlock provisions and their effects on the relationship between the joint venture partners, reaching from provisions which preserve the joint cooperation (preservation mechanisms) to provisions which force the exit of, at least, one partner from the joint company (exit mechanisms), are the key points of the dissertation. Given such variety of deadlock provisions and their possible combinations, a comprehensive overview and a detailed analysis including a comparison of such clauses will support future joint venture partners to decide whether and, if yes, what types of deadlock provisions are suitable for their joint venture and should, therefore, be included in the joint venture agreement. Previous work has failed to give such a comprehensive overview and analysis of deadlock provisions consisting of a description of the different types of provisions, an explanation of their effects, and the provision of the respective example clauses. After a short description of the various types of joint ventures and the structure of an equity joint venture, the dissertation examines on the basis of example clauses preservation mechanisms and exit mechanisms typically included in equity joint venture agreements. The complexity of the different deadlock provisions, in particular the combination of preservation mechanisms and exit mechanisms, but also the question what types of disputes between the joint venture partners should be defined as “deadlocks” triggering such procedures require that joint venture partners understand the effects of drafting the joint venture agreement, in particular the inclusion of deadlock provisions, when they are entering into a joint venture. The dissertation provides the joint venture partners with a guide to cut through such complexity and to understand how the joint venture agreement should be drafted for their joint cooperation.
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Wong, Loi-loi Lilian, and 王萊萊. "A review of the regulatory framework for unit trusts in Hong Kong." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1990. http://hub.hku.hk/bib/B31264803.
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Grey, James Peter. "Performance and performance persistance in South African General Equity unit trusts, a test of South African market efficiency." Master's thesis, University of Cape Town, 2005. http://hdl.handle.net/11427/10573.
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Includes bibliographical references (leaves 65-70).Over the last four decades academics have been concerned with both the factors effecting individual unit trust performance and whether this performance persists going forward. Whilst persistence in performance is of interest to unit trust investors from a practical perspective, it is also of interest to academics due to its inherent implications for the Efficient Markets Hypothesis (EMH). This study employs South African data based on a sample of 35 General Equity unit trusts over the six year period 1st January 1998 to 31 st December 2003. This study discusses both the EMH as well as factors that influence unit trust management style and associated performance. Using Jensen's alpha in both a Capital Asset Pricing Model (CAPM) framework and a 2-Factor Arbitrage Pricing Theory (APT) model, unconditional evidence is presented on the performance of General Equity unit trusts.
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Yeo, T. M. "Choice of law for equitable doctrines." Thesis, University of Oxford, 2001. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.391055.
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Gregory, William Allan. "The doctrine of parol agreement trusts and fraud in equity : an historical-doctrinal analysis of equity's jurisdiction under the head of fraud to impose trusts arising out of parol agreements." Thesis, University of Wolverhampton, 2016. http://hdl.handle.net/2436/620394.
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This thesis examines, through the most comprehensive historical-doctrinal analysis to date, the nature and extent of equity’s jurisdiction to impose trusts arising out of parol agreements. The central argument of this thesis is that all such trusts are enforced pursuant to a single doctrine of equity which arises to prevent fraud. This doctrine, which is uncovered and elucidated in this thesis, is named ‘the doctrine of parol agreement trusts’. It is argued that the ‘fraud’ which brings the doctrine into play will occur if the recipient of property knowingly reneges on a parol agreement subject to which she took the property and upon which the other party thereto relied. Moreover, it is demonstrated that trusts arising for the prevention of fraud were, until the early twentieth century, not seen as express, resulting or constructive trusts, but that, according to modern nomenclature, they are best regarded as constructive trusts. This thesis also challenges several modern orthodoxies. It is proven that the leading case of Rochefocuauld v Boustead was reported imperfectly, and that all previously presented accounts of the facts are inaccurate. Furthermore, it is categorically demonstrated that secret trusts are enforced for the prevention of fraud, but that this is not inconsistent with the notion that secret trusts are dehors the will. The juxtaposition between parol agreement trusts and related equitable innovations such as mutual wills, proprietary estoppel and ‘common intention’ constructive trusts is also examined, as well as the doctrine’s relationship with contract law and the law of agency, with a view to providing a doctrinal solution to some modern controversies in these areas. The historical-doctrinal relationship between parol agreement trusts and other types of constructive trusts is also examined with surprising results which suggest doctrinal affinities with the liability which affects knowing recipients. Finally, it is suggested that the manner in which modern commentators and some judges have eschewed fraud as a justification for parol agreement trusts and other related trusts may represent an unwelcome development.
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Farchakh, Loubna. "The concept of intergenerational equity in international law /." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=80918.
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The theory of intergenerational equity is closely linked to the notion of sustainable development. It is indeed considered to be one of its aspect. Intergenerational equity can be divided in two facets: the intergenerational component links the present generation to future generations, while the intragenerational aspect imposes, within the same generation, a duty for industrialized countries to help developing countries. The legal status of intergenerational equity appears to be limited because of its qualification as a concept. Therefore, this concept of intergenerational equity belongs to the realm of soft law. Nevertheless, legal implications can be drawn out from this theory. Different means of implementation can be envisioned, some belonging to the domain of soft law, other employing more classical tools, such as institutional mechanisms.
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Macnair, Michael Richard Trench. "The law of proof in early modern equity." Thesis, University of Oxford, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.334166.
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Berry, Matthew. "Law, Justice, and Equity in Aristotle's Nicomachean Ethics." Thesis, Boston College, 2016. http://hdl.handle.net/2345/bc-ir:107190.
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Thesis advisor: Robert C. BartlettAt the beginning of the fifth book of the Nicomachean Ethics, Aristotle tells us that, according to common opinion, justice is lawful and fair. He concludes his examination of justice with a discussion of equity, which proves to be neither strictly lawful nor strictly fair—and yet Aristotle tells us that equity is, in a certain sense, the highest form of justice. This dissertation explains how Aristotle reaches this startling conclusion. I begin with an exploration of the careful taxonomy of justice that Aristotle lays out in the first half of book five. But Aristotle abruptly abandons this taxonomy midway through the book when he turns from the simply just to the politically just. For this reason and others, I argue that the second half of the book is not, as some have asserted, the application of the universal principles of justice to a political situation, but a new beginning and a fresh attempt to articulate the virtue of justice, free from the flaws we discover through a careful study of the first half of the book. Aristotle’s political justice takes its bearings from the health of a republican government, that is, a government of free and equal citizens. And yet political justice, like political courage, remains on the level of politics. Aristotle’s discussion of equity at the end of the book presents the virtuous form of justice, which corrects the flaws of justice as lawfulness and justice as fairness and permits justice to take its place in the economy of a noble human life
Thesis (PhD) — Boston College, 2016
Submitted to: Boston College. Graduate School of Arts and Sciences
Discipline: Political Science
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Chabursky, Lubomyr. "A critical examination of the Employment Equity Act /." Thesis, McGill University, 1992. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=60698.
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The Employment Equity Act obliges employers to undertake affirmative action to combat employment discrimination. On October 31st, 1991, a Parliamentary Committee was appointed to review the EEA and make recommendations for its improvement. This thesis assesses the EEA within the historical context of discrimination remedies. The thesis argues that the solution to systemic discrimination in employment cannot consist merely of measures that increase the representation of minorities in the workplace. Rather, the solution must also include measures designed to change traditional attitudes and stereotypes about the employment of minority groups, whether these attitudes take the from of prejudice, paternalism, or inhibitions. A change in attitudes among employers will also help to eliminate apparently neutral employment policies and practices that nevertheless have an adverse effect on the opportunities of women and minorities. The EEA incorporates aspects of all three strategies in a hands-off approach that invites employers to become equal partners in the quest to overcome discrimination in the work place.
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Cassiem, Rehana. "The taxation of income and expenditure of Trusts in South Africa - are they still viable estate planning tools?" Thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12821.
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Includes bibliographical references.This research paper will explore the taxation of the income and expenditure in today’s day and age. We will have an in - depth look into the mechanics of trusts, to ascertain whether they still have a role to fulfil in estate planning. Therefore the paper will first explore the background in trusts in Section A, Section B will deal with how trusts are tax and Section C will try and answer why trusts are still popular amidst the unfavourable changes in recent legislation.
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Thomas, Shawn. "An investigation into performance persistence amongst South African general equity unit trusts funds - for the period 2000 to 2011." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/12074.
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Includes abstract.Includes bibliographical references.
This paper updates aspects of the original study done by Collinet in his 2001 UCT Masters Thesis “Characterising Persistence of Performance amongst South African General Equity Unit Trusts”, in which he tested performance persistence over the period 1980 to 1999. This updated study focuses on testing whether the performance of a unit trust fund in one period can be used to predict the performance of that unit trust fund in a subsequent period. The overall results of the updated study were comparable to the Collinet (2001) study, although in the Collinet study evidence of short-term performance persistence was found when holding periods of 6 months were tested. The results for the 1, 2 and 3 year holding periods tested were inconclusive and no evidence was found that performance persists over any of those holding periods...
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Koo, Gerald M. F. "Foreign equity participation in United States airlines." Thesis, McGill University, 1989. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=55702.
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Christoffersen, Keith. "WAQF : a critical analysis in light of Anglo-American laws on endowments." Thesis, McGill University, 1997. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=28254.
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It is inevitable that works on waqf written in English will employ terms from Anglo-American law to describe that institution. This study will endeavour to provide a proper understanding of these terms in order to clear up longstanding misconceptions of the nature of waqf. Through a detailed history of the Anglo-American law of endowments and its terminology, this study will create a framework through which it may be possible to obtain a clearer understanding of waqf. The study will also address two historical events in which the Islamic and Anglo-American legal conceptions of endowments have been at odds, as well as address the objections that have been raised to the continued existence of waqf , both from within Muslim society and from without. It is hoped that through this study a better appreciation of the utility of waqf for Muslim society will be achieved.
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Lin, Xi. "Equity in the Chinese law : its origin and transformations." Thesis, London School of Economics and Political Science (University of London), 2008. http://etheses.lse.ac.uk/2974/.
Full textAbstract:
This thesis is about equity in the Chinese law. In the classical Chinese literature, it was referred to as qingli, which means 'social obligations' to balance the rigidity of positive laws. Like its Western counterpart, this equity entails a twofold meaning: (1) the moral principles that have been into the positive laws (which Huang referred to as 'official representation') and (2) in judicial practice, the correction of hardship that arises out of the deficiency as inherent in positive laws. As far as its historical evolution is concerned, this thesis examines three consecutive periods, namely imperial China (221BC to 1911), revolutionary period (1911-76) and reformist era (1978-present). In imperial China, equity followed a path similar to its Roman counterpart in that there was a harsh law first, into which equity was gradually incorporated, until it reached its maturity in the Tang Code of 653 AD. This imperial construct was swept ruthlessly away by the revolutionary thunderstorm in the early 1910s. In the midst of this tempest, the communist effort to seek an alternative to both traditional and imported models culminated in creating a legal system called People's Justice. Equity in this period was reinterpreted as mass participation and mobilisation. However, Mao's idealism not only turned the whole nation into chaos but also devoured its own devoted followers. This was partly the reason why in 1978 the Deng-led government unanimously held that China should relink with the outside world. In this state-led integration to global capitalism, equity underwent its second turn, now defined as local contextualisation of the rapidly formalised and westernised laws. The conclusion duly analyses both predicaments and opportunities for further development of equity in China. It calls for as much a reinvention of traditions as an attention for local contexts to construct a modern equity in China.