Aruna Nair
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198813408
- eISBN:
- 9780191851285
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198813408.001.0001
- Subject:
- Law, Trusts
This book explains the rational basis of the law of tracing, and why and when English law makes claims to traceable proceeds available. Tracing enables a claimant to make a proprietary claim to an ...
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This book explains the rational basis of the law of tracing, and why and when English law makes claims to traceable proceeds available. Tracing enables a claimant to make a proprietary claim to an asset acquired by a defendant from a third party, on the grounds that that asset represents the ‘traceable proceeds’ of another asset that belonged to the claimant. The book argues that the rules that allow this connection between assets to be established—the rules of tracing—aim to strike a balance between preserving the autonomy of defendants in making decisions to acquire or retain assets and preventing them from exploiting their power to deprive claimants of rights by such decisions. This account of tracing explains its historical development and its application in modern contexts. It also explains the availability of claims to traceable proceeds: an exploitation of power, of the kind that tracing is concerned with, can take place only in the context of a prior relationship of ‘control of assets’, whereby one person has a legal power to vary the legal rights of another with respect to some assignable right, owes that other a duty in respect of the exercise of that power, and is able to validly exercise the legal power in breach of that duty. These relationships, which exist both at law and equity, overlap with the categories of ‘fiduciary duties’ or ‘property rights’, but share additional and distinctive characteristics that justify the availability of tracing.Less
This book explains the rational basis of the law of tracing, and why and when English law makes claims to traceable proceeds available. Tracing enables a claimant to make a proprietary claim to an asset acquired by a defendant from a third party, on the grounds that that asset represents the ‘traceable proceeds’ of another asset that belonged to the claimant. The book argues that the rules that allow this connection between assets to be established—the rules of tracing—aim to strike a balance between preserving the autonomy of defendants in making decisions to acquire or retain assets and preventing them from exploiting their power to deprive claimants of rights by such decisions. This account of tracing explains its historical development and its application in modern contexts. It also explains the availability of claims to traceable proceeds: an exploitation of power, of the kind that tracing is concerned with, can take place only in the context of a prior relationship of ‘control of assets’, whereby one person has a legal power to vary the legal rights of another with respect to some assignable right, owes that other a duty in respect of the exercise of that power, and is able to validly exercise the legal power in breach of that duty. These relationships, which exist both at law and equity, overlap with the categories of ‘fiduciary duties’ or ‘property rights’, but share additional and distinctive characteristics that justify the availability of tracing.
M. W. Lau
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199602407
- eISBN:
- 9780191725203
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199602407.001.0001
- Subject:
- Law, Trusts
This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and ...
More
This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and economics community until recently. Borrowing theories and doctrines from corporate law and economics, scholars have variously analysed and described the trust as a tripartite contract, a nexus of contracts, and even a legal entity. These obligational approaches overlook the unique features of trusts for which corporate legal theories have no explanation. Most importantly, they fail to account for the nature of the beneficiary's interest in the trust property. This book presents an original analysis of the common law of trusts, arguing that trust law is about the trust property and the principal parties' relationships with it. At the same time it questions recent trends in trust law, especially those in offshore jurisdictions. Exotic developments such as non-charitable purpose trusts, settlor-retention of wide powers, and generous trustee exemption clauses have become the new normal and, coincidentally, draw analytical support from obligational accounts. This book explains that once trusts are properly understood as property, it becomes obvious why these novel developments can only be for the worse, and should be reversed. It then goes on to develop an analysis of trusts from a proprietary perspective, and applies the property — based approach to the economic analysis of trusts — explaining the economic benefits of trusts as an extension of the law of property.Less
This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and economics community until recently. Borrowing theories and doctrines from corporate law and economics, scholars have variously analysed and described the trust as a tripartite contract, a nexus of contracts, and even a legal entity. These obligational approaches overlook the unique features of trusts for which corporate legal theories have no explanation. Most importantly, they fail to account for the nature of the beneficiary's interest in the trust property. This book presents an original analysis of the common law of trusts, arguing that trust law is about the trust property and the principal parties' relationships with it. At the same time it questions recent trends in trust law, especially those in offshore jurisdictions. Exotic developments such as non-charitable purpose trusts, settlor-retention of wide powers, and generous trustee exemption clauses have become the new normal and, coincidentally, draw analytical support from obligational accounts. This book explains that once trusts are properly understood as property, it becomes obvious why these novel developments can only be for the worse, and should be reversed. It then goes on to develop an analysis of trusts from a proprietary perspective, and applies the property — based approach to the economic analysis of trusts — explaining the economic benefits of trusts as an extension of the law of property.
1895
1929
1971
1989
42
“A Gentleman and an Officer”
‘A Nation of Beggars’?
The A Priori in Philosophy
A. J. Appasamy and his Reading of Rāmānuja
