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29 Cards in this Set
- Front
- Back
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Variation of trust |
- Express permission in deed - 100% beneficiaries (terminate) - Court approval for benefit of vulnerable /underage or future beneficiaries - Court inherent jurisdiction (emergency salvage property or disputes) |
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Resulting Trust |
1. Part payment of purchase price (presumption not a gift, unless close family) 2. Express trust fails |
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Removal of trustees |
1. Appointer (named in trust deed) can remove. If none, trustees or PR of last trustee. Only incapable, not if poor performance. 2. Beneficiaries (100%) if no appointer. 3. Broad statutory power for court (if expedient), but must replace. 4. Courts inherent jurisdiction (serious issues - eg dishonesty) |
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Appointment |
1. Appointer (or trustees/PR), but not more than 4 if land or initially 3 or less. 2. Court (when using stat power to remove must replace) |
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Perpetuity |
- General (85yrs pre 2010; 125yrs post 2010) - Life limit (lifetime currently existing + 21) - Doesn't apply to charitable trusts |
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Duty not to profit |
- Cannot profit from office (unless informed consent). Can avoid detriment. - Cannot deal w trust property (even with consent) |
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Advancement |
- 50% for pre 2014 trusts, 100% after. - Applies to contingent beneficiaries - Life tenants no access |
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Delayed entitlement |
- Delay entitlement up to 25 - If so, entitled to income from property once 18 (unless testamentary will from non parent/guardian) |
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Time limitations |
- Non fraud = 6 years - Fraud = no limit, subject to laches - laches = limit on equity if delayed. |
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Accessory Liability |
- Dishonest assistance (requires objective dishonesty) - Knowing receipt (constructive knowledge that assets = traceable) - Jointly/severally liable with trustee |
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Tracing - Innocent volunteers |
- Trustee aware of beneficiary before transfer (no half brothers) - If divisible asset, trace proportionately. If indivisible, beneficial entitlement to 100%. - If not traceable, in personam claim vs volunteer. Limits if bona fide purchaser, change in position or passed on property for no $) |
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Person with significant control |
20% or more and persons exercising control over board composition or company |
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Director removal |
Only at general meeting. Requires special notice (28 days). Ordinary resolution (50%) |
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Designated members |
- Must have at least 2 (if not, all deemed to be designated members) - Must notify companies house (if not, all deemed to be designated members) - Statutory obligations (eg filings etc) not management duties |
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Contracts in writing |
1. By deed (eg land conveyance) 2. Contracts in writing (share transfers, consumer credit contracts) 3. Contracts requiring written evidence (guarantees) |
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Contract Offer |
- Bilateral contacts, adverts = ITT (eg items on shop shelf, e-commerce all ITT, customer makes offer to buy which could be rejected)
- Unilateral (offer for reward = offer, acceptance by completing performance. Can't withdraw offer once performance started )
- Auctions (call for bid = ITT, bid = offer, hammer = acceptance). If no reserve, cannot reject highest offer.
- Tenders = ITT, but can form process (ancillary) contract |
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Postal Rule |
- Exception to general rule that acceptance must be communicated to offeror (eg received). - Applies to letters/telegrams. Acceptance when letter sent. - Probably doesn't apply to instantaneous communication (eg email/text). - Letter of revocation of offer only valid when received |
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Contracts - Minors |
- Under 18
- Unenforceable by older, minor can enforce against older person.
- Exceptions: (1) necessary goods services (based on minors situation - eg ball gowns necessary for rich aristocrat) (2) employment, education, apprenticeship (3) relating to earning a living (provided over 16) (4) other specific contracts valid until voided (eg shares, leases)
- exceptions won't apply if unreasonable terms (eg fixed term of 7 years for apprenticeship)
- Minor cannot recover money paid/property unless total failure of consideration - Adult can get restitution in limited scenario (where contract voided and property still held by child) |
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Legal estates for minor |
Under 18, can't hold legal title. Equitable only. |
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Mental incapacity for contract |
Need to be incapable and other party know that too Applies also if too drunk to understand (and other party knows this) |
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Executed Vs executory consideration |
- Executory = consideration is future promises - Executed = consideration is act performed |
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Past consideration |
Not sufficient generally, unless parties deemed to have intended that acts in the past would have been rewarded |
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Existing contractual obligations |
- Not generally consideration - Exception if fundamentally different circumstances (eg sailing ship dangerous bc desertions) - Exception if performance secures benefit or avoids detriment (eg ensures completion or avoids LDs). Cannot be under duress. |
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Part payment of debt |
- Rule in Pinnels case (promise to accept part payment = unenforceable).
- Exceptions (1) Lower amount but other terms changed (eg date of payment, location, currency) (2) Acceptance of goods, even if lower market value than debt (3) payment by third party to satisfy debt (4) composition among creditors (5) promissory estoppel |
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Promissory estoppel |
(1) Existing legal relation (2) clear promise (3) reliance/change of position (4) inequitable to break promise |
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Informal arrangements - intention to contract |
- Presumption that family arrangements are not binding (CF if separated and infer intention to be arms length) - Informal social contracts same, CF a joint enterprise (eg pool money to buy lottery tickets) |
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Implied terms |
- Objective construction of contract itself (does that support the implied term)?
- Officious bystander/business efficacy are ways of understanding objective meaning of contract - Must be necessary not just reasonable |
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Exclusion clauses |
- Signed contract (don't need to read, but no misrepresentation or fraud) - Unsigned contract (need aware/ought to be aware - eg drew attention to clause before entry, CF sign in hotel room) - Unfair Contract Terms Act (for business) / Consumer Rights Act (for consumers) - (1) Can't exclude liability for negligence leading to personal injury or death. Other negligence exclusions must be reasonable. (2) Can't exclude liability for own breach (3) Can't exclude implied condition that seller has title to good sold. Others can be excused in business, but not in consumer. - General unfairness in consumer contracts prohibited (creates significant imbalance). |
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Types of misrepresentation |
- Fraudulent = tort (requires dishonest MR - hard to prove).
- Negligent (1) common law - need duty of care (eg special relationship), but can cover third parties outside eventual contract. Burden on relying party. (2) Statutory - no need for duty (just reliance on untrue). Burden shifts to representor - must disprove reliance. Only applies to contractual counterparty.
- Innocent - only rescission (damages not available as of right but can grant indemnity) - Right of rescission lost if affirm or rescission impossible |
