Hunter v moss criticisms

He owned of the 1, issued shares. In relation to uncertainty of beneficial interests, the trust will fail where the method of distribution is stipulated by the sethlow but cannot take effect Boyce v Boyce.

This gift of 50 shares was never implemented because of tax concerns, the risks of a takeover, and mainly because Moss changed his mind. If a trust fund is not segregated then there will be no certainty of subject matter and the trust will fail.

Hunter V Moss Criticisms

One of those is, of course, that there must be certainty of subject matter. Does Hunter really have any specific proprietary interest capable of assignment. Another problem is that why should there be a specific rule for intangible property. So the distinction based on tangible and intangible property is weak and that it would be better to base a distinction on whether the trustee was solvent or insolvent.

In reliance on that case Mr Hartman submits that no fiduciary relationship can attach to an unappropriated portion of a mixed fund.

Secondly, he suggests it is difficult to see why there should be a dividing line between intangible and tangible property, since there are some principles which apply to both.

Hunter V Moss

Comparing the distinction between fungibles and chattels, Yuen J remarked: This gift of 50 shares was never implemented because of tax concerns, and mainly because Moss had second thoughts.

Just as a person can give, by will, a specified number of his shares of a certain class in a certain company, so equally, in my judgment, he can declare himself trustee of fifty of his ordinary shares in MEL or whatever the company may be and that is effective to give a beneficial proprietary interest to the beneficiary under the trust.

Nevertheless, as it seems to me, to create a trust it must be possible to ascertain with certainty not only what the interest of the beneficiary is to be but to what property it is to attach.

Hunter V Moss Criticisms

However the term residue estate will not fail a trust because it means all the remaining trust property. Hunter brought a case against Moss claiming his 50 shares, which rested on two issues.

In September he said that Hunter, the finance director, could have 50 of these shares as part of his employment. Search Hunter V Moss I pass then to the second point of uncertainty. I appreciate the point taken that the subject matter is a part of a homogeneous mass so that specific identity is of as little as importance as it is, for instance, in the case of money.

Tangible property could be subject to the same rules. The problem with this case is that Dillon is giving the trustee of the will who only has legal title subject to the terms of the trust an executor status, i.

It is a requirement that the subject matter be certain, this means that the property that is intended to be in the trust can be separated from other property in order to be identified, if there is no clear separation of goods then the trust will fail as in Re London Wine Co shippers Ltd3.

Does Hunter really have any specific proprietary interest capable of assignment. Jill Martin, in an article in the Conveyancer and Property Lawyer, argued that the case was "fair, sensible and workable Since the contracts in Re Harvard were for publicly listed shares, they were not specifically performable.

I appreciate the point taken that the subject matter is a part of a homogeneous mass so that specific identity is of as little as importance as it is, for instance, in the case of money. It is quantifiable A problem occurs where the wording used is not sufficiently certain as to know what property is intended to be held on trust and where the property that is held on trust is not segregated by the sethlow from a larger amount of similar property he owns.

Nevertheless, as it seems to me, to create a trust it must be possible to ascertain with certainty not only what the interest of the beneficiary is to be but to what property it is to attach.

There was only a valid trust because there were ufficient shares to satisfy the claim. Of course, this could not apply to Re Gold, for the customer contracts in it could not be specifically performed; and this could not apply to Hunter for it concerned a self-declaration of trust but not a contract of sale.

The C of A could not have decided this in Goldcorp because there were more claims than there was property to satisfy them. As such, the trust was valid. Hunter V Moss I pass then to the second point of uncertainty. It is well established that for the creation of a trust there must be the three certainties referred to.

Hunter v Moss formed the basis of the decision in Re Lehman Brothers International (Europe) (In Administration), but the reason of Dillon LJ was rejected by the Australian Supreme Court of New South Wales in White v Shortall, though the court reached the same conclusion.

"Hunter V Moss Criticisms" Essays and Research Papers Hunter V Moss Criticisms Certainty of subject matter and the critcisms of hunter v moss When creating an express trust knight and knight articulated that there must be certainty of subject matter, certainty of intention and certainty of objects.

Hunter V Moss Criticisms Certainty of subject matter and the critcisms of hunter v moss When creating an express trust knight and knight articulated that there must be certainty of subject matter, certainty of intention and certainty of objects.

Hunter V Moss Criticisms words | 6 pages Certainty of subject matter and the critcisms of hunter v moss When creating an express trust knight and knight articulated that there must be certainty of subject matter, certainty of intention and certainty of objects.

I've read a few different books on the topic of certainty of subject matter and obvious Hunter v Moss is where some of the critique comes out. Is the problem basically the poor reasoning of the Court of Appeal in Hunter v Moss?

The reasoning of the Court of Appeal (and trial judge) is that.

Hunter v moss criticisms
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