Thursday, January 30, 2020

Proving Declaration of Trust and Effecting Disposition of Beneficiary’s Interest Essay Example for Free

Proving Declaration of Trust and Effecting Disposition of Beneficiary’s Interest Essay Proving declaration of trust and effecting disposition of beneficiary’s interest Proving declaration of trust: In order to prove declaration of trust all types of evidence are admissible. Exceptions: a) Trust of land where the declaration has to be manifested and proved by some writing (Section 7 of Statute of Fraud Act 1677; Section 53(1)(b) of Law of Property Act 1925). The reason for this rule is to prevent fraud (Youdan). The written evidence can antedates or postdate the declaration of trust. ) Testamentary trust/trust executed after death by will (will be discussed in the chapter of secret trust). Consequence of oral declaration in case of trust of land: a) An oral declaration is perfectly valid because the section 53(1)(b) is an evidential section. b) But problem arises during litigation when the declaration is challenged. c) It is often said that, though mistakenly, without written evidence a declaration of trust is valid but unenforceable. d) This is based on an analogy with the section 40(1) of LPA 1925 but this section was repealed in 1989. ) There are two reasons for this analogy to be false: i) Section 53(1)(b) is concerned about proof and section 40(1) was concerned about enforceability as apparent from the wordings of the sections. ii) Section 40(1) had been overruled back in 1989. f) Subject guide is of the view that if a declaration of trust cannot be proved by evidence then there is no trust at all, not a valid but unenforceable one. Exceptions to section 53(1)(b): a) Common Law exception: Oral evidence can be admissible in order to prevent a fraud. For example, a trustee himself would commit a fraud if he were allowed to shelter behind the statutory provision and deny the declaration of trust (Rochefoucauld). b) This exception is only applicable in case of express trust. c) Statutory exception: The section 53(1)(b) is not applicable in case of resulting, implied or constructive trust (section 8 of Statute of Fraud Act; section 53(2) of LPA 1925). d) It is because, in case of constructive, resulting or implied trust no allegation is made as to the fact that a declaration of trust has been made and thus we need to prove it. So, when there is no declaration of trust, the need to prove it cannot exist. e) Matrimonial homes cases such as Pettitt, Gissing, Rossett, Stack are express trusts of land (Rochefoucauld) even though it is been mentioned in these cases that they are ‘Common Intention Constructive Trust’. This is a misnomer to say them CICT because a CT arises for any reason other than intention to create a trust so there cannot be ‘common intention constructive trust’. Effecting Disposition of Beneficiary’s Interest: ) Disposition of an equitable interest or trust subsisting at the time of disposition must be in writing signed by the person disposing the same or by his agent (Section 53(1)(c) LPA 1925). b) So there is no disposition until it is written and signed, the reason is section 53(1)(c) is a substantive section as apparent from the wording of the section. c) One can argue that as the wording of the predecessors of section 53(1)(b) and 53(1)(c) are similar (i. e. section 7 and 9 of Statute of Fraud Act), therefore, there should not be this difference between these two sections. ) However, the courts have taken this approach and we need to follow it. e) There is a question that whether section 53(1)(c) is only applicable in relation to trust of land. As per section 205(x) of LPA 1925 equitable interest means interest in or over land or in the proceeds of sale thereof. As such 53(1)(C) is only confined to trust of land. f) However, as significant cases like Grey, Oughtred and Vandervell were n ot cases of land but section 53(1)(c) was applied there, therefore, the best way to solve this dilemma is to say that those cases were decided per incuriam of section 205(x). What transactions are dispositions or assignments and caught by section 53(1)(c)? a) Disposition has wider meaning than assignment though disposition included assignment. b) The key to understand disposition is to understand that it only covers disposition of equitable interest. If somehow, there is no equitable interest to dispose of or if both the legal and equitable interests are disposed of then there cannot be a disposition under section 53(1)(c). ) A direction of a beneficiary to his trustee to hold the rights on trust for a third party is disposition can caught by section 53(1)(c) (Grey v IRC). d) A direction by the beneficiary to the trustee to transfer the right to a third party then there is no need to comply with section 53(1)(c) as the direction is to transfer both the legal and equitable interest rather than equitable interest only (Vandervell v IRC) e) A self declaration of trust by the beneficiary for the whole or part is disposition and caught by section 53(1)(c) (Gra inge v Wilberforce). ) A declaration of trust by the trustee for a third party with the consent of the existing beneficiary is a disposition and should be caught by section 53(1)(c) provided estoppel does not operate. If estoppel occurs as occurred in re Vandervell (No 2) and thus prevents the trustee to dispose of the equitable interest in favour of someone, then section 53(1)(c) cannot operate (re Vandervell (No 2). g) A contract by the beneficiary to assign their rights does not fall into section 53(1)(c) (Oughtred v IRC; Neville v Wilson). ) A surrender of a beneficial interest is caught by section 53(1)(c) (IRC v Buchanan). i) Disclaimer of beneficial interest is not covered by section 53(1)(c) (re Paradise Motor Ltd). The rationale of 53(1)(c): a) The purpose of this section is to prevent fraud by way of protecting the trustee from false allegation by someone to be an assignee of the beneficiary’s interest. If the trustee disposes the interest to that false assignee then he will be vulnerable to a claim of breach of trust. ) Therefore, in Vandervell v IRC, as the rights were no longer held in trust, therefore, there was no trustee to protect and as such the section had no work to do and inapplicable. c) Now, as in Grey, the trustee received the direction from the beneficiary himself and knew that it was genuine and no allegation by false assignee can deceive him, therefore, the section 53(1)(c) cannot apply there. It is because the trustee need not be protected against any false allegation here. In the light of this, Grey can be revisited.

Wednesday, January 22, 2020

Free College Essays - Stylistic Devices in The Stranger by Albert Camus :: The Stranger The Outsider

Use of Stylistic Devices in The Stranger    In his novel The Stranger, Albert Camus uses the stylistic devices of imagery and diction to develop the intensity of the physical action and to illustrate the lack of emotion in the last paragraph of Part I. Imagery of all kinds is abundant in this passage as Meursault, the main character, pays great attention to and describes in detail the beach environment that surrounds him. Visual imagery is present as he conveys the intense heat by telling how it seemed as though the sky had cracked open and was raining flame, and by personifying the ocean, recounting how it breathed blistering hot air onto the beach. Auditory imagery is employed when Meursault speaks of the cymbals of the sun clashing and describes the four shots fired as â€Å"four quick knocks on the door of unhappiness.† Imagery of a tactile nature is used in Meursault’s depicting the effects of the light reflecting off of the Arab’s knife on him, its â€Å"searing† his eyelashes and â€Å"gouging† his eyeballs. All of this imagery works together to create the feeling of intense pressure in the actions being carried out by both Meursault and the Arab on the beach. All of it describes what is happening in the physical world, yet none of it deals with how Meursault feels in that situation (whether apprehensive, frightened, or angry) or what he is thinking. Since the imagery of the passage deals only with action and not the emotion, Camus creates the impression that there is no emotion. The diction used by Camus in the paragraph further develops the intensity of the action and the lack of emotion. Words such as â€Å"pulsing,† â€Å"scorch,† â€Å"bursting,† â€Å"clashing,† â€Å"searing,† and â€Å"gouging† are used in context with the heat on the beach, the veins in Meursault’s forehead, the sun, and the light reflecting off the Arab’s knife. All of these words carry a violent and rather drastic connotation which augments the tension in the activity of the passage.

Tuesday, January 14, 2020

Deviant Behavior Essay

One man having more than one wife can be a deviant behavior depending on the country and a person’s beliefs. Polygamy is considered normal and lawful in many countries, but it is outlawed in the United States. The people that believe in it say that monogamy is not natural and it oppresses the social structure. Those against it, say it is a religious offense, or that it violates a spouse’s right to intimacy. The Mormon belief is that polygamy is holy and was practiced commonly in ancient times. Having more than one wife is not only natural it is expected in most cases. However in other societies, some believe it is not only wrong but it’s also against the law. The law can be tricky at times especially when it involves religion because as long as a man is following the Mormon faith he can have more than one wife I think. The majority of incarcerated people live below the poverty level because they can’t afford to hire a good attorney and have to settle for the one appointed to them. However, those with money and power can buy just about anything, whether it’s a good lawyer, or to bribe people in high places. The deviant behavior of the powerful is generally considered to be their business and would normally be ignored by society. Someone who is less powerful would have to accept it and deal with whatever punishment they are given. If the wealthy and powerful are lucky enough, they will do a short Federal prison time. The less fortunate go straight to jail or prison. For example, if an average person gets pulled over for a DUI, they will usually get their liscense suspended, serve 30 days or so in jail, and have large fines to pay. A person of power will most likely be able to post bond within a few hours and pay court fines as soon as they can.

Monday, January 6, 2020

The Crisis Of The Soviet Union - 3735 Words

Introduction Since the collapse of the Soviet Union, the United States has been viewed as the single hegemonic power, dominating the world economically, militarily and culturally. However, it is clear that power relations in the global system have been severely tested after the events of September 11, 2001. It was a crucial event, which significantly changed the trajectory of the global balance of power and has an immediate effect on the United States, its Western Allies and other regions around the world.. As a matter of national security strategy, the main priority of the U.S. becomes the demonstration of its global primacy to all challengers and overthrowing of the status quo of the powers in the hostile regions, while the terror emerges as a widespread power utilization method of the weak in asymmetrical power balance. Although, before the terrorist attacks the process of globalization has already challenged the notion of sovereignty, however, 9/11 attacks has become a game changer in terms o f national security across the world. It also brought the need for the powerful states to cooperate more on intelligence, threat assessment and implementation of regulatory and management strategies. At the same time, the strong emphasis of the foreign policy of the United States on counter terrorism in the Islamic regions has challenged the status quo of some states in the Middle East, North Africa and South Asia. This paper represents an analysis of the impact of the sustained U.S.Show MoreRelatedThe Crisis Of The Soviet Union1685 Words   |  7 PagesThis paper is attempting to look at the deeper financial and policy issues in which the country Ukraine faced during their financial crisis in 2008-09. 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