Knowing Receipt: Re Montagu's Settlement Trusts Revisited
-
Peter B.H. Birks
The principal purpose of this paper is to abandon once and for all the contention that ‘knowing receipt’ should be construed as an equitable species of unjust enrichment but to argue that the recipient of trust assets must nonetheless come under a liability arising from unjust enrichment. The terms of the debate have been fundamentally changed, not only by new cases, but, and indeed more, by two articles of major importance, one by Lord Nicholls of Birkenhead and the other by Professor Lionel Smith. Re Montagu provides a convenient platform from which to present the case. The argument cannot be satisfactorily conducted unless the claim in unjust enrichment is seen in the context of the whole package of weapons used to protect wealth held behind the curtain of a trust. Accordingly the paper considers: (A) the direct assertion of entitlement to an asset (vindication); (B) the assertion of a personal claim arising from the wrong of misappropriation; and (C) the assertion of a personal claim arising from unjust enrichment. The paper argues, against Lionel Smith, that, having (A) and (B), equity must accept (C) on pain of creating, not only indefensible asymmetries with the common law, but also of tolerating contradictory commitments internal to itself.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Frontiers Article
- What is Missing? (Female Genital Surgeries - Infibulation, Excision, Clitoridectomy - in Eritrea)
- Economic Analysis and the Design of Constitutional Courts
- Comparative Efficiency of Alternative Dispute Resolution in Common and Civil Law Countries
- The Value of Ownership
- Comparative Law and Economics: Borrowing and Resistance
- Advances Article
- The Aesthetics of Law
- Knowing Receipt: Re Montagu's Settlement Trusts Revisited
- The E-Commerce Directive and Formation of Contract in a Comparative Perspective
- Legal Systems in Distress: HIV-contaminated Blood, Path Dependency and Legal Change
- Nordic Countries, a Legal Family? A Diagnosis and a Prognosis
- Topics Article
- The Bright and the Dark Side of the Consumer's Access to Justice in the EU
- Towards Civil Liability for Environmental Damage in Europe: the "White Paper" of the Commission of the European Communities
- Penal Judiciary and Politics in Italy
- The Principle contra proferentem in Standard Form Contracts. In particular, the Spanish Case.
- United States Jurisdiction Over Conflicts Arising Outside of the US. Some Hegemonic Implications
- The Human Right of Access to Legal Information: Using Technology To Advance Transparency and the Rule of Law
Articles in the same Issue
- Frontiers Article
- What is Missing? (Female Genital Surgeries - Infibulation, Excision, Clitoridectomy - in Eritrea)
- Economic Analysis and the Design of Constitutional Courts
- Comparative Efficiency of Alternative Dispute Resolution in Common and Civil Law Countries
- The Value of Ownership
- Comparative Law and Economics: Borrowing and Resistance
- Advances Article
- The Aesthetics of Law
- Knowing Receipt: Re Montagu's Settlement Trusts Revisited
- The E-Commerce Directive and Formation of Contract in a Comparative Perspective
- Legal Systems in Distress: HIV-contaminated Blood, Path Dependency and Legal Change
- Nordic Countries, a Legal Family? A Diagnosis and a Prognosis
- Topics Article
- The Bright and the Dark Side of the Consumer's Access to Justice in the EU
- Towards Civil Liability for Environmental Damage in Europe: the "White Paper" of the Commission of the European Communities
- Penal Judiciary and Politics in Italy
- The Principle contra proferentem in Standard Form Contracts. In particular, the Spanish Case.
- United States Jurisdiction Over Conflicts Arising Outside of the US. Some Hegemonic Implications
- The Human Right of Access to Legal Information: Using Technology To Advance Transparency and the Rule of Law
