Beruflich Dokumente
Kultur Dokumente
Chambers 1997:
All RTs should be considered as arising from the presumption of the back of
any intention by the transferor to pass any beneficial interest to the
transferee. That is, the transferor did not intend to benefit the transferee. The
RT arises to prevent the unjust enrichment of the transferee.
Swadling: Chambers’ view is wrong
ART
Arise on the failure of ET, independent (controversial) of any intention of the
settlor
Van (2?) (Megarry): where ben interest not dealt with it will result back to the
settlor
o Even though he explicitly wanted to not keep any interest (ben interest
cannot remain ‘up in the air’)
Doubted in Westdeusche (L B-W): where settlor has abandoned
any ben interest in property, no RT, prop bona vacantia
B-W: in both ART and PIRT, trust imposed because we presume
that is what parties intended (no consistent with ART in Van)
B&C view: Unjust enrichment
o ART not when ben interest up in air, but when A does not wish to
enrich B
o Swadling concedes that it may explain ARTs.
Westdeusche: PIRT when gratuitous transfer without presumption of
advancement. Can be rebutted. ART when trust fails.
PIRT
Can arise in cases where the property is jointly or solely vested in the Trustee,
the beneficiaries of the purchasers (again, can be single or joint). Gratuitous
transfer or joint purchase cases.
o In voluntary transfer cases, S 60 (3) means no presumption of trust
o Limited to land (Lohia v Lohia 2001)
This presumption can be rebutted in two ways
o Via a presumption of advancement: reversing the burden of Proof
o Normally
Wesdeutsche 1996: The RT arises not on the date of transfer if transferee
ignorant of facts but when the transferee’s conscience becomes affected
Normally
o Fowkes v Pascoe 1875: Purchased stock in joint names
o Strength of the presumption varies according to context
In present case, only rational inference that of gift
Such a gift does not infringe the Wills Act
P of Advancement
Father-child, husband-wife yes; mother-child possibly (Re Vinogradoff
o Held no); wife-husband no
Presumption not of trust but of evidence that leads to trust. Van: ‘evidential
longstops’
What is the court presuming?
Swadling: The presumption is that A intended B to hold the property on trust
Chambers: The presumption is that A did not intend B to take the property
beneficially
Different outcomes when mistaken transfer.
o Swadling: No RT
o Chambers: RT created
Westdeutsche 1996: Supports Swadling (mistaken payment by bank)
Air Jamaica (PC): Supports Birks and Chambers
o RT arises by operation of law
o Responds to absence of any intention to pass the beneficial interest
o SWADLING LECTURE ON WHY MILLET ACTUALLY AGREES WITH HIM
Swadling: PIRT depends not on the absence of intention to make a gift, but on
presumed intention to make a trust.
o Any contrary evidence No PIRT
o No trust in case of mistaken payment
o In many cases settlor doesn’t bring mind to topic: no trust
o Can’t explain ART or Van 1
ART v PRT:
o ART not confined to inter vivos transfers
o No presumption of advancement in ARTs
P of Advancement
Pettitt/Gissing: presumption based in a different era/would hardly play a
role/ easily refuted
Tinker v Tinker 1970: If A transferred money to defeat creditors, then
presumption only strengthened right?
Tribe v Tribe 1996: A can rely on such evidence if his creditors where not
actually deceived.
o If no presumption applies, then A can show that he transferred prop
without consideration, and B will have to prove intention of gift. B
can’t prove this cos A’s intention was deception, hence A will be able to
recover (not ideal but required by Tinsley v Milligan 1994)
o So A cannot recover property if his creditors were deceived if
Presumption applies, but can if presumption doesn’t. Arbitrary!
o Minority in Tinsley equity won’t assist a claimant who doesn’t come
with clean hands
o Law Comm 1999 recommended a structured discretion to decide
effects of illegality on RTs, considering factors like seriousness of
illegality, knowledge and intent of ben, whether invalidity would deter
illegality/ be prop response.