Analysis of Doctrine of Equity

Analysis of Doctrine of Equity The doctrine of equity was created to fill in the gaps of common law by providing more flexible remedies, unlike common law which only provide damages such as injunction, specific performance, equitable estoppel etc. Equity only governed by the maxims where it is based on the principles of fairness and conscience and are not as strict as common law. Hence, as the doctrine of equity developed and became more and more flexible in the past centuries, it has now been argued by many academics that equity is now too conceptually messy to be useful.ÂÂ   It has been argued that equity is a blend of strict rules and discretionary principles which attributes to English Law with its flexibility. He further explained that equity comprised of firm rules as well as discretionary principles which will be applicable in different circumstances.[1] In deciding this, the flexibility of equity would be discussed, especially in the areas of such as the three certainties, Quistclose trust and doctrine of fiduciaries. In the case of Knight v Knight[2], Lord Langdale MR had laid down the three certainties test to create a valid private express trust. Certainty is an important element in trust as without certainty, the intention, object and subject of the trust could not be determined by the courts which would then lead to an invalid trust. Under certainty of intention, the settlor must use very clear words and expression to impose a legal obligation for the trustee to hold the property on trust. Generally, imperative words are more encouraged to be used in a will as compared to precatory words. In the case of Re Adams[3], the phrase in full confidence was used in the clause and it was held that there was no trust created as there is no imperative words used in the will. However, in Comiskey v Bowring[4], even the same phrase was used as in Re Adams case, but it was held that the wording created a trust. It could be submitted that the courts now no longer only look at a single word to determine whether there is a trust but look at the whole of the will. In more complex situations where there are no documents available, the courts might infer intention from acts or the words of the parties. In Paul v Constance[5], it was held that the words the money is as much yours as it is mine is sufficient to make a valid trust as there was repeated conduct and has a clear intention. It was suggested that the courts are being too generous in the decisions. However, in Jones v Lock[6], it was held that it was insufficient to manifest a clear intention for the father to create a trust for the son. The problem is that both cases were lack of specific intention to create a trust, there were only general intention to benefit. However, both cases were held differently. It could be argued that the actions were louder than the words in Pauls case. Gardner suggested that the difference of both cases was merely the reflection of changing judicial attitudes.[7] Next, under the certainty of subject matter, the test used by the courts would be whether the property could be certainly identified. However, the courts have recently created an artificial distinction between tangible and intangible property. In Re London Wine Co[8], it was held that no two bottles of wine are alike and therefore it could be identified for their customers. However, in Re Goldcorp Exchange Ltd[9], it was held that the claimants whose gold bullion had been segregated were successful in the claim but not those whose bullion had not been segregated. The reasoning was that the stock of the gold has been constantly changing and it was hard to say which particular piece of gold belongs to any particular customer. It could be submitted that the courts were trying to uphold the principle of fairness by having a different decision from Re Londonscase as the tangible property items here could not be segregated properly. On the other hand, in Hunter v Moss[10] where the property is intangible, a different approach was taken by the courts. In the case, it was held in favour of the claimant and stated that the segregation as in tangible property is not necessary where a trust is made over an intangible property. The reasoning for this is that since the shares is indistinguishable from one another, they will be treated as equal. Based on all three cases above, it could be seen that this area is messy as this certainty has not been applied consistently and the judges have too much discretion changing the judicial attitudes. Lastly, the certainty of object matter required that there must be ascertainable beneficiaries in a trust. Re Baden (No.2)[11] had shown that there are different approaches to deal with when there is a class of objects in a discretionary trust. The test used in the case was originated from McPhail v Doulton[12] where the application of a complete list test was impossible and borrowed the is or is not test from Re Gulbenkians Settlements[13] to determine the beneficiaries. However, there are 3 interpretations on the applicability of the test. Firstly, Sachs LJ upheld the literal application of the original test, but reversed the burden of proof on the claimant to proof that he falls within the class of beneficiaries. Sachs LJ further noted that this does not apply to all discretionary trust situations as a lot of trust with uncertainty would be validated. Secondly, Megaw LJ suggested the approach used in Re Allen[14]which was overruled by Re Gulbenkians case where it held that a trust should be valid if a substantial number of people can show that they are in the class. Finally, Stamp LJ suggested a strict approach where he stated that it is necessary for both conceptual and evidential certainty to exist without any unknown of the certainties. Any unknown of the certainties would lead to an invalid trust. It could be submitted that this area would be too messy for the future cases to refer as there are too many different views. The flexibility of equity could also be found in Quistclose trust which created by Lord Wilberforce in Barclays Bank Ltd v Quistclose Investments Ltd[15]. The Quistclose trust arises when a company borrows money with a particular purpose in mind for that money. Lord Wilberforce suggested there are primary trust to pay dividend and secondary trust arose in favour of the lender if primary trust failed. However, this was heavily criticised as it failed to meet the three certainties to be a valid trust. Later, Lord Millet in Twinsectra v Yardley suggested that there is only one resulting trust instead of two trusts while majority of the court held that it was an express trust. In Re EVTR[16], Dillon LJ suggested that it was a constructive trust for the purpose of the loan.Moreover, academics like Alastair Hudson had suggested that the better analysis for this should be an express trust.[17] Furthermore, in Re Farepak Food[18], Mann J held that there was no trust and described this is as a contractual relationship as opposed to trustee-beneficiary.[19] Furthermore, equity also shown its flexibility in fiduciary area. A fiduciary is a person who holds a position of trust and confidence. Fiduciary has the duty to act in the best interest of the principal in a fiduciary relationship. A fiduciary is bound by the no conflict rule where he must make sure that his duties to the principal do not conflict with his own interest and not allowed to make a profit. The leading case would be Boardman v Phibbs[20] which involves trust where it applied the strict rule which originally from cases such as Keech v Sandford[21] and Bray v Ford[22].The decision was a made in majority of the judges while the other two judges gave dissenting judgments. Lord Upjohn in dissenting suggested that the case should be approached in a more equitable angle and should be decided on its own individual facts instead of laying down a strict rule to be followed like the common law courts. However, in Murad v Al-Saraj[23], the majority of courts again decided by following the rules. Arden LJ from the majority suggested that the court should revisit the inflexibility of rule of equity in harsh circumstances. Furthermore, Jonathan Parker LJ from majority also suggested that it is the time for the court to relax the severity of the rule. In minority, Clarke LJ suggested that the fiduciary could argue for a share in profits even though they breached their duty by reasoning with Warman International v Dwyer[24]. In Foster Bryant Surveying v Bryant[25], it was held that the defendant was not required to account his subsequent profit as the facts were different from the traditional cases. It was suggested that this case law would only be followed when there are same facts in the future. Based on the above, equity has been flexible to evolve to suit the needs of the society. Hence, it is tremendously complex as it was built centuries of laws, but the courts are free to generate new principles and to adapt or apply the old ones depending on the situation. As suggested by Alastair Hudson, equity forces us to consider the plight of the individual in this complex world and to save that individual from being caught up in the legal machine or exposed to irremediable suffering.[26] In conclusion, it could be submitted that equity is still useful even though it might be conceptually messy as shown above. However, this would be inevitable as equity has to be flexible but it would be also required to maintain some consistencies across the cases to prevent the law from being vague. (1650 words) Bibliography Books Gardner S, An introduction to the Law of Trusts (3rd edn OUP 2011) Hudson A, Equity and Trust, (8th edn, Routledge, Oxon, 2015) Hudson A, Great Debates in Equity and Trusts,(1st edn, Palgrave Macmillan 2014) Electronic Sources Alastair Hudson, The Fundamentals of Quistclose Trusts, http://www.alastairhudson.com/trustslaw/Quistclose.pdf accessed on 13rd February 2017 Table of Cases Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Boardman v Phibbs [1967] 2 AC 46 Bray v Ford [1896] A.C. 44 Comiskey v Bowring-Hanbury [1905] A.C. 84 Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200 Hunter v Moss [1993] 1 WLR 934 Jones v Lock [1865] 1 Ch App 25 Keech v Sandford [1726] Sel. Cas.Ch.61 Knight v Knight [1840] 3 Beav 148 McPhail v Doulton [1971] AC 424 Murad v Al-Saraj [2005] EWCA Civ 959 Paul v Constance [1977] 1 All ER 195 Re Adams Kensington Vestry [1884] LR 27 ChD 394 Re Allen [1953] 1 All ER 308 Re Badens Trusts (No.2) [1973] Ch 9 Re EVTR [1987] BCLC 646 Re Farepak Food and Gifts Ltd (In Administration) [2008] BCC 22 Re Farepak Food and Gifts Ltd (In Administration) [2008] BCC 22, 34 Re Goldcorp Exchange Ltd (In Receivership) [1994] 3 WLR 199 Re Gulbenkians Settlements Trusts [1968] UKHL 5 Re London Wine Co (Shippers) Ltd [1986] PCC 121 Warman International v Dwyer [1994-5] 182 CLR 544 [1] Alastair Hudson, Great Debates in Equity and Trusts,(1st edn, Palgrave Macmillan 2014) [2] Knight v Knight [1840] 3 Beav 148 [3] Re Adams Kensington Vestry [1884] LR 27 ChD 394 [4] Comiskey v Bowring-Hanbury [1905] A.C. 84 [5] Paul v Constance [1977] 1 All ER 195 [6] Jones v Lock [1865] 1 Ch App 25 [7] Simon Gardner, An introduction to the Law of Trusts (3rd edn OUP 2011) 52-3 [8] Re London Wine Co (Shippers) Ltd [1986] PCC 121 [9] Re Goldcorp Exchange Ltd (In Receivership) [1994] 3 WLR 199 [10] Hunter v Moss [1993] 1 WLR 934 [11] Re Badens Trusts (No.2) [1973] Ch 9 [12] McPhail v Doulton [1971] AC 424 [13] Re Gulbenkians Settlements Trusts [1968] UKHL 5 [14] Re Allen [1953] 1 All ER 308 [15] Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 [16] Re EVTR [1987] BCLC 646 [17] http://www.alastairhudson.com/trustslaw/Quistclose.pdf, The Fundamentals of Quistclose Trusts, accessed on 13rd February 2017 [18] Re Farepak Food and Gifts Ltd (In Administration) [2008] BCC 22 [19] Re Farepak Food and Gifts Ltd (In Administration) [2008] BCC 22, 34 [20] Boardman v Phibbs [1967] 2 AC 46 [21] Keech v Sandford [1726] Sel. Cas.Ch.61 [22] Bray v Ford [1896] A.C. 44 [23] Murad v Al-Saraj [2005] EWCA Civ 959 [24] Warman International v Dwyer [1994-5] 182 CLR 544 [25] Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200 [26] Alastair Hudson, Equity and Trust, (8th edn, Routledge, Oxon, 2015)

Microstructural Brain Injury in Post-Concussion Syndrome After Minor He

The article Microstructural Brain Injury in Post-Concussion Syndrome After Minor Head Injury, by ****, studied post concussive symptoms relationship with innovative MRI imaging. Mean diffusivity, fractional anisotropy, and the presence of microhaemorrhages were used to indicate micro-structural brain injury in subjects with minor head injuries. Although they experienced symptoms participants’ CT (computed tomography) and normal MR images did not display any irregularities. Participants contained 21 MHI patients and 12 controls that were healthy who were matched to the ages (between the ages 18 to 50), genders, and educational levels of the MHI participants. The MHI patients were involved with the study 1 month after being in the emergency room with head trauma. All needed a normal neurological inspection and a Glasgow Coma Scale (GCS) of 13-15, which determines the conscious state of an individual. The patients and controls were scanned with diffusion tensor imagining (DTI) and high-resolution gradient recalled echo (HRGRE) weighted sequences. Their cognitive function was assessed with the Mini Mental Status Examination (MMSE). The Rivermead Postconcussion Symptoms Questionnaire (RPSQ) measured the severity of their post-concussive symptoms. A higher score meant that the symptoms were more severe after the injury. Additionally, the number of days before the patients went back to work or school was noted. The results indicated that microhaemorrhages were seen in only one patient. Fractional anisotropy showed a decrease in the subcortical white matter of the right temporal lobe. When correlated to the severity of post-concussive symptoms FA displayed decrease in the uncinate fasciculus, the fronto-occipital fasciculus, the interna... ...s the symptom severity did not correlate to completing the task correctly. Works Cited Lannsjà ¶, M., Raininko, R., Bustamante, M., Von Seth , C., & Borg , J. (2013). Brain pathology after mild traumatic brain injury: an exploratory study by repeated magnetic resonance examination. J Rehabil Med, 45(8), 721-728. doi: 10.2340/16501977-1169 Pardini, J., Pardini, D., Becker, J., Dunfee, K., Eddy, W., Lovell, M., & Welling, J. (2010). Postconcussive Symptoms are associated with compensatory cortical recruitment during a working memory task. Neurosurgery, 67(4), 1020-1028. doi: 10.1227/NEU.0b013e3181ee33e2 Smits, M., Houston, C., Dippel, W., Wielopolski, A., Vernooij, W., Koudstaal, J., Hunink, G., & Van Der Lugt, A. (2011). Microstructural brain injury in post-concussion syndrome after minor head injury. Neuroradiology, 53(8), 553-563. doi: 10.1007/s00234-010-0774-6

How Sports Affect Academics

Narator: This Reflective Piece consists of three persons who are John, Rodney and Paul. Narrator: Week before Cape results are out John: So fellas, cape results coming out? Feel allyuh do good? Rodney: I hope so, I put in enough time and study because I was behind and I wanted to prove that I could do what nobody expected of me and excel. Paul: Hahaha, Rodney why you studied? You are still going to fail? Rodney: No, I stopped basketball to study and I made some good sacrifices. Paul: Stopped basketball? Make me stop football na?I’m going to do excellent in Cape and get a scholarship just for football. John: Well like you, Paul, I continue to play cricket but I was also focusing on my studies and putting in meh extra work. I balanced my academics with my extra-curricular activities. Rodney: Well, we will see which one of the three techniques worked the best. John: Yes we will see, but I pray to God I succeed. Paul: Ok den, we will see how good I’ve done. Narrator: Walkin g in school to collect their results John: Ok fellas, now today is the big day.Rodney: Yes it is, we will find out what our future is and what our next step in life is. Paul: Who wanna pray? Rodney: Pray na Paul. Paul: Please Lord, let us get the required grades needed to further our education in what we will like to do and be proud in Jesus name, Amen! Rodney: When you serious, you serious boy Paul but why you couldn’t be serious like that for your school work as you were for football or for this prayer? Paul: I was! Allyuh was just getting fooled. John: Let us just go quickly and get our grades please!Narrator: After receiving the Cape Results Rodney: Yesss! Da wa we talkin bout! John: Dun kno, I do rel good dan. Paul: Hmmm, I did ok, could have done better. Rodney: John and Paul how allyuh do? John: I did great, I got four distinctions and there’s even a bigger surprise. Guess? Paul: Wa is da boy? John: Ok, I also geh an open science schol. Rodney: Weyzz, you did be ast, I geh four ones and got an additional mathematics schol. Narrator: A moment of silence grew upon the three friends John: Well, Paul wa you geh? Paul: Orr ok uhmm I got three fours and a five.Five is a pass in Cape so at least I pass all my subjects. Narrator: John and Rodney laughed loudly Rodney: I thought you were going to get a scholarship because of football Paul? What causing that? Paul: Well honestly, I think it is because I did not rely focus a whole lot on my school work and did not manage my time the way I should have done. John: Although I did not quit or take a pause in my extra-curricular activity, I worked harder in pursuing my education and striving for excellence and cricket maybe one ah d reason why I geh an Open Schol too.Rodney: I put my sport on a hold for a while until my Cape Exam pass because I was not one of the brightest students so I could not of balance both basketball and academics. In making my decision I studied hard and made quality sacrifices to g eh my Maths Schol. Narrator: Making decisions in further education John: So what allyuh going to do to now? Paul: I think I going to S. A. M and settle down because I realize this life thing rel serious. I wa be an accountant. Rodney: I am going UWI and further my studies in maths. I am going to do a Major in Maths and a Minor in Actuarial Science.I wa be an Actuarial Scientist. John: Well, I am going Harvard and further my studies in sciences, mostly Chemistry. I wa be a Chemist. Rodney: We set our life goals deh eno, so we making up we mind to achieve eh and doe slack off. We wuh stay in touch. John: Yes of course and I hope allyuh excel in allyuh education and Paul, focus this time because I know you could do it. Paul: First, I am praying I get into SAM, but if I do, I will take a different approach in my school work and be serious cuz I wa my life run smoothly after and be proud of myself.John: Yea, later deh. I gone. Rodney: Yea I bussin deh too. Paul: Word, we wuh catch up in d long run. Narrator: The three persons excelled at their different goals and be what they wanted to be. One can surely realize that sports has a good and a bad effect on education but it is in yourself to take it serious and prove you can do it in whatever aspect of sports you are doing and career. In concluding this piece I think one should always â€Å"Strive for Excellence†.

Global warming and bacteria Free Essay Example, 1250 words

Fungi and soil bacteria commonly known as the decomposers, play an essential role, in breaking down the organic carbon and releasing carbon dioxide back in the atmosphere. This carbon dioxide in as much as it causes global warming, but is also harnessed again by plants, to form energy, through the process of photosynthesis. Effects of bacteria on global warming Ruminants, which are animals with four digestive chambers, the largest of the chambers being the rumen, also contribute to global warming. The rumen has millions of microbes including yeasts, bacteria, protozoa and moulds, which break down cellulose, a major component of animal feed. Cellulose is a tough and insoluble Fibre that makes part of the plant cell. The ruminants cannot break down cellulose directly, because they lack the essential required digestive juices and enzymes to do so. Therefore, they achieve this via the help of methanogens, which are a group of archaea which habitat in the rumen. These microbes specialize in breaking the animal food into methane gas. The animal then ejects this gas through belching, on both ends of the digestive tract. We will write a custom essay sample on Global warming and bacteria or any topic specifically for you Only $17.96 $11.86/pageorder now The produced gas (methane) is a very powerful greenhouse gas because it traps 20 times as much as the same volume of carbon dioxide. This implies that methane warms the earth 20 times as much times as carbon dioxide. Soil as a medium carries microbes in it as well. When temperatures increase, the soil microbial activities also increase, proportionally. The breakdown of carbon materials by decomposing bacteria in the soil increases, thereby producing lots of carbon dioxide as a waste product. It is estimated that soil microbial activity can double when there is a temperature increase of about (5Â °C-10Â °C). When this happens, there is an increase in respiration, a process in which carbon dioxide is released into the environment, as a waste. This carbon dioxide causes global warming as a greenhouse gas. As global warming occurs, temperatures increase and consequently the microbial activities within the soil increase, producing more carbon dioxide. This process is endless, and can continue up to a point in which the temperatures would be too high, and life unsustainable on earth. This clearly indicate the significance of such bacteria in relation to the environment, and the impacts on global war ming at large. Impacts of Global Warming On Bacteria Bacteria present in all living organisms, thrive well in different optimum temperatures, and various optimum conditions, depending on the organism itself, and the part of the organism, in which the bacteria are inhabited.