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This chapter offers an overview and analysis of fiduciary remedies. The remedies considered are accounting for profits, constructive trust, equitable compensation, injunction, the unwinding remedies (e.g., rescission), and the supervisory remedies (e.g., instruction, removal). One point of emphasis is the close relationship between fiduciary duties and fiduciary remedies. The chapter also distinguishes the remedies of fiduciary law from those of agency. In addition, the chapter considers three major unsettled questions. First, are the remedial aims of fiduciary law distinct from tort and contract? Second, how should judges and scholars think about fiduciary remedies in light of the distinction between law and equity? Third, is punishment of an erring fiduciary a legitimate aim for fiduciary remedies?
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"New in this edition: Material on aboriginal settlement trusts, sham trusts, gratuitous transfer to trustee of pre-existing trust, resettlement of trust, administrative and cy-près schemes, public appeals (fundraising), rebutting presumptions in context of illegal purposes, personal liability of trustees, exculpatory clauses, and tracing into the payment of a debt. ... updated with new case and statute law, including references to the 2015 Trustees Act of New Brunswick that is based on the Uniform Trustee Act of 2012"--Publisher's website
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For more than a century, Black's Law Dictionary has been the gold standard for the language of law. This edition contains more than 50,000 terms, including more than 7,500 terms new to this edition. It also features expanded bibliographic coverage, definitions of more than 1,000 law-related abbreviations and acronyms, and reviewed and edited Latin maxims
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In recent years Chambers, Smith, McFarlane and Stevens have all sought to explain the nature of equitable proprietary rights by way of the concept of a ‘right to (or ‘in’, or ‘against’) a right’. In this paper I argue that there is a sense in which this conceptualisation of the beneficiary’s equitable proprietary under a trust is illuminating, but that, rather than a right to the trustee’s possessory interest in tangible property, the ‘rights’ of the trustee in which the beneficiary is interested are the trustee’s powers of title. I also contend, in a ‘fusionist’ spirit, that equitable property interests should not be treated as a particular ‘legal kind’, but rather that only interests under trusts should be regarded as a distinct sort of property interest within the numerus clausas. I go on to show how the proposed analysis best explains (1) our notion of ‘beneficial interest’ under a trust; (2) why a trustee is not a residual claimant to the trust assets; (3) the interest of a discretionary object of a trust; (4) the rules of and rationale for tracing; and (5) the ‘automatic’ resulting trust.
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"In recent years, trust law has continued to expand its influence at a rapid pace, particularly in the area of pension trusts, where it plays a key role in resolving conflicts over the administration, creation, termination, and revocation of pension funds. The flexible nature of trusts results in its continued development, especially in the areas of resulting and constructive trusts. This new edition offers substantially revised chapters on both types of trust, as well as many more caselaw references. Chapter 6 explores the various situations in which a resulting trust can arise, examines the important role of intention in finding a resulting trust, and analyzes recent pronouncements by the Supreme Court on the presumptions of resulting trust and advancement. Chapter 7 offers an updated discussion of the constructive trust, which courts increasingly employ as a tool for remedying unjust enrichment in cohabitation cases."--Pub. desc.
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The breadth and scope of copyright limitations and exceptions has emerged as a major policy issue around the world.² Some narrow limitations on copyright holders’ rights, such as quotation, remain uncontroversial, yet more expansive, flexible exceptions have generated fierce debate. Virtually all domestic copyright laws include some limitations and exceptions to the exclusive rights otherwise granted to copyright holders, typically achieved through the adoption of one of two models. One approach is a “fair use” model, which is widely viewed as the most flexible limitation and exception on the copyright holders’ rights, given its potential applicability to any circumstance or
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Canadian copyright collectives and the Copyright Board have in recent years advanced the theory that when the Board certifies collectives’ tariffs (or fixes the royalties in individual cases), those tariffs become mandatory on users. Users have no choice whether to deal with the collective; they must pay the specified royalties as long as they make a single unauthorized use of a work from the collective’s repertoire. Many users, for some strange reason, have also subscribed to this view, despite its extraordinary consequences. This article, first in a series of two, shows that this spectre of a “mandatory tariff” lacks any basis in law. Established case law debunks it, standard principles of statutory interpretation contradict it and the legislative history discredits it. An approved tariff creates a compulsory licence that interested users can avail themselves of, if they wish to obtain a licence, but it does not force users to become licensees. Copyright collectives can recover unpaid royalties only from users who offered to pay them and later default on their payment.
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