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Property and Trusts — Overview

Oxford has long been synonymous with excellence in the law of property and of trusts. Indeed, it has been suggested that property law was instrumental in Oxford’s first becoming a centre of learning - in the twelfth century, scholars who had learned property law in France were attracted to Oxford as their conveyancing expertise was invaluable to the local abbeys.1 In more modern times, Oxford scholars have published some of the leading works in property law, such as “Ownership” by Tony Honore;2 “Trust, Power and Duty”3 by James Harris; and “Economic Theory v Property Law: The Numerus Clausus Problem”4 by Bernard Rudden.  The list of books and papers published by current members of the Oxford Law Faculty given below shows that this tradition of excellence and breadth in property law scholarship continues today.

Our Faculty expertise enables us to supervise graduate research in a wide field of property law, and we welcome applications for doctoral studies. In 1997 alone three very influential books on property law and trusts were published from doctoral studies in Oxford: “The Idea of Property in Law”5 by James Penner; “The Law of Tracing”6 by Lionel Smith; and “Resulting Trusts”7 by Robert Chambers. This trend has continued into the new millennium: books published by recent D Phil graduates include “Boundaries of Personal Property: Shares and Sub-Shares”8 by Arianna Pretto-Sakmann; and “Chattel Torts”9 by Simon Douglas.

Oxford’s teaching strength in property law means that students benefit from lectures, seminars and tutorials given by authors of leading textbooks and journal articles. Oxford also hosted the 2010 Modern Studies in Property Law Conference, and with regular meetings of the Property Law Discussion Group, it is clear that property law and trusts is an important part not only of Oxford’s past, but also of its future.

This theme contains four subjects, namely: Advanced Property and Trusts, Land Law, Personal Property and Trusts


Advanced Property and Trusts

Forthcoming Subject Events


May 2014

Property Law Discussion Group in conjunction with Advanced Property and Trusts
Fiduciary Duties, and their Relationship to Tort, Contract, and Property law
Speaker: Professor Tamar Frankel, Boston University School of Law
Oxford Law Faculty Senior Common Room at 12:30

Publications

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J S Getzler, 'Ascribing and Limiting Fiduciary Obligations: Understanding the Operation of Consent' in Andrew S. Gold & Paul B. Miller (eds), Philosophical Foundations of Fiduciary Law (Oxford University Press 2014)

J S Getzler, 'Financial crisis and the decline of fiduciary law' in Charles Morris & David Vines (eds), Capital Failure: Rebuilding Trust in Financial Services (Oxford University Press 2014)

J S Getzler, 'Plural Ownership, Funds, and the Aggregation of Wills' (2009) 10 Theoretical Inquiries in Law 241 [...]

This Article suggests that common ownership, better described as, plural ownership to distinguish the phenomenon from semicommons, may usefully be analysed from a dual perspective. Plural ownership may simultaneously be seen as an aggregation of individualised rights, duties and intentions, and as giving rise to a real entity with a group mind and corporate rights and duties distinct from those of the individual owners. For the purposes of understanding this dualism, the most developed and interesting form of plural ownership is the trust fund with multiple controllers and beneficiaries, an ancient device that now serves as the bedrock of modern capitalism. The fund is here subjected to legal, historical and philosophical scrutiny to uncover how group personality is generated by plural ownership in the absence of formal legal incorporation.


ISBN: 1565-1509

J S Getzler, Timothy Endicott and Edwin Peel (eds), Properties of Law: Essays in Honour of Jim Harris (Oxford University Press 2006) [...]

Essays on legal theory, property theory, precedent, and criminal law.The late Jim Harris' theory of the science of law, and his theoretical work on human rights and property, have been a challenge and stimulus to legal scholars for the past twenty-five years. This collection of essays, originally conceived as a festschrift and now offered to the memory of a greatly admired scholar, assesses Harris' contribution across many fields of law and legal philosophy. The chapters are written by some of the foremost specialists writing today, and reflect the wide range of Harris's work, and the depth of his influence on legal studies. They include contributions on topics as diverse as the nature of law and legal reasoning, rival theories of property rights and their impact on practical questions before the courts; the nature of precedent in legal argument; and the evolving concept of human rights and its place in legal discourse.


ISBN: 0-19-929096-2

Courses

The courses we offer in this field are:

Postgraduate

BCL

Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds

Advanced Property and Trusts

The course explores the foundations of the institutions of property and trusts. It combines conceptual and functional analysis of doctrine with more abstract theoretical enquiry. Ideas and perspectives are drawn from moral and political philosophy, history, and economics, as well as more formally legal, comparative and jurisprudential analyses. Some knowledge of the legal details of property in one or other legal system will be essential for students taking the course. A common-law background is not a prerequisite; much use will be made of English law and other common law systems, but we will also draw upon civilian legal systems in our explorations. The course gives students an opportunity to study fundamental institutions of private law with wide ramifications in the social sciences and humanities. Students will be exposed to the widest possible range of research and teaching in property law and trusts drawing on visiting scholars as well as Oxford faculty. The topics discussed are all ripe for exploration as areas of future research.

The course will divide into three areas: A. Boundaries of Property (conceptual and functional analysis of property) B. Justifying Property (mainstream and novel defences and critiques of property) C. The Trust (the distinctive contribution of trust and fiduciary institutions in blurring the lines between proprietary and personal claims; trust systems in common law and civilian jurisdictions)

The course will be taught by means of seminars supplemented by lectures and tutorials, led by Joshua Getzler, Simon Douglas, The Hon J Dyson Heydon, and Alexandra Braun. The core seminars are spread over Michaelmas and Hilary terms. Students will be provided with course materials accessible through the internet and the intranet, together with material in university and college libraries. Students will explore the reading materials and address a set of thematic questions, on which they will be asked to prepare brief notes. In approximately the fourth and eighth weeks of Michaelmas and Hilary terms seminars will not be given; instead tutorials will be provided in those four weeks, for which students will be asked to prepare essays on given topics. Each student will thus have the opportunity to take a set of up to four tutorials in the midst of their seminar learning across the first two terms. In Trinity Term students will be given the opportunity to consolidate their learning in occasional seminars where they will take the lead in discussion and in presenting topics, with extra readings supplied to help with deeper exploration of issues. The tutorials and third-term seminars will assist students in preparing for assessment.

Assessment will take the form of a three hour written examination at the end of the course. Candidates will be required to answer three essay questions from a wide choice of topics, which may cut across themes covered in the course. Candidates will be expected to show a detailed knowledge of relevant theoretical debates and also applicable legal materials, including judgments in cases, and statutory and constitutional provisions. They will also need to display an ability to synthesise complex materials and to present their own analysis of the arguments.

The course is taught mainly by: Joshua Getzler, Professor of Law and Legal History, Fellow of St Hugh’s College; The Hon J Dyson Heydon, Visiting Professor; Simon Douglas, CUF Lecturer in Law, Fellow of Jesus College; Alexandra Braun, CUF Lecturer in Law, Fellow of Lady Margaret Hall.

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Advanced Property and Trusts

The course explores the foundations of the institutions of property and trusts. It combines conceptual and functional analysis of doctrine with more abstract theoretical enquiry. Ideas and perspectives are drawn from moral and political philosophy, history, and economics, as well as more formally legal, comparative and jurisprudential analyses. Some knowledge of the legal details of property in one or other legal system will be essential for students taking the course. A common-law background is not a prerequisite; much use will be made of English law and other common law systems, but we will also draw upon civilian legal systems in our explorations. The course gives students an opportunity to study fundamental institutions of private law with wide ramifications in the social sciences and humanities. Students will be exposed to the widest possible range of research and teaching in property law and trusts drawing on visiting scholars as well as Oxford faculty. The topics discussed are all ripe for exploration as areas of future research.

The course will divide into three areas: A. Boundaries of Property (conceptual and functional analysis of property) B. Justifying Property (mainstream and novel defences and critiques of property) C. The Trust (the distinctive contribution of trust and fiduciary institutions in blurring the lines between proprietary and personal claims; trust systems in common law and civilian jurisdictions)

The course will be taught by means of seminars supplemented by lectures and tutorials, led by Joshua Getzler, Simon Douglas, The Hon J Dyson Heydon, and Alexandra Braun. The core seminars are spread over Michaelmas and Hilary terms. Students will be provided with course materials accessible through the internet and the intranet, together with material in university and college libraries. Students will explore the reading materials and address a set of thematic questions, on which they will be asked to prepare brief notes. In approximately the fourth and eighth weeks of Michaelmas and Hilary terms seminars will not be given; instead tutorials will be provided in those four weeks, for which students will be asked to prepare essays on given topics. Each student will thus have the opportunity to take a set of up to four tutorials in the midst of their seminar learning across the first two terms. In Trinity Term students will be given the opportunity to consolidate their learning in occasional seminars where they will take the lead in discussion and in presenting topics, with extra readings supplied to help with deeper exploration of issues. The tutorials and third-term seminars will assist students in preparing for assessment.

Assessment will take the form of a three hour written examination at the end of the course. Candidates will be required to answer three essay questions from a wide choice of topics, which may cut across themes covered in the course. Candidates will be expected to show a detailed knowledge of relevant theoretical debates and also applicable legal materials, including judgments in cases, and statutory and constitutional provisions. They will also need to display an ability to synthesise complex materials and to present their own analysis of the arguments.

The course is taught mainly by: Joshua Getzler, Professor of Law and Legal History, Fellow of St Hugh’s College; The Hon J Dyson Heydon, Visiting Professor; Simon Douglas, CUF Lecturer in Law, Fellow of Jesus College; Alexandra Braun, CUF Lecturer in Law, Fellow of Lady Margaret Hall.


People

Advanced Property and Trusts teaching is organized by a Subject Group convened by:

Joshua Getzler: Professor of Law and Legal History

in conjunction with:

Alexandra Braun: Associate Professor of Law
Simon Douglas: Associate Professor of Law

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Land Law

Publications

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Showing all 27 Land Law publications currently held in our database
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Journal Articles

2011

S J Bright and Nick Hopkins, 'Home, Meaning and Identity: Learning from the English Model of Shared Ownership:' (2011) 28 Housing, Theory and Society 377 [...]

DOI: 10.1080/14036096.2010.527119

This article explores the problematic nature of the label ‘home ownership’ through a case study of the English model of shared ownership, one of the methods used by the UK government to make home ownership affordable. Adopting a legal and socio-legal analysis, the article considers whether shared ownership is capable of fulfilling the aspirations households have for home ownership. To do so, the article considers the financial and non-financial meanings attached to home ownership and suggests that the core expectation lies in ownership of the value. The article demonstrates that the rights and responsibilities of shared owners are different in many respects from those of traditional home owners, including their rights as regards ownership of the value. By examining home ownership through the lens of shared ownership the article draws out lessons of broader significance to housing studies. In particular, it is argued that shared ownership shows the limitations of two dichotomies commonly used in housing discourse: that between private and social housing; and the classification of tenure between owner-occupiers and renters. The article concludes that a much more nuanced way of referring to home ownership is required, and that there is a need for a change of expectations amongst consumers as to what sharing ownership means.


ISBN: 1403-6096

2010

S J Bright and S Highmore, 'Carbon Reduction Commitment and Commercial Leases' (2010) 74 Conveyancer 430 [...]

This article discusses the complexities of accommodating CRC within commercial leaes and explores drafting responses


2009

S J Bright, 'Occupation Rents and the Trust of Land and Appointment of Trustees Act 1996: from Property to Welfare? ' (2009) 73 Conveyancer 378

2008

S J Bright, 'Drafting Green Leases' (2008) 72 Conveyancer 498 [...]

This article looks at how the commercial leasehold relationship can be operated in a manner that reduces the environmental impact of building use. It looks particularly at the role of the leasehold contract and argues that all releases can be drafted and operated in an environmentally sensitive manner.


ISBN: 0010 -- 8200

S J Bright, 'Green leases' (2008) 158 New Law Journal 1135

S Gardner, 'Family Property Today' (2008) 124 Law Quarterly Review 422

2006

S J Bright, 'Protecting the Small Business Tenant' (2006) 70 Conveyancer 137 [...]

article arguing that small business tenants needed the same kind of protection as is available to other consumers


ISBN: 0010-8200

2005

S J Bright and others, 'Personal Liability in Proprietary Estoppel' (2005) 69 The Conveyancer 14 [...]

Argues that in cases of estoppel relating to land the "representor" (A) is liable to the "representee" (B), and that this personal liability survives a transfer of the land to C.


S J Bright, 'Procuring the Notice to Quit: A Public Law Challenge' (2005) 8 Journal of Housing Law 6 [...]

Discusses the Court of Appeal case in McCann v Birmingham and asks whether the local authority's encouragement to serve a notice to quit can be challenged in public law.


ISBN: 13686542

Books

2012

S Gardner and E MacKenzie, An Introduction to Land Law (3rd edn, 2012)

2011

J Cartwright and EH Burn, Cheshire and Burn's Modern Law of Real Property, 18th edition (Oxford University Press 2011) [...]

New edition of established text on Land Law


ISBN: 978-0-19-959340-8

2009

J Cartwright and E H Burn, Maudsley & Burn\'s Land Law Cases & Materials, 9th edition (OUP 2009) [...]

Case book on Land Law


ISBN: 9780199226177

2007

W J Swadling, Property (A S Burrows, 2nd edition, Oxford University Press 2007)

2006

S J Bright, Landlord and Tenant Law. Past, Present and Future. (Hart 2006) [...]

Collection of essays edited by Susan Bright, with introduction by Susan Bright. Based on conference papers for conference held in September 2005. The conference was conceived and brought together by me to stimuate debate between academics and practitioners, and to provide a reflective look at landlord and tenant law as a whole.


ISBN: 978-1-84113-593-9

Chapters

2013

S J Bright, 'Manchester City Council v Pinnock' in N Gravells (ed), Landmark Cases in Land Law (Hart 2013) [...]

This chapter explores what the case of Manchester CC v Pinnock means In terms of the rhetoric of ownership and our doctrinal thinking about property rights. It is argued that it heralds a much more contextualised understanding of what it means to assert ownership of land and of how claims for the recovery of land should be resolved. It is these dimensions that are explored in this chapter


ISBN: 9781849462570

S J Bright, Jeremias Prassl and Hannah Glover, 'Tenancy Agreements' in E Simpson and M Stewart (eds), Sham Transactions (Oxford 2013)

S Bright, H Glover and J Prassl, 'Tenancy Agreements' in E Simpson and M Stewart (eds), Sham Transactions (OUP 2013)

2012

S J Bright and others, 'Evaluating Legal Models of Affordable Home Ownership in England' in T. Turnipseed (ed), Community, Home and Identity (Ashgate 2012) [...]

This chapter explores the legal modesl used to provide for low cost home ownership and: a) Explains the legal frameworks used to deliver the main LCHO products available in England; b) Explores the potential benefits of home ownership to the individual in the form of wealth creation, “mainstreaming” and security of place; c) Sets out key additional policy objectives of LCHO, in particular introducing and supporting tenure mix (sustainable communities) and sustaining the opportunity for continued use of the subsidy to provide access to LCHO for intermediate income households; and d) Evaluates the extent to which the different products available deliver both the individual benefits of home ownership and support the wider policy objectives.


ISBN: 9781409438540

2010

S J Bright, 'Dispossession for Arrears: The Weight of Home in English Law ' in L Fox O’Mahony and J A Sweeney (eds), The Idea of Home in law: Displacement and Dispossession (Ashgate 2010) [...]

This chapter examines whether, and if so the extent to which, the processes of dispossessing a debtor of his or her home enable weight to be attached to the importance of this home to this person. The focus is upon what will be called the ‘personal home story’.


ISBN: 978-0-7546-7947-9

2009

S J Bright, 'The limits of contractual freedom in English commercial leases' in Francoise Auque (ed), Baux commerciaux, Quel modele pour l'Europe? (Larcier 2009)

2006

W J Swadling, 'Land Burdens - An English Perspective' in S van Erp & B Akkermans (eds), Towards a Unified System of Land Burdens? (Intersentia 2006)

Case Notes

2012

A Briggs, 'Co-ownership and an equitable non sequitur' (2012) 128 Sweet & Maxwell, Law Quarterly Review 183 [...]

Comment on one, but important, aspect of the judgments in Jones v Kernott, pointing out the flaw in the application of the maxim that equity follows the law in the law of co-ownership of land.


ISBN: 0023 933X

S J Bright, 'The Uncertainty of Certainty in Leases' (2012) 128 LQR 336 [...]

This note explains the significance of the Supreme Court decision in Mexcfield v Berrisford


S Gardner and K Davidson, 'The Supreme Court on Family Homes - Jones v Kernott' (2012) 128 Law Quarterly Review 178

2006

S J Bright, 'Tolerated Trespass or A New Tenancy?' (2006) 122 Law Quarterly Review 48

2004

S J Bright, 'Unfair Terms and Unfair Allocations' (2004) Journal of Housing Law 40 [...]

Note on Court of Appeal decision in Khatun v Newham LBC


ISBN: 13686542

Courses

The courses we offer in this field are:

Undergraduate

FHS (Phase II)

The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the third term of the first year, and all three terms of the second year.

Land Law

The focus of attention within the course is on interests in land: interests which do not merely operate not merely between the parties to a particular transaction involving the land, but can also affect third parties - other people coming into contact with it, such as later purchasers. Examples of such interests are the fee simple (virtually equivalent to ownership of the land), leases, easements and mortgages. The course concerns itself with questions such as: What interests count as interests in land? How are they created? Exactly when will they affect third parties?

Land Law has a well established set of principles, often regulated by statute, to govern it. In part this is because people dealing with land need to know with certainty what the result of a particular transaction will be. Even so, there are many areas of the subject which are currently being developed by case law.

The course is not about conveyancing, the buying and selling of land. It is true, however, that in Land Law we are conscious of the needs of purchasers. Thus, for example, the circumstances in which purchasers will be bound by interests are inextricably tied in with the way land is bought and sold.Land Law covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales. Candidates in the FHS examination must offer both Land Law and Trusts.

The subject is taught in tutorials by your college tutor. For an introduction to the subject see Simon Gardner with Emily MacKenzie, An Introduction to Land Law (Hart Publishing, 3rd edn, 2012).

FHS - Final Year (Phase III)

The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the first and second term of the final year; the Final Examinations are taken in the third term of the final year.

Commercial Leases (not offered in 2013-14)

A majority of commercial property (shops, offices, and industrial units) is rented property. Leasehold commercial property is therefore very important to the UK economy and to legal practice. This course will provide an understanding of the legal relationship of landlord and tenant in the context of the letting of commercial property. It will encourage students to think about the lease as a contractual arrangement, a proprietary estate and as a regulated instrument, and what the appropriate way is to regulate the division of interest between landlord and tenant. It should appeal to students who have enjoyed contract law, but also builds on aspects of the land law course.

For tenants, flexibility is important. If the business is successful, and its location important, it will want to stay put, even after the lease ends. If the business grows or shrinks it may need to be able to get out of the lease, by selling it or surrendering it. For many landlords, the lease is an investment and they will focus on the lease as a tool for guaranteed, low risk, but rising income. Both parties will want a property that is well maintained, but who should pay for this? The course will look at how leases balance these interests through the contract, but also at when the government has stepped in to regulate.

There are three main stages in the leasehold relationship: entering into the lease, management issues, and ending the relationship. The major influence upon the legal relationship of landlord and tenant is the lease contract negotiated between the parties. The course will therefore look at how leases are distinguishable from other occupancy relationships, and the main terms that appear in leases. In doing so, it will consider the range of factors that influence the content of the lease, such as the type and location of property, the relative negotiating strength of the parties, and wider economic and social policies. The course will also explore how leases provide for management of the property during the lease: allocating responsibility and liability for repair, how the property can be used, reviewing the rent, and servicing the property. As estates, leases can be ‘sold’ or assigned: the course will look at the ability of landlords to control the disposition of leasehold interests, and the impact that this has upon the enforcement of the leasehold covenants between both the original landlord and tenant, and between the current landlord and tenant. It will also look at rights that the tenant has to renew the lease at the end of the term. Leases usually contain ‘forfeiture’ provisions, enabling the landlord to end the lease early in the event of tenant default and the course will look at how this right has been regulated by common law and statute.

Exploring the legal relationship will, therefore, involve looking at the application of principles of land law and contract law that law students will already have encountered (such as the distinction between leases and licences, and principles of contractual interpretation) as well as the law (both statutory and common law) specific to commercial leases.

Diploma in Legal Studies

Land Law

The focus of attention within the course is on interests in land: interests which do not merely operate not merely between the parties to a particular transaction involving the land, but can also affect third parties - other people coming into contact with it, such as later purchasers. Examples of such interests are the fee simple (virtually equivalent to ownership of the land), leases, easements and mortgages. The course concerns itself with questions such as: What interests count as interests in land? How are they created? Exactly when will they affect third parties?

Land Law has a well established set of principles, often regulated by statute, to govern it. In part this is because people dealing with land need to know with certainty what the result of a particular transaction will be. Even so, there are many areas of the subject which are currently being developed by case law.

The course is not about conveyancing, the buying and selling of land. It is true, however, that in Land Law we are conscious of the needs of purchasers. Thus, for example, the circumstances in which purchasers will be bound by interests are inextricably tied in with the way land is bought and sold.Land Law covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales. Candidates in the FHS examination must offer both Land Law and Trusts.

The subject is taught in tutorials by your college tutor. For an introduction to the subject see Simon Gardner with Emily MacKenzie, An Introduction to Land Law (Hart Publishing, 3rd edn, 2012).

Postgraduate

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Land Law (also part of the BA course)

The focus of attention within the course is on interests in land: interests which do not merely operate not merely between the parties to a particular transaction involving the land, but can also affect third parties - other people coming into contact with it, such as later purchasers. Examples of such interests are the fee simple (virtually equivalent to ownership of the land), leases, easements and mortgages. The course concerns itself with questions such as: What interests count as interests in land? How are they created? Exactly when will they affect third parties?

Land Law has a well established set of principles, often regulated by statute, to govern it. In part this is because people dealing with land need to know with certainty what the result of a particular transaction will be. Even so, there are many areas of the subject which are currently being developed by case law.

The course is not about conveyancing, the buying and selling of land. It is true, however, that in Land Law we are conscious of the needs of purchasers. Thus, for example, the circumstances in which purchasers will be bound by interests are inextricably tied in with the way land is bought and sold.Land Law covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales. Candidates in the FHS examination must offer both Land Law and Trusts.

The subject is taught in tutorials by your college tutor. For an introduction to the subject see Simon Gardner with Emily MacKenzie, An Introduction to Land Law (Hart Publishing, 3rd edn, 2012).


People

Land Law teaching is organized by a Subject Group convened by:

Simon Gardner: Professor of Law

in conjunction with:

Alexandra Braun: Associate Professor of Law
Adrian Briggs: Professor of Private International Law
Susan Bright: Professor of Land Law, McGregor Fellow
John Cartwright: Professor of the Law of Contract
Mike Macnair: Associate Professor of Law
Jeremias Prassl: Supernumerary Fellow in Law
Eveline Ramaekers: Career Development Fellow at Wadham College
Roger Smith: Associate Professor of Law
William Swadling: Reader in Property Law

Also working in this field, but not involved in its teaching programme:

Peter Clarke: Retired. Formerly Lecturer
Jennifer Collins: DPhil Law
Derek Davies: Retired. Formerly Fellow and Tutor in Law at St Catherine's
Jeffrey Hackney: Retired. Formerly Fellow and Tutor in Law at Wadham and St Edmund Hall
Peter Hayward: Retired. Formerly Fellow of St Peter's
Arturo Ibanez Leon: DPhil Law student
Natalie Mrockova: DPhil Law student
Luke Rostill: DPhil Law student
Derek Wood: Retired. Formerly Principal of St Hughs

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Personal Property

Discussion Groups

These self-sustaining groups are an essential part of the life of our graduate school. They are organised in some cases by graduate students and in others by Faculty members and meet regularly during term, typically over a sandwich lunch, when one of the group presents work in progress or introduces a discussion of a particular issue or new case. They may also encompass guest speakers from the faculty and beyond.

Property Law Discussion Group

Publications

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Showing all 8 Personal Property publications currently held in our database
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Journal Articles

S Green, 'Theft and Conversion' (2012) Law Quarterly Review 564 [...]

An examination of the difference between the criminal and civil law treatment of interferences with personal property, with particular attention paid to intangibles and money. The thesis essentially concludes that the criminal law's approach is both more coherent and appropriate to modern forms of property.


ISBN: 0023-933X

S Green, 'To Have and to Hold? Conversion and Intangible Property' (2008) 71 Modern Law Review 114

S Green, 'Can a Digitized Product be the Subject of Conversion?' [2006] LMCLQ 568

S Gardner, 'Rethinking Family Property' (1993) 109 Law Quarterly Review 263 [...]

Cited in Van Laethem v Brooker [2005] EWHC 1478 (Ch), [67] (Mr Justice Lawrence Collins)


Books

S Green and John Randall QC, The Tort of Conversion (shortlisted for the Inner Temple Book Prize 2011) (Hart 2009)

Chapters

S Green, 'OBG v Allan' in S Douglas, R Hickey and E Waring (eds), Landmark Cases in Property Law ( 2014) (forthcoming)

W J Swadling, 'Property' in Birks (ed), English Private Law (OUP 2000)

Case Notes

J S Getzler, 'Unclean Hands and the Doctrine of Jus Tertii' (2001) 117 Law Quarterly Review 565 [...]

The nature of titles to personal property as ranked rights to possession is analysed in relation to a case where the legal basis for police confiscation ended, so leaving a presumed thief with a superior title. The illegality or viciousness of the earlier possession was not a bar to title.


ISBN: 0023-933X

Courses

The courses we offer in this field are:

Undergraduate

FHS - Final Year (Phase III)

The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the first and second term of the final year; the Final Examinations are taken in the third term of the final year.

Personal Property

The objective of this course is to provide students with an overview of the law of personal property, focusing in particular on underlying concepts and subjecting those concepts to a detailed, critical examination. The course aims to broaden students’ knowledge by introducing them to fundamental ideas which the FHS compulsory subjects do not cover: such as the role of the tort of conversion in protecting interests in property; and the means by which gifts of interests in property can be made. The course further aims to deepen students’ understanding of important concepts which feature in the core subjects of Land Law and Trusts: students will be re-introduced to and, more importantly, invited to re-examine concepts such as the nature of ownership and the need for security of transactions.This special subject may not be taken by any student who is also taking the standard subject Principles of Commercial Law.

i) Introductory Seminar/Lecture: 1 x 2hr session
ii) Seminars: 7 x 2hr sessions
iii) Tutorials: 4 x 1hr sessions

These sessions will be spread over MT and HT.


People

Personal Property teaching is organized by a Subject Group convened by:

Simon Douglas: Associate Professor of Law

in conjunction with:

Stefan Enchelmaier: Professor of European and Comparative Law
Sarah Green: Associate Professor of Law
Roger Smith: Associate Professor of Law
William Swadling: Reader in Property Law

Also working in this field, but not involved in its teaching programme:

Emily Hudson: CDF in IP Law
Luke Rostill: DPhil Law student

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Trusts

Publications

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Showing all 45 Trusts publications currently held in our database
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Journal Articles

2011

J S Getzler, '\'As If\'. Accountability and Counterfactual Trust' (2011) 91 Boston University Law Review 931 [...]

Law sustains trust in fiduciaries not primarily by ordering redress of losses caused by a falling below fiduciary standards, but rather by requiring that the fiduciary be induced to act as if those standards were met. Wherever possible, the fiduciary is estopped from acting in reliance on the breach, and instead is asked to cure the breach by positive performance of duty. As a fiduciary, you do not keep the illegal profit and proffer compensation for any ensuing loss; rather, you hold the profit for the beneficiary as you always should have done, with loss measures calculated to level any shortfall. This "as if" trusting, enforced by law, solves the conundrum that complete trust properly requires no enforcement, but is self-enforcing, or better, self-fulfilling. This thesis is explored and justified through an examination of the history of accountability and allied modern doctrines controlling fiduciaries who breach their trust.


ISBN: 0006-8047

2009

J S Getzler, 'Fiduciary investment in the shadow of financial crisis: Was Lord Eldon right?' (2009) 3 Journal of Equity 219 [...]

The structure of trust duties yielding a duty to invest with due care derives from the interaction of the power to manage trust assets as a fiduciary owner with a duty to do so with prudence and diligence. In earlier equity mediocre or failed investments were chargeable to trustees only where shown to involve wilful default, which meant choice of investments outside the range or risk profile of those approved by the law or expressly licensed by the settlor or beneficiary. Lord Eldon in the early nineteenth century entrenched the view that only assets with indestructible capital -- for trust funds, gilts and mortgages on a wide safety margin, and in the case of trusts of realty, further land purchase -- were fit targets for trust investment without special authorisation. With more sophisticated capital markets developing in the nineteenth century, parties regularly set up far wider trust powers of investment, and the legal standard shifted towards enforcing prudent investment processes rather than safe results, using a benchmark of common practice to fix the requisite standard of care. American law from the late 1970s shifted to a new default position mandating portfolio investment, once it had become clear that the great majority of professionally managed trusts typically authorised entry into the profitable if volatile stock market; Australian and English law and practice eventually followed. Meanwhile, government policy favouring funded welfare, as opposed to the pre- and post-war fiscal transfer and national insurance systems, led to massive growth of pension capital under trust management. Statutory and curial reforms allowed pension trustees, and then all trustees, to invest unrestrictedly in all asset classes as plenary owners including portfolio stock investment, provided that certain undemanding standards of care and propriety were met. Portfolio investment by trustees was designed to win the 'equity risk premium' for beneficiaries while avoiding the volatility of the capital markets, through bundling into mutual funds permitting index sampling of wide markets and hedging and risk-correlation of equities and bonds. The recent sharp fall in share values allied to the credit crunch and financial banking crisis starting in late 2007 have tested the portfolio theory to destruction. Whether the macroeconomic benefits of market allocation of pension trust capital through unrestricted private choice has delivered sufficient stable welfare to enough individuals is a question the law may be ill equipped to answer. But trust law does have resources to detect individual and collective pathologies in investment conduct and set standards that can direct parties into less destructive paths.


ISBN: 1833-1237

2007

J S Getzler, 'ASIC v Citigroup: Bankers' conflict of interest and the contractual exclusion of fiduciary duties' (2007) 2 Journal of Equity 62 [...]

An investment bank advising a client in a takeover bid may simultaneously engage in trading in the target company, and this carries a risk of driving up the target price. If, however, the bank forbears to trade, the market may take this as a confirmation that a takeover is being planned by the advisory wing of the bank, again affecting the target price. In ASIC v Citigroup, the bank had excluded all fiduciary duties towards its client, and so claimed there was no conflict of interest in the bank's proprietary trading in the target company ahead of the takeover operation. ASIC argued that in the run-up to execution of the retainer the bank had a preliminary fiduciary duty to seek fully informed consent to the broad exclusion of fiduciary duties, such that the client understood the risk that the bank might trade or otherwise act against the client's interests. The Federal Court ruled that formal consent sufficed where the parties were well-advised business actors, or alternatively that commercial actors implicitly consent to such risks. The decision identifies - but does not solve - the pervasive problem of conflicts of interest generated by the integrated investment banking model.


ISBN: 1833-1237

J Prassl, 'Quistclose Trusts: In Search of Coherent Answers' (2007) 3 CSLR 51

2002

J S Getzler, 'Legislative incursions into modern trusts doctrine in England: The Trustee Act 2000 and the Contracts (Rights of Third Parties) Act 1999' (2002) 2:1:#2 Global Jurist Topics 1 [...]

English trust law is increasingly emulating contract. The relationship of trustee to beneficiaries is now modelled as a consensual relationship created by agreement rather than custody; and governed by standards and duties of care with tort-like features as opposed to traditional fiduciary controls. This movement, which has considerable support in the appellate judiciary, is accelerated by the recasting of trustee powers and duties in the Trustee Act 2000. Further contractualization might provoke a shift into third-party-beneficiary contract and agency models, a process that may be helped by the Contracts (Rights of Third Parties) Act 1999. The shift to contract-tort models may have gone too far in empowering trustees at the expense of entrustors, and on a broader level, in deregulating capital investment markets.


ISBN: 535-167X

2000

A Braun, 'I trusts interni' (2000) Rivista di diritto civile 573

Books

2011

S Gardner, An Introduction to the Law of Trusts, 3rd edition (Oxford University Press, Clarendon Law Series 2011) [...]

Cited in Independent Trustee Services Ltd v G P Noble Trustees Ltd [2012] EWCA Civ 195, [82] (Lloyd LJ)


ISBN: 978-0-19-954575-9

2009

S Gardner, An Introduction to Land Law, 2nd edition (Hart Publishing 2009) [...]

Cited in Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776, [29] (Lord Walker of Gestingthorpe); Jones v Kernott [2011] 3 WLR 1121, [21] (Lord Walker of Gestingthorpe and Baroness Hale of Richmond)


2007

S Gardner, An Introduction to Land Law (Hart Publishing 2007)

2004

W J Swadling, The Quistclose Trust: Critical Essays ((Hart, 2004) (editor) 2004)

2003

S Gardner, An Introduction to the Law of Trusts, 2nd edition (Oxford University Press, Clarendon Law Series 2003)

1990

S Gardner, An Introduction to the Law of Trusts (Oxford University Press, Clarendon Law Series 1990)

Chapters

2013

S Gardner, 'Persistent Rights Appraised' in N Hopkins (ed), Modern Studies in Property Law, Vol 7 (Hart Publishing 2013) (forthcoming)

2012

J S Getzler, 'Assignment of Future Property and Preferences' in J Glister and P Ridge (eds), Fault Lines in Equity (Hart Publishing 2012) [...]

An investigation of a flashpoint in the judicial control of insolvency. I examine how the equitable law of future assignments, designed to enforce paid-for promises and uphold the interests of assignees, is in tension with another 'equitable' policy established by statute, namely the jurisdiction to prevent preferential assignments that tend to defraud creditors by blocking recourse against debtors' assets. The High Court of Australia has been particularly active in this area, issuing an important judgments from the early 20th century to the present day. This body of law demonstrates the intermingling of equity jurisprudence and statute.


ISBN: 9781849462198

2011

A Braun, 'Italy: the trust interno ' in D. Hayton (ed), The International Trust (3rd edn) (Jordans, Bristol 2011)

2010

W J Swadling, 'The Nature of the Trust in Rochefoucauld v Boustead' in Mitchell, C (eds), Constructive and Resulting Trusts (Hart Publishing 2010)

2009

S Gardner, 'Reliance-Based Constructive Trusts' in C Mitchell (ed), Constructive and Resulting Trusts (Hart Publishing 2009) [...]

Cited in Crossco No 4 Unlimited v Jolan Ltd [2012] 2 All ER 754n, [82], [94] (Etherton LJ)


ISBN: 9781841139272

2006

A Braun, 'Italy' in J. Glasson and G. Thomas (eds), The International Trust (2nd edn) (Jordans, Bristol 2006)

2005

W J Swadling, 'The Vendor-Purchaser Constructive Trust' in S Degeling and J Edelman (eds), Equity in Commercial Law (Lawbook Co, 2005)

2003

A Braun, 'La giurisprudenza italiana sui trust' in M Dogliotti and A Braun (eds), Il trust nel diritto delle persone e della famiglia (Giuffré, Milano 2003)

2002

J S Getzler, 'Equity' in H M Kritzer (ed), Legal Systems of the World: A Political, Social and Cultural Encyclopaedia (ABC-Clio, Santa Barbara 2002) [...]

Analysis of theory and history of equity, in ancient law and modern common law.


ISBN: 1576072312

W J Swadling, 'Limitation' in Birks & Pretto (eds), Breach of Trust (Hart Publishing 2002)

2000

J S Getzler, 'Equitable Compensation and the Regulation of Fiduciary Relationships' in P B H Birks and F D Rose (eds), Restitution and Equity Vol. 1: Resulting Trusts and Equitable Compensation (Mansfield Press/LLP, London 2000)

Edited books

2003

J S Getzler (ed), Rationalizing Property, Equity and Trusts - Essays in Honour of Edward Burn (Lexis-Nexis Butterworths 2003) [...]

In this festschrift, appellate judges, academic lawyers and practitioners have joined to celebrate Edward Burn's career as a searching writer and brilliant teacher. Essays volume cover topics including: the rationality of English land law; the reach of land registration; the nature of proprietary estoppel; the essential attributes of trusts and how they can be exported to Civilian systems; the nature of fiduciary liability; the relationship between restitution and equity; the duty of care in will drafting; form and substance in tax, lease and mortgage law; the relationship between English and Romanesque prescription theories; and the study of Roman law in Oxford.


ISBN: 406964408

Internet Publications

2007

J Hackney, 'Submission on Draft Consultation on Public Benefit. Charity Commission' (2007) Law Commission papers [...]

A fundamental challenge to the Charity Commission's assumption that the Charities Act 2006 has allowed it to ignore the pre-existing law on public benefit.


Case Notes

2009

J S Getzler, 'Quantum Meruit, Estoppel, and the Primacy of Contract' (2009) 125 Law Quarterly Review 196 [...]

The House of Lords and the High Court of Australia in separate decisions made within weeks of each other grappled with the correct use of equitable and restitutionary doctrines augmenting the operation of contract law in commercial relationships. The Lords sharply narrowed the doctrine of estoppel where a contract failed to materialize after heavy reliance by a putative joint venturer; but were permissive in allowing a limited quantum meruit remedy based on unjust enrichment. The High Court rejected any possibility of a leapfrogging claim to allow recovery of enrichment by a subcontractor, and the plurality in obiter comments threw doubt on the existence of an autonomous unjust enrichment principle in Australian law.


ISBN: 0023-933X

2008

J S Getzler, 'Excluding fiduciary duties: the problem of investment banks' (2008) 124 Law Quarterly Review 15 [...]

Integrated investment banks trading in securities markets can end up acting against the interests of clients they advise in mergers and other deals. Typically the bank's retainer excludes fiduciary duties so as to allow the bank activities which otherwise would constitute conflicts of interest. In ASIC v Citigroup the Federal Court of Australia held that formal consent to such exclusions of duty sufficed, and that fully informed consent was not requisite. The problem of pervasive conflicts of interest in financial markets was identified, but the judge held that only a legislative solution would be legitimate.


ISBN: 0023-933X

2006

J S Getzler, 'Inconsistent Fiduciary Duties and Implied Consent' (2006) 122 Law Quarterly Review 1 [...]

Describes the tightening of the application of the loyalty rules for fiduciaries such as solicitors, so as to prevent them serving two clients with inconsistent interests. Attempts to find an implied consent to limitation of the demanding sole interest duty of loyalty in the Court of Appeal are rejected in the House of Lords decision in Hilton v Barker Booth & Eastwood [2005] UKHL 8; [2005] 1 W.L.R.567.


ISBN: 0023-933X

2004

S Gardner, 'Quantum in Gissing v. Gissing constructive trusts - Oxley v Hiscock [2005] Fam 211' (2004) 120 Law Quarterly Review 541 [...]

Casenote on CA decision in Oxley v Hiscock, which opens a new chapter in the law on 'family home' constructive trusts (and also says something about proprietary estoppel).


ISBN: 0023-933X

J S Getzler, 'Forfeiture for Breach of a Time Condition' (2004) 120 Law Quarterly Review 203 [...]

Recent High Court, Privy Council and House of Lords authorites investigate when equitable doctrine will allow relief against confiscation of an estate contract where a purchaser exceeds a time condition. In Tanwar v Cauchi the High Court resolves a confused set of authorities and tilts towards strict enforcement of duties.


ISBN: 0023-933X

Reviews

2007

J S Getzler, 'T. Frankel, Trust and Honesty: America's Business Culture at a Crossroad' (2007) 70 Modern Law Review 701

2001

J Hackney, 'Snell's Equity' (2001) 117 Law Quarterly Review [...]

A contribution to the debate about the future of Equity hung on the back of a review of a book review. Much reviled in Australia


ISBN: 0023-933X

2000

J S Getzler, 'G. Moffat and others, Trusts Law: Text and Materials (3rd edition)' (2000) 14 Trust Law International 183

1997

J S Getzler, 'A.J. Oakley, ed., Trends in Contemporary Trust Law' (1997) Restitution Law Review 261

1988

S Gardner, 'Trusts for Sale: The Age of Consent? - Reviewing Law Commission Working Paper No 106, Trusts of Land: Overreaching (1988)' (1988) 104 Law Quarterly Review 367

Courses

The courses we offer in this field are:

Undergraduate

FHS (Phase II)

The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the third term of the first year, and all three terms of the second year.

Trusts

The institution of the Trust is one of the most important ideas in English law. Its very definition is heavily contested, but most would agree that a trust arises where someone (a trustee) nominally owns property, and may wield many of the powers of ownership, but is generally unable to take advantage of that ownership. Instead the trustee-owner holds the property to the benefit of some other person (known as a beneficiary), a class of persons, or an object such as a charitable purpose bringing benefit to the public. Trusts can arise in two main ways – by intention; or because the law has other reasons to make an owner into a trustee. The purpose of the intentional trust is to transfer wealth in a more complex way than would be easy or possible to achieve by straight-out conveyance, such as to have the property distributed on particular terms and conditions, or to disperse ownership to win tax advantages, or to allow ongoing management of the asset. There are myriad situations in which the law has other reasons to make an owner of property into a trustee; one very important one is where a couple’s home is nominally owned by only one partner, but the other partner deserves a share in it. The course looks at the scenarios in which the different kinds of trusts arise, and at how they behave.

In one respect, the course also looks outside trusts. A trustee is a fiduciary, being someone having a duty to act for another’s benefit through the control of property. But there are other examples of fiduciaries too, such as solicitors, who must act for their clients’ benefit; or agents who can contract on behalf of their principals. The course looks at the law’s control of fiduciaries in general, whether they are trustees or persons otherwise charged with promoting the interests of others.

Trusts is one of the compulsory standard subjects within the Final Honours School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales.

Diploma in Legal Studies

Trusts

The institution of the Trust is one of the most important ideas in English law. Its very definition is heavily contested, but most would agree that a trust arises where someone (a trustee) nominally owns property, and may wield many of the powers of ownership, but is generally unable to take advantage of that ownership. Instead the trustee-owner holds the property to the benefit of some other person (known as a beneficiary), a class of persons, or an object such as a charitable purpose bringing benefit to the public. Trusts can arise in two main ways – by intention; or because the law has other reasons to make an owner into a trustee. The purpose of the intentional trust is to transfer wealth in a more complex way than would be easy or possible to achieve by straight-out conveyance, such as to have the property distributed on particular terms and conditions, or to disperse ownership to win tax advantages, or to allow ongoing management of the asset. There are myriad situations in which the law has other reasons to make an owner of property into a trustee; one very important one is where a couple’s home is nominally owned by only one partner, but the other partner deserves a share in it. The course looks at the scenarios in which the different kinds of trusts arise, and at how they behave.

In one respect, the course also looks outside trusts. A trustee is a fiduciary, being someone having a duty to act for another’s benefit through the control of property. But there are other examples of fiduciaries too, such as solicitors, who must act for their clients’ benefit; or agents who can contract on behalf of their principals. The course looks at the law’s control of fiduciaries in general, whether they are trustees or persons otherwise charged with promoting the interests of others.

Trusts is one of the compulsory standard subjects within the Final Honours School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales.

Postgraduate

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Trusts (also part of the BA course)

The institution of the Trust is one of the most important ideas in English law. Its very definition is heavily contested, but most would agree that a trust arises where someone (a trustee) nominally owns property, and may wield many of the powers of ownership, but is generally unable to take advantage of that ownership. Instead the trustee-owner holds the property to the benefit of some other person (known as a beneficiary), a class of persons, or an object such as a charitable purpose bringing benefit to the public. Trusts can arise in two main ways – by intention; or because the law has other reasons to make an owner into a trustee. The purpose of the intentional trust is to transfer wealth in a more complex way than would be easy or possible to achieve by straight-out conveyance, such as to have the property distributed on particular terms and conditions, or to disperse ownership to win tax advantages, or to allow ongoing management of the asset. There are myriad situations in which the law has other reasons to make an owner of property into a trustee; one very important one is where a couple’s home is nominally owned by only one partner, but the other partner deserves a share in it. The course looks at the scenarios in which the different kinds of trusts arise, and at how they behave.

In one respect, the course also looks outside trusts. A trustee is a fiduciary, being someone having a duty to act for another’s benefit through the control of property. But there are other examples of fiduciaries too, such as solicitors, who must act for their clients’ benefit; or agents who can contract on behalf of their principals. The course looks at the law’s control of fiduciaries in general, whether they are trustees or persons otherwise charged with promoting the interests of others.

Trusts is one of the compulsory standard subjects within the Final Honours School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales.


People

Trusts teaching is organized by a Subject Group convened by:

Simon Gardner: Professor of Law

in conjunction with:

Alexandra Braun: Associate Professor of Law
Paul S Davies: Associate Professor of Law
Simon Douglas: Associate Professor of Law
Joshua Getzler: Professor of Law and Legal History
James Goudkamp: Associate Professor of Law
Katharine Grevling: Associate Professor of Law
Jennifer Payne: Professor of Corporate Finance Law
Eveline Ramaekers: Career Development Fellow at Wadham College
Edwin Simpson: Associate Professor of Law
Roger Smith: Associate Professor of Law
William Swadling: Reader in Property Law

Also working in this field, but not involved in its teaching programme:

Peter Clarke: Retired. Formerly Lecturer
Tatiana Cutts: DPhil Law student
Andrew Dyson: College Lecturer and Tutor in Law
Mark Freedland: Emeritus Professor of Employment Law
Jeffrey Hackney: Retired. Formerly Fellow and Tutor in Law at Wadham and St Edmund Hall
Ann Kennedy: Retired. Formerly Lecturer
Aleksi Ollikainen: MPhil Law student
Zhicheng Wu: MPhil Law student

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