Post by Sapphire Capital on Dec 18, 2008 22:01:55 GMT 4
Rehabilitating the Common Intention Trust
Darryn Jensen
The University of Queensland - T.C. Beirne School of Law
University of Queensland TC Beirne School of Law Research Paper No. 08-21
Abstract:
Where parties have entered into property sharing arrangements but have not formalised the sharing of legal title, the law has responded in a number of different ways. These different responses correspond with different forms of injustice. The common intention trust responds to an injustice which arises on the basis that, while the evidence shows that the parties have agreed to share the ownership of property on a particular basis, one party's conferral of beneficial ownership upon the other is unenforceable owing to a failure to comply with legal requirements of form. The common intention principle is, accordingly, a doctrinally coherent response to a particular form of injustice and deserves a place in the taxonomy of legal responses. When confined to appropriate cases, it can co-exist with the Muschinski v. Dodds 'joint endeavour' principle and the equitable proprietary estoppel principle.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1304908_code768727.pdf?abstractid=1304908&mirid=4
Darryn Jensen
The University of Queensland - T.C. Beirne School of Law
University of Queensland TC Beirne School of Law Research Paper No. 08-21
Abstract:
Where parties have entered into property sharing arrangements but have not formalised the sharing of legal title, the law has responded in a number of different ways. These different responses correspond with different forms of injustice. The common intention trust responds to an injustice which arises on the basis that, while the evidence shows that the parties have agreed to share the ownership of property on a particular basis, one party's conferral of beneficial ownership upon the other is unenforceable owing to a failure to comply with legal requirements of form. The common intention principle is, accordingly, a doctrinally coherent response to a particular form of injustice and deserves a place in the taxonomy of legal responses. When confined to appropriate cases, it can co-exist with the Muschinski v. Dodds 'joint endeavour' principle and the equitable proprietary estoppel principle.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1304908_code768727.pdf?abstractid=1304908&mirid=4