Specific performance law essay

McLachlin J, with whom La Forest and Sopinka JJ concurred, held that to protect third parties means that the court must have discretion to refuse to make a constructive trust order where another, more appropriate remedy is available. It was held by that Court of Appeal that the particular respondent which held the trademarks, held them as constructive trustee for both parties in equal shares.

In that case the judge held that: In circumstances where a constructive trust is recognised, but no damage flows from it or where to declare the trust would result, for instance, in unjust enrichment to the beneficiary of the trust, the court would grant no relief. I believe that Coase has a really good instance for a specific public presentation redress.

We'll occasionally send you account related and promo emails. The respondents did not transfer the trademarks. Importantly, in Parsons v McBain when discussing the imposition of the common intention constructive trust and not the remedial constructive trust, the Full Federal Court held that the trust was created by the conduct of the parties and arose at the time of wrongdoing, even though this had the effect of defeating unsecured creditors.

Determining appropriateness is complex. Another reason for permitting superior courts to possess the powers to grant proprietary interests that give preferential treatment to one party and thereby impact upon third parties is that equity has permitted the creation of proprietary interests that deny property to unsecured creditors in insolvency matters via the doctrine of tracing.

If a constructive trust is imposed it must be capable of being moulded so as to be effective from the date of judgment subject to appropriate orders to protect third parties such as the Buxton interests and any mortgagee including the repayment of moneys owed. Essentially there are two main theoretical positions.

And as will be seen, I do not consider that it is necessary to make such an order in order to do equity to the university. He is now at least 90 years of age, suffering from dementia and unable to give evidence.

Y has a neighbour W. It possesses several different meanings. The literature on the constructive trust has spent an inordinate amount of time on the issue of the whether the constructive trust is institutional or remedial, particularly the question of employing property as a remedy.

At first instance, the Supreme Court of New South Wales dismissed the proceedings, on the grounds no fiduciary duty existed. The importance of this finding was that it gave the beneficiary priority over the interests that were created later in time.

Connected to this point, is that courts should consider how to avoid any difficulties for third parties by the framing of the order. An extremely important factor in determining the appropriate remedy is the basis of the right. A liberal application of the joinder rule is apparent in some Australian authorities.

Institutional constructive trusts arise at the time of wrongdoing, whereas remedial constructive trusts arise normally but the can be backdated at the date of judgment.

After the previous explanation of when specific performance and when it may or may not be used in court. Remedies at law are usually awarded as monetary damages. The impact of equitable remedies upon third parties should be considered to some extent.

It is a fundamental proposition of insolvency law that creditors may only have recourse against property owned by the insolvent person. Breach of contract and specific performance: the law in India and England. Essay by slowdancer, College, Undergraduate, November download word file, 24 pages download word file, 24 pages 5 votes 1 reviews/5(1).

Business Law: Unit 6 Assignment 1 Specific Performance In the realm of contract law there are many ways of addressing breach of contract.

The purpose of this paper is to analyze four separate scenarios and decide if the remedy of specific performance would be applicable to any of them.

Common Law and Pg Essay.

Specific performance

worth 2 pts. 1. What is law?

Specific Performance

Briefly, list and describe the sources of business law. Law is rules of conduct, defining rights and responsibilities (Chapter 1, pg. 2). Business law is the rules of conduct between buyers and sellers. Specific performance can be used as a remedy in certain cases of breach of contract.

Specific Performance

I’ll explain in a bit exactly what specific performance is as well as give an example of what type of case(s) it can be applied to.

This essay was produced by our professional law writers as a learning aid to help you with your studies Critically discuss how limitations on specific performance have left an imbalance in favour of the contract breaker.

Specific Performance MT Business Law Part I There are four situations we have to review in terms of specific performance and possible breach of contract.

First we must understand the elements of specific performance then we .

Specific performance law essay
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Specific performance | Practical Law