Circulated in January 2012 Oxford’s equity and trusts law e-newsletter includes perspectives from authors, information on forthcoming titles and links to our wider equity and trusts law publishing.
In this issue:
A classic in the making
Trusts expert and established author and teacher Professor Graham Virgo introduces his new textbook, The Principles of Equity and Trusts and shares with us the book's four specific aims.
The Art of Judgment in Jones v Kernott
Professor Gary Watt shares his fascination for the art of judicial rhetoric and explains how this inspires and influences his teaching and writing.
Focus on... Online Resources
Take a closer look at the comprehensive online resources that accompany Equity and Trusts Concentrate.
Strength in depth
Textbooks to suit your every equity and trusts teaching need.
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Watch the video to hear what motivated Professor Graham Virgo to write a brand new textbook, The Principles of Equity and Trusts (May 2012). He explains why students should be excited rather than intimidated by the subject.
The study of equity and trusts is notoriously difficult for law students, who perceive this body of law as being difficult, dry and alien. In reality, equity and trusts is an area of the law which is dynamic, of real commercial significance and potentially personal importance and is a subject where elegant solutions and important principles can be identified.
What I have sought to do in this new book, The Principles of Equity and Trusts, is to produce a text which focuses on clear exposition of the law, by identifying relevant principles, showing how those principles relate to real problems and how the courts have resolved difficult problems over the years.
In writing this book I have had a number of specific aims.
I have aimed for clear and concise analysis throughout. This has meant that I have not filled the footnotes with endless citations from cases which all say the same thing. But I have not sought to dumb down the law in any way. Where the law is difficult, uncertain or contradictory it is vital that the reader of the book is aware of the complexities so that they can assess how those problems should be resolved. Where appropriate I have indicated my own views as to how the law should develop and how inconsistencies should be dealt with, but throughout I have aimed to make it clear where I am expressing my own opinion rather than stating what the law actually says.
In addition to referring to a wide range of judicial authorities, both from England and Wales and from other jurisdictions, I have made extensive references to the works of commentators and, where appropriate, have engaged critically with their views.
One of the most controversial areas of equity and trust law concerns the application of principles of the law of restitution generally and unjust enrichment in particular. Building on my own work on the law of restitution, notably The Principles of the Law of Restitution (2nd ed., 2006, OUP), I have sought to show how this body of law can be used to explain some of the equitable rules, but also emphasise where reference to the law of restitution is misleading and unnecessarily complicates the exposition of the law.
In order to show that equity and trusts is a body of law which is dynamic and remains constantly relevant, I have made extensive references to recent developments in the law. These include recent significant cases on the receipt of bribes by fiduciaries, rights to the family home, the role of mistake and the remedy of rectification; as well as extensive references to the Charities Act 2011 (which consolidates many previous statutes on charity law) and to a number of recent reports from the Law Commission.
Equity is an ancient country with rich resources. Law students may be reluctant to explore this territory, but if they are given a guidebook to show them the right paths to take, they can then understand the layout of the land and appreciate the continued significance of this country’s resources to resolve contemporary problems.
The Principles of Equity and Trusts aims to be that guidebook.
About the author
Graham Virgo is a Professor of English Private Law at the University of Cambridge.
Also by the author:
An experienced teacher in the field of equity and trusts, and an expert on the subjects of unjust enrichment and restitution, Virgo is also author of The Principles of the Law of Restitution, a comprehensive source of primary and secondary materials that is recognized and regularly cited by the judiciary, and co-author of Maudsley and Burn’s Trusts and Trustees, Cases and Materials.
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For author Professor Gary Watt, the art of rhetoric and the persuasive power of legal language hold a deep fascination. Here he describes how this often neglected aspect of the law of equity and trusts inspires him and influences his teaching and writing on the subject.
My bread and butter as law teacher has always been trusts and equity, but the jam which joins them and makes them fascinating for me is the persuasive power of legal language. In addition to teaching trusts and property I teach a module in law and literature and I regularly lead workshops on rhetoric.
Judicial rhetoric (the linguistic arts by which judges persuade us to accept their judgments) is a significant, but neglected, aspect of the law of equity and trusts. One of the great persuaders was Lord Wilberforce. In Barclays Bank v Quistclose (1970) he purported to transform a ‘power’ (which is how Lord Millett has described the reality of that case) into a ‘trust’ and in McPhail v Doulton (1971) his lordship purported to disguise a ‘trust’ as a ‘power’. This is the judicial equivalent of turning lead into gold…and turning it back again! In both cases his lordship employed the power of rhetoric to work his alchemy. In Quistclose his lordship relied on rhetorical assertion more than reasoning. Note the emphatic words used: ‘A necessary consequence of this, simply by process of interpretation, must be that…[it] can have no other meaning’ (emphasis added). In McPhail v Doulton he used the magic words ‘trust power’ to describe a ‘discretionary trust’ and employed a winning metaphor to suggest that the difference between a trust and a power is one of ‘delicate shading’, whereas the difference between a trust and a power is in fact the great gulf between something obligatory and something optional.
Their lordships in the new UK Supreme Court have shown themselves to be equally adept in the art of speaking ‘with a forked tongue’.
Consider how their lordships treat the maxim ‘equity follows the law’ in the recent case of Jones v Kernott (2011). The maxim was their lordships' ‘starting point’ when summarising the law, but elsewhere in their speeches they seek to downplay or denigrate the maxim as being a mere ‘mantra’. Why stress that the maxim is important? No doubt because their lordships needed some orthodoxy to back up their rather radical decision. Why, in the same breath, seek to downplay the importance of the maxim? Doubtless because the maxim, if strictly applied, would have a consequence that their lordships did not want – for, following the decision of the House of Lords in Stack v Dowden (2007), the maxim would suggest that where only one cohabitant has his or her name on the legal title, there should be a strong presumption that he or she is the sole owner in equity. The law governing unmarried cohabitants seems to be increasingly fact-based and unpredictable. Perhaps this isn’t helped by their lordships equivocation in respect to established doctrines and maxims, but presumably their lordships would defend the need for flexibility to achieve justice.
It can’t be denied that if you want to have your cake and eat it, it must help to have a forked tongue!
New editions of my two trusts textbooks will appear in 2012 and in both of them I use the insights of rhetoric and the creative arts to shed light on the law in ways which aim not only to inform but to inspire critical engagement.
As a committed teacher, I am gratified that positive reviews of both books by teaching colleagues at a wide range of ‘old’ and ‘new’ universities have praised the user-friendly and student-focused presentation of books. I trust that the new editions continue to build on these strengths.
Trusts and Equity, fifth edition(June 2012) provides stimulating, contextual coverage of the subject of trusts and equity, an area of law that students sometimes find difficult. Achieving an appropriate balance between traditional trusts, and trusts in modern commercial contexts, Watt utilises his expertise in teaching, writing and research to enliven the text and take the reader through tough conceptual territory with confidence.
Equity and Trusts Law Directions, third edition(May 2012) aims to engage students' imagination through the use of diagrams, charts and references to extra-legal materials including news items and extracts from artistic, including literary and cinematic works. The aim is to inform, but also to inspire independent engagement through interactive features included in the text.
About the author
Gary Watt is Professor of Law at the University of Warwick. He was named the national ‘Law Teacher of the Year 2009’ and made a National Teaching Fellow in 2010.
Many of Oxford’s law titles are supported by individual Online Resource Centres offering additional resources to enrich the learning experience, enabling students to take charge of their own learning and to check their level of understanding of the subject.
Take a closer look at the Online Resource Centre which accompanies Equity and Trusts Concentrate by Iain McDonald and Anne Street.
This free, open-access resource give students the opportunity to work through multiple choice questions at their own pace, test their understanding of topic areas through the use of a diagnostic test, check understanding of key terms with the flashcard glossary and access key facts and key debates from the text online.
There is also advice for students on revision and exam technique, authored by renowned textbook writer and experienced examiner Nigel Foster.
For more information about Online Resource Centres from OUP and to gain access to any protected lecturer resources adopting lecturers should contact your local higher education sales representative, or email the web team at orc.help@oup.com.
"Pettit's Equity and the Law of Trusts is a highly revered text in this area of law... The commentary is excellent and provides a superb balance between explanatory points and academic scholarship... Anyone interested in studying or researching this area of law should seriously consider buying this text." The Student Law Journal
"The authors have succeeded in their objective of bringing the subject alive... As a student textbook taking the reader from first basic principles to advanced concepts, this book is unbeatable." Trusts and Trustees
There is a huge variety of equity and trusts law courses offered at undergraduate level. The way the courses are taught, the timing, the approach and the focus vary more in this subject area than possibly any other.
So in order for you to find the best teaching materials for your course we spend a great deal of time researching the market, and commissioning new books and editions that you’ve told us you need.
At OUP we have the privilege of working with some of the UK’s leading academics and teachers to put together an equity and trusts list that is the envy of many. We are confident that you will find a textbook to match your course, whatever approach you choose to take.
