Constructive Trusts: II

1997 ◽  
Vol 1 (4) ◽  
pp. 408-419 ◽  
Author(s):  
George L Gretton
Keyword(s):  
Law Reform ◽  
Limited Degree

The first part of this article, which appeared in the May issue, considered whether Scots law has the constructive trust, and concluded that it does, but only to a very limited degree. It was also suggested that the doctrine is an unsatisfactory one. This part looks at options for law reform.

seem to follow that a conscious choice has been made and that that choice will preclude the operation of the doctrine of frustration of contracts. In Maritime National Fish Ltd v Ocean Trawlers Ltd, the appellants wished to use a type of fishing net known as an ‘otter trawl’ with five ships; three of which they owned and two of which they had chartered. In order to be able to use this type of net in the waters they wished to fish, it was necessary to obtain a government licence. An application for five such licences was duly made, but only three were granted. In the light of this state of affairs, the appellants decided that they would not apply any of the licences granted to a ship named the St Cuthbert which they had on charter from the respondents. In due course, the appellants claimed that the charterparty with the respondents was frustrated due to the decision of the Canadian government department in not granting a sufficient number of licences for the use of otter trawls. However, the Privy Council held that, since the appellants had a free choice in deciding which ships to license, they must have been taken to have elected not to license the St Cuthbert. Accordingly, the frustrating event was said to be self-induced. The decision in Maritime National Fish is defensible in the sense that the appellants did have a choice, but the position ought to be different if the performing party is left with no choice but to breach one contract and perform another. In terms of the principles of risk allocation, if the performing party is left with no choice at all, it may make more sense to treat the contract as frustrated, especially since the remedial rules provided for in the Law Reform (Frustrated Contracts) Act 1943, where they apply, allow for a limited degree of loss sharing as between both parties to the contract. However, this does not appear to represent English law, where the view has been taken that even where the performing party is left with Hobson’s choice, the doctrine of frustration has no application where he is seen to have made a conscious choice between one contract and another. In Lauritzen A/Sv Wijsmuller BV, the defendants contracted to carry the

1995 ◽  
pp. 371-371
Keyword(s):  
Free Choice ◽  
Law Reform ◽  
Otter Trawl ◽  
Risk Allocation ◽  
Privy Council ◽  
Government Department ◽  
Conscious Choice ◽  
Limited Degree ◽  
English Law ◽  
State Of Affairs

Aspects of Law Reform

2013 ◽  
Author(s):  
Jack Straw
Keyword(s):  
Law Reform

Abortion Law Reform in France

1986 ◽  
Vol 17 (3) ◽  
pp. 277-290 ◽  
Author(s):  
Dorothy M. Stetson
Keyword(s):  
Law Reform ◽  
Abortion Law
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