University of Cambridge, Faculty of Law

Commercial Equity (LL.M.)

Syllabus
  1. Core Principles of Express Trusts and their ‘Offshore Challenge’
    1. The juridical nature and function of the trust; trusts in organisational theory, including competing governance structures for asset management through corporations and agency.
      Proprietary vs. contractarian aspects of trust. The relevance of default rules and the express drafting of trust terms. A discussion of which mandatory rules flow from which aspect.
  2. The ‘Irreducible Core’ of Trusteeship and Public Policy Controls on the Operation of Trusts
    1. The possibility of an ‘irreducible core’ content of trusteeship in English law (in terms of duties to account and to act in good faith; supervision by a court; enforcement by beneficiaries and limits on duration by the rule against perpetuities).
      The extent to which these can be abrogated in England by exemption clauses and ousters of rights to information.
      The basis of rights to information in English and Commonwealth law, including access to letters of wishes. The adequacy of the rights. Implications for trustee accountability and beneficiary enforcement.
  3. Equitable Regulation in a Commercial Context
    1. Policing Commercial Dealings

      The standards of conduct (primarily equitable) imposed upon parties to anticipated or actual commercial dealings. Against the backdrop of international standards proposed in the UNIDROIT Principles of International Commercial Contracts: 2004, the law in common law jurisdictions will be compared and contrasted as it bears on pre-contractual behaviour, on contract formation, performance and enforcement, and on extra-contractual and post-contractual behaviour. The principal doctrines to be considered are:

      1. unconscionable dealing/unconscionable conduct;
      2. estoppel in equity (promissory estoppel: USA);
      3. ‘good faith and fair dealing’;
      4. confidentiality; and
      5. the fiduciary principle.
      Themes to be emphasised are risk assumption and risk allocation, fidelity to a bargain, reasonable expectations and litigation certainty and costs.
      The issues to be covered include:
      liabilities for pre-contractual wrongs, eg misappropriation of the contractual opportunity;
      unconscionability and contract formation and enforcement: Has it any place in dealings between commercial parties (eg franchisor and franchisee)?
      fidelity to the bargain and judicial review of the exercise of contractual powers and discretions, eg to vary or terminate a long-term contract;
      departure from the strict terms of the contract.
  4. Fiduciary Doctrines
    1. The nature of ‘fiduciary duties’ and their defining difference from other legal duties.
    2. The function of fiduciary duties (including discussion of the philosophical and economic justifications for fiduciary doctrine).
    3. The incidence and application of fiduciary duties and the appropriateness of recognising them in commercial settings.
    4. Remedies: (1) relationship between legal and equitable liability to compensate for losses; (2) relevance of contributory negligence; (3) exemplary awards; (4) proprietary remedies through constructive trusts.
  5. Pensions
    Basic structure of pensions trusts; their similarities and differences from traditional private trusts. Statutory regulation of terms. Review of discretions in pension schemes. Oversight of the operation of pension trusts by regulators. Funding and deficits.