An Assessment on the Benefits of Higher Education Essay

Higher education can be defined as the education that can be gained by an individual through studying at universities, colleges and other collegial institutions. This post-secondary or tertiary education is a non-compulsory education after graduating from high school or any other secondary school. An academic reward usually accompanied the graduation that distinguishes the skills and knowledge of an individual among others with his own field of specialization. These can be in the form of certificates, diplomas or academic degrees. Higher education usually appears to be in the form of teaching, researches and social services. These activities are usually provided by the universities and colleges in the realm of teaching. It also includes both the undergraduate level and post-graduate level which includes Ph. D. and master’s degrees. In the case of United Kingdom, the type of education that falls under the level of higher education but can also be classified as a post-secondary education is termed as further education. They usually include working skills with the level of degree that one may attain and thereby, making them a foundation degree qualification. There are mainly two classifications of higher education as it is dictated in the United Kingdom, the higher general education and the higher vocational education. In United States, higher education simply refers to as education offered by several institutions including the associate degrees, baccalaureate degrees, master’s degrees and Ph. D. degrees. These institutions may also grant non-degree certificates which may prove the acquisition of knowledge and skills that can be useful for specific jobs. The right to acquire a degree from higher education institutions started on 1950 when Article 2 of the first Protocol to the European Convention on Human Rights imposed the right of all individual to acquire proper education. United Nations also supported this law by providing the Article 13 of 1966 which states the accessibility of higher education to all, making it a standard goal on the basis of wealth and capacity through legal means. This law further supported the introduction of higher education to all by supporting the progressive implementation of free education. Higher education provides many advantages for a person as he takes his step towards employment and success. Some of the primary reasons why higher education should globally encourage are: (1) it can lead to higher salaries and more benefits for the employee; (2) it can encourage more employment options and reduce unemployment; (3) to promote higher saving levels; (4) to increase the personal learning as well as the professional mobility of the worker; (5) to improve life style and quality living that will lead to improved life expectancy and quality life for his offspring. One good example of these positive effects is the state of North Dakota. Some benefits brought by the implementation of higher education that are commonly noticed in the place are having 70 percent increase in the level of income of the residents and unemployment are reduced into five times less than before resulting into less amount of assistance that are needed to be offered by the government among its people. The state of Utah is another good example of this implementation of higher education. The number of enrollees in Utah have grown into significant amount during 1982 and 1983 which eventually lead to good results. The succeeding years have been very helpful for Utah as its education rates and level had increased to a desirable level. Utah showed great success during those succeeding years in terms of education level and economy. Utah became also a top performer on Measuring Up 2004 as it promotes the higher education for he students. It is definitely very advantageous to promote and encourage the students to pursue their studies and to be able to gain degrees on their own specialization. This will enable them to help themselves as individuals and promote a better economy for their state as they become part of the working class. Reference: Hill, Kent, Dennis Hoffman & T. R. Rex. 2005. The Value of Higher Education: Individual and Societal Benefits. Arizona State University http://wpcarey. asu. edu/seid/upload/Value%20Full%20Report_final_october %202005a. pdf

Abraham Lincoln and the Telegraph Essay Example | Topics and Well Written Essays - 1500 words

Abraham Lincoln and the Telegraph - Essay Example For instance, in 1962, the president of the United States telegraphed a military general in the battlefield of second Manassas (Bull Run). Abraham Lincoln was exhausting the new mode of automated communications in an unparalleled manner to modernize the nature of state leadership. Since information moved at much greater rates than on foot, the military became more convoluted and facilitated the transformation of the medium industry to an entirely new level. Abraham Lincoln was the first President to use this technology in a time of crisis, putting the fate of the nation back in the hands of the nation’s leaders and allowing for instantaneous strategic modifications. This essay seeks to discuss how Abraham Lincoln's use of the telegraph revolutionized warfare by revolutionizing national leadership in the Civil War. The Telegraph and Abraham Lincoln Before telegraphy, the urgency for communication was not so much complex. Telegraphy revolutionized communication in long distances since it beat the physical exchange of letter. With this, Abraham Lincoln made great strides in his national leadership through the use of this technology. Through this, he revolutionalised national leadership and secured his status during the civil war ear in the United States. When Lincoln reached the 1861 inaugural, there were no current telegraph networks to the War Departments and even in the White House (Allen et al. 112). This situation did not prevail for long since rapid changes were implemented. Wires were mounted in the War Department and other related important installations virtually straightaway. During this time, the telegraph room in the war department was considered Abraham Lincoln’s favorite. He spent much of his time in this room strategizing the war and doing his personal time. Interestingly, the white house had no telegraph system and Lincoln made numerous visits to the war department’s cipher room. It is in this quiet seclusion that Lincoln did h is introspection about the war, brewing new ideas and strategies. Here, he would have some quiet, undisturbed and undivided attention while thinking of the way forward for the war. In the telegraph room, he awaited inpor6ant news and messages from the ground. The forecasts and messages gave him the exactness of the activities of this dragging war. Clearly, this was a challenging time for Lincoln, the translation of these cyphers, the development of the new type of communication and the dynamism of the war, the loss of lives in battle and the little victories. All this he had to take in at the same time. This needs a real heart to take in without feeling overwhelmed. With this influx of information, Lincoln pondered on every little communications he received without leaving anything to chance. All these military and political messages needed to be addressed for the good of the public. The telegraph turned out to be a tool to triumph the war and the symbol that will move the country t o the declaration of emancipation. Importance of the Telegraph Communication The setting up and use of telegraph communication was essential, during the American Civil War. Despite the rising interest for the new technology, during that time, the telegraph's potential was acknowledged with uncertainty and was not that much appreciated. The commencement of the work was not easy because personnel had to be assembled to attend to its use and implementation. However, Lincoln used this opportunity to tap and capitalize on electric communications. This is seen as something significant because it is used without preference and was majorly used, during in a time, where war was waged, during the Civil War (Hochfelder 231). Through telegraph communi

A Respectable Actress Does Not Have a Blind Side Essay

A Respectable Actress Does Not Have a Blind Side - Essay Example Soundtracks for The Blind Side were written by Alan Wilson and performed by Canned Heat. The Blind Side features Michael Other, a homeless teenager who is adopted by a wealthy and conservative family in the suburbs of Memphis, Tennessee. Michael is positioned as one of the most promising prospects in college football due to his natural athletic skills and the perseverant and unconditional support of his new family (IMDb). Michael Other (Quinton Aaron), a homeless teenager who has been running away from different host families in Memphis, Tennessee, is staying temporarily at one of his friend’s father sofas. Fascinated by Michael’s athletic skills and corporal features, and despite his academic insufficiencies, Burt Cotton (Ray McKinnon) helps Michael to get admitted to Wingate Christian School where he coaches. A friendly and smart little boy called Sean Jr. ‘SJ’ (Jae Head) approaches Michael at school while waiting for his mother to pick him up. Although t his is their first encounter, they meet once more when SJ’s father Sean Tuohy (Tim McGraw) is driving the family home. Leigh Anne Tuohy (Sandra Bullock) is moved by the image of ‘big Mike’ shivering in the cold while walking in direction to the school gym to spend the night, therefore, she asks him to stay at their comfortable house in the suburbs of Memphis. Gradually the Tuohy family becomes Michael’s new family. Leigh Anne is a multitasking, persuasive and strong-minded professional and house-wife, working from home as an interior designer. She is very inquisitive woman and when seeking to become Michael’s legal guardian, she finds out he was cruelly separated from his drug-addicted mother when he was seven years old. The brutal separation from his mother caused a strong impression on Michael, who eventually developed resilient ‘protective instincts’. The protective nature of Michael gives him the opportunity to become one of the mos t highly prospects in college football. Michael is a leader on the field. The only problem is that in order to be accepted at NCAA Division I scholarship, Michael should improve his GPA which he does with the help of some teachers and a personal tutor, Miss Sue (Kathy Bates), hired by the Tuohy. Leigh Anne makes it clear that she prefers the University of Mississippi (Ole Miss) because she and Sean are alumni of this university; and, in a rather indirect and persuasive way, she convinces Michael to commit to Ole Miss. As a result both Michael and the family Tuohy become the subject of an investigation of the NCAA. During the interview to find out Michael’s reasons to choose Ole Miss, Michael understands the game played by Leigh Anne to influence him; he gets angry at her and decides to return to his mother. Michael comes back to the Tuohy family after Leigh Anne approaches him and asks to forgive her. The inquiry conducted by the NCAA does not progress because Michael is rela xed and able to overcome all the questions from the investigator. The Blind Side makes a stereotypical portrayal of American families and society. A white, middle-class family becomes the worthy protector of a poor, huge, illiterate black teenager. Both, Leigh Anne and Sean (a prosperous businessman) are the parents of a beautiful teenager Collins and

Sunbelt South Essay Example | Topics and Well Written Essays - 1000 words

Sunbelt South - Essay Example The book continues in this vein moving along the time line until the second world war from whence a tremendous change starts sweeping through the south; altering its identity amid strong global influences. This change is witnessed amid strong resistance from the south’s white leadership who try to stem the new influences that threaten to change the status quo that has existed and given the south its distinct identity up to that point in time. Cobb uses a huge base of historical and literary references to illustrate his points and succeeds in providing a very balanced and unbiased account of the state of the south. The only criticism that can be leveled his way is the lack of reference to the medical situation through out the narration. The health maladies that plagued the south at various durations over time have also had an impact on the self- identity of the south and deserved some mention as well. To illustrate the state of the south since the Second World War, we have to r ely on the available literature and Cobb is a renowned historian of repute especially concerning the south. The study of the south is intricately interwoven with the history of America and its only fitting we look at it to understand the state of America since the end of the second world war. ... The image of the south has undergone change all through its existence and none is more profound than the change experienced after the Second World War and intensified during the civil rights era. The white supremacists fought hard to cling on to the status quo from this period but the winds of change were blowing harder and getting even harder to ignore. The very definitions of the southern way of life as it was known up till then were shaken to the core. The African Americans were at this time examining their southern heritage more keenly and openly and beginning to embrace their southern heritage amid their championing of their black identity. There is a distinct feel of the south’s development and evolution being dissected in the book and its wide array of relevant topics got fromfrom the national ascendance of southern culture and music, to a globalized Dixie's allure for foreign factories and a flood of immigrants, to the roles of women and an increasingly visible gay pop ulation in contemporary southern life. The heart of the book illuminates the struggle for Civil Rights. For instance the author refers to a time when Jim Crow still towered over the South in 1945, but Cobb shows that Pearl Harbor unleashed forces that would ultimately contribute to its eventual downfall. Rising black political influence outside the South and the incongruity of combating racist totalitarianism overseas while condoning the same at home, created the opportunity for returning black veterans to organize the NAACP's postwar attack on the South's racial system. This assault elicited not only vocal white opposition but also led to increasing violence that climaxed in the murder of young Emmett

Home Style Cookies Essay Example | Topics and Well Written Essays - 750 words

Home Style Cookies - Essay Example nformation is sent to the storage silos where the ingredients are stored, afterwards, the ingredients are sent into a giant mixing machine where they are mixed in appropriate ratios. Then, the batter is poured in cutting machines, where individual cookies are cut. The cookies are sent to ovens, and flavored cookies are further sent for additional steps. Non filled cookies are cut diagonally rather than straight cut cookies as it takes less space. The cookies are sent to spiral cooling racks, after the racks they are placed in cookie boxes. The boxes are then sealed, wrapped and labeled. Yes, the company is making the right decision by not automating the packaging process. By doing so the company has a good quality control, by the fact that the destroyed cookies are not placed in the packages. And, the company is doing good for its society as well, providing job opportunities for the unemployed people. The size of the company is a big factor, if it is a small company manual labor is better for the company because that would result in low costs. If it was a large company it would have had other fields for jobs and the automation of packaging would be a better option in that case. Since the company makes cookies on the basis of orders, they dont have a lot of ending inventory. Plus whatever is produced, they are shipped immediately so that they dont have to be stored in the shelves. Because of this policy the company is able to minimize its storage and inventorial costs. The advantages that the company gets from not using preservatives in cookies are that they increase the health factors in their cookies which results in high customer demand. Because, people would prefer health over anything and since the cookies offer good health factors people will buy it in bulks. The limitations that the company gets from not using preservatives are, that the company has to sell the cookies immediately or it will result in the waste of the products. The life span of the

Imaging Essay Example | Topics and Well Written Essays - 1500 words

Imaging - Essay Example To better understand the physiology of the airway and its system, it is encouraged to know the anatomy first. With this in mind, the paper will try to explain the anatomy of the lungs of an adult person with presumed healthy and complete parts of it. The Right and the Left Lungs. Normally, the human body has a pair of lungs floating freely inside the pleural cavity which is made up of epithelial membranes forming the pleura. The one which is faced to the lungs is the visceral pleura and the outer is called the parietal pleura. The lungs are contained inside the thoracic cavity and are situated beside each other; thus, the right and the left. They are divided by the mediastinum. Although they are basically and supposedly aren’t connected with any other part in the cavity, they are technically attached to it by its root and the ligamentum pulmonale. When held, the lung would feel â€Å"light, soft, and spongy in texture† and can float when placed in a container with water (Cunningham & Robinson, 1918, p. 1091). According to the authors, the color of the lungs is dependent on the age of a person. It appears rosy-pink in its early years and is darker in adults. This is due to the exposure levels of the lungs to dusts a nd other impurities. The Lungs and Its Form. The form of the lungs is essentially the result of the structure of the thoracic cavity. As the airways seem to represent an inverted tree, the individual lungs are like inverted cones with the tip of the lung in the superior part and the wider part as its inferior and forming its base. The tip is called the apex and the flat surface is the base. The right lung is slightly larger than the left and is, at the same time, bulkier (Gutman, 2009, p. 77). According to Cunningham and Robinson (1918), the location of the liver below the right lung contributes to this (p. 1091) along with the presence of the flat diaphragm underneath the both of

Remedial and Institutional Constructive Trusts

Remedial and Institutional Constructive Trusts Title: The remedial constructive trust has taken root in the United States and Canada: it is unlikely to do so in England Millett LJ in Restitution and Constructive Trusts 1998 114 LQR p399. Explain the differences between remedial and institutional constructive trusts and the advantages and disadvantages of each approach. Discuss whether judges in England and Wales are likely to adopt the remedial system. INTRODUCTION A definition of a trust, reflected in case law, suggests that a person with responsibility for property has an obligation in accordance with principles of equity to exhibit beneficence[1] towards any beneficiaries, any of whom might enforce this obligation[2]. The concept of the constructive trust is not overwhelmingly supported, with Hayton categorising it â€Å"â€Å"a fiction which provides a useful remedy when no remedy is available in contract or in tort†[3]. A constructive trust may be either institutional or remedial, although only institutional constructive trusts are acceptable practice in the UK at the present time. According to Halsbury â€Å"the remedial constructive trust†¦is not in reality a trust at all, but merely a remedial mechanism by which equity gives relief for fraud’[4]. The distinction between constructive trusts raise a number of issues that are of particular relevance when considering whether the law in England and Wales is likely to adopt the remedial system. It must be noted, however, that, whilst the importance of both proprietary estoppel[5] and Pallant v Morgan[6] equity are acknowledged as relevant to a discussion on constructive trusts, their applications are specific. Accordingly, due to constraints on space, their inclusion in this particular essay have been omitted[7]. DISCUSSION Whilst law in other jurisdictions needs to resort to such measures as the remedial system, law in the UK currently relies on the Statutes of Limitation[8], within which remedial constructive trusts may be considered to be related to the Limitation Act 1980[9]. The specific distinction between legal and equitable ownership originated through the historical significance of common law and the law of equity, as established through the Courts of Chancery. It is readily acknowledged that a correlation exists between constructive trusts and the doctrine of equity, with effect from the date in which circumstances dictated a need for such intervention, a factor noted in Westdeutsche Bank[10] by Browne-Wilkinson, LJ who observed that â€Å"A remedial constructive trust†¦Ã¢â‚¬ ¦is a judicial remedy giving rise to an enforceable equitable obligation†¦Ã¢â‚¬ [11] Institutional Constructive Trust There have been a number of significant cases heard, where the courts have ruled that institutional constructive trusts will prevail[12]. An institutional constructive trust might be invoked in such cases as domestic disputes involving property, breaches within a fiduciary relationship, contracts relating to sales of land, and certain situations relating to commercial insolvency. Case law established ‘in law and in equity that land could be the subject of ownership’[13], with a further recognition that ‘the person owning either type of estate has a right of property’ according to Lord Browne-Wilkinson[14], established through statute in the Law of Property Act 1925. Freehold land, or land held in fee simple, relates to land held in trust to the Crown, with the owners being beneficiaries, or trustees, or land that is held in cestuis que trust which is revealed as an equitable estate. The requirement for a formal record of equitable entitlement to the transfer of land in accordance with the Law of Property Act 1925 53 (2)[15] reveals a situation inconsistent with the ethos of remedial trusts. Shares in property can be transferred from the owner of a property to bestow the gift of beneficial ownership on another person through the conveyancing procedure of legal transfer by deed according to the Law of Property Act 1925, section 52 (1). Conversely, where full consideration has not been paid when land is transferred an inference of fact would result, as clarified in Subsection 60(3) of the Law of Property Act 1925. Remedial Constructive Trusts Pascoe[16] notes an apparent lack of consensus as to whether remedial constructive trusts are based on an enforcement of proprietary rights or to avoid unconscionable conduct, but suggests it ‘is imposed by equity regardless of actual or presumed agreement or intention’[17] in order for the courts to implement a measure of restitution[18]. Certain situations require a remedy within the law that is particularly suitable for a specific set of circumstances. This is determined at the discretion of the court and is realised in the imposition of a remedial constructive trust, characterised by the particular facet that no trust existed prior to the intervention of the court. An interesting development in the definition attached to constructive trusts was suggested in Barnes v Addy[19] in which Lord Selborne, LC introduced the distinction between a duty owed by directors and duty owed by ‘non-fiduciary strangers’, referring to this concept as ‘the two limbs o f Barnes v Addy’. More recently this referent has been recognised as ‘recipient liability’[20] and ‘accessory liability’[21]. Various jurisdictions around the world acknowledge a distinct emphasis between institutional constructive trusts and remedial constructive trusts, based on the common law precepts of unjust enrichment. The constructive trust would then be recognised as a means of restitution[22], a remedy available for the courts to resort to when other methods of restitution are inappropriate. Often considered synonymous with remedial constructive trusts is the case of Polly Peck International plc (in admin) (No 2)[23]. Referring to additional rights of restitution that might be accorded the plaintiff in respect of legitimate rights to property the Court of Appeal in England made reference to the decision in the Supreme Court in Canada[24]. Different Jurisdictions Amongst the different jurisdictions who habitually utilise the remedial approach, Australia[25] generally adheres to a traditional approach characterised by a link between claimant and the property at dispute, whilst acknowledging the distinction between recipient and accessory[26] liabilities. Accordingly, remedies might be applied ‘in personam’ rather than ‘in rem’. According to Fardell and Fulton[27], the constructive trust has become an important remedy within the courts in New Zealand, fully utilising the concept of remedial constructive trusts in any situation in which a defendant might have prejudiced a plaintiff’s claim to equity as a matter of principle[28]. This particular application of the remedial system has been criticised by the judiciary in Australia as they perceive it represents â€Å"a medium for the indulgence of idiosyncratic notions of justice and fairness†[29]. However, at the New Zealand Court of Appeal Tipping, J concur red with the Australian opinion, although using different reasoning[30]. There have, however, been instances whereby a more controversial approach has been taken, often utilised in the US[31] although, on occasion, in other jurisdictions such as New Zealand in the case of Re Liggett[32] based, as it was, on the decision in the US case of Chase Manhattan Bank. Since then, however, both the Privy Council[33] and the House of Lords[34] have overruled that decision[35]. The law relating to constructive trusts has recently changed in Canada following the Supreme Court’s ruling in the cases of Soulos v. Korkontzilas[36]. Prior to this, such cases as Pettkus v Bekker[37], Sorochan v Sorochan[38] and Rosenfeldt v Olson[39] were the definitive referents in relation to remedies imposed by the courts to prevent the perpetuation of injustices within the specific categories associated with benefiting through unjust enrichment[40]. The Supreme Court focused on the ethos of ‘good conscience’ in their decision when ruling on Soulos v. Korkontzilas[41] . They decided that constructive trusts needed to be imposed to maintain certain standards[42], with four conditions introduced, each of which must present if a constructive trust was to be implemented[43]. Subsequently, these conditions have been applied to all cases relating to constructive trusts heard in Canada’s Supreme Court. CONCLUSION It has been suggested that every resulting trust is realised through the transfer of property in a situation where benefit to the recipient was not the intended option, the consequence of which is a presumption of resulting trust. This significance is recognised in the doctrine of equity in terms of recognition of the terms of endowment. In the UK it is in this particular situation that the inherent importance between constructive and resulting trusts lie. Furthermore, it is this particular situation in which other jurisdictions more often introduce the doctrine of remedial trusts. It appears to be accepted by the majority of commentators that, for a resulting trust to be formed, actual assets must be present in terms of identifiable property, the remedy of which may be found in common law. Despite Millett LJ being of the opinion that the remedial approach is unlikely to take root in England[44], it has been acknowledged in the Court of Appeal[45], the Privy Council[46] and in the House of Lords[47], in obiter dicta, that a possibility might exist for the future incorporation of remedial constructive trusts into UK legislation. This controversy has, by no means been resolved and, at some point will undoubtedly become incorporated into UK legislation, either in its present format, or modified to enable â€Å"†¦an aggrieved party to obtain restitution†[48] through the correlation that exists between constructive trusts and the doctrine of equity which is represented through the concept of morality and obligations, with â€Å"the benefit of an obligation [being] so treated that it has come to look rather like a true proprietary right†[49]. Total Word Count [excluding footnotes and bibliography]: 1,496 words BIBLIOGRAPHY BOOKS: Cope, M (1992): Constructive Trusts. Sweet and Maxwell Maitland, F W (1936): Equity. Cambridge: Cambridge University Press. Page 115 Underhill and Hayton (1995): Law of Trusts and Trustees [15th ed]. London: Butterworth: Page 1 Wilkie, Margaret; Luxton, Peter; and Malcolm, Rosalind (1998): Blackstone’s Land Law. London: Blackstone Press, Page 111 HALSBURY’S LAWS Available Online from: Butterworth’s Direct Search facilities. Access via Athens Gateway: http://www.butterworths.com/butterworths.asp Vol 16 (2000 Reissue) Para 1072 Vol 48 (2000 Reissue) Paras 401 – 403: former Court of Chancery Vol 48 (2000 Reissue) Para 501. Vol 48 (2000 Reissue) Para 592 ARTICLES: Austin, RP (1988): The Melting Down of the Remedial Trust. 11 NSWLJ 66. Available from: Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005] Bryan, M (1995): Cleaning up after Breaches of Fiduciary Duty – the Liability of Banks and other Financial Institutions as Constructive Trustees. In 7 Bond Law Review 67. Available in: Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005] Dodds, J (1988): The New Constructive Trust: An Analysis of its Nature and Scope. 16 MULR 482. In Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005] Fardell, R and Fulton, K (1991): Constructive Trusts-A New Era. NZJL: 90. In Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005] Hayton, DJ (1985): Personal Accountability of Strangers as Constructive Trustees. 27 Malaya LR 313,314: Singapore Journal of Legal Studies. Access via ATHENS Gateway McKendrick, E (1994): Unascertained Goods: Ownership and Obligation Distinguished. 110 LQR 509 513 Millett LJ (1998): Restitution and Constructive Trusts 114 LQR p. 399 O’Connor, P (1996): Happy Partners or Strange Bedfellows: the Blending of Remedial and Institutional Features in the Evolving Constructive Trust 30 MULR 735. In Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005] ONLINE RESOURCES Pascoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law Taxation, Monash University, Australia. Available from: http://www.lbc.com.au/academic/ccl-ezine/pdf/vol8issue1_RemedialTrusts.pdf [Accessed 24th July 2005] TABLE OF CASES: Baden Delvaux and Lecuit v Societe Generale [1993] 1 WLR at 509, 575 Bannister v Bannister [1948] 2 All ER 133 Banner Homes Group plc v Luff Developments Ltd [2000] Ch 372, CA Barnes v Addy (1874) LR 9 Ch App 244 Beatty v Guggenheim Exploration Co 225 NY 380 at 386 [1919] Chase Manhattan Bank NA v Israel British Bank (London) Ltd [1981] Ch 105 Cia de Seguros Imperio (a body corporate) v Heath (REBX) Ltd (formerly CE Heath Co (North America) Ltd) [2000] 2 All ER (Comm) 787; [2001] 1 WLR 112, CA Daly v The Sydney Stock Exchange Ltd (1986) 160 CLR 371 Fortex Group Ltd (In Rec and Liq) v MacIntoshes [1994] 3 WLR 199; [1998] 3 NZLR 171. Hussey v Palmer [1972] 3 All ER 70 (CA) Linter Group Ltd v Goldberg (1986) 160 CLR 371 Mabo v Queensland (No 2) [1992] 175 CLR 1, High Court of Australia Metall und Rohstoff AG v Donaldson Lufkin Jenrette Inc [1990] 1 QB 391 and [1989] 3 All ER 14 CA Muschinki v Dodds (1985) 160 CLR 583 at 614 Pallant v Morgan [1953] Ch 43, and [1952] 2 All ER 951 Paragon Finance plc v DB Thakerar Co (a firm) [1999] 1 All ER 400, CA Pettkus v Bekker [1980] 19 RFL (2d) 165 Polly Peck International plc (in admin) (No 2) [1998] 3 All ER 812 at 825-826 Re Goldcorp Exchange Ltd Re Goldcorp Exchange Ltd (in receivership) [1995] 1 AC 74; [1994] 3 WLR 199 and [1994] 2 All ER 606 PC Re Liggett v Kingston [1993] 1 NZLR 257 Re Polly Peck International plc (in administration) (No 2) [1998] 3 All ER 812, and [1998] 2 BCLC 185, CA Re Sharpe [1980] 1 WLR 219 Rosenfeldt v Olson 1 BCLR (2d) 108, [1986] 3 WWR 403, 25 DLR (4th) 472 (CA). Sorochan v Sorochan [1986] 2 SCR 39 Soulos v Korkontzilas [1997] S.C.J. No. 52 Taylor v Davies [1920] AC 636, PC Tinsley v Milligan [1993] 3 WLR 126; [ 1994] 1 A.C. 340, 371 Westdeutsche Landesbank Girozentrale v. Islington London BC [ 1994] 4 All E.R. 890, 962, CA.; varied [ 1996] 2 All E.R. 961, HL; [ 1996] 2 All E.R. 961, 990, H.L; [1996] AC 669 at 714-415 1 Footnotes [1] See Beatty v Guggenheim Exploration Co 225 NY 380 at 386 [1919] [2] This definition is paraphrased from Halsbury’s Laws, Vol. 48 (2000 Reissue) at para 501 who have based this definition on Underhill and Hayton ( ): Law of Trusts and Trustees [15th ed]: Page 1 [3] Hayton, DJ (1985) 27 Mal LR 313,314 [4] Halsbury’s Law, Vol 48 (2000 Reissue) Para 501 [5] Halsbury’s Laws, Vol 16 (Reissue) Para 1072 and Vol 48 at 592 [6] Pallant v Morgan [1953] Ch 43, and [1952] 2 All ER 951. Halsbury’s Laws, Vol 48 at 593 [7] Banner Homes Group plc v Luff Developments Ltd [2000] Ch 372, CA per Chadwick LJ: this case introduced the term Pallant v Morgan equity [8] In accordance with the former Court of Chancery, Halsbury’s Laws, Vol 48, Paras 401 – 403 ante [9] Halsbury’s Laws, Vol 48 (2000 Reissue) Para 501 cites a number of cases relating to this point: Halsbury quotes Taylor v Davies [1920] AC 636, PC; Paragon Finance plc v DB Thakerar Co (a firm) [1999] 1 All ER 400, CA; Cia de Seguros Imperio (a body corporate) v Heath (REBX) Ltd (formerly CE Heath Co (North America) Ltd) [2000] 2 All ER (Comm) 787, and [2001] 1 WLR 112, CA [10] Westdeutsche Bank Landesbank Gironsentrale v Islington London BC [1996] AC 669 at 714-415 per Lord Browne-Wilkinson [11] â€Å"Under an institutional constructive trust, the trust arises by operation of law as from the date of the circumstances which gave rise to it: the function of the court is to declare that such a trust has arisen in the past. The consequences that arise from such a trust having arisen (including the possibly unfair consequences to third parties who, in the interim, have received the trust property) are also determined by rules of law, not under discretion. A remedial constructive trust, as I understand it, is different. It is a judicial remedy giving rise to an enforceable equitable obligation: the extent to which it operates retrospectively to the prejudice of third parties lies in the discretion of the court†. Ibid, Note 9 [12] Bannister v Bannister [1948] 2 All ER 133, Re Sharpe [1980] 1 WLR 219 and Beatty v Guggenheim Exploration Co 225 NY 380 at 386 [1919] [13] Mabo v Queensland (No 2) [1992] per Deane and Gaudron JJ [14] Tinsley v Milligan (1994): â€Å"English law has one single law of property made up of legal and equitable interests† per Lord Browne-Wilkinson [15] Wilkie, Margaret; Luxton, Peter; and Malcolm, Rosalind (1998): Blackstone’s Land Law. London: Blackstone Press, Page 111 [16] Pascoe, Janine ( ): Remedial Constructive Trusts and Corporate Insolvency: An Australian Perspective. Senior Law Lecturer, Department of Business Law Taxation, Monash University, Australia. [17] Muschinki v Dodds (1985) 160 CLR 583 at 614 per Deane J. Also Cope, M (1992): Constructive Trusts [18] Pascoe quotes a number of references from Australian literature: O’Connor, P (1996): Happy Partners or Strange Bedfellows: the Blending of Remedial and Institutional Features in the Evolving Constructive Trust. 30 MULR 735; Also Bryan, M (1995): Cleaning up after Breaches of Fiduciary Duty – the Liability of Banks and other Financial Institutions as Constructive Trustees. 7 Bond Law Review 67; Also Austin, RP (1988): The Melting Down of the Remedial Trust. 11 NSWLJ 66; Also Dodds, J (1988): The New Constructive Trust: An Analysis of its Nature and Scope. 16 MULR 482. [19] Barnes v Addy (1874) LR 9 Ch App 244 [20] See Baden Delvaux and Lecuit v Societe Generale [1993] 1 WLR per Gibson, J at 509; 575 [21] Known as constructive trustees. This relates to a personal liability to an accessory to fraud [22] McKendrick, E (1994): Unascertained Goods: Ownership and Obligation Distinguished 110 LQR 509 [23] Polly Peck International plc (in admin) (No 2) [1998] 3 All ER 812 at 825-826 [24] See Soulos v Korkontzilas [1997] S.C.J. No. 52 [25] Pacoe, Janine: Remedial Constructive Trusts and Corporate Insolvency: an Australian Perspective. Department of Business Law Taxation, Monash University, Australia [26] LinterGroup Ltd v Goldberg (1986) 160 CLR 371: Constructive trustee was Linter Group as plaintiff. Goldberg Furst were directors of Arnsberg Pty Ltd who breached fiduciary duty. Southwell, J granted Linter Group priority over other creditors in terms of equitable claims and Daly v The Sydney Stock Exchange Ltd (1986) 160 CLR 371: this claim was rejected [27] Fardell, R and Fulton, K (1991): Constructive Trusts-A New Era. NZJL: 90 [28] See Fortex Group Ltd (In Rec and Liq) v MacIntoshes [1998] 3 NZLR 171. See also: Re Goldcorp Exchange Ltd [1994] 3 WLR 199 as it represents opposing characteristics [29] Muschinski v Dodds (1985) 160 CLR 583 per Deane J [30] â€Å"the plaintiffs must be able to point to something which can be said to make it unconscionable—contrary to good conscience—for the secured creditors to rely on their rights a law†Fortex Group Ltd (in rec liq) v MacIntosh [1994] 3 WLR 199 per Tipping, J [31] Chase Manhattan Bank NA v Israel British Bank (London) Ltd [1981] Ch 105 [32] Re Liggett v Kingston [1993] 1 NZLR 257 [33] Re Goldcorp Exchange Ltd [1994] 3 WLR 199 [34] Westdeutsche Landesbank Girocentrale v Islington Borough Council [1996] AC 669 [35] Constraints of space preclude a more detailed investigation of any of the cases [36] Soulos v. Korkontzilas [1997] S.C.J. No. 52 [37] [1980] 19 RFL (2d) 165 [38] [1986] 2 SCR 39 [39] 1 BCLR (2d) 108, [1986] 3 WWR 403, 25 DLR (4th) 472 (CA). [40] â€Å"absence of any juristic reason† [41] Soulos v. Korkontzilas [1997] S.C.J. No. 52 [42] â€Å"†¦a constructive trust may be imposed where good conscience so requires. I conclude that in Canada, under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, as well as to remedy unjust enrichment and corresponding deprivation†: Soulos v. Korkontzilas [1997] S.C.J. No. 52, per Justice McLaughlin [43] Breach of an equitable obligation; assets still with defendant; plaintiff to present legitimate reason for recourse to courts; no third parties who might be unjustly penalised through a constructive trust [44] Millett LJ in Restitution and Constructive Trusts 1998 114 LQR p. 399 [45] Metall und Rohstoff AG v Donaldson Lufkin Jenrette Inc [1990] 1 QB 391 and [1989] 3 All ER 14 CA; Also Re Polly Peck International plc (in administration) (No 2) [1998] 3 All ER 812, and [1998] 2 BCLC 185, CA [46] Re Goldcorp Exchange Ltd (in receivership) [1995] 1 AC 74 and [1994] 2 All ER 606 PC [47] Westdeutsche Landesbank Gironzentrale v Islington London Borough Council [1996] AC 669, and [1996] 2 All ER 961, HL [48] Hussey v Palmer [1972] 3 All ER 70 (CA) per Lord Denning [49] Maitland, F W (1936): Equity. Cambridge: Cambridge University Press. Page 115