Hanbury & Martin: Modern Equity

Citation

Glister, J., & Lee, J. (2024). Hanbury & Martin: Modern Equity (23rd ed.). Sweet & Maxwell.

Chapter Summary

A treatise of about 900 pages. The publisher describes it as an up-to-date and modern account of equity and trusts, the third edition under the present editors, with rigorous analysis of recent case law and academic debate and strengthened reference to other common law jurisdictions. The publisher's contents list gives about thirty chapter titles without parts; they fall naturally into the groups below, which follow the order of the list.

Foundations: History and Principles; Nature and Classification of Trusts; Equity and the Modern Commercial World

The opening chapters cover the history and principles of equity, the nature and classification of trusts, and the place of equity in the modern commercial world.

Creating express trusts: Certainty and Capacity; Constitution of Trusts; Formalities and Secret Trusts

The requirements for a valid express trust: certainty and capacity, the constitution of trusts, and formalities, including secret trusts.

Powers and special kinds of trust: Powers; Protective Trusts; Discretionary Trusts; Taxation and Trusts

Trust powers, protective and discretionary trusts, and the taxation of trusts.

Trusts arising by operation of law: Resulting Trusts; Constructive Trusts; Trusts of the Family Home; Trusts, Legal Policy and Illegality

Resulting and constructive trusts, trusts of the family home, and the effect of legal policy and illegality on trusts.

Purpose and special-purpose trusts: Charitable Trusts; Non-Charitable Purpose Trusts; Trusts of Pension Funds

Charitable trusts, non-charitable purpose trusts and the trusts of pension funds.

Administration of trusts: General Principles of the Administration of Trusts; Duties of Trustees in Relation to the Trust Properties; Duties of Trustees in Relation to the Beneficiaries; Powers of Trustees; Trusteeship and Fiduciary Duties; Variation of Trusts

The general principles of administration, the trustees' duties towards the trust property and towards beneficiaries, the powers of trustees, trusteeship and fiduciary duties, and the variation of trusts.

Breach and remedies: Consequences of Breaches of Trust; Personal Claims Against Third Parties; Tracing; Specific Performance; Injunctions; Rescission and Rectification; Licences and Estoppel

What follows when a trust is broken, claims against third parties, tracing, and the equitable remedies of specific performance, injunction, rescission and rectification. The list ends with licences and estoppel.

Key Concepts

Foundations and creation of trusts

• Equity and the commercial world: the place of equitable doctrine in modern commercial dealings.
• Certainty and constitution: the formal requirements for creating a trust and vesting property in trustees.
• Secret trusts: trusts arising outside the statutory formalities.

Trusts by operation of law and special trusts

• Resulting and constructive trusts: trusts that arise without express declaration.
• Trusts of the family home: beneficial ownership of shared homes.
• Charitable and non-charitable purpose trusts: trusts for purposes rather than persons.
• Discretionary and protective trusts: trusts structured around the trustees' discretion.

Administration, breach and remedies

• Fiduciary duties and trustees' powers: the obligations and authority of trustees.
• Tracing and claims against third parties: following value into other hands.
• Equitable remedies: specific performance, injunctions, rescission and rectification.
• Licences and estoppel: equitable doctrines that arise at the edge of property law.

Critical Analysis

Strengths

• A wide equity jurisdiction. The contents list goes beyond trusts to specific performance, injunctions, rescission, rectification, licences and estoppel, so the book treats equity as a general jurisdiction.
• Specialised topics. Trusts of pension funds, taxation and trusts, non-charitable purpose trusts and trusts of the family home are each given their own treatment.
• Engagement with case law and scholarship. The publisher states that the edition contains rigorous analysis of the latest case law and academic debate, with strengthened reference to other common law jurisdictions.
• Continuity. The book has been revised through many editions, and the current editors are in their third edition.

Limitations

• Level and size. At about 900 pages it is a treatise. It is not an introduction, and it assumes the reader already knows the basic requirements for creating express trusts.
• Edition labels differ. A bookseller's copy of the publisher's description calls this the twenty-second edition in its text, while the bookseller's catalogue entry and Google Books give the twenty-third. Check the title page of the copy.
• Limited visible study apparatus. The publisher's material does not mention summaries or self-test questions, which a student who needs exam preparation will find in shorter textbooks.

Where It Fits in the Course

This is one of two long scholarly treatises on the list, the other being Snell's Equity, a treatise edited by practising barristers that treats equity as a body of principle running through property, contract and commercial law. For a first encounter with the subject there are Watt's Equity & Trusts Law Directions, written for students meeting the subject for the first time, and Penner's The Law of Trusts, a concise Core Text with chapter summaries and self-assessment questions. Hudson's Equity and Trusts and Virgo's The Principles of Equity and Trusts are full textbooks, the latter organised around express, resulting and constructive trusts, the duties of trustees and fiduciaries, breach of trust and equitable remedies.

Hanbury and Martin comes after one of these. It is the book to use when a seminar topic or dissertation needs the detail, the authorities and the academic debates.

How to Use This Book

It suits advanced undergraduates, postgraduates and practitioners who have completed a course in equity and trusts. Readers should know the basic requirements for creating express trusts.

A practical plan:

• Core: the chapters on resulting and constructive trusts, the family home, the duties of trustees, breach of trust, tracing and third-party claims.
• By topic: the chapters on certainty, constitution and formalities for creation of trusts; the remedies chapters when a course covers equitable remedies.
• Optional: pension funds, taxation and non-charitable purpose trusts, which many courses omit.
• Print copies include access to an ebook version on ProView, according to the publisher, which helps with searching.