ABSTRACT
There is a paradox at the heart of the law on express trusts. On the one hand the trust is predicated on principles of equity which are in turn traceable to philosophical ideas of fairness and justice which were identifi ed in Chapter 1 with Aristotle and others. On the other hand much of the law discussed in this Part 2 of this book to do with express trusts has been concerned with very technical ideas which have resembled common law principles of contract more than fl exible principles used to achieve fair or just results at the whim of whichever judge is sitting to hear a case. Therefore, while we began this book with highsounding talk of conscience, fairness and justice, we came quickly to concern ourselves with hard-nosed commercial practice or with technical rules used to allocate property between family members. In truth, when we peer a little more closely at the case law which we have considered in this Part 2 of this book there have been plenty of cases which have appeared to retreat into an approach which seemed far more like the approach favoured by Aristotle in refusing to apply strict rules of trusts law or of common law where that would generate injustice: so, we have considered how secret trusts circumvent the provisions of the Wills Act, how Rochefoucauld v Boustead prevented a defendant from relying on her strict legal rights to defraud the plaintiff, how Hunter v Moss sought to prevent the defendant from relying on a strict principle of trusts law to enable him to withhold property he was contractually obliged to transfer, and so on. There is, I would suggest, a confl ict between some
aspects of trusts which are concerned with the implementation of hard-and-fast rules and other aspects of equity more generally which are concerned with the appropriate application of principles of fairness to cases where those principles are considered to be more appropriate than the outcome of applying those hard-and-fast rules.
