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    hey,

    I have a few questions on unincorporated associations, and would like to know if anyone would be able to assist me.

    Q) Lets say x wants to leave the money as a gift by his will to an unincorporated association for its purposes and not for the members for as long as legally possible. How would you go about answering it?

    In my opinion, there are only two ways, first, considering the denley principle or the contract holding theory. Both these principles uphold the intentions of the testator. But the problem I am facing is, which of the two rules would be more advantageous considering I am x's solicitor?

    Any help is appreciated.
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    Contract-holding, as some judges are unlikely to apply Re Denley even if the gift is made specifically for a purpose. (Re Lipinski [1976]; Re Horley Town FC [2006].)

    Don't forget that it can also be a charitable trust, if the unincorporated association has a charitable purpose.
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    in this case, assuming the purposes of the association are simple conducting picnic and hiking activites, mainly conducted from the membership fee of the members, then is has to be the contract theory that has to be the likely principle that would be applied.

    But, there are drawbacks to the latter as well. So should I discuss both the theories and discuss their cons and pros?
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    (Original post by Darren_593)
    in this case, assuming the purposes of the association are simple conducting picnic and hiking activites, mainly conducted from the membership fee of the members, then is has to be the contract theory that has to be the likely principle that would be applied.

    But, there are drawbacks to the latter as well. So should I discuss both the theories and discuss their cons and pros?
    What you want to do with the essay is up to you. PQs are assessed relative to your cohort: if 50% of people make X point, then that will make X a decent point for a 2:1 If 1% of people make Y point, then that will make Y a decent point for a 1st. What people are saying, i.e. the trends, is determined by the lecture material and the manner in which the course is taught. I don't know how your module is taught, what emphasis your lecturers have placed on X and Y, so I cannot properly advise you.

    Personally, I think it could possibly still be a charitable purpose. Suppose the membership is comprised of socially deprived members of the community who take their children out to a picnic and hiking every couple of months. Do you have info which makes it definite this isn't the case?
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    From the question, I do not think I am at will to decide more than what facts provide. But I would probably go forward by mentioning both Denley and contract holding theory, but focusing heavily on the latter. Also to mention, we haven't been taught this topic, we are asked to revise it on our own and submit the coursework.

    I have pasted the question below if you have a different perspective.


    The tarn is a small lake at the top of one of the hills in the Lake District of England. Mr Peters has been a long time member of the Club. The purposes of the Club are to encourage and facilitate the club members’ practice of hiking up to the tarn and swimming in it, to keep the path to the tarn clear and passable and, in good weather, to hold social events, such as picnics, for members of the Club and guests at the tarn and elsewhere in the area. The members of the Club pay annual members’ fees, elect officers every two years, and have a bank account in the name of the Club’s Treasurer, but have no written constitution. Mr Peters wants to make a gift to support the purposes of the Club. He wants the money he will be leaving to be given in such a way that it serves these purposes for as long as legally possible. If possible, he does not want the money to belong to the individual current or future members of the club beneficially.
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    Well, contract-holding only applies if it is an unincorporated association. The scenario only tells us there is a "club", so it is up to us to decide if there is indeed an unincorporated association. Basically, the lack of a written constitution causes us problems.

    As Lawton LJ states in CCO v Burrell [1982], the organisation must have "rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will. The bound of union between the members ... has to be contractual". If there are no rules, i.e. no contract, then there is no possibility to apply the contract-holding principle and instead you'd have to use Re Denley (and deal with the caprice of judges). Lack of a written constitution does not necessarily mean there is no contract, though.

    You can indeed speculate as to what is not stated in the scenario. It is what makes a good PQ answer and shows full awareness of the issues at hand.
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    Actually, it been mentioned that the club, in this case, is an unincorporated association. As you mentioned earlier, to consider whether the activities are charitable, although it seems highly unlikely, there are a few categories in the Charities Act that this would fall under like the advancement of education, advancement of health, advancement of community or advancement of environmental protection or improvement.

    But, there is lack of case laws to speculate that the above activities could fall under any of the above categories. Which leads to where we started. Denley and Contract holding theory.
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    (Original post by Darren_593)
    Actually, it been mentioned that the club, in this case, is an unincorporated association. As you mentioned earlier, to consider whether the activities are charitable, although it seems highly unlikely, there are a few categories in the Charities Act that this would fall under like the advancement of education, advancement of health, advancement of community or advancement of environmental protection or improvement.

    But, there is lack of case laws to speculate that the above activities could fall under any of the above categories. Which leads to where we started. Denley and Contract holding theory.
    You are not speculating about case law. You are speculating as to the composition of the membership, information which the scenario does not provide. If it is comprised of the infirm, a religious community, or firefighters, then it can fall under section 3 of the Charities Act 2011. There is a secondary question of whether there is a public benefit (s2(1)(b); s4).

    And you are supposed to speculate about what judges would do when facing a completely new situation, by looking at the ratio and dicta of past cases. You are a law student after all. Anyway, I think I have said enough.
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    It was a great discussion anyway, irrespective of the fact it was for my benefit. Thanks mate.
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    (Original post by Darren_593)
    It was a great discussion anyway, irrespective of the fact it was for my benefit. Thanks mate.
    Best of luck, pal.

    Not solely your benefit. It is an interesting area of law and it helped me procrastinate reading a Council of Europe treaty from 1957. So really I owe you.
 
 
 
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