Help; Equity, trusts and land law; final assessment;

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username562554
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#1
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#1
'The idea of the conscience of the defendant is the moral centre around which all equitable doctrines evolve'. Image

Final undergraduate year assessment: research essay, my module is split into equity, trusts and land, however assessment requires to link these topics. I am confused and lost. Separately, I have done well previous assessments on these topics. The module is huge, how to put it all together and not to panic?

Any thoughts? ideas? anybody have relevant revision slides?

Thank you.
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username562554
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#2
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#2
Hello,

Thank you.
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Forum User
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#3
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#3
Why don't you look at various causes of action which are said to involve unconscionability and decide whether (a) unconscionability is a genuinely separate element of the cause of action which must be proved by the claimant in the same way as he must prove all of the other elements of his cause of action; or (b) unconscionability is a conclusion which follows automatically from the other elements of the cause of action?

(a) is 'subjective unconscionability' - i.e. 'is the conscience of this defendant affected?'. (b) might be termed 'objective unconscionability' - it is a conclusion of law from other facts which is not referrable to whether the conscience of the defendant was actually affected. If, for each cause of action (a) is correct, then the defendant's conscience might be said to be the moral centre of the doctrine. If (b) is correct then asking whether D's conscience was affected is irrelevant and, as Birks famously put it, 'unconscionability is a fifth wheel on the coach'.

Two examples of equitable doctrines you might look at:

a) It is said that unconscionability is one of the elements of a proprietary estoppel claim. But perhaps it is really enough to show a representation, reliance and detriment and, if those are satisfied, then it will *always* be unconscionable as a matter of law for D to go back on his promise. If it isn't, how does C prove whether D's conscience was affected?

b) According to Nourse LJ in BCCI v Akindele, knowing receipt should really be called 'unconscionable receipt'. But what does C actually have to prove? Does he simply have to show that D had a sufficient degree of knowledge that property was transferred to him in breach of trust, or is there genuinely a separate element of unconscionability?
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username562554
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#4
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#4
(Original post by Forum User)
Why don't you look at various causes of action which are said to involve unconscionability and decide whether (a) unconscionability is a genuinely separate element of the cause of action which must be proved by the claimant in the same way as he must prove all of the other elements of his cause of action; or (b) unconscionability is a conclusion which follows automatically from the other elements of the cause of action?

(a) is 'subjective unconscionability' - i.e. 'is the conscience of this defendant affected?'. (b) might be termed 'objective unconscionability' - it is a conclusion of law from other facts which is not referrable to whether the conscience of the defendant was actually affected. If, for each cause of action (a) is correct, then the defendant's conscience might be said to be the moral centre of the doctrine. If (b) is correct then asking whether D's conscience was affected is irrelevant and, as Birks famously put it, 'unconscionability is a fifth wheel on the coach'.

Two examples of equitable doctrines you might look at:

a) It is said that unconscionability is one of the elements of a proprietary estoppel claim. But perhaps it is really enough to show a representation, reliance and detriment and, if those are satisfied, then it will *always* be unconscionable as a matter of law for D to go back on his promise. If it isn't, how does C prove whether D's conscience was affected?

b) According to Nourse LJ in BCCI v Akindele, knowing receipt should really be called 'unconscionable receipt'. But what does C actually have to prove? Does he simply have to show that D had a sufficient degree of knowledge that property was transferred to him in breach of trust, or is there genuinely a separate element of unconscionability?
Good evening, thank you for your message- made my research and brains to work faster in the right direction
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Ahiref
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#5
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#5
Hi, Wondered if you managed to write your final assessment or do you still need any pointers?
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carysmalls
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#6
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#6
yes please!!!
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Ahiref
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#7
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#7
(Original post by carysmalls)
yes please!!!
Need to know how far you went with it. You can contact me
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