Lawataberdeen
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The essay question:

Constructive trusts, proprietary estoppel, unconscionable receipt and dishonest assistance are all very distinct.
Critically evaluate this statement with reference to at least two fields.
Building on this answer and also looking more widely, assess the extent to which Equity can be seen as a cohesive whole.

I'm really lost and overwhelmed with the question.
Can someone give me some guidance?

Would be very much appreciated.
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J Papi
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There's a really basic article by a guy called Pawlowski that looks at the courts' use of the language of unconscionability in all three of these fields. If there's one theme that can unite the strands of Equity, it's probably unconscionability.

Start there
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Lawataberdeen
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(Original post by JohanGRK)
There's a really basic article by a guy called Pawlowski that looks at the courts' use of the language of unconscionability in all three of these fields. If there's one theme that can unite the strands of Equity in the UK, it's probably unconscionability.

Start there

Thank you very very much for replying!! I'll have a look into that just now!
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Lawataberdeen
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(Original post by JohanGRK)
There's a really basic article by a guy called Pawlowski that looks at the courts' use of the language of unconscionability in all three of these fields. If there's one theme that can unite the strands of Equity in the UK, it's probably unconscionability.

Start there
I understand that dishonest assistance and unconscionable receipt are two types of third party liabilities.

I also understand that constructive trust and proprietary estoppel might arise in similar situations, however the threshold for constructive trusts (you need an oral agreement for example) than for estoppel (you only need representation). So constructive trust and estoppel clearly overlap, hence the law of equity is not cohesive.

So I understand the principles, but I still don't understand what the question is aiming at exactly ................................ .
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J Papi
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(Original post by Lawataberdeen)
I understand that dishoTnest assistance and unconscionable receipt are two types of third party liabilities.

I also understand that constructive trust and proprietary estoppel might arise in similar situations, however the threshold for constructive trusts (you need an oral agreement for example) than for estoppel (you only need representation). So constructive trust and estoppel clearly overlap, hence the law of equity is not cohesive.

So I understand the principles, but I still don't understand what the question is aiming at exactly ................................ .
Be careful - they're grounds for third party liability

The technical requirements don't swing the debate either way. The question is: what's the underlying principle of the law that gives people the right to make a prop. estoppel claim against others? Why do we have this thing in the first place? What is its goal?

Don't get bogged down by the remaining requirements - a lot of them are very technical and are historical artefacts - the law just happened to develop in such a way that CTs and prop estoppel aren't put under the same cause of action. In an alternative universe, 'proprietary estoppel constructive trusts' could be a thing. Their name would be different, but their substance (the remedying of unconscionability where such unconscionability arose through facts X, Y and Z) will be the same. Focus on the substance.

I think that you may need to do a bit more reading into the theory of constructive trusts

You may need to look into Weinrib's distinction between weak and strong coherence. Weak = the law doesn't contradict itsel. There are various criteria he sets for strong coherence but I don't remember them right now.

The only situation in which Equity wouldn't be evenly weakly coherent would be if one part of equity had a justication that was the polar opposite of another part. So, if certain CTs were motivated by the desire to spread injustice or something. However, for equity to be strongly coherent, it needs a single principle that can explain every bit of its structure, rules, relationships, etc., without the need for exceptions/'special circumstances'. I don't think that equity is strongly coherent - questions of policy often come into play, as do some stupidly technical rules and presumptions in stuff like tracing - but I do think that it is weakly coherent.

I'm typing this out on my laptop on the bus so it may sound like I'm rambling - sorry
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Lawataberdeen
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(Original post by JohanGRK)
Be careful - they're grounds for third party liability

The technical requirements don't swing the debate either way. The question is: what's the underlying principle of the law that gives people the right to make a prop. estoppel claim against others? Why do we have this thing in the first place? What is its goal?

Don't get bogged down by the remaining requirements - a lot of them are very technical and are historical artefacts - the law just happened to develop in such a way that CTs and prop estoppel aren't put under the same cause of action. In an alternative universe, 'proprietary estoppel constructive trusts' could be a thing. Their name would be different, but their substance (the remedying of unconscionability where such unconscionability arose through facts X, Y and Z) will be the same. Focus on the substance.

I think that you may need to do a bit more reading into the theory of constructive trusts

You may need to look into Weinrib's distinction between weak and strong coherence. Weak = the law doesn't contradict itsel. There are various criteria he sets for strong coherence but I don't remember them right now.

The only situation in which Equity wouldn't be evenly weakly coherent would be if one part of equity had a justication that was the polar opposite of another part. So, if certain CTs were motivated by the desire to spread injustice or something. However, for equity to be strongly coherent, it needs a single principle that can explain every bit of its structure, rules, relationships, etc., without the need for exceptions/'special circumstances'. I don't think that equity is strongly coherent - questions of policy often come into play, as do some stupidly technical rules and presumptions in stuff like tracing - but I do think that it is weakly coherent.

I'm typing this out on my laptop on the bus so it may sound like I'm rambling - sorry

you've actually been incredibly helpful, however I am still not 100% sure (my worry is that it's 3000 words, currently I could fill 1000 words)! Are you a law student yourself ?
Would you be help me understand the essay question a bit more? (I am happy to pay you)
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J Papi
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(Original post by Lawataberdeen)
you've actually been incredibly helpful, however I am still not 100% sure (my worry is that it's 3000 words, currently I could fill 1000 words)! Are you a law student yourself ?
Would you be help me understand the essay question a bit more? (I am happy to pay you)
Hey - no need for payment or anything - I do this as a hobby. Yes, I'm a law student.

The question is basically asking you to find the 'underlying purpose' of the law on these three areas. Come to think of it, you could introduce some discussion as to the technical details, and whether they promote or obstruct the purposes of the law (be that remedying unconscionability or something else), but you need to focus on the big picture here.

I suspect that the easiest way to do so is by reading the leading judgments and by seeing what sort of words judges are using. Are they talking about unconscionability? Or are they talking about other things? If they're talking about both, does the fact that they're doing so result in contradiction/inconsistency in the law?

What can I help with?
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Lawataberdeen
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1) I understand that Unconscionability is the overarching principle and that courts often deal with cases under all four principles. However, they still are distinctive differences between constructive trusts and proprietary estoppel. So do you think this makes the law in this area cohesive or do you think the law in this area contradicts itself?

2) Currently my arguments for the first bit of the question are:
- Even though estoppel and constructive trust can be found in similar circumstances, however they are distinct in itself.
- Dishonest assistance and unconscionable receipt used to be seen as a type of constructive trust (Barnes v Addy), which is not the case anymore (Central Nigeria case).
So do know what and how to argue that those principles are distinct, however I dont know how to relate it to the cohesiveness of equity as a whole.

Does distinctiveness connote the law being cohesive?



(Original post by JohanGRK)
Hey - no need for payment or anything - I do this as a hobby. Yes, I'm a law student.

The question is basically asking you to find the 'underlying purpose' of the law on these three areas. Come to think of it, you could introduce some discussion as to the technical details, and whether they promote or obstruct the purposes of the law (be that remedying unconscionability or something else), but you need to focus on the big picture here.

I suspect that the easiest way to do so is by reading the leading judgments and by seeing what sort of words judges are using. Are they talking about unconscionability? Or are they talking about other things? If they're talking about both, does the fact that they're doing so result in contradiction/inconsistency in the law?

What can I help with?
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Lawataberdeen
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Also I'm, very sorry for asking those stupid questions. You must think I'm a total idiot!

(Original post by JohanGRK)
Hey - no need for payment or anything - I do this as a hobby. Yes, I'm a law student.

The question is basically asking you to find the 'underlying purpose' of the law on these three areas. Come to think of it, you could introduce some discussion as to the technical details, and whether they promote or obstruct the purposes of the law (be that remedying unconscionability or something else), but you need to focus on the big picture here.

I suspect that the easiest way to do so is by reading the leading judgments and by seeing what sort of words judges are using. Are they talking about unconscionability? Or are they talking about other things? If they're talking about both, does the fact that they're doing so result in contradiction/inconsistency in the law?

What can I help with?
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J Papi
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(Original post by Lawataberdeen)
1) I understand that Unconscionability is the overarching principle and that courts often deal with cases under all four principles. However, they still are distinctive differences between constructive trusts and proprietary estoppel. So do you think this makes the law in this area cohesive or do you think the law in this area contradicts itself?

2) Currently my arguments for the first bit of the question are:
- Even though estoppel and constructive trust can be found in similar circumstances, however they are distinct in itself.
- Dishonest assistance and unconscionable receipt used to be seen as a type of constructive trust (Barnes v Addy), which is not the case anymore (Central Nigeria case).
So do know what and how to argue that those principles are distinct, however I dont know how to relate it to the cohesiveness of equity as a whole.

Does distinctiveness connote the law being cohesive?
Hey - the thing about unconscionability is just a thesis - you need to prove it

The fact that different bits of the law have different requirements doesn't mean that they contradict each other.

Given that you seem to be a bit stuck, it may be worth looking into the literature for ideas. A good start would be for you to skim Craig Rotherham's book on proprietary remedies. There are tonnes of publications on stuff like dishonest assistance - try looking at the end of the relevant chapters in your textbook for some further reading recommendations.
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Lawataberdeen
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I'll have a look into that, thank you.

Yep, I'm really stuck just now lol.

Is equity your favourite area of the law?
I'm currently also studying corporate finance and commercial & consumer contracts, I find those two subjects way more exciting than equity & trusts to be honest!


(Original post by JohanGRK)
Hey - the thing about unconscionability is just a thesis - you need to prove it

The fact that different bits of the law have different requirements doesn't mean that they contradict each other.

Given that you seem to be a bit stuck, it may be worth looking into the literature for ideas. A good start would be for you to skim the Craig Rotherham's book on proprietary remedies. There are tonnes of publications on stuff like dishonest assistance - try looking at the end of the relevant chapters in your textbook for some further reading recommendations.
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J Papi
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(Original post by Lawataberdeen)
I'll have a look into that, thank you.

Yep, I'm really stuck just now lol.

Is equity your favourite area of the law?
I'm currently also studying corporate finance and commercial & consumer contracts, I find those two subjects way more exciting than equity & trusts to be honest!
Equity's fun because there aren't many important cases and because few people know what the **** is going on

But equally, trying to theorise about it is like trying to have fun with 20 very large pieces of Lego
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Lawataberdeen
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Might sound like a silly question but why if I google articles on the cohesiveness of equity can't I find anything ?
Is the answer so obvious or is it something academics don't discuss ?


(Original post by JohanGRK)
Equity's fun because there aren't many important cases and because few people know what the **** is going on

But equally, trying to theorise about it is like trying to have fun with 20 very large pieces of Lego
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Notoriety
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Don't use Google Scholar or Google for law journals.

Go through Westlaw, Lexis, or whatever journal you use.
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Lawataberdeen
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yes of course, I use westlaw and my university's search tool


(Original post by Notoriety)
Don't use Google Scholar or Google for law journals.

Go through Westlaw, Lexis, or whatever journal you use.
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(Original post by JohanGRK)
There's a really basic article by a guy called Pawlowski that looks at the courts' use of the language of unconscionability in all three of these fields. If there's one theme that can unite the strands of Equity, it's probably unconscionability.

Start there
Also there is a PhD thesis by a chap called Richard Hedlund at York on more or less the same point (I have no idea how good it is, I just remember seeing it before and making a note to look at it one day).
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J Papi
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(Original post by Lawataberdeen)
yes of course, I use westlaw and my university's search tool
You might have to look into skimming through some books. When academics try to do what you're doing, they attempt to make their scheme as comprehensive as possible - and thus cover every equitable remedy, not just the three situations you mentioned. Rotherham is active in this field; do also check Graham Virgo's publications on his Cambridge profile - he's a prolific commentator.
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Lawataberdeen
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thank you so much Just out of curiosity, are you a postgrad students? I'm guessing you're wanting to go into academia?

(Original post by JohanGRK)
You might have to look into skimming through some books books. When academics try to do what you're doing, they attempt to make their scheme as comprehensive as possible - and thus cover every equitable remedy, not just the three situations you mentioned. Rotherham is active in this field; do also check Graham Virgo's publications on his Cambridge profile - he's a prolific commentator.
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(Original post by Lawataberdeen)
thank you so much Just out of curiosity, are you a postgrad students? I'm guessing you're wanting to go into academia?
I'm still an undergrad I wanna do a Master's but I'm not going into academia
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Lawataberdeen
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Oh wow you're honestly so impressive!!!!!!!!!!!!!!!
I'm in my penultimate year, currently applying to some (magic circle dn silver circle) City law firms

(Original post by JohanGRK)
I'm still an undergrad I wanna do a Master's but I'm not going into academia
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