Skip to main content Accessibility help
×
Home
Hostname: page-component-55597f9d44-54vk6 Total loading time: 0.738 Render date: 2022-08-12T06:21:20.528Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true } hasContentIssue true

16 - Non-Charitable Purpose Trusts

The Missing Right to Forego Enforcement

from Part III

Published online by Cambridge University Press:  19 April 2018

Richard C. Nolan
Affiliation:
University of York
Kelvin F. K. Low
Affiliation:
City University of Hong Kong
Tang Hang Wu
Affiliation:
Singapore Management University
Get access

Summary

Over the last two to three decades, there has been growing interest, particularly from offshore jurisdictions, in the recognition of non-charitable purpose trusts. These “innovations” have even led some to suggest that the same result can be achieved onshore by the draftsman’s pen in the face of Parliamentary timorousness. This chapter sets out why both developments are ultimately wrong. It explains the proper basis of the “beneficiary principle” in terms other than “property”, as encompassing not simply the right of enforcement but also the right to forego enforcement. It also demonstrates that non-charitable purpose trusts are not truly mandatory, contrary to suggestions otherwise. Enforcers, lacking the unfettered right to forego enforcement, necessarily owe duties but in the absence of a corresponding right holder, these duties are untenable. Charitable purpose trusts avoid this problem by imposing a public law duty on the enforcer rather than a private law one. Whilst some offshore jurisdictions have sought to mimic such a duty by appointing a long-stop office holder as ultimate enforcer, they do not survive close scrutiny. Accordingly, where the trust assets are held on such non-charitable purpose trusts in onshore jurisdictions, such trusts will fail.
Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2018

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×