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Burrows 'English Private Law'

s52(1) LPA 1925 means that a deed must be used to transfer land. Richard v Delbridge void for lack of this. 

Imperfect gift trusts- failed transaction will not have effect. In Milroy v Lord. It is not for the court to create the trust. Failed gift will not be construed as a successful declaration by the settlor as himself as trustee. 

Six exceptions to the maxim that equity wont perfect an imperfect gift- detrimental reliance, rule in Strong v Bird, rule in Re Ralli, Re Rose, DMC's and appeals to unconscionability. 

Detrimental reliance- estoppel- Pascoe v Turner.

Rule in Strong v Bird- appointing a debtor as executor will perfect the gift of stopping the debt. Common law rule was that the union of benefit and burden of an obligation in one person destroys the obligation (a person cannot sue himself). Limit to the rule is that the intention to give must continue until the purported donors death.

Rallis Will Trusts- unperformed promise to transfer upon trust after acquired rights was perfected when the rights in question happened to arrive in the intended transferee in his capacity as...

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Burrows 'English Private Law'

as trustee of the settlors fathers will.' 

Re Rose- where settlor has done everything in his power to transfer the right concerned, but the transfer is dependent on the act of a third party, then the settlor will in the mean time hold the right on trust for the beneficiary. CoA took common sense view that the settlor became a trustee for the shares on the day he executed the share transfer. Mascall v Mascall.

DMC- order the perfection of an imperfect gift which is made conditional upon and in contemplation of death. Also held that a gift to title of land can be done this way. Sen v Headley it was held to be sufficient if the donor on his sick bed passed the key to the box containing the deeds. 

Unconscionablility- Pennington v Waine the donor didnt have to do all he could to perfect the gift, just if it was unconscionable for him to resile from it. Unconscionable as she had said the gift was perfect. 

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Garton 'the role of the trust in Re Rose' 2003

If transferring shares the director of the company must approve the registration of the transferee as the new owner of the shares. In private companies this can be refused if they dont think it is in the best interest of the company. 

Re Rose- issue was whether the beneficial interest transferred before the legal transfer was complete. CoA held the transfer was effective in equity before the directors of the compnay registered the transferee as the new owner. Pennington shifts the boundaries of Re Rose. 

It is not clear from Re Rose at which point the equitable title passes. Emphasis was placed on the delivery of shares throughout the judgement and percieved wisdom is that delivery was essential for equitable assignment. Corin v Patton said that the transfer will be effective in equity when he has done all that is required of him personally to complete the formailties. Clarke in Pennington suggests that all that is required is execution of the share transfers form in the circumstances that the transferor intends the transfer to be effective immediately. This problematic as depends on intention. By requiring completion of formalities the rule as it previously stood stuck a balance between ensuring the transferor was aware of the signifcance of his actions and preventing the gift from being officiously defeated. 

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Garton 'the role of the trust in Re Rose' 2003

Entry onto the register of members- In Fry there was issues of consent and information. Could be suggested that Re Rose should only be operative in public limited companies where registration is rubber stamping- however even here it is possible that more info is needed. Should be limited to the situations where the directors have no discretion to refuse registration whatever. Drastically reduce the impact of the rule. 

Issue of whether it is necessary for legal title to pass eventually in order for equitable title to pass at an earlier point as in Re Rose: If so the effect of the rule would simply be to render a valid legal transfer effective in advance in the eyes of equity. Would reduce impact of rule if cant be used where title would otherwise not pass. 

Declaration of express trust- Milroy, Fry and Rose all suggest that in order to perfect a gift the transfer must take place as a declaration of express trust. This construction flies in the face of the need for certainty of intention of the settlor for express trust. An innocent transferor could find himself trustee without realising it. 

Constructive trust- seems strange to say that his conscience is affected. Arden said court must evaluate all relevant considerations. As Pennington stands unconscionability is merely a means of departing from the rule that the transferor must do that which is required of him and cannot be...

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Garton 'the role of the trust in Re Rose' 2003

done by anyone else before equity will avail him. It is suggested that it is perfecty possible to see all situations where equity has intervened as being based on unconscionability. Pennington shouldnt be seen as a new exception, just a recast of Re Rose. Broad attitude to unconscionability would resolve many of the practical problems inherent in the rule as it stands. 

One could argue it would be justifiable to perfect an imperfect gift when the formalities are 'rendered superfluous by forces native to the situation.' Problematic may be equity perfecting gifts. Difficult to render the formalities dispensible when the transferor didnt need protecting from undue influence. 

Unconscionability has the potential to develop a flexible way of mitigating the harshness of legal formalities. However burden is on judges to ensure the concept isnt used in a way that is just unfettered discretion rendering it arbitrary and unpredictable.

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Jaconelli 'Problems in Strong v Bird' 2006

Rule applies equally when appointed adminstrator instead of executor. Difficult to see why appointment as a personal representative should tip the scales against those entitled to a will. The status of the donee as one of many executors completes the gift. No reason why he couldnt be held accountable by his co-executors. 

Problems- facts involved waiver of debt rather than transfer of property. The rule includes gifts of fully tangible property. 

How far down the road to the gift should the donor have to go? Mere intention to benefit is not enough. It does not require that the donor even need to start formalities. Given that the donor will die it seems necessary for there to be outward manifestation of intentions. Re Rose goes further. Only safeguard on Strong is the rule of evidence requiring corrobation of the testimony of those who bring claims against the deceased. 

Strong has been applied to land, disregarding the longstanding formality requirements. 

Until death no interest in the property passes. 

Appointing administrator may perfect an imperfect gift. Any potential donee should be excluded.

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Luxton 'Re Rose rationale' 2012

Curtis v Pulbrook- the gifts were imperfect. Briggs treated Pennington as a case of detrimental reliance. Ardens unconscionability was a desirable limitation of the rule. Too uncertain to be sole criteria for equitable intervention. 

Equity is concerned by relativity of title to property rights: equity determines who had the better title as between donor and donee, not the world. 

Briggs attracted to treating perfection dependent on intention. This approach risks uncertainty. An intention to give is not enough, must do everything 'necessary to be done' as stated in Milroy and applied in Rose. 

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Roberts 'DMC in a dematerialised world' 2013

Lack of land certificates probably renders impossible the DMC of registered land. Many cases on DMC have an archaic feel. Might they become confined to chattels? 

Birch 'the document or thing the possession or production of which entitles the possessor to the money or property purported to be given, as distinct from mere evidence of title.' 

Registration of land the Land Registry issues to the proprietor an official copy showing the state of register, but there is no requirement this be produced on dealing. Cant be indicator of title. So difficult to see how DMC of land. Should courts give effect to intention of this? LRA 2002 says document doesnt have to be surrendered to the land registry it seems wrong to allow it. 

Could there be a different rule for leasehold? Seems to be no objection, with unregistered title orignal lease would normally form part of the deeds that would be handed to the donor. Would be difficult to argue that it should be different from freehold though. 

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