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on 28-Jun-2016 (Tue)

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#contract #law #terms
Where a statement is made during negotiations for the purpose of inducing the other party to enter the contract, there is, prima facie, ground for inferring that the statement was intended to be a binding term of contract. However, the inference can be rebutted if the party making the statement can show that it would not be reasonable to hold him bound by it.
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#contract #law #terms
In seeking to discover whether the parties intended to be bound by a statement made by one of them, the court will apply an objective test based on the question, 'what would a reasonable man understand to be the intention of the parties, having regard to all the circumstances?' In applying this test, the court will take into account any factors that appear to be relevant.
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#contract #law #terms
A statement may be regarded as a term of the contract if it can be shown that the injured party considered it so important that they would not have entered into the contract but for that statement. An example of the application of this guideline can be seen in the case of Bannerman v White
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Article 1348966681868

Sionaidh Douglas-Scott: Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty
#constitution #law

So, we have the result of the Referendum, and a majority of voters have voted to leave the EU. A mantra of Leave campaigners seems to have been the desire to ‘take back control’. There has been much talk of sovereignty, although less clarity on what it actually means. However, at its most basic, there are at least three notions of sovereignty that are relevant in the context of Brexit, and they are often confused. The first is parliamentary sovereignty, which is said to have particular resonance in the UK because, due to the vagaries of the uncodified UK Constitution, the Westminster Parliament has been recognised as a body with unlimited legislative power. Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition claims that sovereignty resides in the Scottish people, in spite of the alternative claims of Diceya



Article 1348967992588

Jo Murkens: Brexit: The Devolution Dimension
#constitution #law

The results of the third nation-wide referendum in the United Kingdom are still sinking in at home and around the world. Just below 52% voted to leave the European Union, just over 48% voted to remain. The widespread conclusion is that the UK must leave the EU. But there is another way of reading the result. The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order. Before Westminster politicians think about the practicalities of withdrawing from the EU, they urgently need to address the constitutional consequences. What is the overriding objective? To give legal effect to the will of the UK electo



The rules on the appointment of trustees are found in the Trustee Act 1925 and in TLATA 1996.
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TLATA 1996, s19 has modified Trustee Act 1925, s 36 in that it permits beneficiaries in certain circumstances to select new trustees (although they cannot actually appoint them) and to require existing trustees to retire. Beneficiaries may only give such a direction if there is no person nominated in the trust instrument for the purpose of appointing trustees and the beneficiaries are all together sui juris and absolutely entitled to the trust property (TLATA 1996, s 19(1)(b)). They must be unanimous (TLATA 1996, s 19(2)). Beneficiaries may give to the trustee(s) a written direction to retire from the trust and/or a written direction to appoint by writing the person(s) specified in the written direction as trustee(s) (TLATA 1996, s 19(2))
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Retirement of a trustee should be by deed. If so, the property becomes automatically vested in the continuing trustees without the necessity for a separate conveyance. A trustee cannot, however, retire without a simultaneous new appointment without the consent of the co-trustees and there can be no retirement if this will leave just one trustee (Trustee Act 1925, ss 40 and 39).
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TLATA 1996, s 6(2) allows the trustees, where the beneficiaries are of full age and capacity and absolutely entitled to the land, to convey the land to these beneficiaries, even if the beneficiaries do not require the trustees to do so.
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Under TLATA 1995, s 8, the wide powers set out in ss 6 and 7 can be excluded or restricted by the settlor/testator in the document/will giving rise to the trust of land.
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By TLATA 1996, s 8(2), the trustees’ powers may be made subject to the consent of the beneficiaries (or other persons), if so stated by the settlor/testator in the instrument creating the trust. A purchaser of the land need only be concerned that the consents of any two of them have been obtained (TLATA 1996, s 10(1)). However, the trustees will be in breach of trust if they fail to obtain all consents required. Where the trust instrument requires the trustees to obtain the consent of a minor in the exercise of their powers, then the trustees must obtain the consent from those who have parental responsibility for that minor or from a guardian of the minor (TLATA 1996, s 10(3)).
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By TLATA 1996, s 9, all trustees of land may jointly, by power of attorney, delegate any of their functions as trustees to any beneficiary/beneficiaries of full age, who is/are beneficially entitled to an interest in possession in the land subject to the trust. This includes delegation of the power to sell the land. Beneficiaries to whom functions have been delegated are in the same position as trustees regarding their duties and liabilities in exercising their functions. However, only the trustees can give a valid receipt for the purchase money. This preserves their role in overreaching. The delegation may be for any period of time and must be made by all trustees. However the delegation may be revoked by any one or more trustees (TLATA 1996, s 9(3)).
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