Certainty Essay Example for Free

Certainty Essay The Purpose of the Certainty of Objects Requirement For a Trust to exist, A must: (i) hold a specific claim-right or power; and (ii) be under a duty to B not to use that claim-right or power for A’s own benefit (unless and to the extent that A is also a beneficiary of the Trust). In other words, for a Trust to exist, A must be under the core Trust duty. The certainty requirements for a Trust simply reflect the fact that A must be under a duty to B in relation to a specific right. The certainty of objects requirement ensures that: (i) A owes a duty to a specific person; and (ii) A’s duty is certain enough to be enforced. The certainty of objects requirement can sometimes be seen as an inconvenient obstacle that can trip up a party (A0) trying to set up a Trust. However, it serves a vital purpose: a court cannot enforce a duty unless that duty is adequately defined. This point is not peculiar to Trusts. For example, an agreement between A and B can only impose a contractual duty on A to B if it is satisfies a certainty test: the nature of A’s duty to B must be adequately defined. In understanding the certainty of objects requirement, it is important to ask what information the court needs in order to enforce A’s supposed duty to B. If that information is lacking, A’s supposed duty cannot be enforced; so A will be under no duty to B; so there can be no Trust. 2. Discretionary Trusts A discretionary Trust is a form of Trust (see p 222-4 of the book): it can exist only if A is under the core Trust duty. Example 1a: A0 transfers ? 100,000 to A subject to a duty: (i) not to use that money for A’s own benefit; and (ii) to invest the money prudently; and (iii) at the end of 21 years, to pay any unspent part of the ? 00,000 and its income to Oxfam. A0 also stipulates that, during that 21 years, A can, if he wishes, pay all or any of the ? 100,000 and its income to all or any of A0’s children or grandchildren. In such a case, there is clearly a Trust: A is under the core Trust duty. And Oxfam is a beneficiary of that Trust: A owes the core Trust duty to Oxfam. A0’s children and grandchildren are not, however, beneficiaries of a Trust: A does not owe them the core Trust duty. Rather, A has a power: A can, if he wishes, give all or any of the money to all or any f A0’s children and grandchildren. 1 See eg G Scammell Nephew Ltd v Ouston [1941] AC 251. 1 A discretionary Trust is a particular form of Trust: it exists where A, in addition to being under the core Trust duty, has a power to choose how to distribute the benefit of the right A holds on Trust. Example 1b: A0 transfers ? 100,000 to A subject to a duty: (i) not to use that money for A’s own benefit; and (ii) to pay the money, in equal shares, to all of A0’s children and grandchildren. In such a case, there is clearly a Trust: A is under the core Trust duty. There is no discretionary Trust: A does not have a power to choose how to distribute the benefit of the ? 100,000. Rather, there is a fixed Trust: A is under a duty to distribute the benefit of the right held on Trust in a specific way. Example 1c: A0 transfers ? 100,000 to A subject to a duty: (i) not to use that money for A’s own benefit; and (ii) to invest the money prudently; and (iii) by the end of 21 years, to have distributed that ? 100,000 and its income, as A sees fit, amongst all or any of A0’s children or grandchildren. In such a case, there is a discretionary Trust. A does owe the core Trust duty to A0’s children and grandchildren; but A has a power to choose how to distribute the benefit of the ? 100,000. 3. Discretionary Trusts Certainty of Objects: The â€Å"Any Given Person† Test Example 2: A0 transfers ? 100,000 to A subject to a duty: (i) not to use that money for A’s own benefit; and (ii) to invest the money prudently; and (iii) by the end of 21 years, to have distributed that ? 100,000 and its income, as A sees fit, amongst all or any of A0’s relatives. In Example 2, there seems to be a problem. A0 has attempted to set up a discretionary Trust. However, such a Trust depends on A being under a duty not to pay any of the money to a person who is not a relative of A0. But can a court enforce that duty? For example, let’s say A chooses to pay out ? 5,000 to X. Is there a meaningful test the court can use to decide if X really is a relative of A0? If not, a key part of A’s intended duty cannot be enforced; in that case, the intended discretionary Trust cannot exist. And, if that occurs, A will hold the ? 100,000 on Resulting Trust for A0 (or, if A0 has died, for A0’s estate). We can sum up this point by saying that, for a discretionary Trust to exist, it must pass the â€Å"any given person† test: a court must be able to tell of any given person (eg X) whether or not that person falls within the class of those to whom A is permitted to distribute the benefit of the right A holds on Trust. 2 That â€Å"any given person† test is often referred to as the â€Å"given postulant† test. In re Baden (No 2),3 the Court of Appeal considered whether a discretionary Trust for A0’s relatives could pass that test. 2 3 See per Lord Wilberforce in McPhail v Doulton [1971] AC 424 at 456. [1973] Ch 9. Stamp LJ held that the discretionary Trust was valid. His Lordship reached that conclusion by taking a very narrow view of relatives as including only A0’s statutory next of kin (ie those close relatives specified by statute as being able to acquire A0’s rights if A0 dies without making a valid will). 4 Sachs and Megaw LJJ took a much broader approach to the term â€Å"relative†, defining it as anyone sharing an ancestor with A0. 5 That definition seems to cause a problem: if X claims that he and A0 had the same great-great-great-great-great grandmother, can the court really test that claim? Sachs and Megaw LJJ both dealt with that point by saying that the onus is on X to prove that claim; until X does so, it must be assumed that X does not share an ancestor with A0. 6 The approach of Sachs and Megaw LJJ (assuming X is out of the permitted class, unless and until X can show otherwise) seems to make the â€Å"any given person† test redundant. For example, if A0 tries to set up a discretionary Trust in which A has a power to distribute the benefit of a right to anyone who is a â€Å"good person†, we might expect A0’s attempt to fail: there is no way for a court to tell if X is or is not a â€Å"good person†. However, on the approach of Sachs and Megaw LJJ, we could instead say that the discretionary Trust is valid – it is just that, if X cannot prove he is a â€Å"good person†, it will be assumed that he is not such a person. It seems that neither Sachs LJ nor Megaw LJ wanted to leave the law in such a way as to permit there to be a discretionary Trust in favour of anyone who is a â€Å"good person†. So each judge added a further certainty requirement. Sachs LJ stated that the class of those to whom A can distribute the benefit of A’s right must be â€Å"conceptually certain†: that is, it must be possible to come up with a definition of the class. Practical, evidential problems as to whether X is or is not within that definition can be dealt with by applying the simple rule that X is out of the class until he proves otherwise. So the â€Å"good person† discretionary Trust will be invalid as there is no clear way of defining that term: it is conceptually uncertain. In contrast, whilst it may be difficult, or even impossible, to tell if X is or is not a relative of A0, that evidential uncertainty will not defeat the discretionary Trust. Megaw LJ added a different requirement, stating that a discretionary Trust can only be valid if there are a â€Å"substantial number† of people who are clearly within the class to whom A can distribute the benefit of A’s right. 8 Again, that requirement can be used to mean that a â€Å"good person† discretionary Trust is invalid, whereas a â€Å"relatives† discretionary Trust is not. The extra requirements imposed by Sachs and Megaw LJJ do not assist in fulfilling the purpose of the â€Å"any given person† test: making sure the court can tell if A distributes the benefit of the right to a person outside the permitted class. It may be that each requirement instead aims to ensure that the discretionary Trust makes some practical 4 5 [1973] Ch 9 at 28-29. Ibid at 21-22 (following the lead of the first instance judge, Brightman J). 6 Here, again, the lead of Brightman J was followed. 7 Ibid at 20. 8 Ibid at 24. 3 sense: for example, if it is not possible to give a conceptually certain definition to the class, it may well be that no-one can show he is within that class. Megaw LJ’s requirement for a â€Å"substantial number† to be within the class is of course quite vague: the point seems to be that, for a iscretionary Trust to make sense, A must have a genuine choice to make as to who will receive the benefit of A’s right. However, that point is not always correct: for example, the discretion in a discretionary Trust could come from A having a power to decide how much of the benefit of A’s right a particular individual should receive. 4. 4. 1 Discretionary Trusts Certainty of Objects: Further Tests The â€Å"full list† test? At one point, it was suggested that a discretionary trust could be valid only if the court could draw up a full list of the people to whom A is permitted to distribute the benefit of a right. On that view, in Example 2, a discretionary trust would arise only if it is possible to draw up a full list of A0’s relatives. However, in McPhail v Doulton, the House of Lords rejected that view. 9 It was based on the idea that, if A failed in his duty to distribute the benefit of the right, a court would have to step in and decide how to distribute. And, to avoid favouring any one person, the court would have to order equal division of the benefit of the right amongst all members of the class. On that view, a discretionary trust would become, in effect, like the fixed Trust in Example 1b: so a full list would be necessary. In McPhail v Doulton, Lord Wilberforce pointed out that, if A fails in his duty to distribute the benefit of a right, a court does not have to order equal division. 10 After all, such equal division could be one of the worst ways of distributing the benefit of a right: for example, splitting up a fund of ? 100,000 equally among 1,000 people would mean that no one person gains a substantial benefit from the discretionary trust. So, given the other means by which the court can step in to execute a discretionary trust, there is no need to apply the â€Å"full list† test. 4. 2 The â€Å"administrative workability† test The fact that a court may need to step in and execute a discretionary trust does not mean that a discretionary trust must pass the â€Å"full list† test. Nonetheless, it may have some impact. For example, if the terms of the attempted discretionary trust mean that there is no sensible plan a court could adopt to execute that supposed trust, then A0’s attempt to set up a discretionary trust must fail. This point may explain the (rarely relevant) â€Å"administrative workability† test. 11 9 [1971] AC 424. Ibid at 456-7. 11 That test is referred to by Lord Wilberforce in McPhail v Doulton: [1971] 1 AC 424 at 457. 10 4 For example, in one case,12 A0 (a council shortly to disappear as part of a reorganisation) attempted to set up a discretionary trust (of a large sum of money) for the benefit of all the former residents of the area covered by that council. The class of people to whom A could distribute the benefit of its right would thus include over 2 million people. It was found that the council’s attempt to set up a discretionary Trust failed: the planned Trust was â€Å"administratively unworkable†. The problem here may be that, if A fails to perform his duty to distribute, the court will have to step in. And is there any sensible way order a court could make to distribute the benefit of A’s right? We have to bear in mind the need for a court to avoid making the type of contentious political decision which it is ill-suited to make and which may cause resentment. 3 Of course, in most cases, no such problems arise: the â€Å"administrative workability† test rarely prevents an intended discretionary trust from arising. This explanation of the â€Å"administrative workability† test explains why it applies to discretionary trusts but not to attempts to give A a power (as in Example 1a). If A chooses not to exercise a power to distribute the benefit of a right then, as A is under no duty to do so, a court does not need to step in and order some form of distribution. There is thus no risk of a court facing the dilemma that would arise if an administratively unworkable discretionary trust were allowed to be valid. 4. 3 The â€Å"non-capricious† test Although the â€Å"administrative workability† test does not apply to powers, that does not mean that powers are free from certainty tests. For example if A has a power to distribute the benefit of a right to all or any of a certain class of people then, as is the case with a discretionary trust, A is under a duty not to distribute outside that class. So, with a power as with a iscretionary trust, the â€Å"any given person† test applies:14 the power is only valid if a court can tell, should A exercise the power in favour of X, whether or not X is in the permitted class. Sometimes, when accepting a power, A also comes under a duty to act loyally and responsibly when considering whether to exercise that power. In such a case, for example, A (as is the case if A holds a right on a discretionary trust) cannot simply ignore the power: he is under a duty to members of the class of potential recipients to consider periodically whether or not to exercise the power. 5 In these cases, A can be said to have a â€Å"fiduciary power†: A is not just under the negative duty not to distribute outside the permitted class; he also has some positive duties in relation to the power. It has been held that A0’s attempt to set up such a power will fail if the intended power is â€Å"capricious†: if there are no sensible criteria A can apply in considering whether and how 12 13 R v District Auditor, ex p West Yorkshire MCC [1986] RVR 24 (noted by Harpum [1986] CLJ 391). For example, would the money be better spent on paying for a new school, or a new hospital, or new sports facilities? 4 See eg re Gulbenkian [1970] AC 508. 15 For a discussion of A’s duties in such a case see eg per Megarry V-C in re Hay [1982] 1 WLR 202, esp at 210. 5 to exercise his power. 16 This does not mean that, when giving A the intended fiduciary power, A0 needs to spell out what factors A should take into account. However, it does mean that if the supposed power is â€Å"capricious† (ie there is no sensible scheme A can come up with) then A0’s attempt to give A the power must fail. Two points are worth noting about this â€Å"non-capricious† test. First, if it is linked to A0’s attempt to impose a duty on A to act loyally and responsibly when considering whether to exercise a power, it must apply to an attempt to set up a discretionary trust: such a duty is a key part of a discretionary trust. Second, in practice, it is very unlikely that this test will present a problem: people rarely go round setting up bizarre powers that cannot be considered in a sensible way. 4. 4 The â€Å"one person† test Example 3: A0, an owner of a large number of paintings, dies. In his will, he instructs A (his executor) to allow â€Å"each of my friends† to purchase one of those paintings each, at half its market value. In such a case, A0 does not attempt to set up a discretionary Trust: A has no power to choose how to distribute his rights. Rather, each friend of A has a fixed entitlement. A0 is attempting to make a conditional gift: if X satisfies a particular condition (if he is a friend of A0) he has a specific right. Nonetheless, it may seem that there is still a certainty problem: how can A (or the court) tell if X is or is not a friend of A0? However, in re Barlow, the essential facts of which were identical to Example 3,17 Browne-Wilkinson J held that the conditional gift was valid. His Lordship noted that an attempt to set up a discretionary Trust for â€Å"friends of A0† would fail: applying Sachs LJ’s test in re Baden (No 2), the term â€Å"friends of A0† is conceptually uncertain. However, a conditional gift should be treated differently: if there was just one person who could clearly show he was, on any reasonable test, a friend of A0, that person is entitled to acquire one of the paintings. 8 The test applied in re Barlow has been criticised. However, it can be defended. If an attempted discretionary Trust (eg in favour of â€Å"friends of A0†) fails a certainty test, then someone who could have benefitted from A’s power (eg a clear friend of A0) will miss out. But, in any case, that person only had a chance of receiving a benefit; he had no legal guarantee. In contrast, if a conditional gift is found to be invalid when there is a person who definitely stands to benefit from it, that person is deprived of a definite entitlement: a right given to him by A0.

No Way Out Essay -- Literary Analysis

The short story, The Chrysanthemums, by John Steinbeck, is a fascinating tale that involves the life of a beautiful, yet misunderstood, women as she battles with the prolonged sting of isolation. After years of captivity on a farm, Elisa finds it difficult to feel like a free woman. As a result, Elisa becomes guarded and closed-off to even her husband. Despite her masculine persona, Elisa lets her shielded exterior down when an opportunity to escape presents itself. Trapped in the confines of her farm, Elisa creates a kind of â€Å"intimate relationship† with her cherished chrysanthemums as a way to keep her sanity (French 64). Through the cunning use of symbolism, and the forces of human nature combined with the female limitations of the time, Steinbeck enhances the idea that happiness cannot fit between the bars of a cage. Steinbeck first enriches the feeling of despondency with the clever use of symbolism. The story opens with a detailed description of the Salinas Valley. Here, Steinbeck relates the valley to a â€Å"closed pot,† which suggests Elisa’s inability to escape. Furthermore, Steinbeck describes that even though there is sunlight nearby, the Salinas Valley sees none. As sunlight is often associated with happiness, the implication here is that while others are happy, Elisa is not. To further the use of symbolic reference, Steinbeck relates Elisa to the hopeful farmers in the area. Farmers believe that rain is imminent due to the southwest wind that sweeps through the valley. Unfortunately, the encumbering fog repudiates any chance of this happening. Like the false hope that torments the farmers, Elisa is burdened by an illusion that happiness still might come for her. Also, Elisa’s garden is surrounded by a wire fence for pr... ...ed to demonstrate how contentment and confinement do not coincide with one another. Works Cited French, Warren. John Steinbeck's Fiction Revisited. New York: Twayne Publishers, 1994. Print. Beach, Joseph Warren. American fiction, 1920-1940. New York: The Macmillan Company, 1941. Print "John Steinbeck (1902-1968)." Short Story Criticism. Ed. Joseph Palmisano. Vol. 77. Detroit: Thomson Gale, 2005. 228-297. Literature Criticism Online. Gale. Glendale Community College. 15 April 2012 "The Chrysanthemums by John Steinbeck." Short Story Criticism. Ed. Anja Barnard and Anna Sheets-Nesbitt. Vol. 37. Detroit: Gale Group, 2000. 320-363. Literature Criticism Online. Gale. Glendale Community College. 16 April 2012

Music of the Baroque Period

Review Questions 1. What is a symphony? A symphony is an elaborate musical composition for full orchestra, typically in four movements, at least one of which is traditionally in sonata form. 2. What is a sonata? How is it related to the sonata form? A sonata is a composition for an instrumental soloist, with piano accompaniment, in several movements with one or more in sonata form. Sonata form is a piece of music in three sections, in ABA form, which are exposition, development, and recapitulation. 3. What is a coda? A coda is pieces at the end of a musical piece that are extended past the capitulation. . What are the three different parts of the sonata form? Describe each part. The first part of sonata from is the exposition. The exposition is where the composer â€Å"exposes† the themes of the music which are the first subject group and the second subject group. The second is the development. The development is the section of the music where the composer builds on the themes that were introduced in the exposition. This is also where the tension in the piece is built up. The recapitulation is the third and final part of the sonata form and it is the exposition is slightly repeated.The tension from the development eases, and the sound is subtle again. 5. What are the three different periods of Beethoven's work? Describe each part. Beethoven's work was organized into the early, the middle and the late periods. The early period was from 1779-1802, and that's when he composed his first and second symphonies. The middle period was from 1803-1814. He experimented with different techniques at that time. The late period was from 1815-1827, and his works reflect the transition into the Romantic period. Critical Thinking Questions 6. What are the characteristics of the music of the Classical period?When referring to the music of the classical period, people think about the Viennese school. Many great composers attended the school, such as Haydn, Mozart, and Beeth oven. The Classical music period was a mix of many different ideas, as everyone was sharing thoughts, and music. 7. How does the music of the Classical period differ from the music of the Baroque period? The music of the baroque period was said to be classified as a period of elaborate music. The music of the Classical period is more â€Å"down to earth† music and sought after beauty rather than complex melodies. Music of the Baroque Period By representatives

The Asch Conformity Experiments and Social Pressure

The Asch Conformity Experiments, conducted by psychologist Solomon Asch in the 1950s, demonstrated the power of conformity in groups and showed that even simple objective facts cannot withstand the distorting pressure of group influence. The Experiment In the experiments, groups of male university students were asked to participate in a perception test. In reality, all but one of the participants were confederates (collaborators with the experimenter who only pretended to be participants). The study was about how the remaining student would react to the behavior of the other participants. The participants of the experiment (the subject as well as the confederates) were seated in a classroom and were presented with a card with a simple vertical black line drawn on it. Then, they were given a second card with three lines of varying length labeled A, B, and C. One line on the second card was the same length as that on the first, and the other two lines were obviously longer and shorter. Participants were asked to state out loud in front of each other which line, A, B, or C, matched the length of the line on the first card. In each experimental case, the confederates answered first, and the real participant was seated so that he would answer last. In some cases, the confederates answered correctly, while in others, the answered incorrectly. Aschs goal was to see if the real participant would be pressured to answer incorrectly in the instances when the Confederates did so, or whether their belief in their own perception and correctness would outweigh the social pressure provided by the responses of the other group members. Results Asch found that one-third of real participants gave the same wrong answers as the Confederates at least half the time. Forty percent gave some wrong answers, and only one-fourth gave correct answers in defiance of the pressure to conform to the wrong answers provided by the group. In interviews he conducted following the trials, Asch found that those that answered incorrectly, in conformance with the group, believed that the answers given by the Confederates were correct, some thought that they were suffering a lapse in perception for originally thinking an answer that differed from the group, while others admitted that they knew that they had the correct answer, but conformed to the incorrect answer because they didnt want to break from the majority. The Asch experiments have been repeated many times over the years with students and non-students, old and young, and in groups of different sizes and different settings. The results are consistently the same with one-third to one-half of the participants making a judgment contrary to fact, yet in conformity with the group, demonstrating the strong power of social influences. Connection to Sociology The results of Aschs experiment resonate with what we know to be true about the nature of social forces and norms in our lives. The behavior and expectations of others shape how we think and act on a daily basis because what we observe among others teaches us what is normal, and expected of us. The results of the study also raise interesting questions and concerns about how knowledge is constructed and disseminated, and how we can address social problems that stem from conformity, among others. Updated  by Nicki Lisa Cole, Ph.D.