LLB270 Lecture Notes - Lecture 8: Pacific Brands, Credit Suisse, Champerty And Maintenance
LECTURE 8 – GIFTS AND SALES:
Essentially about the law of assignment
Assignment = transfer of ownership of property from the assignor to assignee
oRequires that the assignor intend to give up ownership
Can be of personal or real property
oAssignment includes gifts and sales
oPersonal property:
Chose in possession – tangible property
Chose in action – intangible person right that can be enforced by action
Assignment can occur in equity or law
Assignment at law:
oRequirements:
Assignment of land:
Old system = by deed – Conveyancing Act s 23B(1)
Torrens system = by registration – Real Property Act s 41(1)
Assignment of choses in possession (physical)
Sale – governed by uniform sale of goods legislation
oBeyond the scope of this course
Gift can occur via –
oDelivery of the thing with donative intent
Delivery requires:
Intention to make the gift (usually requires ‘words of
present gift’)
oSomething indicating the intention, specify the gift
(extent of gift) and when it is to take effect
oWords of present gift are not essential if intention can
be established in another way
oPromise of future gift does not establish a gift
Intention to donee to accept the gift
Delivery
oNo delivery – gift is not complete
Equity will not perfect an imperfect gift
oMay be actual or constructive
oDepends on the circumstances of the case
Rawlinson v Mort (1905) – constructive delivery of
a church organ by placing hands on it
find more resources at oneclass.com
find more resources at oneclass.com
Rowland v Stevenson [2005] – constructive
delivery of a yacht by handing over keys
Gifts donation mortis causa = gifts in contemplation of death
Exception to the ordinary rules of inter vivos gifts or
bequests in wills
Blackstone – ‘apprehending his dissolution near, delivers or
causes to be delivered to another the possession of any
personal goods to keep in case of his decease’
Requires:
oContemplation of death (need not be certain but
possible)
oGift is conditional upon death occurring
oGift is delivered
Corroboration is not required but claims are viewed with
caution
Exception to the rule that equity wont assist a volunteer
oDeed of gift
oDeclaration of trust
Assignment of choses in action (intangible personal right) – Conveyancing Act
s 12
Historically weren’t assignable
oChamperty and maintenance = historical crimes and torts
War of the Roses was the reason for unassignability
Became increasingly obsolete by the 19th century
oEliminated in NSW by Maintenance, Champerty and Barratry Act
1993
oConcerns: negative effects on the justice system and the protection
of vulnerable litigants – Campbell’s Cash & Carry Pty Ltd v Fostif Pty
Ltd [2006]
Equitable assignment was allowed
oAs no legal assignment occurred the assignee would have to be
joined as a party to the actions
Conveyancing Act s 12
oAssignment of a chose in action is allowed
oRequirements:
Clear intention to assign
Assignment must be absolute
Assignment must be in writing, signed by the assignor
Express notice must be given in writing to the debtor
oMay be modified by other statutes (eg Corporations Act)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Assignment = transfer of ownership of property from the assignor to assignee: requires that the assignor intend to give up ownership. Can be of personal or real property: assignment includes gifts and sales, personal property: Chose in action intangible person right that can be enforced by action. Assignment can occur in equity or law. Old system = by deed conveyancing act s 23b(1) Torrens system = by registration real property act s 41(1) Sale governed by uniform sale of goods legislation: beyond the scope of this course. Gift can occur via : delivery of the thing with donative intent. Delivery: no delivery gift is not complete. Equity will not perfect an imperfect gift: may be actual or constructive, depends on the circumstances of the case. Rawlinson v mort (1905) constructive delivery of a church organ by placing hands on it. Rowland v stevenson [2005] constructive delivery of a yacht by handing over keys.
