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Breach of trust: Time for a new law?

Breach of trust: Time for a new law?

Pawlowski, Mark ORCID: 0000-0002-5473-5809 (2021) Breach of trust: Time for a new law? Trusts and Estates Law & Tax Journal (223). ISSN 1743-5501

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Abstract

The article considers whether a new tort of inducing a breach of trust would be a welcome development in English law. Although there already exists a tort of inducing a breach of contract, this does not currently extend to imposing liability in the case of an inducement of a breach of trust. It is argued that the recognition of such a new tort would have the advantage of allowing the claimant to pursue a third party where their wrongdoing consists solely of threats or persuasion falling short of actual participation in the commission of a breach of trust. Any such new tort would inevitably have similar characteristics to the existing tort of inducing a breach of contract, namely, that the defendant: (1) acted with the requisite knowledge of the existence of a trust; and (2) deliberately intended to interfere with the duties of the trustee. The tort would also impose liability on the third party without proof of dishonesty provided that he had knowledge of the trust and the requisite intention to cause a breach. Significantly, there would be no requirement that the defendant should have intended the breach to result in harm to the claimant. It would be enough that a breach was intended. However, the claimant would need to show actual loss suffered by virtue of the breach of trust in order to invoke the tort. It is acknowledged, however, that the same set of facts could give rise to alternative claims against the stranger to the trust involving liability both in tort and equity. This would be in addition to any claim brought against the trustee himself for breach of trust.

Item Type: Article
Uncontrolled Keywords: new tort, breach of trust, inducing a breach of contract, dishonest assistance, accessory liability, alternative claims, tort and equity, English law
Subjects: K Law > KD England and Wales
Faculty / Department / Research Group: Faculty of Liberal Arts & Sciences
Faculty of Liberal Arts & Sciences > School of Law & Criminology (LAC)
Related URLs:
Last Modified: 22 Apr 2021 21:29
Selected for GREAT 2016: None
Selected for GREAT 2017: None
Selected for GREAT 2018: None
Selected for GREAT 2019: None
Selected for REF2021: None
URI: http://gala.gre.ac.uk/id/eprint/32242

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