Browsing by Author "Bruwer, Elizabeth"

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    Settlor control and trustee liability: an analysis of English and offshore trust law with indicators for the development of South African trust law
    (Stellenbosch : Stellenbosch University, 2018-12) Bruwer, Elizabeth; De Waal, M. J.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT : The trust, a creature of English law that has found its way into many other legal systems, is well known as a useful succession and tax planning tool for wealthy individuals. In recent years, globalised moves towards increased tax transparency and compliance have put pressure on the use of trusts, particularly on so-called “offshore trusts”. In addition, due to economic, financial and socio-economic changes over the last 50 years, the ways in which and reasons why trusts are used have also changed. The focus has, in some cases at least, shifted from providing for and protecting beneficiaries to providing a tax efficient vehicle for holding the settlor’s investments. Against this background, this dissertation examines how South African trust law deals with two main issues: the increased demand for settlor control over trust assets, as well as the possibility for trustees to exclude liability for breach of trust. The question arises whether, in such circumstances, a proper trust remains. The position under South African law is compared to that under English law and the law of the Channel Island of Jersey, by way of a study of legal sources including legislation and case law. The dissertation starts with an analysis of the history and state of trust law in the three relevant jurisdictions and highlights a number of core values that are present in all three jurisdictions. It then continues to examine the duties and obligations of trustees under the law of these jurisdictions, including the possibility to exclude liability for breach of trust in the trust deed. Differences between the three jurisdictions are highlighted. The next chapter investigates the phenomenon of excessive settlor control and the circumstances in which this can lead to either invalidity of the trust or to a court “going behind the trust”, thereby ignoring the normal consequences of the trust, and applying the trust assets in favour of someone other than the beneficiaries. The dissertation concludes that, in certain circumstances, excessive settlor control (particularly where powers and entitlements are combined) and a lack of trustee accountability can result in either invalidity or a court going behind the trust. Courts appear reluctant to ignore validly constituted trusts, but it is now accepted that circumstances may exist where justice and fairness would require such a step. The virtue of trustee independence emerges as an important counter to the argument of settlor control, and the dissertation proposes that this is an area where South African trust law would benefit from further development.
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    Vereniging van die koopreg : kontraksluiting in 'n historiese, regsvergelykende en internasionale perspektief
    (Stellenbosch : Stellenbosch University, 2000-12) Bruwer, Elizabeth; Lubbe, G.; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: International trade has increased tremendously in the last few decades. When parties to a contract find themselves in different countries and each has its own legal background, specific problems originate in connection with formation of the contract, its execution, the breach thereof and so forth. The predominant theme of this work is the question of how a diversity of legal rules should be approached in an international context. The focus is on contract formation, and the rules of offer and acceptance are therefore examined. As a result of diverse legal cultures, different legal systems often have contradicting rules pertaining to contract formation, which can lead to a variety of problems if the contracting parties are not aware of the inconsistencies. According to international private law's choice of law-rules, such a contract should be governed by the rules of the legal system with which it has the closest connection. Connecting factors can be for instance the domicile of particular persons at various times, the situs of property, or the place where a juristic act was performed. One specific legal system will therefore rule the contract. There is however another possibility: that of a uniform substantive law. This involves the unification of different legal rules into one set of rules to be applied to contracts which are concluded in an international context. Taking into account that many of the rules and doctrines applicable to contract law have a common philosophical origin, the necessity of a convergence of these rules may be questioned. However, most of the rules ended up being different in different legal systems, and parties to an international transaction will probably not have the same idea about questions such as the possibility to revoke an offer before acceptance, or the precise moment of formation of the contract. A comparative study of the rules of offer and acceptance illustrates this point. International efforts to unify the law in this regard are explored, in order to assess the possibility of a uniform substantive law of contracts. Some of the international instruments seem to be able to find a middle way between conflicting rules, although it may not always be the best way to solve the problem. It is argued that harmony is not necessarily advanced by a codification of existing rules, and that a common legal culture which can lead to the incremental development of harmonious legal principles may be an alternative solution for the problem of incompatible national legal systems in an international context.