The first part in Lord Brown-Wilkinson's citation "Although Equity will not aid a volunteer" is one of the most important maxims in equity. The general definition of a maxim is "a general truth or rule of conduct expressed in a sentence". In the context of equity, maxim has a particular meaning: maxims are major principles, emerging from the historical development of equity and serve as a framework for judicial decision. Lord Brown-Wilkinson's citation does concern the gifts which are considered a special kind of trust. Perhaps, that is why, throughout this essay we will focus on gifts rather than in every other kind of trust. In the first part, we will analyze the notion of gift, the meaning of the maxim and its implication. In the second part, we will consider the different situations where according to Lord Brown-Wilkinson's citation "[Equity] will not strive officiously to defeat a gift" Equity does assist volunteers. And finally, we will discuss why equity should assist volunteers.
[...] Equity does assist the volunteer, as it does not force him to sue himself, and accepts, in fact, this kind of gift. Since Re Stewart[8], this exception does not concern only the debt but to all gifts in general. When there is in parallel of a testator / executor relation, a donor / donee relation too, the gift gave from the testator/donor to the executor/done will be perfected if the testator demonstrates that he wanted to offer a property to the done ‘during his life and after his death'. [...]
[...] In Mascall v Mascall[15], a father transferred his house to his son, and handed him the land certificate. However, before sending the document to the land registry for the formalization of the transfer, the father and the son had an argument, with consequence that the father wanted to revoke his gift. Lawton LJ stated that the father done everything within his power' to perfectly constitute the gift and so the gift was effective. In 2002, the Court of Appeal created a new exception to the maxim with a surprising new principle. [...]
[...] The beneficiary has no right on the gift until it is vested, and he will not be helped to receive it if the required procedure is not applied. In Jones v Lock[4], Mr. Jones put a check in his child hands for a brief instant and said: give this to baby for himself”. Mr. Jones subsequently died before vesting the property to his child. Lord Cranworth LC held that there was no outright transfer, and refused to see in the father's words a creation of trust. The legal procedure was not respected, Equity maxims were followed. The gift was considered incompletely constituted, and thus failed. [...]
[...] In the 17th century, the flexible set of equity has been rigidified in order to obtain a more conventional and safer justice. The two possible answers to this question can be argued. In my opinion, Equity should not automatically help the volunteers, but should be able to help the volunteer by considering each case in an incremental approach, as it is the only way for Equity to keep this particular justice based on fairness. Strangled in fix principles, Equity would lose its particularity. [...]
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