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"It is submitted that this case [i.e. Pennington v Waine] dangerously undermines the established principles that equity will not act to perfect an imperfect gift nor assist a volunteer. The effectiveness of an alleged transfer of property should not depen
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"It is submitted that this case [i.e. Pennington v Waine] dangerously undermines the established principles that equity will not act to perfect an imperfect gift nor assist a volunteer. The effectiveness of an alleged transfer of property should not depend on the vagaries of whether the court considers that it would be 'unconscionable' for the transfer [or] to change his or her mind"
Critically evaluate this statement
The long established and conventional principle that "equity will not act to imperfect an imperfect gift or to assist a volunteer" can be traced back to the 19th century in particular Ellison v Ellison (1802)1 and Milroy v Lord (1870)2. However, the principle appears to have been diluted in subsequent cases such as Strong v Bird and Re Rose where the courts have created several exceptions conflicting with the principle and resulting in equity perfecting an imperfect and consequently allowing a volunteer to force the transferor to give the promised gift. Although, both Strong v Bird3 and Re Rose4 have created "significant exceptions"5, the widest and most controversial exception was established in the case of Pennington v Waine6 where the Court of Appeal laid down a "test of unconscionability". This
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Equity & Trust Law (view all)
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- Certainty of Objects and Beneficiary Principle.
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