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引用次数: 1
摘要
本文分析并论证了“公平不会完善不完美的礼物”这一格言的持续相关性,原因有三。首先,它基本上是合理的。几个世纪的历史发展不应该因为它的任意应用而被抛弃。其次,偏离这一准则是合理的。后来对判决错误的案件进行了解释。第三,实证分析证明,新加坡、马来西亚和英国等普通法司法管辖区仍适用Milroy v Lord案。最后,本文提出了一个新的三步检验,以防止进一步的任意应用:(1)作为起点,衡平法不会完善一个不完美的礼物。但是,如果调解人客观上已尽其所能转让法定所有权,则可以这样做。(iii)如果步骤(ii)与步骤(i)相冲突,衡平法在考虑每个案件的事实时,关注的是实质而不是形式。
Beware the ‘gifted’ Trojan horse: analysing the equitable maxim—‘Equity will not perfect an imperfect gift’
This article analyses and argues for the continued relevance of the maxim—Equity will not perfect an imperfect gift for three reasons. First, it is principally sound. Centuries of historical development should not be discarded due to its arbitrary application. Second, the deviations from the maxim were justified. The cases which were decided wrongly have subsequently been accounted for. Third, common law jurisdictions including Singapore, Malaysia and the United Kingdom still apply Milroy v Lord, as proven by empirical analysis. Last, this article proposes a new three-step test to prevent further arbitrary application: (i) As a starting point, Equity will not perfect an imperfect gift. (ii) However, it may do so where the settlor has objectively done all he could to transfer legal title. (iii) If step (ii) conflicts with step (i), Equity looks to the substance, not the form, considering the facts of each case.