explain the case of hunter v moss

8/17/2019 Explain the Case of Hunter v Moss

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1. Explain the case of Hunter v. Moss. (5m)

HUNTER v. MO ! "1##$% 1 &'R #$ "1##% 1 &'R 5*

FACTS

The +efen+ant, Mr. Moss -as the foun+er of Moss Electrical o 't+ an+ -as the

re/istere+ hol+er of #50 shares in the compan -ith an issue+ share capital of 1,000

shares, an+ one +a he sai+ to Hunter,the finance +irector that he coul+ have 52 (i.e

50) of these shares as part of his emploment. Ho-ever the other #00 shares he

o-ne+ -as not mentione+ at all. Eventuall, +ue to tax concerns, an+ mainl

3ecause Moss ha+ secon+ thou/hts, this 50 shares -as never enforce+ . Hunter

then sue+ Moss claimin/ his promise+ 50 shares. The claim -as reste+ on t-o

factors -hich are4 -hether the lan/ua/e use+ -as sufficient to create a trust, an+

-hether or not the trust faile+ to provi+e the three certainties 3ecause of the lac of

separation 3et-een the #00 an+ 50 shares.

The +eput 6u+/e, in a follo-in/ trial, hel+ that on the facts, the +efen+ant ha+

ma+e a vali+ oral +eclaration of trust constitutin/ himself trustee for the plaintiff of 52

of the compan7s issue+ share capital, -hich applie+ to 50 of the +efen+ant7s #50

shares. The +efen+ant applie+ 3 motion to the +eput 6u+/e, -ithin *8 +as, for the

6u+/ment to 3e recalle+ an+ set asi+e on the /roun+ that the purporte+ trust ha+

faile+ for -ant of certaint of the su36ect matter, -hich ha+ not 3een ar/ue+ at trial.


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JUDGEMENT

On the hearin/ of the motion in the lo-er court, the motion is hel+ +ismisse+,

that a purporte+ +eclaration of trust -as sufficientl certain as to su36ect matter if,

imme+iatel after the purporte+ +eclaration, the court coul+ have ma+e an or+er for

the execution of the trust4 that in the case of a trust of intan/i3le assets the

re9uirement of certaint +i+ not necessaril entail se/re/ation or appropriation of the

specific propert -hich -as to form the su36ect matter of the trust4 that, since the

shares -ere of such a nature as to 3e in+istin/uisha3le one from another an+ -ere

therefore all e9uall capa3le of satisfin/ the trust, it -as unnecessar to i+entif an

particular 50 shares4 an+ that, accor+in/l, the trust -as not voi+ for uncertaint of

su36ect matter.

The +efen+ant appeale+. :n the ourt of ;ppeal, the court +ismisse+ the appeal,

that in the case of a +eclaration of trust of personalt the re9uirement of certaint of

su36ect matter +i+ not necessaril entail se/re/ation of the propert -hich -as to

form the su36ect matter of the trust4 that the +eclaration of trust 3 the +efen+ant -as

sufficientl certain as to su36ect matter, since the shares hel+ 3 the +efen+ant -ere

of such a nature as to 3e in+istin/uisha3le from each other an+ -ere all therefore

capa3le of satisfin/ the trust -ithout i+entifin/ an particular 50 shares4 an+ that,

accor+in/l, the trust -as not voi+ for uncertaint of su36ect matter.


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How lower court and Court of Appeal in Hunter v. Moss distinguished re

London Wine

urthermore Oliver = hel+ that? @I appreciate the point taken that the su!ect "atter is

a part o# a ho"o$eneous "ass so that speci#ic identit% is o# as &itt&e as i"portance as

it is' #or instance' in the case o# "one%. eerthe&ess' as it see"s to "e' to create a

trust it "ust e possi&e to ascertain *ith certaint% not on&% *hat the interest o# the

ene#iciar% is to e ut to *hat propert% it is to attach A. :t -as hel+ that the trust

faile+.


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:n lo-er court' +unter ,oss +istin/uishes -e London Wine on the 3asis that

the concern in -e London Wine -as solel tan/i3le assets mean-hile in +unter

case, shares are intan/i3le. The 6u+icial approach to tan/i3le propert is enclose+ in

-e London Wine Co as Oliver = explaine+ Bit see"s to "e that in order to create a

trust it "ust e possi&e to ascertain *ith certaint% not on&% *hat the interest o# the

ene#iciar% is to e ut a&so to *hat propert% it is to attach B he also state+ that BI

cannot see ho* #or instance a #ar"er *ho dec&ares hi"se a trustee o# 2 sheep

*ithout identi#%in$ the" can e said to hae created a per#ect trust .A

:n +unter . ,oss, the +eput Hi/h ourt 6u+/e in the hancer Civision, olin

Rimer D, ho-ever, +o not consi+er that the principle, -hich Oliver =. applie+ -ith

re/ar+ to the certainties re9uisite for the purposes of a trust relatin/ to tan/i3le

assets, is one -hich is necessaril also applica3le 3 analo/ to trusts of intan/i3le

assets. olin Rimer D hel+ that since the shares -ere all i+entical, the lac of

se/re/ation 3et-een the shares +i+ not invali+ate the trust. The 6u+/e +istin/uishe+

the prece+ent set 3 -e London Wine Co Ltd 3ecause the su36ect matter -hich is

the -ine, -ere potentiall +ifferent an+ re9uire i+entification, -hile all of Moss shares

-ere of such a nature as to 3e all i+entical therefore i+entification -as unnecessar

an+ irrelevant as each of them coul+ satisf the trust. Rimer = instea+ cite+

Rollestone v National


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+eclaration 3 the emploer as to -hether or not he ha+ +eclare+ himself as a

trustee. Cillon '= hel+ that in the case of a +eclaration of trust of personalt, the

re9uirement of certaint of su36ect matter +i+ not necessaril entail se/re/ation of the

propert -hich -as to form the su36ect matter of the trust. ; trust ma+e 3 oral

+eclaration -as not voi+ for uncertaint of su36ect matter simpl 3ecause it referre+

to a num3er of shares in the compan, an+ +i+ not refer to the specific shares.

Therefore the su36ect matter in the +eclaration -as sufficientl certain 3ecause the

shares -ere in+istin/uisha3le from each other an+ capa3le of satisfin/ the trust

-ithout i+entifin/ an particular 50 shares. The trust -as also re9uire+ for Moss to

enforce the terms of the emploment contract. :n -e London Wines, the a//rieve+

customers -ere attemptin/ to use the trust institution to si+e step the rules for the

passin/ of propert containe+ in the Sa&es o# oods /ct 1909 3ecause if a 3uer has

pai+ for unascertaine+ /oo+s, the 3uer is +eeme+ to have propert ri/hts in them

re/ar+less of the se/re/ation. There coul+ 3e no a-ar+ for specific

performance 3ecause the ale of Foo+s ;ct re9uire+ similarl that an /oo+s 3e

ascertaine+. Therefore, the ourt of ;ppeal ma+e a +istinction 3et-een the nature of

the su36ect matter -hich is a contract to transfer fun/i3les, an+ /oo+s. Hunter applies

to fun/i3le propert mean-hile Re 'on+on applies to non!fun/i3le propert. Re

'on+on +iffers from Hunter 3ecause the former is in a sale of /oo+s context, -here

special consi+erations ma exist an+ each sale +iffers from another, -hile in the

latter, shares are ultimatel the same 3un+le of ri/hts in a compan even thou/h

+ifferent prices ma 3e pai+ for them.

Cillon '= also +istin/uishe+ -e London Wine 3 sain/ it -as +ifferent from the

case on han+ 3ecause it concerne+ -ith the appropriation of chattels an+ -hen the

propert in chattels passes. He sai+ that the case on han+ concerne+ -ith a

+eclaration of trust, acceptin/ that the le/al title remaine+ in the +efen+ant an+ -as

not inten+e+, at the time the trust -as +eclare+, to pass imme+iatel to the claimant.

On the su36ect of a possi3le creation of an e9uita3le char/e over a mixe+ fun+ rather


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than a trust Cillon '= sai+ that the case -as not concerne+ -ith a mere e9uita3le

char/e over a mixe+ fun+. He sai+ there -as a similarit 3et-een /ivin/, 3 -ill, a

specifie+ num3er of shares of a certain class in a certain compan an+ the

+efen+ants +eclaration of 3ecomin/ himself a trustee of 50 of or+inar shares in

ME' as 3oth are effective to /ive a 3eneficial proprietar interest to the 3eneficiar

un+er the trust. ;ccor+in/l, Cillon +ismisse+ the appeal, hol+in/ that the trust -as

not voi+ for lac of uncertaint of the su36ect matter.

Other than that, the ourt of ;ppeal +istin/uishe+ -e London Wine statin/ that

the case Binvolve+ the appropriation of chattels an+ -hen the propert in the chattels

passesB an+ B-as not concerne+ -ith a +eclaration of trust.B :n a++ition, a practical

effect of +unter ,oss is that it prevents the emploer from 3enefitin/ from his o-n

3reach. ;s a result, a +efen+ant emploer cannot pull out of a promise to provi+e the

claimant emploee -ith the shares -hich are the su36ect matter of the +ispute.

+unter ,oss +etermine+ that -here the propert is mone, shares or chose in

action (intan/i3le assets of i+entical value), then it +oes not nee+ to 3e se/re/ate+.

:n +eterminin/ so, the ourt of ;ppeal +istin/uishe+ -e London Wine on the 3asis

that that -hilst the shares in +unter ,oss -ere i+entical, the -ines of 3ottles in -e

London Wine -ere not i+entical.

explain the case of hunter v moss

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