Lloyd's Maritime and Commercial Law Quarterly
RE ROSE REVISITED: THE SHORN LAMB’S EQUITY
Pennington
v. Waine
A. Perfecting gifts
The rules governing the passing of property by way of transactions for value are far better developed than those for gifts—witness the presumptions in the Sale of Goods Act 1979 that assist in discerning the intentions of the contracting parties, which decide when the property in specific or ascertained goods pass from seller to buyer.1
By contrast, the animus
and factum
associated with a gratuitous transfer are both equally important in determining when a gift is perfected. These rules also decide if a trust is completely constituted, since that is simply a sophisticated form of making a gift. Yet, the law also views with suspicion arguments that a failed gratuitous transfer takes effect as a declaration of trust,2
for that could entail onerous obligations that a donor does not expect to assume when he intends an outright gift.3
How a gift is perfected is determined by the nature of the property itself. According to Turner, L.J., in Milroy
v. Lord:
“(t)he settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding on him… there is no
1. Sale of Goods Act 1979, s. 17. Section 18 provides the rules for ascertaining the intentions of the parties that are applicable to the passing of property for both specific and unascertained goods. See P.S.Atiyah, J. Adams, H.MacQueen, The Sale of Goods,
10th edn (2001), 315–342.
2. Milroy
v. Lord
(1862) 4 D.F. & J. 264, 275; 45 E.R. 1185, 1190.
3. Maitland’s Lectures on Equity
(1932), 73.
CASE AND COMMENT
297