INTERNATIONAL TAX AND FINANCE PROGRAM

Syllabus for Law of Trusts Law and Administration

Fall Semester only – 16 weeks and an exam week

October 1st week until last week January
I. COURSE DESCRIPTION

This course presents a very in-depth comparative approach to the relationships, rights, duties, obligations, created and/or embodied in jurisprudence and statutory regime for entities and also fiduciary relationships absent a entity with legal personality. The course particularly focuses on trusts and trustees but also examines other entities including corporate type legal persons with limited or unlimited liability for members and partnerships. This course then examines Civilian law entities, such as the foundation, stiftung, and stichting, as well as addressing the recognition of entities cross-border between Civilian and Common law jurisdictions and the Hague Convention and its potential uses is considered. This is not a tax course but rather a substantive law course. Generally, it is taken concurrently with Tax of Trusts, Companies, and other Entities. This course is taught by Dr Daan Ribbens, author of numerous academic articles and books on comparative legal issues associated with entities.

II. PURPOSE

An LLM executive level course. This course will be taught at the executive level and will employ case studies as well as global case analysis. Generally, this course is taken concurrently with Taxation of Trusts, Companies, Partnerships and Other Entities.

* 3 credits
* elective course
* no prerequisites

III. COURSE PROCEDURE

This course will involve fourteen weekly modules that are delivered through on-line instruction pursuant to current program specifications. Each module will contain text material, study guide instruction, and weekly interactive participation. Text material may contain a combination of code sections, cases, and commentary materials. Study guides will contain commentary materials upon the text materials with imbedded exercises and assignments to be completed either independently or within a group of two to five persons. Assignments may be submitted directly to the Instructor or submitted to the classroom.

Each module, selected students may be called upon to deliver answers in the Internet based classroom to questions posed by the instructor. Questions may be posed in case study form or in issue form. Answers may be short (one page) form or long form (five page analysis).

During the semester, module based audio and videotape lecture construction will be explored as well as the provision to students through streaming technology.

During the sixteen-week semester, the students will have two technology skills and control weeks. The first week of the course, the student will spend the time acquiring and testing the necessary accessing components of the course, including: blackboard skills, database access, proxy server access, material download, and other technical issues. Also, students will introduce themselves and identify with each other (camaraderie and network building). During the third week, students will be given another breather week to check the quality of their acquired technology technical skills and offsite database access in order to identify any problem areas that require immediate correcting.

During the semester, each student will receive at least two detailed feedback sessions from the Instructor through the detailed marking of his/her/group study guide assignments and/or class participation. Separately, the Instructor is available for office hour private counseling through email, telephone, and perhaps by residential office appointment.

Other assignments may receive feedback and will receive a grade, recorded in the online grade book that students may assess their performance.
IV. ATTENDANCE AND PARTICIPATION

This online course requires attendance which is measured by (1) the modular-weekly interactive participation opportunities in the classroom, (2) mandatory weekly participation through being called upon to address the class for certain modules as well as (3) modular study guide assignments. Missing mandatory weekly participation assignments is the equivalent of being not prepared in class and will result in a zero for that assignment. Not turning in study guide assignments will result in a zero for that assignment.

V. EVALUATION OF STUDENT PERFORMANCE

Grades will be determined through a combination of factors, as follows:

final exam – 50%;

weekly study guide assignments – 25%

weekly participation – 25%
VI. REQUIRED TEXTS

Electronic texts edited and authored by the Instructor, supplemented by reference materials. Reference materials will include source materials and secondary materials.
VII. REFERENCE MATERIAL

Reference material will be drawn and accessed from Internet enabled databases. These databases are already part of the database collection provided to all students in the LLM program.

BNA tax materials

CCH tax materials

Tax Analysts

Checkpoint Tax Materials (Thomson Tax’s amalgamation of RIA, WG&L, and Gee)

Matthew Bender

Butterworths and West Indies case law

Westlaw – tax databases

Lexis – tax databases

Quicklaw – tax databases

tax journal and law review Internet enabled sites

VIII. WEEKLY SYLLABUS

1. MODULE ONE: WHAT IS A TRUST?

1.1. The various definitions of trusts.

1.2. The essence of the trust idea.

1.3. The trust as a proprietary relation.

1.4. The trust as a vertical, fiduciary relation.

1.5. The “sine-qua-non role” of property in the trust as a legal figure. (Are all trusts “substrated” in property?).

1.6. The sine-qua-non fiduciary character of the vertical relation between the trustee and the trust beneficiaries. (Are all trustees fiduciaries?)

1.7. The distinction between “property”, “ownership” and “estates”.

1.8. The role of “legal estates” and “beneficial [equitable] interest [estate]” in trust law.

1.9. The various types of “property” (“things” or “res” [Latin for “things”]) upon which the trust relationship can be imposed.

1.10. Brief historical perspective -

1.10.1. Roman law: fideicommissum;

1.10.2. Germanic: Saalman or Treuhand;

1.10.3. English: the “use”.

1.10.4. The role of the Courts of Equity.

1.11. Eleven of the principal uses of the Trust Today.

1.12. {Brief overview of issues relevant to Trusts, including in particular

1.12.1. Sui generis character of the trust relationship, i.e. trusts distinguished from other legal concepts, such as, for instance, powers and fideicommissum and usufruct respectively of Civil Law;

1.12.2. the various traditional and alternative classifications of trusts, including in particular express, implied, resulting or constructive trusts and commercial trusts;

1.12.3. the dramatis personae;

1.12.3.1. settlor;

1.12.3.2. trustee(s);

1.12.3.3. protector.

1.12.4. The formal requirements for creating a trust.

1.12.5. The essentials of a trust;

1.12.6. Legality issues.

1.12.7. Major incidents of a trustee’s fiduciary obligations and duties.

1.12.8. The stand-off between Civil and Common Law with regard to concepts of property and the impact thereof on the law of trusts;.

1.13. Trusts in Civil Law and hybrid jurisdiction such as in particular Scotland, Louisiana and South Africa, Ceylon and the Channel Islands.

1.13.1. Conflicts of laws and the Trust.

1.13.2. Rapprochement through the Hague Convention.

1.13.3. The need for and purpose of the Hague Convention.

1.13.4. The proceedings leading up to the Hague Convention.

1.13.5. Relevant, material provisions of the Convention.

1.13.6. Signature, ratification and accession.

MODULE TWO: SUI-GENERIS NATURE OF THE TRUST

1.14. Introduction.

1.15. “Nationality”?

2.1.1. The distinctive English character of the Anglo-American Trust.

2.1.2. The central position of the dichotomy “legal estate” and “beneficial estate”.

2.2. The Trust distinguished from other legal figures.

2.2.1. Contract.

2.2.2 Debt.

2.2.3 Deceased Estates

2.2.3.1 Personal Representatives and Trustees Compared.

2.3.1.1 When Personal Representatives Becomes Trustees.

2.2.4 Bailment.

2.2.5 Agency.

2.2.6 Equitable Charges .

2.2.7 Conditions and Charges.

2.3 Other Specific Issues.

2.3.1 The absence of legal personality.

2.3.2 Insolvency and bankruptcy: a brief preview of issues and perspective.

2.3.3 Personal liability: a brief preview of issues and perspective.

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MODULE THREE: CLASSIFICATION AND TYPES OF TRUSTS

3.1 Introduction.

3.2 Broad Classification.

3.2.1 Statutory.

3.2.2 Express.

3.2.3 Implied.

3.2.4 Resulting.

3.2.5 Constructive Trusts.

3.2.6 Other.

3.3 Statutory Trusts.

3.4 Express Trusts.

3.5 Implied or Resulting Trusts.

3.6 Constructive Trusts.

3.7 Simple and Special Trusts.

3.1 Simple Trusts.

3.2 Special Trusts.

3.8 Executed and Executory Trusts.

3.8.1 Executed Trusts.

3.8.2 Executory Trusts

3.9 Completely- and Incompletely- Constituted Trusts.

3.9.1 Completed Constituted Trusts.

3.9.2 Incompletely Constituted Trusts.

3.10 Fixed and Discretionary Trusts.

3.10.1 Fixed Trusts.

3.10.2 Discretionary Trusts.

3.11 Private and Public Trusts.

3.11.1 Private Trusts.

3.11.2 Public Trusts.

3.12 Commercial Trusts.

3.12.1 Introduction.

3.12.1.1 Tertium Quid (Contract, incorporation, Trust)

3.12.1.2 “Modern Business has become honey-combed with trusteeship”

3.12.1.3 Need fulfilled.

3.12.2 Categorisation.

3.12.2.1 “Holding-company” device Trusts (Cf. “Anti-trust” measures).

3.12.2.2 Voting Trusts.

3.12.2.3 “Commercial-security” device Trusts.

3.12.2.4 Equipment Trusts.

3.12.2.5 Trust Receipts.

3.12.2.6 Trading Trusts.

3.12.2.7 Employee Trusts.

3.12.2.8 Pension-Fund Trusts.

3.12.2.9 Investment Trusts -

3.12.2.9.1 Mutual Funds or Unit Trusts.

3.12.2.9.2 Real Estate Investment Trusts (REITs);

3.12.2.9.3 Oil-and-Gas-Royalty Trusts;

3.12.2.9.4 Asset-Securitisation Trusts;

3.12.2.10“Regulatory-Compliance” Trusts (“trusts created primarily for the purpose of discharging responsibilities imposed by law”) –

3.12.2.10.1Nuclear-decommissioning Trusts;

3.12.2.10.2Environmental-remediation Trusts;

3.12.2.10.3Liquidating Trusts;

3.12.2.10.4Pre-paid Funeral Trusts;

3.12.2.10.5Foreign-Insurers’ Trusts;

3.12.2.10.6Law-office Trust Account;

3.12.3 “Remedial Trusts” (“Trusts created to settle or resolve disputes in judicial or administrative proceedings”).

3.12.4 Miscellaneous Commercial Uses of Trusts.

3.13 New Classifications of Trusts?

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MODULE FOUR: DRAMATIS PERSONAE

4.1 Introduction

4.1.1 Settlor.

4.1.2 Trustee(s).

4.1.3 Trust Beneficiary/ies.

4.1.4 Protector(s).

4.2 Disqualification Issues (to what extent is any one participant permitted to wear more than one hat?)

4.3 Rights and obligations of respectively -

4.3.1 Settlor;

4.3.2 Trustee;

4.3.3 Trust Beneficiary’s –

4.3.3.1 right to information;

4.3.3.2 right to compel compliance with trust instrument;

4.3.3.3 quasi-derivative action against third-party wrongdoers?

4.3.4 Protector.

4.4 The sui generis nature of the trust beneficiary’s interest in the trust property –

4.4.1 under the Common Law;

4.4.2 under the Civil Law.

4.5 Categorisation -

4.5.1 The traditional equitable-interest/estate foundation.

4.5.2 The jus in personam and jus in rem debate.

4.5.3 The “Latinisms-must-go” approach.

4.5.4 The traditional equitable-interest/estate approach under scrutiny.

4.5.5 An alternative restatement.

4.6 Personal liability of Dramatis Personae -

4.6.1 Settlor;

4.6.2 Trustee;

4.6.3 Trust beneficiaries.

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5 MODULE FIVE: FORMAL REQUIREMENTS FOR THE CREATION OF A TRUST, THE ESSENTIALS OF A TRUST, THE CONSTITUTION OF A TRUST AND THE LEGALITY OF THE TRUST

5.1 General.

5.1.1 Overview.

5.1.2 Fundamental seminal issues –

5.1.2.1 The distinction between the so-called “rocket” and the “rocket launcher”.

5.1.2.2 The Trust as a branch of the law of gratuitous/donative transfers or gifts.

5.1.2.3 The Trust as the child of the stipulatio alteri or the “agreement in favour of a third party”.

5.1.2.4 The general aversion in English (but not in Scots law {or in the law of some states in the USA) to the stipulatio alteri or the “agreement in favour of a third party”.

5.1.2.5 The inadequacy of the traditional theory in the case of the Commercial Trust.

5.1.3 The different formality requirements in the case of a commercial trust as “a trust that implements bargained-for exchange, in contrast to a donative transfer”.

5.1.4 A new dawn ( - “…[t]he difference between trust and a third-party beneficiary contract is largely a lawyers’ conceptualisation”).

5.2 Substantive requirements: Certainty of –

5.2.1 intention to create trust;

5.2.2 subject matter;

5.2.3 objects and administrative workability.

5.3 Formal requirements for the creation of a trust –

5.3.1 capacity to create a trust;

5.3.2 statutory requirement of writing;

5.3.3 inter vivos trust;

5.4 Post Mortem Trusts: Secret Trusts -

5.4.1 general;

5.4.2 fully secret trust;

5.4.3 half-secret trust;

5.4.4 The basis of secret trusts.

5.5 Post Mortem Trusts: Mutual Wills.

5.6 The Constitution of the Trust.

5.6.1 Introduction.

5.6.2 When will a Trust be completely constituted?

5.6.3 The distinction between Executed and Executory Trusts.

5.6.4 When a Trust is incompletely constituted, when will the beneficiaries have a contractual remedy?

5.7 The Legality of a Trust.

5.7.1 Introduction.

5.7.2 Perpetuities and accumulations.

5.7.3 Safeguarding property from creditors.

5.7.4 Safeguarding property from claims by dependants.

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MODULE SIX: MAJOR INCIDENTS OF TRUSTEES’ FIDUCIARY DUTIES

6.1 General Introduction.

6.2 Avoidance of Conflict of Interest and Duty:

6.2.1 Purchase of Trust Property by Trustees.

6.2.2 Profits Incidental to Trusteeship.

6.2.3 Competition with the Trust.

6.2.4 Gratuitous Administration of Trust.

6.3 Investment of Trust Funds:

6.3.1 The Range of Investments.

6.3.2 Duties when Investing.

6.3.3 Specific Statutory Provisions.

6.3.4 Interpretation of Investment Clauses.

6.4 Delegation by a Trustee:

6.5 Deviations from the Terms of a Trust –

6.5.1 where the beneficiaries are sui generis;

6.5.2 where the beneficiaries are not sui generis.

6.6 Trustee’s Duty of Impartiality -

6.6.1 The Rule in Allhusen v Whittell;

6.6.2 The Duty to Convert;

6.6.3 Duty to apportion;

6.6.4 The Method of Apportionment;

6.6.5 Apportionment in Relation to Leaseholds;

6.6.6 Overriding Duty to Act Fairly;

6.6.7 Proposals of Law Reform Committee;

6.6.8 Other Apportionment Instances;

6.7 The Trust Property:

6.7.1 Reduction of Trust Property into Possession;

6.7.2 Duty to Account and Give Information;

6.7.3 Distribution of Trust Property;

6.7.4 Statutory and Judicial Protection of Trustees in Respect of Distribution

6.8 Judicial Control of Trustees.

6.9 Indemnity of Trustees.

6.9.1 Indemnity against the Trust Property.

6.9.2 Indemnity Against the Beneficiary Personally.

6.10 Third Party and Trustees.

6.11 Derivative Action?

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7 MODULE SEVEN: THE STAND-OFF BETWEEN CIVIL AND COMMON LAW WITH REGARD TO THE TRUST

7.1 Introduction and General.

7.1.1 Cardinal differences between Common Law and Civil Law.

7.1.2 Basic Concepts –

7.1.2.1 Tenure, Interest, Estate, Use;

7.1.2.2 Ownership and Property.

7.2 Trusts in Civil Law: the “hybrid” jurisdictions -

7.2.1 Introduction.

7.2.2 Ceylon/Srilanka.

7.2.3 Quebec.

7.2.4 Scotland.

7.2.5 South Africa.

7.2.6 Jersey.

7.2.7 Louisiana

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8 MODULE EIGHT: TRUSTS IN THE CIVIL LAW (CONTINUED) AND IN OTHER JURISDICTIONS

8.1 The Trust in Continental Jurisdictions.

8.1.1 France.

8.1.2 Germany.

8.1.3 Italy.

8.1.4 Liechtenstein.

8.1.5 The Netherlands.

8.1.6 Spain.

8.1.7 Switzerland.

8.2 “Principles of European Trust Law”.

8.3 Other Jurisdictions

8.3.1 Japan.

8.3.2 Islamic Law.

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MODULE NINE: CONFLICTS OF LAW, THE HAGUE CONVENTION AND THE EXPORTING OF TRUSTS

9.1. Prior to the Hague Convention

9.1.1. Introduction

9.1.2. General Rules

9.1.3. Problem Areas

9.2. The Hague Convention

9.2.1. Background

9.2.2. General Introduction

9.2.3. Reasons for the Hague Convention

9.2.4. Purpose of the Hague Convention

9.2.5. Proceedings culminating in the Hague Convention

9.2.6. Material Provisions of the Hague Convention.

9.2.7. Signature, ratification and accession.

9.3 Excursus In English Law: Exporting Trusts

9.3.1 The Legacy of Exchange Control

9.3.2 Taxation

9.3.3 How Trusts are Exported

9.3.4 When Non-Resident Trustees may be appointed

9.3.5 Exporting Part of the Trust

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10 MODULE 10: JURAL/LEGAL RELATIONS , (NON-JURISTIC) ENTITIES AND JURISTIC ENTITIES

10.1 Introduction

10.1.1 The Importance of Jural or Legal Relations.

10.1.2 The Categories of Jural Relations

10.2 The Vertical or Non-Associative Relation

10.3 The Associative Lateral or Horizontal Relation

10.4 The Hierarchies of Associative Relations

10.5 Symbiosis Involving Lateral and Vertical Relations

10.6 The Error and Implications of Confusing Lateral for Vertical Relations

10.7 The Dichotomy intuitus [delectus] personae and intuitus pecuniae

10.7.1 Historical Origins and Evolution

10.7.2 The Importance and Role of the “intuitus…” Dichotomy in Associative or Horizontal Relations in associative or horizontal relations

10.8 The importance of said dichotomy as the basis for the discrete company regimes in Continental Europe.

10.9 Entities(Non-Juristic)

10.9.1 Introduction

10.9.2 Meaning

10.9.3 The “aggregate [theory]” and “[legal] entity” dichotomy debate

10.10 Entities (Juridical)

10.10.1 Introduction

10.10.2 Historical Perspectives

10.10.2.1 Roman Origins

10.10.2.2 Dichotomy Universitas Personarum and Universitas Rerum

10.10.2.3 Dichotomy “publicum” and “privatum”

10.10.2.4 Medieval law

10.10.2.5 Modern law

10.10.3 Legal or Corporate Personality and Jural or Legal Relations

10.10.3.1 Associative or horisontal relations: capable of incorporation

10.10.3.2 Non-associative or vertical relations: incapable of incorporation

10.10.3.3 Legal forms of business organisation and legal personality

10.10.3.4 Theories endeavouring to explain legal personality

MODULE 11: PARTNERSHIP: THE PARTNERSHIP IDEA AND PARTNERSHIP PROPER (INTUITU/DELECTUS PERSONAE)

11.1 Introduction and Background

11.2 General

11.3 Partnership as an Associative, Lateral or Horizontal Relationship

11.3.1 Roman Law

11.3.2 Scots Law

11.3.3 English Law

11.3.4 South African Law

11.3.5 USA Law

11.4 The Character of the inter se Associative Relation

11.4.1 Introduction

11.4.2 Scots Law

11.4.3 English Law

11.4.4 South African Law

11.4.5 USA Law

11.5 The Character of the inter se Associative Relation

11.5.1 Introduction

11.5.2 Roman Law

11.5.3 Scots Law

11.5.4 South African Law

11.5.5 U.S.A. Law

11.6 The Character of the Relation Against the World

11.6.1 Introduction

11.6.2 Roman and Civil Law

11.6.3 Scots Law

11.6.4 English Law

11.6.5 South African Law

11.6.6 U.S.A. Law

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MODULE TWELVE: PARTNERSHIP: THE PUBLIC [ISSUE] PARTNERSHIP AND JOINT STOCK COMPANIES

11.7 Introduction and Background

11.8 General: The Different Approaches in Continental, English and American Law

11.8.1 Introduction

11.8.2 Continental Europe

11.8.3 England

11.8.4 U.S.A.

11.9 The Continental Approach:

11.9.1 Introduction

11.9.2 General

11.9.3 The Dutch Company Regime before Napoleon before Napoleon

11.9.4 The Dutch Company Regime after Napoleon

11.9.5 Concluding Observations

11.10 The English Approach

11.10.1 Introduction and Background

11.10.2 General

11.10.3 The Impact of the So-called “Bubble” Act

11.10.4 The Hang-Over of the Victorian Ideal and Legislation Straightjacket

11.11 Impact of the Entry of the United Kingdom into the European Community

11.11.1 General

11.11.2 Harmonisation of Company Law

11.12 Impact of the Entry of the United Kingdom into the European Community

11.12.1 General

11.12.2 Harmonisation of Company Law

11.12.3 Directives

11.12.4 The So-called European Company

11.13 The Approach in the U.S.A.

11.13.1 Background

11.13.2 Introduction and General

11.14 The Seven Periods

11.14.1 Special Incorporation

11.14.2 General Incorporation

11.14.3 Interstate Incorporation Competition

11.14.4 Superimposed Federal Regulatory Legislation

11.14.5 State Statutory and Decisional Reform

11.14.6 Emergence of Federal Corporation Law

11.14.7 Increased Inter-State Incorporation Competition

MODULE THIRTEEN: THE PARTNERSHIP IDEA: THE COMMANDITE- PARTNERSHIP OR LIMITED LIABILITY PARTNERSHIP (INTUITUS PECUNIAE)

11.15 Background

11.16 Introduction and General

11.16.1 The Continental Experience

11.16.2 The Dutch Experience

11.16.3 General

11.16.4 Categories

11.16.5 Concluding Observations

11.17 The Belgian Experience

11.17.1 General

11.17.2 Categories

11.17.3 Concluding Observations

11.18 The French Experience

11.18.1 General

11.18.2 Categories

11.18.3 Concluding Observations

11.19 The German Experience

11.19.1 General

11.19.2 Categories

11.19.3 Concluding Observations

11.20 The English Experience

11.20.1 General

11.20.2 Categories

11.20.3 Concluding Observations

11.21 The Approach in the U.S.A.

11.21.1 General

11.21.2 Categories

11.21.3 Concluding Observations

11.22 The South African Experience

11.22.1 General

11.22.2 Categories

11.22.3 Concluding Observations

11.23 Concluding Observations

11.23.1 General

11.23.2 The Catalystic Impact of the Commandite-Partnership Idea on the Incorporated Partnership Proper

MODULE FOURTEEN: THE PARTNERSHIP IDEA: THE QUASI-PARTNERSHIP COMPANY, THE INCORPORATED PARTNERSHIP, THE CLOSE CORPORATION, THE SOCIÉTÉ À RESPONSABILITE LIMITEÉ (SARL), THE BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID (BVBA), GESELLSCHAFT MIT BESCHRÄNKTER HAFTUNG (GMBH), THE CLOSE CORPORATION IN THE U.S.A., THE CLOSE CORPORATION (CC) OR BESLOTE KORPORASIE (BK) IN SOUTH AFRICA AND THE LIMITED LIABILITY PARTNERSHIP (LLP) IN THE UNITED KINGDOM

11.24Background

11.25Introduction and General

11.25.1 The conundrum of proper definition

11.25.2 The “Discreet” “Indiscreet” Regime Debate

11.25.3 The Different Cultural Approaches

11.25.4 Public Policy and the aversion to “Limited Liability”

11.25.5 Sovereing grant of corporate status: Prerogative or “Monopoly”?

11.25.6 The Different Normative Influences and Cross Fertilisation

11.25.7 The Fertile Contribution of the Limited-Partnership Idea

11.26The European Experience

11.26.1The German Experience

11.26.2The French Experience

11.26.3The Belgian Experience

11.26.4The Dutch Experience

11.27The Anglo-American Experience

11.27.1General Introduction

11.27.2The American Experience

11.27.2.1Background

11.27.2.2Introduction

11.27.2.3The Legacy of the “Concession” Theory – The Aversion Against Contractual Arrangements

11.27.2.4The Judicial Evolution of the Incorporated Partnership

11.27.2.5The Statutory Evolution of the Close Corporation

11.27.2.5.1Background

11.27.2.5.2Introduction

11.27.2.5.3Proposals:

11.27.2.5.3.1The 1929 Proposal

11.27.2.5.3.2The 1943 Proposal

11.27.2.5.3.3The1966 Proposal

11.27.2.5.3.4The Model Close Corporation Act Proposals

11.27.2.5.4The Model Close Corporation Act

11.27.2.5.4.1General

11.27.2.5.4.2Anatomy of the Model Act

11.27.2.5.4.3Inter se Partnership Arrangements

11.27.2.5.4.4The Battery of Remedies to alleviate Overreaching, Oppression and other Forms of Unconscionable Conduct between Members

11.27.2.5.4.5Characteristic Features of the Close Corporation

11.27.2.5.5Concluding Observations

11.28The South African Experience

11.28.1Background

11.28.2Introduction and General

11.28.3The judicial evolution of the incorporated partnership (as the quasi-partnership company)

11.28.3.1 Background

11.28.3.2 General character of case-law development

11.28.4The Statutory Recognition of the Close Corporation or Beslote Korporasie

11.28.4.1 General

11.28.4.2 The 1982 Proposal for a Small Business Corporation

11.28.4.3 Midstream change of horses from Small Business Corporation to Close Corporation

11.28.4.4 The Continental, English, American and African Genesis of the South African Close Corporation or Beslote Korporasie

11.28.4.5 The Characteristic Features of the South African Close Corporation

11.28.4.6 The Anatomy of the Close Corporations Act 1984

11.28.4.7 The Shortcomings of the Close Corporations Act 1984

11.28.4.8 Comparisons between the South African Close Corporation and its European and American Counterparts

11.28.4.9 Overview and Concluding Observations

11.29The English Approach

11.29.1Background

11.29.2The Aftermath of the Bubble

11.29.3The Victoria Restrictions

11.29.4The Traditional Company Model, Mould and Strait Jacket

11.29.5Unsuccessful English Proposals Over the Years

14.12.1 Background

14.12.2 Introduction and General

14.12.3 Partnership and Limited Partnership

14.12.3.1 The 1962 Statement

14.12.3.2 The 1972 Awakening

14.14 The 1981 Green Paper (Professor G.B.A. Gower) and their position thereto

14.14.1 The 1988 Proposal for a Limited Liability Partnership

14.14.2 Breakdown

14.14.3 Introduction and General

14.14.3 The Substance of the Proposal

14.14.3 The Limited Liability Partnerships Act 2000

14.14.4 The Anatomy of the Act

14.14.5 Shortcomings of the Act

14.14.6 The Redeeming Features of the Act

14.14.7 The Characteristic Features of the Limited Liability Partnership

14.14.8 Relevant Comparisons

14.14.9 General Overview and Concluding Observations

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MODULE FIFTEEN: THE TRUST AND THE PARTNERSHIP IDEA IN SYMBIOSIS, THE JOINT STOCK COMPANY OF THE 20TH AND THE 21ST CENTURY: THE SO-CALLED BUSINESS OR TRADING TRUST (INTUITU PECUNIA) [AND]/OR INTUITU PERSONAE[?]

15.1 Introduction and General

15.2 Historical Evolution

15.2.1 English Law

15.2.2 U.S.A. Law

15.3 Partnership as a Relation

15.3.1 South African Law

15.3.2 U.S.A. Law

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MODULE 16: FOUNDATION, STIFTUNG, STICHTING AND STIGTING (UNIVERSITAS RERUM)

16.1 Introduction and Background

16.2 The Roman Precursor of the Germanic Stiftung

16.3 General: The Different Approaches In Continental, English and American Law

16.3.1 Introduction

16.3.2 Continental Europe

16.3.3 England

16.3.4 U.S.A.