The Varieties of Consent in Equity: Enhancing or Protecting Autonomy?

Lunchtime Seminar

Presented by Professor Simone Degeling

This paper considers the nature and content of the consent of the principal or claimant in particular equitable domains where it seems that such parties enjoy a limited or bounded ability to make decisions. These domains include the case of a trustee and beneficiary, or fiduciary and principal, since in each case the trustee or fiduciary holds factual or legal decision making power to be exercised for the ends of the object of that power. Of interest are equity’s requirements for obtaining the consent of the beneficiary or principal to a breach of duty by the trustee or fiduciary. This paper similarly considers equitable relief for undue influence and unconscionability, since the consent of the principal or claimant is structurally insinuated into each of these claims in which the claimant has a constrained ambit of decision making. We observe that in determining whether or not the claimant has consented, for example to a breach of duty or a transfer of value, equity examines the antecedent conditions to the claimant’s consent. Equity is concerned with the situation in which the claimant finds herself, the context framing the apparent consent, in order to determine whether or not the claimant will be bound by that consent. This chapter argues that in this limited sphere, equity operates to recognise and protect the autonomy of the claimant. This observation has consequences for delineating those circumstances in which a court may authorise breach of duty.

Simone Degeling is a Professor of Law at the University of New South Wales. Professor Degeling's primary research interests are private law and its internal structures and architecture. Professor Degeling's particular expertise lies in the law of unjust enrichment, the law of equity and the law of remedies. Within unjust enrichment scholarship, she has done extensive work on policy motivated unjust factors and the intersections between unjust enrichment and tort. Professor Degeling uses both doctrinal and theoretical approaches to inform her work.