'Some Varieties of Consent in Equity: Enhancing or Protecting Autonomy?'

Seminar/Forum

'Some Varieties of Consent in Equity: Enhancing or Protecting Autonomy?'

Room 608, level 6
Melbourne Law School
185 Pelham Street

Map

More information

T: 8344 8924

esther.taylor@unimelb.edu.au

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.

Presenter

  • Professor Simone Degeling
    Professor Simone Degeling, University of New South Wales