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| Project Details |
| Funding Scheme : | General Research Fund | ||||||||||||||||||||
| Project Number : | 17607418 | ||||||||||||||||||||
| Project Title(English) : | Rationalising Recovery for Mistaken Transfers at Common law and in Equity? | ||||||||||||||||||||
| Project Title(Chinese) : | 如何理順普通法及衡平法下補償受錯誤影響的財產轉移？ | ||||||||||||||||||||
| Principal Investigator(English) : | Ms Lee, Rebecca Wing Chi | ||||||||||||||||||||
| Principal Investigator(Chinese) : | 李穎芝 | ||||||||||||||||||||
| Department : | Department of Law | ||||||||||||||||||||
| Institution : | The University of Hong Kong | ||||||||||||||||||||
| E-mail Address : | rebeccalee@hku.hk | ||||||||||||||||||||
| Tel : | 39172949 | ||||||||||||||||||||
| Co - Investigator(s) : |
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| Panel : | Humanities, Social Sciences | ||||||||||||||||||||
| Subject Area : | Social and Behavioural Sciences | ||||||||||||||||||||
| Exercise Year : | 2018 / 19 | ||||||||||||||||||||
| Fund Approved : | 347,200 | ||||||||||||||||||||
| Project Status : | Completed | ||||||||||||||||||||
| Completion Date : | 28-2-2021 | ||||||||||||||||||||
| Project Objectives : |
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| Abstract as per original application (English/Chinese): |
My research seeks to produce a comprehensive account of how the doctrine of mistake operates within different substantive areas of private law and whether the different rules and remedies available to relieve a mistaken transfer can be rationalised to develop a more coherent framework for the law of mistake. It examines all the private law contexts in which a mistake may arise. The research is doctrinal and comparative in approach, and will contribute significantly to our understanding of the policy goals of different areas of law, of the interaction between law and equity, and of the possibility of postulating a rational and coherent law of mistake.
此研究旨在全面闡述錯誤原則於不同私法領域中的運用，以及理順受錯誤影響的財產轉移之不同規則和濟助的可能性。錯誤在私法背景下如何產生亦會被探討。此研究將以原則性和比較性角度顯著地增進我們對不同法律領域的政策目標、普通法與衡平法的相互影響及擬定一個合理和連貫的錯誤原則的可能性的認知。 |
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| Realisation of objectives: | Objective 1: I carried out research on the doctrine of mistake in Contract Law in major Common Law jurisdictions (including Hong Kong, England and Singapore). Several recent high-profile mistake cases were also examined. A book chapter will be published by an international publisher in due course following an international conference on the subject. Objective 2: I carried out research to study the equitable and statutory doctrine of mistake and its role in relieving trustees’ mistakes in tax planning in major offshore jurisdictions including Jersey and Cayman Islands. Specifically, I reviewed how offshore jurisdictions have received the doctrine of equitable mistake in the post-Pitt v Holt era, including the requirements for pleading mistake, the relevance of the doctrine of unconscionability. An inventory of materials has been collected. Objective 3: I applied the research findings from Objectives 1 and 2 to examine the interaction between the operation of mistakes in different areas of private law, focusing on how the rules of mistake operate in different settings. I analysed the role, function and operation of mistake in different private law areas. Specifically, in the context of trusts and succession, I considered the English and offshore cases where mistakes have occurred in aggressive tax avoidance schemes and their impact on freedom of testation in trusts. Further, given that the doctrine of mistakes in equity is able to absolve trustees from the consequences of even gross negligence (which is considered to be not inconsistent with the trustee’s core obligations), I also examined the irreducible core of obligations owed by the trustees to the beneficiaries which is fundamental to the concept of a trust. Objective 4: I applied the research findings to determine the impact of the above developments on the prospects for the development of a rational and coherent mistake framework. Whilst I have considered the possibility of a unified approach to the doctrines of mistake for the equitable jurisdiction for voluntary dispositions and unjust enrichment on the basis of the policy of protection of autonomy by relieving transferors of the consequences of vitiated consent, I note the difficulties of a unified approach for contract and unjust enrichment because of the different levels of risk-taking involved in contractual bargains vis a vis gifts which suggests that contractual bargains should not be easily set aside compared to gifts. I was unable to fully utilise the research funding, largely because of the inability to spend the funding on conference expenses. My research project coincided with extended periods of disruptions and travel bans caused by the territory-wide social unrest in 2019 and the covid-19 pandemic since 2020. As a result, many all my scheduled conference trips were cancelled. The research findings were presented in international conferences (mostly online), and have been / will be published in 1 journal article and 2 book chapters. The book chapters were invited participation in book projects based on high-level academic conferences participated by eminent academics in the field and published with prestigious academic press in Law. Publication of the book chapters, which involved coordination by the editors with contributors from other jurisdictions, was delayed because of the Covid-19 pandemic. | ||||||||||||||||||||
| Summary of objectives addressed: |
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| Research Outcome | |||||||||||||||||||||
| Major findings and research outcome: | I have made the following theoretical findings about this area of law as follows :- (1) Hong Kong courts have gone even further than their English counterparts in entrenching a restrictive doctrine of mistake in contract law to ensure commercial certainty and protection of freedom of contract. (2) Since Pitt v Holt; Futter v Futter, both the English and offshore courts have viewed aggressive trust planning and tax avoidance schemes with great circumspection. The court’s attitude on mistakes in tax planning will impose limits on freedom of testation in trusts and succession law. (3) Given that the doctrine of mistakes in equity is able to absolve trustees from the consequences of even gross negligence (which is considered to be not inconsistent with the trustee’s core obligations), the irreducible core of obligations owed by the trustees to the beneficiaries which is fundamental to the concept of a trust should be redefined. Specifically, insofar as professional trustees are concerned, the duty to act honestly and in good faith should entail a duty to perform the trust honestly on an objective standard and in good faith which, in particular, requires him to not act gross negligently. This would have an impact on whether trustees should be relieved for gross negligence mistakes in tax planning. (4) The prospects for the development of a rational and coherent mistake framework should be re-assessed. In view of the different policy goals of the different areas of private law, it would be difficult to have a unified doctrine of mistake. Rather, a sliding but coherent scale of difficulty in setting aside transactions on the ground of mistakes could be considered. I attended several international conferences to disseminate the research findings. I was able to publish 3 journal article/book chapters as stated in the objectives. | ||||||||||||||||||||
| Potential for further development of the research and the proposed course of action: |
N/A | ||||||||||||||||||||
| Layman's Summary of Completion Report: | My research project examined the major private law contexts in which a mistake may arise. It showed that there were different policy goals in different areas of law. For example, the need to ensure commercial certainty and protection of freedom of contract; the need to impose limits on freedom of testation to avoid abuse of the doctrine in correcting mistakes in tax planning; the need to delineate the irreducible core duties of the trustees to ensure trustees are not absolved from all instances of mistakes. These research findings led to the conclusion that, given the variety of policy goals underlying the doctrine of mistake in different areas of private law, a unified doctrine of mistake may be difficult, but rather a coherent sliding scale of difficulty in setting aside transactions on the ground of mistake may be considered. My research led to the publication of conference papers, book chapters and journal article which has enriched the intellectual debate both locally and internationally. | ||||||||||||||||||||
| Research Output | |||||||||||||||||||||
| Peer-reviewed journal publication(s) arising directly from this research project : (* denotes the corresponding author) |
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| Recognized international conference(s) in which paper(s) related to this research project was/were delivered : |
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| Other impact (e.g. award of patents or prizes, collaboration with other research institutions, technology transfer, etc.): |
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| SCREEN ID: SCRRM00542 |