INTRODUCTION
Trustees, particularly express trustees, are subject to an extensive array of duties in the performance of trust. These duties include the fiduciary duties as well as a range of other duties which specifically apply to a trustee in the performance of a trust. Some of these other duties, particularly the trustee's duty to observe the terms of the trust, the trustee's duty of care in the management of trust affairs and the trustee's duty to act impartially, are not regarded as fiduciary duties. Moreover the equitable duty of care is considered to be distinct from the common law duty of care in so far as it is formulated to take into account the fiduciary obligation of trustees to act in the best interests of beneficiaries. Trustees may also be subject to a fiduciary obligation to act in the best interest of the beneficiaries in exercise of their powers. This chapter therefore provides an analysis of the main duties owed by trustees apart from their core fiduciary duties. An examination is made of the trustee's duty to carry out the terms of the trust, the trustee's duty of care, the trustee's duty to administer the trust affairs impartially and fairly and the trustee's duty in exercise of powers to perform the trusts honestly and in good faith for the benefit of the beneficiaries.
Monday, June 8, 2009
Decrees relating to marriage - Divorce
DIVORCE
The ground for divorce and the five facts
Under the Matrimonial Causes Act 1973 (M.C.A.) there is only one ground for divorce:
the petitioner must establish that the marriage has irretrievably broken down (s.1(1) of the M.C.A.). However, the court cannot grant a divorce unless the petitioner also proves one of the five facts, as referred to in S.1(2) of the M.C.A.
The five facts are:
(a) that the respondent has commited adultery and the petitioner finds it intolerable to live with him;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him;
(c) that the repondent has deserted the petitioner for a period of at least two years immediately preceding the presentation of the petition;
(d) that the parties have lived apart for a continuous period of at least two years immediately preceding the presentaton of the petition and the respondent consents to a degree being granted; and
(e) that the parties have lived apart for a period of at least five years immediately preceding the presentation of the petition.
It must be emphasised that even if the court reaches the conclusion that the marriage has irretrievably broken down, a decree cannot be granted unless the petitioner also proves one of the five facts (see , for example, Chilton v Chilton (CA 1990)).
However, proof of one of the five facts does not conclusively establish irretrievable breakdown: the court can still refuse a decree if it is satisfied that the marriage has not irretrievably broken down (s.1(4) of the M.C.A.) However, the petitioner need not prove that the fact established caused the irretrievable breakdown.
It should be noted that by s.3 of the M.C.A. no petition for divorce can be filed until the parties have been married for one year. This is an absolute bar to divorce; the court has no discretion to waive this requirement. Nevertheless, a divorce petition filed at any time after this period may include references to matters or events arising or occurring during this period.
The ground for divorce and the five facts
Under the Matrimonial Causes Act 1973 (M.C.A.) there is only one ground for divorce:
the petitioner must establish that the marriage has irretrievably broken down (s.1(1) of the M.C.A.). However, the court cannot grant a divorce unless the petitioner also proves one of the five facts, as referred to in S.1(2) of the M.C.A.
The five facts are:
(a) that the respondent has commited adultery and the petitioner finds it intolerable to live with him;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him;
(c) that the repondent has deserted the petitioner for a period of at least two years immediately preceding the presentation of the petition;
(d) that the parties have lived apart for a continuous period of at least two years immediately preceding the presentaton of the petition and the respondent consents to a degree being granted; and
(e) that the parties have lived apart for a period of at least five years immediately preceding the presentation of the petition.
It must be emphasised that even if the court reaches the conclusion that the marriage has irretrievably broken down, a decree cannot be granted unless the petitioner also proves one of the five facts (see , for example, Chilton v Chilton (CA 1990)).
However, proof of one of the five facts does not conclusively establish irretrievable breakdown: the court can still refuse a decree if it is satisfied that the marriage has not irretrievably broken down (s.1(4) of the M.C.A.) However, the petitioner need not prove that the fact established caused the irretrievable breakdown.
It should be noted that by s.3 of the M.C.A. no petition for divorce can be filed until the parties have been married for one year. This is an absolute bar to divorce; the court has no discretion to waive this requirement. Nevertheless, a divorce petition filed at any time after this period may include references to matters or events arising or occurring during this period.
Trust your Instincts - but Do Your Homework (JD Spooner)
I STRONGLY BELIEVE IN EYES-AND-EARS INVESTING, as popularized by Peter Lynch*(1). And I would much rather do my own research on companies, independent from what management of the companies(if you can talk with them) tell you.
Most often, CEOs of public companies are cheer leaders for their own regimes. They want to tell you optimistic news because they desperately want their predictions to come true. Many of my biggest mistakes have come from being too close to mangement, Most of what CEOs have told me over the years represented wishful thinking on their part. Once, a president of a direct-mail company told me, "We're going to be a $100 stock." The company was selling for $8. He was offended when I said to him, "I settle for $20."
"You've got no vision, son," he said. "That's why you're a stockbroker and I run my own business." I went to the parking lot after seeing the president, and pulling in next to my car were two employees in a company station wagon. "I manage people's money," I said to them. "And I'm thinking about buying stock in your corporation. How do you like working here?"
The first employee said, "They treat us like mushrooms in this company."
"Yeah," said the second employee, "kept in the dark and covered with shit."
"Mangement grabs with both hands," added the first. "Not much trickles down to us. I'd sell it short if I were you."
Often you tend to get misinformation from both management and employees. The boss is only optimistic. The workers see only the warts. Same company, but often widly dissimilar observations.
When I get a chance to talk to management, I always seek out an employee ot two to see the other side of the coin. It helps me make a better evaluation of investment possibilities.
Have you noticed articles in magazines and newspapers in the last several years about the so-called paperless society? Like world peace and loving your neighbour, this is a dream that is probably unreachable. When I was talking to a thoughtful friend about this subject, he said to me, "Do you know about Iron Mountain?"
"Is it a novel by Thomas Mann*(2)?"
He looked down his nose at me. "It's the largest records management storage business in America." Iron Mountain*(3) is indeed that, with revenues exceeding $400 million a year.
I came back from lunch with my friend that day and found an intern in my office sitting at a desk surrounded by annual reports stacked so high they almost obscured him from view. "what the hell is this?" I asked my crew.
"Oh, a new rule," they said. "Any company we invest in, we have to keep the annual reports on file for five years."
"That's ridculous," I said. They shrugged, used to my railings against bureacracy. But go to any law firm or corporate office or hospital. They are drowning in paper. So much of this volume has to be saved for X numbers of years, a requirement of the IRS and other government agencies. Iron Mountain fills extraordinary need in today's society. Companies and individuals have their files and documents picked up by the storage company, and they pay rent every month while the paper continues to mount. What about microfilming everything? This solution is years away from being practical. Meanwhile, Iron Mountain continues to buy up storage companies around the country, and abroad, growing by acquisition, installing its systems, and quietly buiding an empire.
I would see the Iron Mountain trucks on the streets of my city. Several times I stopped to talk with the drivers. "How long have you worked for the company?" I ask them. "How do they treat their employees?" In all cases, I got wonderful reports about the decency of management and the hard-working ethic they fostered. The trucks were always spotlessly clean as well, as contrasted with one of their competitors. (I do like to invest in companies where there seems to be pride reflected in what they do.) I bought the stocks mostly in the low teens. It now sells at $30. The reasons I bought it originally are just as compelling today.
This example shows how important it is for you to watch for society-wide trends to develop into new investment opportunities - and how it's equally important to do your own research in checking them out.
*(1)Peter Lynch (born January 19, 1944(1944-01-19)) is a Wall Street stock investor. He is currently a research consultant at Fidelity Investments. Lynch graduated from Boston College in 1965 and earned a Master of Business Administration from the Wharton School of the University of Pennsylvania in 1968. He is not related to Edmund C. Lynch, the co-founder of Merrill Lynch.
*(2) Paul Thomas Mann (6 June 1875 – 12 August 1955) was a German novelist, short story writer, social critic, philanthropist, essayist, and 1929 Nobel Prize laureate, known for his series of highly symbolic and ironic epic novels and novellas, noted for their insight into the psychology of the artist and the intellectual. His analysis and critique of the European and German soul used modernized German and Biblical stories, as well as the ideas of Goethe, Nietzsche, and Schopenhauer.
His older brother was the radical writer Heinrich Mann, and three of his six children, Erika Mann, Klaus Mann and Golo Mann, also became important German writers.
When Hitler came to power in 1933, the anti-fascist Mann fled to Switzerland. When World War II broke out in 1939, he emigrated to the United States, from where he returned to Switzerland in 1952.
*(3)Iron Mountain Inc NYSE: IRM, founded in 1951, is a company whose headquarters are located in Boston, Massachusetts. It offers records management, information destruction and data backup services to more than 120,000 customers throughout North America, Europe, Latin America and Asia. Iron Mountain is a component of the S&P 500 Index.
Most often, CEOs of public companies are cheer leaders for their own regimes. They want to tell you optimistic news because they desperately want their predictions to come true. Many of my biggest mistakes have come from being too close to mangement, Most of what CEOs have told me over the years represented wishful thinking on their part. Once, a president of a direct-mail company told me, "We're going to be a $100 stock." The company was selling for $8. He was offended when I said to him, "I settle for $20."
"You've got no vision, son," he said. "That's why you're a stockbroker and I run my own business." I went to the parking lot after seeing the president, and pulling in next to my car were two employees in a company station wagon. "I manage people's money," I said to them. "And I'm thinking about buying stock in your corporation. How do you like working here?"
The first employee said, "They treat us like mushrooms in this company."
"Yeah," said the second employee, "kept in the dark and covered with shit."
"Mangement grabs with both hands," added the first. "Not much trickles down to us. I'd sell it short if I were you."
Often you tend to get misinformation from both management and employees. The boss is only optimistic. The workers see only the warts. Same company, but often widly dissimilar observations.
When I get a chance to talk to management, I always seek out an employee ot two to see the other side of the coin. It helps me make a better evaluation of investment possibilities.
Have you noticed articles in magazines and newspapers in the last several years about the so-called paperless society? Like world peace and loving your neighbour, this is a dream that is probably unreachable. When I was talking to a thoughtful friend about this subject, he said to me, "Do you know about Iron Mountain?"
"Is it a novel by Thomas Mann*(2)?"
He looked down his nose at me. "It's the largest records management storage business in America." Iron Mountain*(3) is indeed that, with revenues exceeding $400 million a year.
I came back from lunch with my friend that day and found an intern in my office sitting at a desk surrounded by annual reports stacked so high they almost obscured him from view. "what the hell is this?" I asked my crew.
"Oh, a new rule," they said. "Any company we invest in, we have to keep the annual reports on file for five years."
"That's ridculous," I said. They shrugged, used to my railings against bureacracy. But go to any law firm or corporate office or hospital. They are drowning in paper. So much of this volume has to be saved for X numbers of years, a requirement of the IRS and other government agencies. Iron Mountain fills extraordinary need in today's society. Companies and individuals have their files and documents picked up by the storage company, and they pay rent every month while the paper continues to mount. What about microfilming everything? This solution is years away from being practical. Meanwhile, Iron Mountain continues to buy up storage companies around the country, and abroad, growing by acquisition, installing its systems, and quietly buiding an empire.
I would see the Iron Mountain trucks on the streets of my city. Several times I stopped to talk with the drivers. "How long have you worked for the company?" I ask them. "How do they treat their employees?" In all cases, I got wonderful reports about the decency of management and the hard-working ethic they fostered. The trucks were always spotlessly clean as well, as contrasted with one of their competitors. (I do like to invest in companies where there seems to be pride reflected in what they do.) I bought the stocks mostly in the low teens. It now sells at $30. The reasons I bought it originally are just as compelling today.
This example shows how important it is for you to watch for society-wide trends to develop into new investment opportunities - and how it's equally important to do your own research in checking them out.
*(1)Peter Lynch (born January 19, 1944(1944-01-19)) is a Wall Street stock investor. He is currently a research consultant at Fidelity Investments. Lynch graduated from Boston College in 1965 and earned a Master of Business Administration from the Wharton School of the University of Pennsylvania in 1968. He is not related to Edmund C. Lynch, the co-founder of Merrill Lynch.
*(2) Paul Thomas Mann (6 June 1875 – 12 August 1955) was a German novelist, short story writer, social critic, philanthropist, essayist, and 1929 Nobel Prize laureate, known for his series of highly symbolic and ironic epic novels and novellas, noted for their insight into the psychology of the artist and the intellectual. His analysis and critique of the European and German soul used modernized German and Biblical stories, as well as the ideas of Goethe, Nietzsche, and Schopenhauer.
His older brother was the radical writer Heinrich Mann, and three of his six children, Erika Mann, Klaus Mann and Golo Mann, also became important German writers.
When Hitler came to power in 1933, the anti-fascist Mann fled to Switzerland. When World War II broke out in 1939, he emigrated to the United States, from where he returned to Switzerland in 1952.
*(3)Iron Mountain Inc NYSE: IRM, founded in 1951, is a company whose headquarters are located in Boston, Massachusetts. It offers records management, information destruction and data backup services to more than 120,000 customers throughout North America, Europe, Latin America and Asia. Iron Mountain is a component of the S&P 500 Index.
Reading
The main types of reading are:
(1) the quick-reference type to obtain specific information, to answer questions and to follow directions;
(2) the study type (including analytical, critical reading) to master ideas or principles and to organise, interpret, and evaluate facts; and
(3) the aesthetic type (including leisure-time, recreational reading) to derive immediate enjoyment and appreciation.
This chapter offers suggestions for improvement in these types of reading:
PREPARATION FOR READING
The efficient reader has formed the habit of making systematic preparations for reading. He considers alternative, decides what to read and for what purpose, and constructs a plan to which he adheres. Systematic plaing and a firm schedule are necessary. If you decide to read only portions of a book, make sure to select all the important parts and any other helpful to clear understanding, and remember that most books must be read thoroughtly, not as scattered "bits and patches". Frequently, the meaning of one passage will be colored by ideas set forth in preceding passages.
Before starting to read, ask yourself these preliminary questions: Is the material worth much time, or should you merely overview or skim through it? What questions do you expect the book to answer? What did the author have in mind, and for whom did he write the material? Should you read it immediately or later? What assumptions or preconceptions have you formed about the subject matter? Read a few paragraphs aloud to ascertain the author's approach and style. Anticipate difficulties you may encounter in read his discussion. If you decide to study the material in detail, set aside enough time for this purpose and discipline yourself to avoid distractions.
Time Allotment. Inefficient readers tend either (1) to read a single topic for many hours without respite, resulting in boredom and uncritical interpretation, or (2) to hurry through the material with poor comprehension .
Avoid both extremes. If you concentrate on the material over a long period but feel that you are not making satisfactory progress, change to some other type of subject or activity for awhile, and then go back to it for a second attempt. Even then, however, do not mistake partial for thorough mastery; do not assume that you have learned a subject in depth because you have read and reread a book quickly from begining to end. Check, recheck, and react to the author's central themes and ideas. Divide reading material into logical sections and review each section critically as often as necessary before going on to the next.
(1) the quick-reference type to obtain specific information, to answer questions and to follow directions;
(2) the study type (including analytical, critical reading) to master ideas or principles and to organise, interpret, and evaluate facts; and
(3) the aesthetic type (including leisure-time, recreational reading) to derive immediate enjoyment and appreciation.
This chapter offers suggestions for improvement in these types of reading:
PREPARATION FOR READING
The efficient reader has formed the habit of making systematic preparations for reading. He considers alternative, decides what to read and for what purpose, and constructs a plan to which he adheres. Systematic plaing and a firm schedule are necessary. If you decide to read only portions of a book, make sure to select all the important parts and any other helpful to clear understanding, and remember that most books must be read thoroughtly, not as scattered "bits and patches". Frequently, the meaning of one passage will be colored by ideas set forth in preceding passages.
Before starting to read, ask yourself these preliminary questions: Is the material worth much time, or should you merely overview or skim through it? What questions do you expect the book to answer? What did the author have in mind, and for whom did he write the material? Should you read it immediately or later? What assumptions or preconceptions have you formed about the subject matter? Read a few paragraphs aloud to ascertain the author's approach and style. Anticipate difficulties you may encounter in read his discussion. If you decide to study the material in detail, set aside enough time for this purpose and discipline yourself to avoid distractions.
Time Allotment. Inefficient readers tend either (1) to read a single topic for many hours without respite, resulting in boredom and uncritical interpretation, or (2) to hurry through the material with poor comprehension .
Avoid both extremes. If you concentrate on the material over a long period but feel that you are not making satisfactory progress, change to some other type of subject or activity for awhile, and then go back to it for a second attempt. Even then, however, do not mistake partial for thorough mastery; do not assume that you have learned a subject in depth because you have read and reread a book quickly from begining to end. Check, recheck, and react to the author's central themes and ideas. Divide reading material into logical sections and review each section critically as often as necessary before going on to the next.
Bacon, Of Studies
Studies serve for delight, for ornament, and for ability. Their cheif use for delight is in privateness and retiring; for ornament, is in discourse; and for ability, in the judgment and disposition of business. For expert men can execute, and perhaps judge of particulars, one by one; but the general counsels, and the plots and marshalling of affairs, come best from those that learned. To spend too much time in studies is sloth; to use them too much for ornament is affectation; to make judgment wholly by their rules is the humor of a scholar. They perfect nature, and are perfected by experience: for natural abilities are like natural plants, that need pruning by study; and studies themselves do give forth directions too much at large, except they be bounded in by experience.
Crafty men contemn studies; simple men admire them; and wise men use them: for they teach not their own use; but that is a wisdom without them and above them, won by observation.
Histories make men wise; poets witty; mathematics subtile; natural philosophy deep; moral grave; logic and rhetoric able to contend....
There is no stond or impediment in the wit, but may be wrought out by fit studies: like as diseases of the body may have appropriate exercises.
Crafty men contemn studies; simple men admire them; and wise men use them: for they teach not their own use; but that is a wisdom without them and above them, won by observation.
Histories make men wise; poets witty; mathematics subtile; natural philosophy deep; moral grave; logic and rhetoric able to contend....
There is no stond or impediment in the wit, but may be wrought out by fit studies: like as diseases of the body may have appropriate exercises.
Cicero, De Officiis, I, 7
Private ownership does not derive from nature. Property becomes private either through long occupancy (such with people who settled an unoccupied territory long ago), or who through conquest (as in the case of land taken in war), or by due process of law, barter, or alloment.
Sunday, June 7, 2009
Aristotle, Politics, 1263a38
Property should be private, but the use of it common; and the special business of the legislator is to create in men this benevolent disposition.... How immeasuarably greater is the pleasure, when a man feels a thing to be his own; for surely the love of self is implanted by nature and not given in vain, although selfishness is rightly censured; this, however, is not the mere love of self, but the love of self in excess, like the miser's love of money; for all, or almost all, men love money and other such objects in a measure. And further, there is the greatest pleasure in doing a kindness or service to friends or guests or companions, which can only be rendered when a man has private property. These advantages are lost by execessive unification of the state. The exhibition of two virtues, besides, is visibly annihilated in such a state: first, temperance towards women (for it is an honourable action to abstain from another's wife for temperance sake); secondly, liberality in the matter of property. No one, when men have all things in common, will any longer set an example of liberality or do any liberal action; for liberality consists in the use which is made of property. Such legislation may have a specious appearance of benevolence; men readily listen to it, and are easily induced to believe that in some wonderful manner everybody will become everybody's friend, especially when someone is heard denoucing the evils now existing in states, suits about contracts, convictions for perjury, flatteries of rich men and the like, which are said to arise out of the possession of private property. These evils, however, are due to a very different cause - the wickedness of human nature. Indeed, we see that there is much more quarrelling among those who have all things in common, though there are not many of them when compared with the vast numbers who have private property.
Saturday, June 6, 2009
Your "Stake in Life" Stock
You could accumulate great wealth if you bought the best companies and held them, if you did not trade them in for other merchandise.
Refining this further, I believe that to structure the ideal financial life you should identify, as early in your working life as possible, one or two more companies that you believe in for the future. I don't care what they should share certain characteristics:
Refining this further, I believe that to structure the ideal financial life you should identify, as early in your working life as possible, one or two more companies that you believe in for the future. I don't care what they should share certain characteristics:
- They should have universal, global appeal like GE, or Gillette, or McDonalds.
- They should have instant name brand identification like Coca Cola or Microsoft.
- They should have products or services that you dispassionately believe will continue to be in demand for years to come; they should be products or services that you and your family find special eben over the long run.
Start to buy one of your choices, even in smal amounts, through stock discounters so that it is a low-cost enterprise. Have the dividends reinvested in stock if you can. Treat this exercise like a savings account, by adding the same amount every month, or on a special date like a birthday. What you want here, as with prune juice, is regularity.
Every time the stock goes down 15 or 20 percent (and there will be plenty of times like that over the years), buy more. This takes discipline. And the smartest among you, when you encounter these dips in the market, will shout, "Hooray! Now I can add to my stake in life company at bargain prices!"
Your stake in life stock is not for sale, unless some predator take its off your hands in a buyout, But by then, it will undoubtedly be a long-term capital gain - and you can being your hunt for the next gem. A very few stake in life stocks should form the core of your holdings. Everything else builds around this core: bonds, preferred stocks, the common stocks you will buy and sell at various times.
Of course, the more of something you hold, the higher the risk. But as a wealth-building strategy, concentration over time, with well thought out companies, can set you free.
A Sample Test for Holding a Stock
I have a simple test for the ownership of all stocks:
Can you give me three good reasons why you own the company?
Use this discipline yourself.
Can you give three reasons why you own a stock?
If not, you had better question why it's still in your portfolio.
Can you give me three good reasons why you own the company?
Use this discipline yourself.
Can you give three reasons why you own a stock?
If not, you had better question why it's still in your portfolio.
Specification of the Mathematical Model of Consumption
Althoug Keynes postulated a positive relationship between consumption and income, he did not specify the precise form of the functional relationship between the two. For simplicity, a mathematical economist might suggest the following form of the Keynesian consumption function:
Y = B1 + B2 X 0< B2 <1
where Y = consumption expenditure and X = income, and where B1 and B2, known as the parameters of the model are, respectively, the intercept and slope coefficients.
The slope coefficient B2 measures the MPC. This equation, which states that the consumption is linearly related to income, is an example of a mathematical model of the relationship between consumption and income that is called the consumption function in economics. A model is simply a set of mathematical equations. If the model has only one equation, as in the preceeding example, it is called a single-equation model, whereas if it has more than one equation, it is known as a multiple-equation model.
The variable appearing on the left side of the equality sign is called the dependent variable and the variable (s) on the right side are called the independent, or explanatory, variable (s). Thus, in the Keynesian consumption function, consumption (expenditure) is the dependent variable and income is the explanatory variable.
Y = B1 + B2 X 0< B2 <1
where Y = consumption expenditure and X = income, and where B1 and B2, known as the parameters of the model are, respectively, the intercept and slope coefficients.
The slope coefficient B2 measures the MPC. This equation, which states that the consumption is linearly related to income, is an example of a mathematical model of the relationship between consumption and income that is called the consumption function in economics. A model is simply a set of mathematical equations. If the model has only one equation, as in the preceeding example, it is called a single-equation model, whereas if it has more than one equation, it is known as a multiple-equation model.
The variable appearing on the left side of the equality sign is called the dependent variable and the variable (s) on the right side are called the independent, or explanatory, variable (s). Thus, in the Keynesian consumption function, consumption (expenditure) is the dependent variable and income is the explanatory variable.
Statement of Theory or Hypothesis
Keynes stated:
The fundamental psychological law... is that men [women] are disposed, as a rule and on average, to increase their consumption as their income increases, but not as much as the increase as the increase in their income*.
The fundamental psychological law... is that men [women] are disposed, as a rule and on average, to increase their consumption as their income increases, but not as much as the increase as the increase in their income*.
In short, Keynes postulated that the marginal propensity to consume (MPC), the rate of change of consumption for a unit (say, a dollar) change in income, is greater than zero but less than 1.
*John Maynard Keynes, The General Theory of Employment, Interest and Money, Harcourt Brace Jovanovich, New York, 1963, pg.96